United States v. Hardy ( 2018 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Ryan A. HARDY, Captain
United States Air Force, Appellant
No. 17-0553
Crim. App. No. 38937
Argued February 27, 2018—Decided June 5, 2018
Military Judge: Donald R. Eller Jr.
For Appellant: Catherine M. Cherkasky, Esq. (argued);
Captain Patrick A. Clary (on brief).
For Appellee: Major Matthew L. Tusing (argued); Colonel
Julie L. Pitvorec, Lieutenant Colonel Joseph Kubler, and
Mary Ellen Payne, Esq. (on brief).
Judge MAGGS delivered the opinion of the Court, in
which Judges RYAN and SPARKS joined. Chief Judge
STUCKY filed a separate opinion concurring in the
result. Judge OHLSON filed a separate dissenting
opinion.
_______________
Judge MAGGS delivered the opinion of the Court.
A military judge sitting as a general court-martial found
Appellant guilty, pursuant to his pleas, of twelve sexual of-
fenses against his biological daughter and one sexual offense
against his stepdaughter.1 The military judge sentenced Ap-
1 The twelve offenses against his biological daughter, T.H., in-
cluded: two specifications of abusive sexual contact with a child
[Charge II, Specifications 1 and 2], one specification of aggravated
sexual abuse of a child [Charge II, Specification 3], one specifica-
tion of an indecent act [Charge II, Specification 4], and two speci-
fications of indecent liberties with a child [Charge II, Specifica-
tions 5 and 6], in violation of Article 120, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 920 (2006) (as amended by the Na-
tional Defense Authorization Act for Fiscal Year 2006, Pub. L. No.
109-163, § 552, 119 Stat. 3136, 3258 (effective Oct. 1, 2007)); two
specifications of abusive sexual contact [Charge II, Specifications
United States v. Hardy, No. 17-0553/AF
Opinion of the Court
pellant to a dismissal, confinement for sixteen years and one
day, and forfeiture of all pay and allowances. Pursuant to a
pretrial agreement (PTA), the convening authority approved
only so much of the sentence as provided for a dismissal and
confinement for twelve years.
On appeal to the United States Air Force Court of Crimi-
nal Appeals (AFCCA), Appellant argued that the military
judge should have merged several specifications of the
charges against him for the purpose of sentencing because
there was an unreasonable multiplication of charges. United
States v. Hardy, 76 M.J. 732, 734−35 (A.F. Ct. Crim. App.
2017). The AFCCA determined that Appellant had waived
any unreasonable multiplication of charges objection (UMC
objection) by making an unconditional guilty plea. Id. at 737.
The AFCCA then also declined to exercise its power, under
Article 66(c), UCMJ, 10 U.S.C. § 866(c), to address the UMC
objection notwithstanding the waiver. The AFCCA affirmed
the approved findings and sentence. 76 M.J. at 740.
We granted review on the issue of whether an uncondi-
tional guilty plea waives an unpreserved UMC objection. We
conclude that it does, based on Rules for Courts-Martial
(R.C.M.) 905(b)(2) and (e) and our recent precedents. Our
decision does not affect the power of a Court of Criminal Ap-
peals (CCA) to exercise its powers under Article 66(c),
UCMJ, to address an unpreserved UMC objection. We also
note that an executive order soon will amend R.C.M. 905(e),
likely affecting the analysis of future cases involving unpre-
7 and 8], in violation of Article 120, UCMJ, 10 U.S.C. § 920 (2012);
one specification of sexual abuse of a child [Charge III, Specifica-
tion 1], in violation of Article 120b, UCMJ, 10 U.S.C. § 920b
(2012); one specification of sodomy with a child [Charge IV, the
Specification], in violation of Article 125, UCMJ, 10 U.S.C. § 925
(2006); one specification of conduct unbecoming an officer [Charge
V, the Specification], in violation of Article 133, UCMJ, 10 U.S.C.
§ 933 (2012); and one specification of communicating indecent lan-
guage [Charge VI, Specification 1], in violation of Article 134,
UCMJ, 10 U.S.C. § 934 (2012). The sexual offense against his
stepdaughter, A.T., was one specification of an indecent act
[Charge VI, Specification 2], in violation of Article 134, UCMJ, 10
U.S.C. § 934 (2006). The military judge dismissed several addi-
tional specifications in the charge sheet to which Appellant plead-
ed not guilty.
