United States v. Private First Class DAVID DIMAS

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, SCHASBERGER, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class DAVID DIMAS
United States Army, Appellant
ARMY 20160784
Headquarters, Fort Stewart
John S.T. Irgens, Military Judge
Colonel Michael D. Mierau, Jr., Staff Judge Advocate
For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Captain Katherine L.
DePaul, JA (on brief).
For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford, JA;
Major Michael E. Korte, JA (on brief).
30 August 2017
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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 two specifications of abusive sexual contact and one specification of
sexual assault, in violation of Article 120 of the Uniform Code of Military Justice, 10
U.S.C. § 920 (2012 & Supp. III 2016) [hereinafter UCMJ]. The military judge
sentenced appellant to a dishonorable discharge, confinement for ten months, and
reduction in grade to E-1. The convening authority approved the adjudged sentence.
This case is before the court for review pursuant to Article 66, UCMJ.
Appellant asks this court to dismiss Specification 2 of The Charge because the
misconduct is based on the same transaction and impulse as the misconduct in
Specification 3 and is, therefore, an unreasonable multiplication of charges. We find
appellant affirmatively waived this issue through his pretrial agreement and
unconditional guilty plea, and, in any event, the specifications were not unreasonably
multiplied. 1
1
We have considered those matters personally raised by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit.
DIMAS—ARMY 20160784
BACKGROUND
Appellant and other Soldiers from his unit rented two rooms at a hotel near
their post. After an evening of drinking alcohol, Private (PV2) JM and her boyfriend
retired to one of the rooms. Appellant entered the room, climbed into the bed behind
a sleeping PV2 JM, and kissed her. Private JM woke and initially thought appellant
was her boyfriend. Appellant then proceeded to grope PV2 JM’s breast and digitally
penetrate her. Once PV2 JM felt appellant’s hair and realized the person in her bed
was not her boyfriend, she stood up and called for help. Based on this conduct, the
government charged appellant with two specifications of abusive sexual contact and
one specification of sexual assault.
Appellant entered into a five-page pretrial agreement (PTA) with the convening
authority. Paragraph five of the PTA read as follows:
5. I agree to waive the following motions that are capable
of being waived:
...
b. Defenses or objections based on defects in the
charges and specifications (other than any failure to show
jurisdiction or to charge an offense, which objections shall
be resolved by the military judge at any time during the
pendency of the proceedings);
...
j. Unreasonable multiplication of charges for
sentencing purposes; . . . .
Additionally, paragraph twelve of the PTA stated: “I specifically acknowledge that by
pleading guilty, I expressly waive on appeal any motion that is capable of being
waived . . . .”
During the providence inquiry, the military judge went over the PTA
paragraph-by-paragraph. After reading paragraph five, the military judge had the
following colloquy with appellant:
MJ: And paragraph number five says you agree to waive
the following motions that are capable of being waived,
correct?
ACC: Yes, Your Honor.
2
DIMAS—ARMY 20160784
MJ: Now I advise you certain motions are waived or given
up if your defense counsel doesn’t make the motion prior to
entering your plea. You’ve already entered a plea, so some
of these motions are already gone, right?
ACC: Yes, Your Honor.
MJ: And you understood that coming in, based on you
reading this pretrial agreement, correct?
ACC: Yes, Your Honor.
....
[MJ:] Do you understand this term in your pretrial
agreement precludes the court or any appellate court from
having an opportunity to determine if you are entitled to
any relief based on these motions?
ACC: Yes, Your Honor.
....
MJ: Which side initiated the waiver of motions provision,
paragraph number five?
DC: Defense, Your Honor.
LAW AND DISCUSSION
Our superior court, in United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F.
2009), addressed the effect of “waiver” and “forfeiture” of an issue on appeal.
“‘[W]aiver is the intentional relinquishment or abandonment of a known right[,]’”
which would preclude appellate review of an issue. Id. (quoting United States v.
Olano, 507 U.S. 725, 733 (1993)). On the other hand, “‘forfeiture is the failure to
make the timely assertion of a right,’” which requires a review for plain error on
appeal. Id. (quoting Olano, 507 U.S. at 733); see also, United States v. Sweeney, 70
M.J. 296 (C.A.A.F. 2011).
Appellant clearly waived the issue of whether the specifications of The Charge
were unreasonably multiplied. First, his unconditional guilty plea served to waive the
issue. Second, if that was not enough, his PTA and colloquy with the military judge
clearly indicate this was an intentional relinquishment of a known right.
Ordinarily, appellate courts “do not review waived issues because a valid
waiver leaves no error to correct on appeal.” United States v. Ahern, 76 M.J. 194,
3
DIMAS—ARMY 20160784
197 (C.A.A.F. 2017) (citing United States v. Campos, 67 M.J. 330, 332 (C.A.A.F.
2009)). Notwithstanding appellant’s waiver, after assessing the entire record we are
required to determine whether under Article 66(c), UCMJ, we should leave
appellant’s waiver intact, or “notice” the error for the first time on appeal. United
States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016); see also United States v. Gilchrist,
61 M.J. 785, 789 (Army Ct. Crim. App. 2005).
After a review of the entire record and applying the five-part test from United
States v. Quiroz, there is no error to notice. See 55 M.J. 334, 338 (C.A.A.F. 2001). 2
Specifically, appellant did not object at trial; the charge of grabbing PV2 JM’s breast
is not the same criminal act of digitally penetrating her vulva; three specifications do
not misrepresent or exaggerate appellant’s criminality; Specification 2 does not
unreasonably increase appellant’s punitive exposure; and the record shows no
evidence of prosecutorial overreach or abuse. Though the conduct occurred over a
short period of time, the conduct was not one impulse and one transaction.
CONCLUSION
The findings of guilty and the sentence are AFFIRMED.
FOR THE COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk
Clerk of
of Court
Court
2
The Quiroz test: “(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?; and (5) Is there any evidence of prosecutorial overreaching or abuse in the
drafting of the charges?” 55 M.J. at 338 (internal quotation marks and citation
omitted).
4