United States v. Sergeant ALAN A. GALEANA ( 2016 )


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  •                                 CORRECTED COPY
    UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    MULLIGAN, HERRING, and BURTON
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Sergeant ALAN A. GALEANA
    United States Army, Appellant
    ARMY 20140799
    Headquarters, 8th Army
    Mark A. Bridges, Military Judge
    Colonel Craig A. Meredith, Staff Judge Advocate
    For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Amanda R. M.
    Williams, JA (on brief).
    For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A. G. Courie III,
    JA; Major Steven J. Collins, JA; Captain Anne C. Hseih, JA (on brief).
    25 April 2016
    ----------------------------------
    SUMMARY DISPOSITION
    ----------------------------------
    Per Curiam:
    A military judge sitting as a general court-martial convicted appellant,
    pursuant to his pleas, of violating a lawful general regulation and two specifications
    of assault consummated by battery, in violation of Articles 92 and 128 Uniform
    Code of Military Justice, 
    10 U.S.C. §§ 892
    , 928 (2012) [hereinafter UCMJ]. The
    military judge sentenced appellant to a bad-conduct discharge, confinement for three
    months, and a reduction to the grade of E-1. The convening authority approved the
    findings and sentence as adjudged.
    GALEANA—ARMY 20140799
    This case is before us for review pursuant to Article 66, UCMJ. Appellant
    raises five assignments of error, only one which requires discussion and relief. 1
    Appellant alleges the military judge erred by failing to dismiss Specification 1 of
    Charge II as an unreasonable multiplication of charges with Specification 2 of
    Charge II, both alleging an assault consummated by battery. Finding some merit in
    this assignment of error, we will grant appropriate relief in our decretal paragraph.
    BACKGROUND
    On 24 December 2013, appellant and several junior soldiers from his unit, to
    include Specialist (SPC) MB, attended a Christmas party at the off-post apartment of
    another soldier. Over the course of the evening, appellant and SPC MB consumed
    alcohol.
    Later in the evening or early the next morning, SPC MB retreated to a guest
    bedroom in the apartment to sleep. Appellant entered the room soon thereafter and
    proceeded to get on top of SPC MB. He then in short order touched her breasts
    through her clothing and kissed her face and neck. Appellant did not immediately
    comply with SPC MB’s request to get off of her. He finally complied when SPC MB
    began to hyperventilate. Appellant then “spooned” SPC MB and slept through the
    night.
    Appellant pleaded guilty to Charge II, alleging a violation of Article 128, and
    its two specifications, which read: 2
    Specification 1: In that [appellant], U.S. Army, did, at or
    near USAG-Yongsan, Republic of Korea, on or about 25
    December 2013, unlawfully touch [SPC MB] on her
    breasts through her clothes with is hand.
    Specification 2: In that [appellant], U.S. Army, did, at or
    near USAG-Yongsan, Republic of Korea, on or about 25
    December 2013, unlawfully kiss [SPC MB] on her face
    and neck with his mouth.
    1
    Appellant personally raised two issues pursuant to United States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982), both of which are without merit.
    2
    Specifications 1 and 2 of Charge II and Charge II initially alleged abusive sexual
    contact in violation of Article 120, UCMJ (2012). Prior to arraignment, the military
    judge granted the government’s motion to amend Charge II and the language of the
    two specifications to allege a violation of Article 128, UCMJ, consistent with the
    terms of a pretrial agreement.
    2
    GALEANA—ARMY 20140799
    Trial defense counsel did not raise an objection at trial that these two specifications
    were multiplicious or otherwise represented an unreasonable multiplication of
    charges for purposes of findings or sentence. 3
    LAW AND DISCUSSION
    “What is substantially one transaction should not be made the basis for an
    unreasonable multiplication of charges against one person.” Rule for Courts-Martial
    307(c)(4). The prohibition against unreasonable multiplication of charges
    “addresses those features of military law that increase the potential for overreaching
    in the exercise of prosecutorial discretion.” United States v. Campbell, 
    71 M.J. 19
    ,
    23 (C.A.A.F. 2011) (quoting Quiroz, 55 M.J. at 337).
    Applying the factors set forth by our superior court in Quiroz, we conclude
