United States v. Perez ( 2014 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER
Appellate Military Judges
UNITED STATES OF AMERICA
v.
JONATHAN B. PEREZ
LANCE CORPORAL (E-3), U.S. MARINE CORPS
NMCCA 201400296
GENERAL COURT-MARTIAL
Sentence Adjudged: 11 April 2014.
Military Judge: LtCol L.J. Francis, USMC.
Convening Authority: Commanding General, 3d MAW, MCAS
Miramar, San Diego, CA.
Staff Judge Advocate's Recommendation: Col Timothy M. Dunn,
USMCR.
For Appellant: CDR Sabatino F. Leo, JAGC, USN.
For Appellee: CDR Christopher J. Geis, JAGC, USN; LT Ann E.
Dingle, JAGC, USN.
23 December 2014
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A military judge sitting as general court martial convicted
the appellant, pursuant to his pleas, of one specification of
wrongful possession of child pornography, and one specification
of wrongful viewing of child pornography, in violation of
Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934.
The military judge sentenced the appellant to seven years’
confinement, reduction to pay grade E-1, total forfeitures, and
a dishonorable discharge. The convening authority (CA) approved
the sentence as adjudged. Pursuant to the pretrial agreement
(PTA), the CA suspended all confinement in excess of 24 months
for the period of confinement served plus 12 months thereafter.
On appeal, the appellant alleges that his separate
convictions for viewing and possessing the same child
pornography constitute an unreasonable multiplication of
charges. After carefully considering the record of trial, the
appellant's assignments of error, and the Government's response,
we conclude that that the findings and sentence are correct in
law and fact and that no error materially prejudicial to the
substantial rights of the appellant was committed. Arts. 59(a)
and 66(c), UCMJ.
Waiver of Unreasonable Multiplication of Charges
As part of his PTA, the appellant expressly agreed to waive
his right to “[r]elief based on multiplicity and unreasonable
multiplication of charges [.]” Appellate Exhibit II at 5.
During the providence inquiry, the military judge discussed that
provision of the PTA with the appellant, and asked him if he
fully discussed it with his trial defense counsel before
entering into the agreement. He said that he had.
Although the President has prohibited the waiver of certain
fundamental rights in a PTA, multiplicity and unreasonable
multiplication of charges are not among them, and therefore an
accused can knowingly and voluntary waive these issues. United
States v. Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009). Based on
the specific facts and circumstances of this case, we find the
appellant expressly waived any claim of unreasonable
multiplication of charges as to these specifications and
therefore “extinguished his right to raise these issues on
appeal.” Id.2
Conclusion
The findings and the sentence as approved by the CA are
affirmed.
For the Court
R.H. TROIDL
Clerk of Court
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