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_______ _______ __________ No. ACM S32508

_______ _______ __________ UNITED STATES Appellee

v. John T. GRIECO , Jr. Staff Sergeant (E

- 5 )
, U.S. Air Force, Appellant

_______ _______ __________ Appeal from the United States Air Force Trial Judiciary

Decided 1 October 2018

_______ _______ __________ Military Judge: Ryan Hendricks

. Approved sentence: Bad

- conduct dis charge, confinement for 3 months, and reduction to E

- 1 . Sentence adjudged 17 January 2018 by SpCM convened at Joint Base Langley

- Eustis, Virginia

. For Appellant: Lieutenant Colonel Judith A. Walker, USAF; Major Jarett F. Merk, USAF

. For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain Michael T. Bunnell; USAF; Mary Ellen Payne, Esquire.
Before HARDING, HUYGEN, and POSCH
, Appellate Military Judges

. Senior Judge HARDING delivered the opinion of the c ourt, in which Judge s HUYGEN and POSCH joined.

_______ _______ __________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4.

_______ _______ __________ HARDING, Senior Judge : A military judge convicted Appellant, consistent with his plea s made pursuant to a pretrial agreement (PTA), of four specifications in violation of Article 1 12a , Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a . Specifically,United States v

. Grieco , No. ACM S32508

2 Appellant was convicted of possessing and using cocaine on divers occa sions and of possessing and using heroin on divers occasions

. Officer members sentenced Appellant to a bad

- conduct discharge, confinement for six months, and reduction to the grade of E

- 1 . In accordance with the limitation of the PTA, the convening authori ty approved only three month s of confinement. He otherwise approved the sentence as adjudged.
This case was submitted for our review on its merits without assignment of error. Upon our review, we note d that for both controlled substances

— cocaine and heroin

— Appellant was charged with a specification for divers possession of “some amount” of the controlled substance in a specific timeframe and location and charged with a corresponding specification of diver s use of the controlled substance in the same timefra me and location. 1 The providence inquiry into Appellant’s pleas of guilty for the heroin offenses failed to clearly establish any instance of possession of heroin by Appellant distinct from Appellant’s use of that very same amount of heroin

. 2
Consistent with United States v. Bullington , 18 M.J. 164 (C.M.A. 1984), we find the specification for diver s possession of heroin is multiplicious with the specification for divers use of heroin

. Giving due weight to the “waive all waivable motions” provis ion of the PTA and Appellant’s unconditional guilty plea
, we nonetheless set aside the finding of guilty and dismiss with prejudice Specification 4 of the Charge (divers possession of heroin). F ind ing no other prejudicial error
, we affirm the remaining fin dings and reassess the sentence to be the same

.

I. B ACKGROUND During the providence inquiry, the military judge asked Appellant why Appellant believed he was guilty of divers possession of heroin.

1 We ordered the Government to show cause why the specifications for divers possession of cocaine and heroin were not multiplicious with the corresponding divers use specifications or were not an unreasonable multiplication of charges
, and why the court sho uld not dismiss the possession specifications.

2 While there is also substantial overlap between the specifications for divers possession and divers use of cocaine, Appellant admitted during the providence inquiry that

on at least two occasions he possesse d some amount of cocaine that he did not use. Appellant described occasions when he would pick up cocaine from a dealer, transportthe cocaine in his car, and then provide some amount of that cocaine to others. Additionally, Appellant described a search of his residence that resulted in the seizure of some amount of cocaine. Thus
, there were sufficient instances of cocaine possession by Appellant not subsumed by Appellant’s use s of cocaine , and the divers possession of cocaine specification is not multiplic ious with the divers use of cocaine specification.United States v

