United States v. Specialist MICHAEL G. ZENT

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CAMPANELLA, and CELTNIEKS
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist MICHAEL G. ZENT
United States Army, Appellant
ARMY 20130656
Headquarters, Fort Campbell
Steven E. Walburn and Steven Levin, Military Judges
Colonel Jeff A. Bovarnick, Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; JA; Major Amy E. Nieman, JA; Captain
Robert H. Meek, III, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Steven J. Collins, JA; Captain Carling M. Dunham, JA (on brief).
16 September 2014
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of desertion, two specifications of
wrongful use of a controlled substance, two specifications of rape, one specification
of forcible sodomy, four specifications of assault consummated by battery, and one
specification of aggravated assault, in violation of Articles 85, 112a, 120, 125, and
128, Uniform Code of Military Justice, 10 U.S.C. §§ 885, 912a, 920, 925, 928 (2006
& Supp. V 2011) [hereinafter “UCMJ”]. The military judge sentenced appellant to a
dishonorable discharge, confinement for ten years, forfeiture of all pay and
allowances, and reduction to the grade of E-1. Pursuant to a pretrial agreement, the
convening authority approved thirty-six months confinement and the remainder of
the sentence. *
*
The convening authority credited appellant with 286 days of confinement credit
against the sentence to confinement.
ZENT—ARMY 20130656
This case is before us for review under Article 66, UCMJ. Appellant’s sole
assignment of error warrants discussion and relief. In particular, appellant argues
that he was subject to an unreasonable multiplication of charges. Although the
government argues that appellant affirmatively waived this issue at trial, the
government also concedes the issue should we reach the merits of appellant’s claim.
We agree with appellant and grant relief in our decretal paragraph. Appellant’s
personal submissions pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982) do not warrant relief.
Appellant pleaded guilty, inter alia, to the following violations of the UCMJ:
CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 120.
SPECIFICATION 1: In that [appellant], U.S. Army, did, at
or near Fort Campbell, Kentucky, on or about 13 February
2012, cause [JZ] to engage in a sexual act, to wit:
penetration of her vulva with his penis, by strangling her
with his hand and lying upon her with the weight of his
body, with force sufficient that she could not avoid or
escape the sexual conduct.
SPECIFICATION 2: In that [appellant], U.S. Army, did, at
or near Fort Campbell, Kentucky, on or about 13 February
2012, cause [JZ] to engage in a sexual act, to wit:
penetration of her vulva with his penis, by placing her in
fear of being strangled to the point of unconsciousness.
Put more simply, appellant pled guilty to rape by using force (in violation of Article
120(a)(1)) and rape by placing JZ in fear (in violation of Article 120(a)(3)). The
stipulation of fact expressly notes that “[t]his incident forms the basis of
Specification [sic] 1 and 2 of Charge 1.” The government conceded at trial that
these offenses were an unreasonable multiplication of charges for sentencing
purposes, but not for findings. Appellant at trial did not raise the issue of
unreasonable multiplication of charges for findings or otherwise comment upon
unreasonable multiplication of charges for findings. The military judge treated the
offenses as one offense for purposes of sentencing. Under the facts and
circumstances, we do not find affirmative waiver in this case.
“What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.” Rule for Courts-Martial
307(c)(4). We consider five factors to determine whether charges have been
unreasonably multiplied:
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ZENT—ARMY 20130656
(1) Did the accused object at trial that there was an unreasonable
multiplication of charges and/or specifications?;
(2) Is each charge and specification aimed at distinctly 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 prosecutorial overreaching or
abuse in the drafting of the charges?
United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001) (internal citation and
quotation marks omitted) (internal alteration reflects the holding in Quiroz that
“unreasonably” will be utilized instead of “unfairly”). Here, the Quiroz factors on
balance weigh in favor of appellant. In this case, the two rape convictions
unreasonably exaggerate appellant’s criminality, especially where the stipulation of
fact explicitly affirms that one act formed the basis of both convictions, and the
government conceded at trial that appellant should only be sentenced for one
offense.
Although we only affirm appellant’s conviction for rape by force, this relief
does not affect the sentence because the military judge treated both offenses as one
for sentencing purposes. The penalty landscape has not changed and the remaining
factors announced in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
2013), weigh in favor of reassessing and affirming the sentence.
CONCLUSION
On consideration of the entire record, the matters submitted pursuant to
Grostefon, and the assigned error, the finding of guilty of Specification 2 of Charge
I is set aside. Specification 2 of Charge I is dismissed. The remaining findings of
guilty are AFFIRMED. Reassessing the sentence on the basis of the error noted and
the principles of Winckelmann, the sentence is AFFIRMED. All rights, privileges,
and property, of which appellant has been deprived by virtue of that portion of the
findings set aside by this decision, are ordered restored.
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ZENT—ARMY 20130656
FOR
FORTHE
THECOURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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