    that appellant’s conviction for both specifications of Charge II for assault
    consummated by battery represent an unreasonable multiplication of charges as
    applied to findings. First, although appellant raises this issue for the first time on
    appeal, we may nonetheless exercise our authority to affirm “only such findings of
    guilty and the sentence or such part or amount of the sentence, as [we] find[] correct
    in law and fact and determine[], on the basis of the entire record, should be
    approved.” Quiroz, 55 M.J. at 338 (quoting UCMJ art. 66(c)). As to the second
    factor, each specification under Charge II is aimed at the same criminal act
    involving the unlawful touching of SPC MB. Third, standing convicted of two
    separate assault offenses for what was essentially one course of conduct exaggerates
    appellant’s criminality. That is, appellant stands convicted of two offenses for what
    was essentially a single, unbroken act. An “unauthorized conviction has ‘potential
    adverse consequences that may not be ignored,’ and constitutes unauthorized
    punishment in and of itself.” United States v. Savage, 
    50 M.J. 244
    , 245 (C.A.A.F.
    1999) (quoting Ball v. United States, 
    470 U.S. 856
    , 865 (1985)). Fourth, a
    conviction for both of these specifications, in theory, increased appellant’s punitive
    exposure as it increased the maximum punishment that could be imposed by the
    court. However, this exposure was limited significantly by virtue of the terms of the
    pretrial agreement. Finally, we find no evidence of prosecutorial overreaching given
    the facts admitted at appellant’s court-martial could support a finding of guilty to
    both specifications. An overall assessment of these factors favor appellant and we
    therefore find the specifications of Charge II represent an unreasonable
    multiplication of charges.
    CONCLUSION
    The findings of guilty as to the specifications 4 of Charge II are merged and
    consolidated into a single specification under Charge II which reads as follows:
    3
    The offer for pretrial agreement did not contain a common provision to “waive all
    waivable motions.”
    4
    Corrected
    3
    GALEANA—ARMY 20140799
    The Specification:
    In that [appellant], U.S. Army, did, at or near USAG-
    Yongsan, Republic of Korea, on or about 25 December
    2013, unlawfully touch [SPC MB] on her breasts through
    her clothes with his hand and unlawfully kiss [SPC MB]
    on her face and neck with his mouth.
    The finding of guilty of Specification 2 of Charge II is set aside and
    DISMISSED. The finding of guilty of the Specification of Charge II, as
    consolidated, and the remaining findings of guilty, are AFFIRMED. 5
    We are able to reassess the sentence on the basis of the errors noted and do so
    after conducting a thorough analysis of the totality of circumstances presented by
    appellant’s case and in accordance with the principles articulated by our superior
    court in United States v. Sales, 
    22 M.J. 305
     (C.M.A. 1986) and United States v.
    Winckelmann, 
    73 M.J. 11
    , 15-16 (C.A.A.F. 2013). In evaluating the Winckelmann
    factors, we first find no change in the penalty landscape that might cause us pause in
    reassessing appellant’s sentence, as appellant’s exposure remained nonetheless
    limited well below the maximum punishment for even a single violation of Article
    128 by virtue of the pretrial agreement. Second, we note appellant elected to be
    tried by a military judge sitting alone, so we are confident the sentence would not
    have changed had the specifications of Charge II been merged at trial. Third, we
    find the merged offense captures the gravamen of appellant’s criminal conduct
    which, ultimately, stemmed from a single event involving acts closely related in
    nature and in time. Finally, based on our experience as judges on this Court, we are
    familiar with the remaining offense so that we may reliably determine what sentence
    would have been imposed at trial.
    The approved sentence is AFFIRMED. All rights, privileges, and property, of
    which appellant has been deprived by virtue of that portion of the findings set aside
    by this decision, are ordered restored.
    FOR THE COURT:
    FOR THE COURT:
    JOHN P. TAITT
    JOHN
    Chief    P. TAITT
    Deputy Clerk of Court
    Chief Deputy Clerk of Court
    5
    Corrected
    4
    

Document Info

Docket Number: ARMY 20140799

Filed Date: 4/25/2016

Precedential Status: Non-Precedential

Modified Date: 4/18/2021