****CORRECTED COPY – DESTROY ALL OTHERS****
U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32375
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UNITED STATES
Appellee
v.
Dennis D. BAILEY
Airman Basic (E-1), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 22 May 2017
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Military Judge: Shelly W. Schools.
Approved sentence: Bad-conduct discharge and confinement for 100
days. Sentence adjudged 19 November 2015 by SpCM convened at
Whiteman Air Force Base, Missouri.
For Appellant: Major Melissa Biedermann, USAF.
For Appellee: Major Meredith L. Steer, USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, SANTORO, 1 and C. BROWN Appellate Military
Judges.
Judge SANTORO delivered the opinion of the court, in which Senior
Judge MAYBERRY and Judge C. BROWN joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
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1 Judge Santoro took final action on this case prior to his retirement.
United States v. Bailey, No. ACM S32375
SANTORO, Judge:
At a special court-martial, Appellant pleaded guilty to absenting himself
from his place of duty, failure to go, consuming alcohol while under the lawful
drinking age (two specifications), disobeying an order (three specifications), re-
sisting apprehension, and disorderly conduct, in violation of Articles 86, 92, 95,
and 134, Uniform Code of Military Justice,
10 U.S.C. §§ 886, 892, 895, 934.
Officer members sentenced him to a bad-conduct discharge and confinement
for 100 days. The convening authority approved the sentence as adjudged.
Appellant raises two assignments of error: (1) three specifications are un-
reasonably multiplicious for sentencing, and (2) the military judge erred in ad-
mitting a sentencing exhibit. We disagree and affirm.
I. BACKGROUND
Appellant’s use and abuse of alcohol led to problems both on- and off-duty.
He was repeatedly late to awaken and get to his duty section. His supervisor
attempted to correct his behavior informally and, when that failed, issued him
orders to be prepared for duty at certain times. Appellant failed to obey those
orders and was found asleep in his bed at the prescribed times. On another
occasion, his excessive drinking precipitated a law enforcement response to his
erratic behavior. He was apprehended, but not before he disobeyed an order
from the responding security forces member, physically resisted apprehension,
and created a commotion that disrupted the dormitory area.
II. DISCUSSION
A. Unreasonable Multiplication of Charges
Among the charges and specifications to which Appellant pleaded guilty
were that he disobeyed a security forces order to “stop moving around” by “con-
tinuing to walk around and swing his arms,” resisted being apprehended by
security forces, and was disorderly at the same time and place. Appellant con-
tends that these three specifications unreasonably misrepresented and exag-
gerated his criminality.
Prior to entry of pleas, the military judge noted that the Defense had filed
a motion for a bill of particulars. Although the Government responded, follow-
ing arraignment trial defense counsel withdrew the request because Appellant
intended to plead guilty to the specifications as drafted and confirmed that
there were no unresolved issues with respect to the charges and specifications.
Thereafter Appellant entered an unconditional guilty plea. Even after the
military judge accepted his pleas, Appellant never requested that the military
judge merge the offenses for sentencing. See United States v. Quiroz,
55 M.J.
334, 337 (C.A.A.F. 2001).
2
United States v. Bailey, No. ACM S32375
Rule for Courts-Martial (R.C.M.) 910(j) provides a “bright-line rule” that an
unconditional guilty plea “which results in a finding of guilty waives any ob-
jection, whether or not previously raised, insofar as the objection relates to the
factual issue of guilt of the offense(s) to which the plea was made.” United
States v. Schweitzer,
68 M.J. 133, 136 (C.A.A.F. 2009). “An unconditional plea
of guilty waives all nonjurisdictional defects at earlier stages of the proceed-
ings.” United States v. Bradley,
68 M.J. 279, 281 (C.A.A.F. 2010). “While the
waiver doctrine is not without limits, those limits are narrow and relate to
situations in which, on its face, the prosecution may not constitutionally be
maintained.”
Id. at 282. Additionally, “appellate consideration of multiplicity
claims is effectively waived by unconditional guilty pleas, except where the
record shows that the challenged offenses are ‘facially duplicative.’” United
States v. Lloyd,
46 M.J. 19, 20 (C.A.A.F. 1997). Although “a guilty plea does not
foreclose or relinquish consideration of all legal issues . . . . [I]f the factual com-
ponent of each offense said to be multiplicious is not shown to be the same,
appellate review . . . is not required under [the] guilty plea waiver doctrine.”
Lloyd, 46 M.J. at 24 (citations omitted).
