United States v. Hinders ( 2014 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.R. MCFARLANE, K.J. BRUBAKER, P.D. LOCHNER
Appellate Military Judges
UNITED STATES OF AMERICA
v.
MATTHEW S. HINDERS
CORPORAL (E-4), U.S. MARINE CORPS
NMCCA 201400274
SPECIAL COURT-MARTIAL
Sentence Adjudged: 25 March 2014.
Military Judge: LtCol C.J. Thielemann, USMC.
Convening Authority: Commanding General, 1st Marine
Division (Rein), Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: Maj V.G. Laratta,
USMC.
For Appellant: Maj Michael D. Berry, USMCR.
For Appellee: Mr. Brian K. Keller, Esq.
23 December 2014
---------------------------------------------------
OPINION OF THE COURT
---------------------------------------------------
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 a special court-martial
convicted the appellant, pursuant to his pleas, of two
specifications of larceny, in violation of Article 121, Uniform
Code of Military Justice, 10 U.S.C. § 921. The appellant was
sentenced to four months’ confinement, reduction to pay grade
E-1, and a bad-conduct discharge. The convening authority
approved the sentence as adjudged.
Although not raised on appeal, we note an error in the
record that requires corrective action. The two larceny
specifications are multiplicious, requiring a consolidation of
the specifications. Having considered our modified findings and
the entire record of trial, we conclude that the consolidated
findings are correct in law and fact, and that no error
materially prejudicial to the substantial rights of the
appellant remains. Arts. 59(a) and 66(c), UCMJ.
Background
The appellant entered the barracks room of two fellow
Marines, stealing several items of personal property belonging
to Lance Corporal S and one item of personal property belonging
to Private First Class S. The Government charged the larceny as
thefts of personal property from the individual Marines in two
separate specifications, although the theft took place at the
same time and at the same location. Although neither party
objected during the plea colloquy, after hearing sentencing
arguments and closing for deliberation, the military judge
returned and, sua sponte, raised the issue of multiplicity.
Record at 90-91. Although finding that the theft was a single
criminal act, the military judge did not consolidate the
specifications, but merged them together “solely for sentencing
purposes.” Id. at 91.
Discussion
When a larceny of several articles is committed at
substantially the same time and place, it is a single larceny,
even though the articles belong to different persons. MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶ 46(c)(1)(i)(ii).
The specifications, as alleged and pled to by the appellant,
were multiplicious, as the larceny from the barracks room should
properly have been charged as one offense, not two.
Absent plain error, a multiplicity claim is waived by an
unconditional guilty plea, as was entered in this case. United
States v. Hudson, 59 M.J. 357, 358-59 (C.A.A.F. 2004) (citing
United States v. Heryford, 52 M.J. 265, 266 (C.A.A.F. 2000)).
Reviewing the matter for plain error and mindful of the
Court of Appeals for the Armed Forces’ holding in United States
v. Savage, 50 M.J. 244, 245 (C.A.A.F. 1999) (citing Ball v.
United States, 470 U.S. 856 (1985)), we find there was error,
2
that it was plain and obvious, and that there was prejudice in
the form of an additional convictions for larceny.
Pursuant to our authority under Article 66(c) UCMJ, we
grant relief by consolidation of Specifications 1 and 2 under
Charge I into a single specification as follows:
In that Corporal Matthew S. Hinders, U.S. Marine
Corps, on active duty, did, at or near Marine Corps
Base Camp Pendleton, California, on or about 21 July
2013, steal various items to include:
a. MacBook Pro Laptop
b. Playstation Portable Vita
c. Sentry Safe
d. 2006 One Dollar Coin Fine Silver
e. 1991 American Silver Eagle Dollar 1 oz.
silver coin
f. 2002 American Silver Eagle Dollar 1 oz.
silver coin
g. Silver Buillon Dollar
h. 1776-1976 Silver Dollar
i. 925 Italy Necklace
j. iPod charger
k. MacBook Pro Charger
l. Dark Knight Trilogy Box Set
m. Wahl Clippers and Case
n. Grappling Hook
of a value of more than $500.00, the property of Lance
Corporal J.C.S. (items a-m) and Private First Class
J.S.S. (item n), U.S. Marine Corps.
Since the specifications were merged for sentencing, a
reassessment of the sentence is unnecessary.
Conclusion
As modified herein, the findings and the approved sentence
are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
3