2
United States v. Hardy, No. 17-0553/AF
Opinion of the Court
served UMC objections in which there is no other ground for
finding waiver.2
I. Appellant’s UMC Objection
The offenses to which Appellant pleaded guilty took place
between 2007 and 2013 in various locations in the United
States and Germany when his daughter and stepdaughter
were children. Of concern on this appeal are Specifications 2
through 8 of Charge II. Specifications 2 through 4 averred
that Appellant caused his biological daughter to touch his
genitalia on divers occasions, that he touched her breasts
and genitalia on divers occasions, and that he watched por-
nography in her presence on divers occasions. Specifications
5 and 6 averred that Appellant masturbated in his biological
daughter’s presence on divers occasions and ejaculated on
her bare chest. Specifications 7 and 8 averred that Appellant
touched his biological daughter’s breasts on divers occasions,
and that he touched her genitalia on divers occasions.
Appellant asserts that Specifications 2 through 6 should
have been merged for sentencing. He explains that the in-
stances of touching his biological daughter’s breasts and
genitalia, watching pornography in her presence, and mas-
turbating in her presence all occurred on the same occasions,
and that he ejaculated on her chest on one of these occa-
sions. Appellant similarly asserts that Specifications 7 and 8
should have been merged for sentencing because the in-
stances of touching his biological daughter’s breasts and
touching her genitalia covered by these specifications oc-
curred on the same occasions. Appellant asserts that the
merger of these specifications would have significantly re-
duced the maximum sentence that the court-martial could
impose. Although the recalculated maximum sentence still
would exceed the sixteen-year and one-day sentence ad-
judged, and the twelve-year sentence approved, a lower
2 The President amended the language of R.C.M. 905(e) in Ex-
ecutive Order No. 13,825. See Exec. Order No. 13,825, 83 Fed.
Reg. 9889 (Mar. 8, 2018) (effective Jan. 1, 2019). The amendment
specifies that a failure to raise an objection under R.C.M. 905(b)
“forfeits” the objection “absent an affirmative waiver.” This
amendment is not yet in effect and will not apply to cases in which
charges were referred to trial prior to the effective date. Id.
3
United States v. Hardy, No. 17-0553/AF
Opinion of the Court
maximum sentence might have affected the military judge’s
deliberations.
Appellant did not raise his UMC objection before
entering his plea. The PTA did not contain a provision that
specifically waived such an objection or that generally
waived all objections. Before entering his plea, the military
judge, trial counsel, and defense counsel discussed the
maximum sentence that the court-martial could impose
based on Appellant’s guilty plea. Through counsel, Appellant
agreed that on the basis of the charges and offenses that the
court-martial could sentence him to 150 years and 6 months
of confinement. Defense counsel did not argue that the
maximum sentence of confinement should be reduced by a
merger of specifications.
The AFCCA analyzed the UMC objection as presenting
two key issues. The first was whether Appellant waived or
forfeited the objection. Hardy, 76 M.J. at 737. Relying on
this Court’s decision in United States v. Schweitzer, 68 M.J.
133 (C.A.A.F. 2009), and other precedents, the AFCCA con-
cluded that Appellant had waived the issue by not raising it
prior to entering a guilty plea. Id. The second issue was
whether the AFCCA should exercise its authority to address
the objection through its powers under Article 66(c), UCMJ,
in spite of the waiver. Id. Citing United States v. Quiroz, 55
M.J. 334, 338 (C.A.A.F. 2001), and other precedents, the
AFCCA determined no corrective action under Article 66(c),
UCMJ, was warranted. Id. Our review is limited to the first
of these issues.
II. Analysis
R.C.M. 307(c)(4) directs that “[w]hat is substantially one
transaction should not be made the basis for an
unreasonable multiplication of charges against one person.”
If charges have been unreasonably multiplied, the accused
may seek appropriate relief from the military judge. See
R.C.M. 906(b)(12). The relief may include dismissal of lesser
offenses, id. 906(b)(12)(i), merger of offenses into one
specification, id., or a determination that the maximum
punishment for the unreasonably multiplied offenses is the
maximum authorized punishment of the offense carrying the
greatest maximum penalty, id. 906(b)(12)(ii).
4
 United States v. Hardy, No. 17-0553/AF
Opinion of the Court
This case requires us to determine the consequences of
failing to raise an objection of unreasonable multiplication of
charges before entering an unconditional guilty plea. We
have held that when an appellant has forfeited an issue, we
may review the issue for plain error, but when an appellant
has waived an issue, we cannot review it at all. See United
States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017). The dis-
pute in this case is whether to characterize Appellant’s fail-
ure to raise the UMC objection as a forfeiture or a waiver.
Appellant argues that the failure was a forfeiture and seeks
a plain error review, while the Government contends that
the failure was a waiver.