Although multiplicity and unreasonable multiplication of charges are dis-
tinct concepts, United States v. Campbell,
71 M.J. 19, 24 (C.A.A.F. 2012), our
superior court has applied multiplicity waiver principles to the concept of un-
reasonable multiplication of charges. See United States v. Gladue,
67 M.J. 311,
313–14 (C.A.A.F. 2009) (“Although Lloyd only addressed multiplicity, we see
no reason why the same caveat regarding express waiver or consent should not
apply to the concept of unreasonable multiplication of charges, and therefore
adopt it.”). To the extent that waiver of unreasonable multiplication differs
from waiver of multiplicity, because an accused may waive claims related to
the constitutional principle of multiplicity, we believe it necessarily follows
that he may also waive the non-constitutional, presidentially-created protec-
tion from unreasonably-multiplied charges.
We conclude that Appellant’s unconditional guilty plea, coupled with trial
defense counsel’s explicit withdrawal of a request for a bill of particulars,
waived appellate consideration of this issue. To the extent that appellate re-
view is required under Lloyd, we further find that Appellant is entitled to no
relief because the specifications at issue were not facially or factually duplica-
tive. Although all of the conduct occurred at the same time and place, each
specification required proof of an element not required by the others. When
describing his actions during the Care2 inquiry, Appellant himself identified
different conduct that established the truth of each specification. He told the
military judge that he walked away from and swung his arms at the security
2 United States v. Care,
40 C.M.R. 247 (C.M.A. 1969).
3
United States v. Bailey, No. ACM S32375
forces member (disobeying the order to “stop moving around”), that after being
tasered and brought to the ground he physically resisted the application of
handcuffs (resisting apprehension), and that while all of this was occurring he
was yelling loudly enough to draw the attention of other Airmen in the area
(disorderly conduct).
Finally, after considering the entire record, we decline to exercise our Arti-
cle 66(c), UCMJ,
10 U.S.C. § 866(c), authority to modify the findings or sen-
tence because of this claimed error. United States v. Chin,
75 M.J. 220, 223
(C.A.A.F. 2016).
B. Sentencing Exhibit
The Government sought to introduce an Air Force Form 3070, Record of
Non-Judicial Punishment, pursuant to R.C.M. 1001(b)(2) (records of accused’s
military efficiency, performance, and conduct). Trial defense counsel objected,
arguing that the record was incomplete only because it was missing an attach-
ment. The Government produced the attachment and trial defense counsel spe-
cifically disavowed having any other objections to the exhibit’s admissibility.
Despite his position at trial, Appellant now contends that the military judge
erred in admitting the Form 3070 because it was missing the signature of the
servicing general court-martial convening authority’s staff judge advocate.
Although we ordinarily review a military judge’s decision to admit sentenc-
ing evidence for an abuse of discretion, United States v. Ediger,
68 M.J. 243,
248 (C.A.A.F. 2010), Appellant may not raise on appeal an error that was
waived at trial. Gladue, 67 M.J. at 313; R.C.M. 1001(b)(2).3 Such a waiver oc-
curred here when Appellant recognized his ability to object to the exhibit’s lack
of completeness, lodged that objection but complained only of its missing an
attachment, and once the complained-of error was cured raised no further ob-
jection. Appellant is therefore precluded from appellate review of this issue.4
3 “Waiver is different from forfeiture. Whereas forfeiture is the failure to make the
timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment
of a known right.’” United States v. Olano,
507 U.S. 725, 733 (1993) (quoting Johnson
v. Zerbst,
304 U.S. 458, 464 (1938)). When forfeiture occurs, we review for plain error.
United States v. Harcrow,
66 M.J. 154, 156 (C.A.A.F. 2008).
4Even under a plain error analysis Appellant is entitled to no relief. The Sixth Amend-
ment’s right to confront witnesses does not apply to pre-sentencing proceedings, United
States v. McDonald,
55 M.J. 173, 177 (C.A.A.F. 2001), and we discern no prejudice from
what appears to have been, at most, an administrative oversight that did not affect
Appellant’s due process rights. According to the Government’s exhibit, the record of
non-judicial punishment had already been deemed “legally sufficient and . . . final” by
4
United States v. Bailey, No. ACM S32375
United States v. Ahern,
76 M.J. 194,
2017 CAAF LEXIS 292, at *7 (C.A.A.F.
2017) (citing United States v. Campos,
67 M.J. 330, 332 (C.A.A.F. 2009)).
III. CONCLUSION
The findings of guilt and the sentence are correct in law and fact and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(c), UCMJ,
10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
MICAH L. SMITH
Deputy Clerk of the Court
the special court-martial convening authority’s staff judge advocate; the missing sig-
nature was one of “administrative supervisory review” after the action had already
become final. See, e.g., United States v. Godden,
44 M.J. 716, 718 (A.F. Ct. Crim. App.
1996) (“[A]bsence of the typed signature block of the reviewing authority and the dates
the form was forwarded to other administrative offices . . . did not affect any procedural
due process rights.”); United States v. Anderson,
12 M.J. 539, 540 (A.F.C.M.R. 1981)
(commander’s failure to sign AF Form 3070 did not prejudice the accused).
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