United States v. Guess ( 2020 )

This opinion is subject to administrative correction before final disposition.
Before
CRISFIELD, HOLIFIELD, and LAWRENCE
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Troy S. GUESS
Lance Corporal (E-3), U.S. Marine Corps
Appellant
No. 202000023
Decided: 12 November 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Keaton H. Harrell (arraignment)
Terrance J. Reese (trial)
Sentence adjudged 25 September 2019 by a special court-martial
convened at Marine Corps Base Camp Lejeune, North Carolina,
consisting of a military judge sitting alone. Sentence in the Entry of
Judgment: confinement for thirty days, 1 reduction to E-1, and a bad-
conduct discharge.
1 The military judge sentenced Appellant to thirty days’ confinement for each of
the six offenses to which he pleaded guilty. Pursuant to a plea agreement, the
military judge ordered that the six periods of confinement be served concurrently, for
a total of thirty days.
United States v. Guess, NMCCA No. 202000023
Opinion of the Court
For Appellant:
Lieutenant Commander W. Scott Stoebner, JAGC, USN
For Appellee:
Lieutenant Gregory A. Rustico, JAGC, USN
Major Kerry E. Friedewald, USMC
Lieutenant Joshua C. Fiveson, JAGC, USN
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
PER CURIAM:
A military judge sitting as a special court-martial convicted Appellant,
pursuant to his pleas, of one specification of failing to obey a lawful general
order, one specification of making a false official statement, three specifica-
tions of larceny, and one specification of obstructing justice, in violation of
Articles 92, 107, 121, and 131b, Uniform Code of Military Justice [UCMJ], 10
U.S.C. §§ 892, 907, 921, 931b. 2 Appellant asserts one assignment of error:
that the three specifications under Article 121, UCMJ, with which he was
charged and to which he pleaded guilty should be consolidated into a single
specification, as the three items involved were taken contemporaneously. We
find no prejudicial error and affirm the findings and sentence.
I. BACKGROUND
Appellant’s convictions include, inter alia, the theft of an all-terrain
vehicle (ATV), a motorcycle engine, and a kayak paddle—all property of the
same fellow Marine. Appellant took the three items on a single occasion on or
about 19 April 2019. On the charge sheet, each item was the basis for a
separate specification under Article 121, UCMJ. While a stipulation of fact
2 Two additional specifications, alleging violations of Articles 92 and 107, were
withdrawn and dismissed without prejudice, to ripen into prejudice upon completion
of appellate review.
2
United States v. Guess, NMCCA No. 202000023
Opinion of the Court
indicated each item had “a value of $1,000 or less,” 3 Appellant’s responses to
the military judge’s questions admitted to values of $350 for the ATV, 4
between $600 and $5,000 for the engine, 5 and $29.48 for the paddle. 6
Appellant raised no motions at trial. As part of a plea agreement, he
“specifically agree[d] to waive all motions except those that [sic] otherwise
non-waivable pursuant to Rule for Courts-Martial [R.C.M.] 705(c)(1)(B).” 7
Although the military judge did not address this specific provision with
Appellant during the plea agreement colloquy, the latter was clear in saying
he fully understood all the provisions of the plea agreement.
II. DISCUSSION
We review questions of waiver de novo. United States v. Haynes, 79 M.J.
17, 19 (C.A.A.F. 2019). Waiver is the “intentional relinquishment or
abandonment of a known right.” United States v. Gladue, 67 M.J. 311, 313
(C.A.A.F. 2009) (quoting United States v. Olano, 507 U.S. 725, 733 (1993)).
Appellant expressly waived all motions save those not subject to waiver in a
plea agreement. Neither unreasonable multiplication of charges nor
multiplicity is included on R.C.M. 701(c)(1)(B)’s list of unenforceable plea
agreement conditions, and our superior court has held that “express waiver of
any waivable motions waive[s] claims of multiplicity and unreasonable
multiplication of charges, and extinguishe[s] [an appellant’s] right to raise
these issues on appeal.” Gladue, 67 M.J. at 314. Accordingly, we find
Appellant has waived this issue.
We have reflected on whether we should exercise our authority to consid-
er Appellant’s claim under Article 66(c), UCMJ, in spite of Appellant’s
waiver. See United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016). Given the
facts and circumstances presented here, we decline to do so.
3 Pros. Ex. 1 at 4-6.
4 R. at 40.
5 R. at 44.
6 R. at 45.
7 App. Ex. II at 7.
3
United States v. Guess, NMCCA No. 202000023
Opinion of the Court
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and sentence are correct in
law and fact and that no error materially prejudicial to Appellant’s substan-
tial rights occurred. UCMJ arts 59, 66. Accordingly, the findings and
sentence as approved by the convening authority are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
4