The issue whether a guilty plea waives or forfeits an un-
reasonable multiplication of charges claim is not new, but
our prior decisions have not entirely settled the matter. The
case most directly on point is United States v. Denton, 50
M.J. 189 (C.A.A.F. 1998) (summary disposition), but its
meaning and precedential value are uncertain. In Denton, by
a summary order and without providing a clear explanation,
this Court dismissed a UMC objection on the ground that it
was waived when it was not raised or litigated at trial. Id.
The order did not suggest that the Court had conducted a
plain error review. Id. The CCAs in a few unreported cases
have cited the Denton order for the general proposition the
accused waives an unpreserved UMC objection by pleading
guilty. See, e.g., United States v. Dillon, No. ACM 34933,
2004 CCA LEXIS 51, *6, 2004 WL 388965, *2 (A.F. Ct. Crim.
App. Feb. 11, 2004); United States v. McFall, No. NMCCA 98
01173, 1999 CCA LEXIS 291, at *6, 1999 WL 1076791, *2
(N-M. Ct. Crim. App. Nov. 19, 1999). Although we ultimately
agree with Denton’s conclusion, we believe that the issue de-
serves a more complete analysis and explication than the
summary order provides.
Addressing the issue squarely now, we begin with R.C.M.
905(b)(2). This rule requires objections “based on defects in
the charges and specifications” to be raised before a guilty
plea is entered. Id. A UMC objection is such an objection be-
cause the accused is asserting that the charges and specifi-
cations violate R.C.M. 307(c). See R.C.M. 905(b)(2) Discus-
sion (cross-referencing R.C.M. 307); United States v. Mincey,
42 M.J. 376, 378 (C.A.A.F. 1995) (similarly holding that an
5
United States v. Hardy, No. 17-0553/AF
Opinion of the Court
objection to “the misjoinder of numerous bad-check offenses
into one duplicitous specification” should have been made
under R.C.M. 905(b)(2)).3 The first two sentences of R.C.M.
905(e) address the consequences of not raising objections
listed in R.C.M. 905(b). These sentences currently say:
“Failure by a party to raise defenses or objections or to make
motions or requests which must be made before pleas are
entered under subsection (b) of this rule shall constitute
waiver. The military judge for good cause shown may grant
relief from the waiver.”4
The plain language of R.C.M. 905(b)(2) and (e) leads to
the conclusion that Appellant waived his UMC objection by
not raising it before pleading guilty. But the matter is com-
plicated because of disagreement about whether the word
“waiver” in R.C.M. 905(e) really means “waiver” or instead
means “forfeiture.” See United States v. Gudmundson, 57
M.J. 493, 495 n.3 (C.A.A.F. 2002) (discussing the disagree-
ment). Some older cases have reviewed issues “waived” un-
der R.C.M. 905(b) and (e) for plain error, suggesting that the
“waiver” should be treated as forfeiture. See, e.g., United
States v. Reist, 50 M.J. 108, 109−10 (C.A.A.F. 1999) (holding
that an objection to defects in the preferral under R.C.M.
905(b)(1) was waived under R.C.M. 905(e) but reviewing the
issue for plain error). But we did not follow this approach in
our most recent case addressing R.C.M. 905(b) and R.C.M.
905(e), United States v. Swift, 76 M.J. 210 (C.A.A.F. 2017).
In Swift, we held that a motion to suppress a confession
should have been made before trial under R.C.M. 905(b)(3)
and that the failure to raise the issue permanently waived it
under the language of the first two sentences of R.C.M.
905(e). 76 M.J. at 217−18 (citing R.C.M. 905(e) in addition to
Military Rule of Evidence 304(f)(1) as grounds for finding
waiver). Because the issue was permanently waived, this
Court did not review it for plain error. See id. We think that
3 Our summary order in Denton did not cite R.C.M. 905(b)(2)
and (e) but the government relied on them in arguing that the ap-
pellant waived the UMC objection. See Answer to the Assignment
of Error, United States v. Denton, No. ARMY 9501968 (A. Ct.
Crim. App. Aug. 8, 1996).
4 Again we observe that Exec. Order No. 13,825 will amend
R.C.M. 905(e). See supra note 2.
6
United States v. Hardy, No. 17-0553/AF
Opinion of the Court
Swift is the correct approach for deciding whether UMC ob-
jections are waived permanently or merely forfeited under
R.C.M. 905(b)(2) and R.C.M. 905(e).5 Thus, in accordance
with the text of these rules, the Swift precedent, and the
Denton order, we conclude that Appellant waived the UMC
objection and that the objection is not reviewable for plain
error.
This result is also required by the general principle of
criminal law that an “unconditional plea of guilty waives all
nonjurisdictional defects at earlier stages of the proceed-
ings.” United States v. Lee, 73 M.J. 166, 167 (C.A.A.F. 2014)
(internal quotation marks omitted) (quoting United States v.
Bradley, 68 M.J. 279, 281 (C.A.A.F. 2010)). The Supreme
Court has explained this principle as follows: “By entering a
plea of guilty, the accused is not simply stating that he did
the discrete acts described in the indictment; he is admitting
guilt of a substantive crime.” United States v. Broce, 488
U.S. 563, 570 (1989). We have cited the principle in many
cases. See, e.g., Schweitzer, 68 M.J. at 136; United States v.
Joseph, 11 M.J. 333, 335 (C.M.A. 1981); United States v.
Rehorn, 9 C.M.A. 487, 488−89, 26 C.M.R. 267, 268−69
(1958). Applying the principle here, because an unreasona-
ble multiplication of charges is not a jurisdictional defect, a
guilty plea waives the objection.
To be sure, we have recognized some exceptions to this
general principle about the effect of a guilty plea. See, e.g.,
United States v. Pratchard, 61 M.J. 279, 280 (C.A.A.F. 2005)
5 The dissent cites several pre-Swift cases regarding R.C.M.
905(e) in which the Court applied principles of forfeiture rather
than waiver. United States v. Hardy, __ M.J. __, __ (2–3, 2 n.2)
(C.A.A.F. 2018) (Ohlson, J., dissenting). These cases illustrate this
Court’s past difficulty in delineating the concepts of “waiver” and
“forfeiture” in a consistent manner. We agree with the dissent
about the importance of the principle of stare decisis, but think
that following Swift, the most recent decision applying R.C.M.
905(e)’s first two sentences, best serves this principle. When con-
fronted with conflicting precedents, we generally follow the most
recent decision. See, e.g., United States v. Birge, 52 M.J. 209, 211
(C.A.A.F. 1999) (recognizing that “some of our prior cases suggest-
ed that Article 10 rights could not be waived” but deciding to fol-
low “our most recent precedent . . . [which] concluded that failure
to raise the issue constituted waiver of Article 10”).
7
United States v. Hardy, No. 17-0553/AF
Opinion of the Court
(holding that a guilty plea does not waive a speedy trial ob-
jection under Article 10, UCMJ, 10 U.S.C. § 810); United
States v. Pauling, 60 M.J. 91, 94 (C.A.A.F. 2004) (holding
that a guilty plea does not waive a multiplicity issue when
the offenses are “facially duplicative”). But Appellant has
not suggested, and we do not see any reason to create an ex-
ception to the general principle for UMC objections.
As a practical matter, a UMC objection must be raised
before the accused enters a guilty plea because the objection
may affect the maximum sentence that the court-martial
may impose. Under R.C.M. 910(c)(1), before a military judge
accepts a guilty plea, the military judge must inform the ac-
cused of the “maximum possible penalty provided by law”
and “determine that the accused understands.” The military
judge cannot perform this duty accurately if a UMC objec-
tion later will result in a merger of specifications. Typically,
as in this case, before accepting the guilty plea, the military
judge asks trial counsel what the government calculates the
maximum punishment to be, and the military judge then
asks defense counsel if the accused agrees. By so agreeing,
the accused implicitly concedes that there is no UMC objec-
tion because the remedy for such an objection would affect
the maximum sentence. See R.C.M. 906(b)(12)(i) & (ii) (spec-
ifying remedies for valid objections).
Appellant argues that this Court has treated
unpreserved UMC objections as forfeited rather than
waived, and has reviewed them for plain error. As a
prominent example, Appellant cites United States v. Quiroz,
55 M.J. 334 (C.A.A.F. 2001). We disagree. Quiroz is not a
case about whether a guilty plea waives or forfeits an
unreasonable multiplication of charges claim. On the
contrary, Quiroz is about how a CCA may exercise its special
power under Article 66(c), UCMJ, to revise a case
notwithstanding the failure to preserve the objection at trial.
In Quiroz, the accused raised a UMC objection before the
CCA. 55 M.J. at 338. The government responded that the
accused had waived the objection by not raising at trial.6
6 The government relied on the Denton order in arguing that
the guilty plea waived the UMC objection. See United States v.
Quiroz, 53 M.J. 600, 606 (N-M. Ct. Crim. App. 2000).
8
United States v. Hardy, No. 17-0553/AF
Opinion of the Court
The CCA did not resolve the issue of whether the objection
was waived or forfeited. In Quiroz, we explained the posture
of the issue in detail as follows:
[The accused] raised the issue before the Court of
Criminal Appeals in terms of an unreasonable mul-
tiplication of charges, and the Government re-
sponded that relief should not be granted because
the issue of unreasonable multiplication was not
raised at trial. The Court of Criminal Appeals chose
not to address this question in terms of whether the
motion at trial fairly embraced the issue on appeal
[i.e., preserved the issue], but instead focused on
the unique statutory responsibility of the Courts of
Criminal Appeals to affirm “only such findings of
guilty and the sentence or such part or amount of
the sentence, as it finds correct in law and fact and
determines, on the basis of the entire record, should
be approved.” Art. 66(c), UCMJ, 10 USC § 866(c).
Id. This Court concluded the CCA “was well within its au-
thority to determine the circumstances, if any, under which
it would apply waiver or forfeiture to the type of error at is-
sue in the present case.” Id. (citing United States v. Claxton,
32 M.J. 159, 162 (C.M.A. 1991)). The Court also approved
five factors for a CCA to use in exercising its Article 66(c),
UCMJ, powers.7 Id.
In this case, as recounted above, the AFCCA first
concluded that that Appellant had waived his unreasonable
multiplication of charges claim, and then decided not to
exercise its Article 66(c), UCMJ, power to address the
matter despite the waiver. Hardy, 76 M.J. at 737. This was
7 The five factors are:
(1) Did the [appellant] object at trial that there was an
unreasonable multiplication of charges and/or specifica-
tions?; (2) Is each charge and specification aimed at dis-
tinctly separate criminal acts?; (3) Does the number of
charges and specifications misrepresent or exaggerate the
appellant’s criminality?; (4) Does the number of charges
and specifications [unreasonably] increase the appellant’s
punitive exposure?; (5) Is there any evidence of prosecuto-
rial overreaching or abuse in the drafting of the charges?
Quiroz, 55 M.J. at 338 (internal quotation marks omitted) (ci-
tation omitted).
9
United States v. Hardy, No. 17-0553/AF
Opinion of the Court
the proper approach to the issues. Whether the AFCCA
properly exercised its power is not before this Court because
Appellant has not appealed the Article 66(c), UCMJ,
determination.
Appellant also argues against waiver based on the lan-
guage of R.C.M. 910(j). This rule says, in relevant part, that
“a plea of guilty which results in a finding of guilty waives
any objection, whether or not previously raised, insofar as
the objection relates to the factual issue of guilt of the of-
fense(s) to which the plea was made.” Appellant contends
that a guilty plea does not waive a UMC objection because
such an objection does not relate to the factual issue of guilt.
We agree that R.C.M. 910(j) does not address UMC objec-
tions, but reject Appellant’s argument because R.C.M. 910(j)
is not the only relevant rule. As explained above, R.C.M.
905(b)(2) and (e) provide that a UMC objection is waived if
not raised at trial.
Appellant also argues that if the government wants to
secure a waiver of UMC objections, it could do so explicitly
by adding a waiver clause in a PTA. Appellant notes that
many PTAs contain “waive all waivable motions” clauses.
We have no reason to question whether these clauses may
suffice to waive a UMC objection, but we do not believe that
they are necessary for the reasons given above.
III. Conclusion
We conclude that an unconditional guilty plea waives
any unpreserved unreasonable multiplication of charges ob-
jection. We do not disturb the holding in Quiroz that a CCA
may choose to use its Article 66(c), UCMJ, power to address
a UMC objection that has been waived.
IV. Judgment
The judgment of the United States Air Force Court of
Criminal Appeals is affirmed.
10
United States v. Hardy, No. 17-0553/AF
Chief Judge STUCKY, concurring in the result.
The majority opinion analyzes the issue presented under
Rules for Courts-Martial (R.C.M.) 905 and 906 and con-
cludes that by pleading guilty unconditionally, Appellant
waived the issue. United States v. Hardy, __ M.J. __ (6–7)
(C.A.A.F. 2018) (citing R.C.M. 905(e)). It then states that
“[t]his result is also required by the general principle of
criminal law that an unconditional plea of guilty waives all
nonjurisdictional defects at earlier stages of the proceedings
…. [and] unreasonable multiplication of charges is not a ju-
risdictional defect.” Id. at __ (7) (internal quotation marks
omitted) (citations omitted).
I agree with the majority’s alternative holding: Appel-
lant’s guilty plea waived all nonjurisdictional defects and
unreasonable multiplication of charges is not a jurisdictional
defect. I disagree, however, that the waiver provision of
R.C.M. 905(e) applies to Appellant’s case and that therefore
the results of a similar case would be different after January
1, 2019, when amendments to that rule are scheduled to
take effect that will change the standard of review from
waiver to plain error.1 See Hardy. __ M.J. at __ n.2 (3 n.2).
As part of a plea agreement, Appellant pled guilty to
numerous sex offenses. In exchange, the convening authority
agreed to limit any confinement he would approve to twelve
years.
During the plea inquiry, the military judge discussed
with Appellant and his counsel the maximum punishment
that could be imposed as a result of the guilty plea. Appel-
lant agreed with the military judge that his confinement ex-
posure totaled 150 years and 6 months.
The military judge sentenced Appellant to a dismissal,
confinement for sixteen years and one day, and forfeiture of
all pay and allowances. To fulfill the terms of the plea
agreement, the convening authority disapproved four of the
sixteen years of confinement.
1 See Exec. Order No. 13,825, 83 Fed Reg. 9889 (Mar. 8, 2018)
(effective Jan. 1, 2019).
United States v. Hardy, No. 17-0553/AF
Chief Judge STUCKY, concurring in the result
Appellant now claims that the charges and specifications
were unreasonably multiplied and the maximum authorized
punishment for his offenses was 85 years less than the 150-
year maximum he agreed to at trial, or about 65 years. His
counsel asserts that “[s]uch a drastic margin represents an
unreasonable increase in Capt Hardy’s punitive exposure for
these offenses.”
The majority and the dissent focus much of their atten-
tion on R.C.M. 905. That rule explains when a motion must
be made and the standard the appellate court will employ to
review an appellant’s failure to make such a motion. In ac-
cord with our precedents, the majority asserts, Hardy, __
M.J. at __ (5–7), that a motion alleging that specifications
have been unreasonably multiplied should be filed under
R.C.M. 905(b)(2)—“objections based on defects in the charg-
es and specifications (other than any failure to show juris-
diction or to charge an offense).”2 Currently, R.C.M. 905(e)
provides that failure to raise an R.C.M. 905(b) motion before
entry of pleas “shall constitute waiver.”
But this is a guilty plea. The appellate standards cited in
R.C.M. 905(e) apply to the failure of an appellant to raise an
issue during a contested trial. R.C.M. 905(e) simply does not
apply to guilty pleas.
By pleading guilty, an accused gives up many rights, in-
cluding constitutional rights, such as the right to a trial of
the facts. See United States v. Faircloth, 45 M.J. 172, 174
(C.A.A.F. 1996); R.C.M. 910(c)(3); see also Class v. United
States, 138 S. Ct. 798, 805 (2018) (noting that a valid guilty
plea forgoes the right to a fair trial and other constitutional
guarantees, but not “a waiver of the privileges which exist
beyond the confines of the trial,” such as contesting the con-
stitutionality of the statutes on which his convictions were
2 In 2016, the President recognized that an objection to the
unreasonable multiplication of charges should be made as a mo-
tion for appropriate relief. R.C.M. 906(b)(12); see Manual for
Courts-Martial, United States, Analysis of the Rules for Courts-
Martial app. 21 at A21-54 (2016 ed.); see also United States v.
Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012) (abandoning multiplicity
for sentencing and replacing it with unreasonable multiplication
of charges for sentencing).
2
United States v. Hardy, No. 17-0553/AF
Chief Judge STUCKY, concurring in the result
based) (internal quotation marks omitted) (citation omit-
ted)). An unconditional guilty plea generally waives all de-
fects which are neither jurisdictional nor a deprivation of
due process of law. United States v. Schweitzer, 68 M.J. 133,
136 (C.A.A.F. 2009).
As evidenced by his stipulation of fact, Appellant knew
before trial the nature of the offenses to which he was plead-
ing guilty. At trial, he specifically agreed with the military
judge that his criminal exposure to confinement exceeded
150 years. If he thought there was an unreasonable multi-
plication of charges for sentencing, such that his confine-
ment exposure was only sixty-five years, he should have
raised it to the military judge during the plea inquiry. If the
military judge were to rule against him, Appellant could
then decide to try to negotiate a change to his plea agree-
ment preserving the issue for appeal, to preserve the issue
for appeal by withdrawing his guilty plea, or to accept the
military judge’s ruling, forgo his ability to appeal the issue,
and benefit from the sentence cap in his plea agreement. By
pleading guilty, Appellant chose the latter course and, there-
fore, extinguished the issue as an issue for appeal.
3
United States v. Hardy, No. 17-0553/AF
Judge OHLSON, dissenting.
Waiver is serious business. It extinguishes rights of an
accused, forever banishing waived legal issues from the pur-
view of any appellate court. United States v. Gladue, 67 M.J.
311, 313 (C.A.A.F. 2009). Consequently, this Court should
invoke the waiver doctrine with great caution. In the instant
case, I believe that the exercise of that caution should cause
us to conclude that Appellant forfeited, rather than waived,
his unreasonable multiplication of charges (UMC) claim for
sentencing. Therefore, I respectfully dissent.
The majority bases its decision in this case on two
points—the language of Rule for Courts-Martial (R.C.M.)
905(e), and the general waiver principles associated with
unconditional guilty pleas. United States v. Hardy, __ M.J.
__, __ (4–8) (C.A.A.F. 2018). I will address each point in
turn.
First, R.C.M. 905(e) provides:
Failure by a party to raise defenses or objections or
to make motions or requests which must be made
before pleas are entered under subsection (b) of this
rule shall constitute waiver. The military judge for
good cause shown may grant relief from the waiver.
Other motions, requests, defenses, or objections,
except lack of jurisdiction or failure of a charge to
allege an offense, must be raised before the court-
martial is adjourned for that case and, unless oth-
erwise provided in the Manual, failure to do so
shall constitute waiver.
(Emphasis added.)
I readily concede that the plain language of the rule says
“waiver.” Under typical circumstances, this alone would
prove dispositive of the point. However, we have long inter-
preted R.C.M. 905(e) as a forfeiture provision.1 Specifically,
1 The reason for this seeming judicial overreach is clear; the
term “waiver” and the term “forfeiture” have frequently—and in-
correctly—been substituted for one another. Because of this
Court’s—and military law’s—history of not consistently delineat-
ing between “waiver” and “forfeiture,” it often is unclear what
principle was actually being invoked in rules or in prior judicial
opinions. See Gladue, 67 M.J. at 313 (noting “the failure of mili-
tary courts to consistently distinguish between the terms ‘waiver’
United States v. Hardy, No. 17-0553/AF
Judge OHLSON, dissenting
in such cases as United States v. Reist, 50 M.J. 108, 109–10
(C.A.A.F. 1999), United States v. Carroll, 43 M.J. 487, 488
(C.A.A.F. 1996), and United States v. Green, 37 M.J. 380,
384 (C.M.A. 1993), we have applied forfeiture, not waiver.
The majority cites United States v. Swift, 76 M.J. 210
(C.A.A.F. 2017), as precedent for treating R.C.M. 905(e) as a
waiver provision. Hardy, __ M.J. at __ (7). However, Swift is
not controlling—it only mentioned R.C.M. 905(e) in passing
when holding that an entirely different rule, Military Rule of
Evidence (M.R.E.) 304(f)(1), was a waiver provision. 76 M.J.
at 217–18. Therefore, in light of this Court’s long history of
interpreting R.C.M. 905(e) as a forfeiture provision,2 the ap-
plication of the principle of stare decisis should be disposi-
tive of this issue.
In reaching this conclusion, it is important to note that
the President has never altered R.C.M. 905(e) in such a
manner as to reject our prior interpretation of the rule. See
United States v. Tualla, 52 M.J. 228, 231 (C.A.A.F. 2000)
(“Executive acquiescence is entitled to considerable weight
in view of the relative ease with which the Manual [for
Courts-Martial] can be amended.”). Quite to the contrary, as
the majority acknowledges, Hardy, __ M.J. at __, __ (3 n.2, 6
n.4), the President has formally adopted our interpretation of
R.C.M. 905(e) as a forfeiture provision. See Exec. Order No.
13,825, 83 Fed. Reg. 9889, 9984–85 (Mar. 1, 2018) (effective
and ‘forfeiture’”). So, for instance, when the majority cites United
States v. Denton, 50 M.J. 189 (C.A.A.F. 1998) (summary disposi-
tion), to support waiver, it is unclear from the brief summary dis-
position of that case whether this Court was actually invoking the
waiver doctrine, or whether it used the term “waiver” when it
more appropriately should have used the term “forfeiture.”
2 See United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F.
2008); United States v. Inong, 58 M.J. 460, 464–65 (C.A.A.F.
2003); United States v. Gudmundson, 57 M.J. 493, 495 n.3
(C.A.A.F. 2003); United States v. Chapa, 57 M.J. 140, 143
(C.A.A.F. 2002); United States v. Godshalk, 44 M.J. 487, 490
(C.A.A.F. 1996); United States v. Briggs, 42 M.J. 367, 370
(C.A.A.F. 1995); United States v. Straight, 42 M.J. 244, 247
(C.A.A.F. 1995). But see Swift, 76 M.J. at 217–18 (relying on
M.R.E. 304 to find waiver, but also citing to R.C.M. 905(e) in
passing).
2
United States v. Hardy, No. 17-0553/AF
Judge OHLSON, dissenting
Jan. 1, 2019). Thus, in light of the majority’s opinion, we are
left with the anomalous situation where R.C.M. 905(e) has
been interpreted as a forfeiture provision in the past, will be
interpreted as a forfeiture provision in the future, but will be
interpreted as a waiver provision right here and right now.3
For these reasons, I would follow the principle of stare
decisis and reaffirm our prior precedent by continuing to
treat R.C.M. 905(e) as a forfeiture provision.4
The second point underlying the majority’s opinion is the
general principle of waiver as it relates to unconditional
guilty pleas. For the reasons cited below, I once again con-
clude that the better approach would be to apply forfeiture
in the instant case.
Waiver constitutes “the intentional relinquishment or
abandonment of a known right.” Gladue, 67 M.J. at 313
(emphasis added) (citation omitted) (internal quotation
marks omitted). An unconditional guilty plea, standing
alone, only constitutes the waiver of “all nonjurisdictional
defects at earlier stages of the proceeding.” United States v.
Bradley, 68 M.J. 279, 281 (C.A.A.F. 2010) (emphasis add-
ed).5 Claims of UMC, however, can be made at both the find-
3 The question that naturally follows is, “To what end?” Apply-
ing forfeiture instead of waiver in this case would not lead to a
windfall for Appellant, nor would it impose an undue burden on
the Government. Forfeiture is reviewed for plain error, Gladue, 67
M.J. at 313, and plain error is a difficult hurdle for an appellant to
surmount. (Indeed, within the context of a UMC claim, for exam-
ple, courts look to five factors when determining error, the first of
which is whether or not the accused objected at trial. United
States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001).)
4 This analysis assumes that the first two sentences of R.C.M.
905(e) even apply to UMC claims for sentencing, which arguably
they do not. The first two sentences refer to claims that “must be
made before pleas are entered.” R.C.M. 905(e) (emphasis added).
Claims of UMC for sentencing, however, are typically raised at the
sentencing phase. United States v. Forrester, 76 M.J. 479, 484
(C.A.A.F. 2017); see also R.C.M. 1003(c)(1)(C)(ii).
5 Additionally, this Court has previously recognized that an
unconditional guilty plea does not always by itself waive an objec-
tion on a nonfactual issue. See United States v. Schweitzer, 68
M.J. 133, 136 (C.A.A.F. 2009) (noting that under an unconditional
3
United States v. Hardy, No. 17-0553/AF
Judge OHLSON, dissenting
ings and sentencing phases of a court-martial and are dis-
tinct at each phase. United States v. Campbell, 71 M.J. 19,
23 (C.A.A.F. 2012) (“[T]he concept of [UMC] may apply dif-
ferently to findings than to sentencing.”). To ensure that an
accused understands that he is relinquishing all
nonjurisdictional defects not only at the findings phase of
the hearing but also at the later sentencing phase, this point
should be more clearly spelled out to him. Then it would be
clear on the record that the accused has intentionally relin-
quished his rights regarding issues such as UMC and, con-
sequently, that waiver applies.
The majority notes that the military judge asked the trial
counsel what the Government calculated the maximum pun-
ishment to be, and the defense did not disagree with that
calculation. Hardy, __ M.J. at __ (4). Thus, the majority con-
cludes that the accused “implicitly” conceded that there was
no UMC objection. Id. at __ (8). Simply stated, however, I
think the better practice would be to require an accused to
more explicitly concede the point so that it would be clear on
the record that there was an “intentional relinquishment or
abandonment of a known right.” Gladue, 67 M.J. at 313
(emphasis added) (citation omitted) (internal quotation
marks omitted).
This is particularly true in a situation such as this one
where the Government’s calculation of the maximum expo-
sure of an accused is both rather perfunctory and not partic-
ularly realistic.6 Moreover, this inquiry about the possible
punitive exposure of an accused is made during the findings
phase of the case. An accused’s agreement with a theoretical
sentence at findings does not equate to an accused under-
standing that no motions will be available later for reducing
the punishment that actually will be imposed at sentencing.
guilty plea, multiplicity not waived if facially duplicative, speedy
trial objection under Article 10 not waived, and no waiver of fail-
ure to state an offense).
6 In this case, Appellant technically could have been sentenced
to 150 years and 6 months in prison. He actually received less
than one-tenth of that term of imprisonment.
4
United States v. Hardy, No. 17-0553/AF
Judge OHLSON, dissenting
I conclude that inferential leaps should not create an
“implicit” and yet, somehow, “intentional” relinquishment of
a known right. Thus, without prior caselaw holding that a
UMC claim is waived in the course of an unconditional
guilty plea, I do not find an adequate basis to conclude that
the accused knowingly and intentionally waived that right.
Accordingly, I respectfully dissent.
5