. Grieco , No. ACM S32508

3 MJ (Military Judge) : And at this time, I want you to tell me why
you are gu ilty of the offense listed in Specification 4 of the Charge [divers possession of heroin].
ACC (Accused) : Your Honor, in early January 2017 I started using heroin. The first time I was with [ES] in his car somewhere i n Newport News, Virginia . We were hanging out with two of his civilian friends whose names I cannot r emember at this time. [ES] pulled out a bag containing a gray powdery substance; he and his two friends started snorting the powder through their nose using a d ollar bill. [ES] th en offered me to use some with the m. [ES] handed me a small amount of the heroin powder and the dollar bill and I snorted it through my nose. When he handed me some of the he roin and powder, I possessed it. No one else had any control over the powder excep t for me onc e [ES] gave it
to me. This happened approximately ten times between January 2017 and 2 0 July 2017. This would occur either in my residence or [ES’s] car or residence, all of which were within the Commonwealth of Virg inia. Each time I possessed it, I knew it was heroin because [ES] told me it was heroin and because of the effects I felt after using it. Additionally, th ere were occasions similar to the c ocaine were [sic] [ES] would bring it to my house in exchange for money. On those occasions I w ould possess it at m y house in Hampton, Virginia. When the military judge asked Appellant why he was guilty of diver s use of heroin, Appellant described additional uses when the heroin was injected into Appellant’ s arm. Additionally, at some point in early F ebruary 2017, I was at [ES ’s ] house with his civilian friend named [J] . While we were there, [ES] started mixing the same gray powdery substance we had snorted before into a liquid. He and [J] then used a syringe to soak up the liquid and injected it int o their arms. [ES] asked

me if I had

-- or if I had wanted to try injecting the heroin and I accepted the offe r. I was too afraid to do it myself, so [J] injected it into my arm for me. I immediately felt that st rong sense of euphoria that I would feel after snorting the heroin, but this was a stronger rush. I used heroin intravenously approximately 8 times betwe en February 2017 and 20 July 2017. Every time I would use i t that way, [ES] or [J] would inject it into my arm, but I was doing it vo luntarily.United States v

. Grieco , No. ACM S32508

4The stipulation of fact, on the matter of divers possession of heroin by Appellant, substantially echoed Appellant’s narrative response as to why he was guilty of that offense. Appellant’s PTA with the convening authority included a term that A ppellant offered to “ [ w ]aive all motions which may be properly waived under the Rules for Court

- Martial [sic] and case

- law.” The military judge conducted an inquiry as to Appellant’s understanding of this term
, and Appellant acknowledged that he understood he was waiving all motions that by law are waived by a guilty plea. The military judge further asked Appellant
, “ In particular, do you understand that this term of your pretr ial agreement precludes this court or any appellate court from having the opportu nity to determine if y ou’re entitled to any relief based upon any such motion?” 3 Appellant stated that he understood. Appellant’s trial defense counsel stated that this term originated with the Defense and identified motions that the term covered that were being considered in the absence of a PTA. Appellant’s trial defense counsel did not identify multiplicity or unreasonable multiplication of charges as a potential motion considered in the absence of a PTA or one specifically waived by the “waive all waiva ble motions” provision

.

II. D ISCUSSION
Whether a motion is waived by the “waive all waivable motions” provisionin the PTA or by Appellant’s unconditional guilty plea, this court is not precluded from determining whether Appellant is due relief for a multiplicious specification. See United States v. Chin , 75 M.J. 220, 222

– 23 (C.A.A.F. 2016).As the United States Court of Appeals for the Armed Forces (CAAF) acknowledged in Chin
, Article 66(c), UCMJ, 10 U.S.C. § 866(c), requires a Court of Criminal App eals ( CCA ) to conduct a plenary review and “ affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it find s correct in law and fact and determine s , on the basis of the entire record, should be approved. ” Chin, 75 M. J. at 222 (quoting Article 66(c), UCMJ). The CAAF continued,

3 This question comes directly from the Military Judges’ Benchbook . Dept. of the Army Pamphlet 27

- 9 at 130

– 31 (10 Sep. 2014). To the extent this question includes a premise that a waiver of motions term in a PTA “ precludes ” an “ appellate court from having the opportunity to determine” whether any relief is due upon the waived motions, that premise is incorrect. See United States v. Chin , 75 M.J. 220 , 222

– 23 (C.A.A.F. 2016) (holding courts of criminal ap peals have the power under Article 66, UCMJ, to conduct complete appellate review unless waived altogether pursuant to Article 61, UCMJ , 10 U.S.C. § 861 ).United States v

. Grieco , No. ACM S32508

5 While an accused is prevented from raising an issue by a “ waive all waivable motions ” provision, an accused has no authority to waive a CCA’ s statutory mandate unless, through Article 61, UCMJ, procedures, the accused waives the right to appellate review altogether

— and that election cannot be made until after the trial and sentencing.

. . . Because Article 61, UCMJ, is the exclusive means by which an accused can waive the right to a complete ap pellate review
, . . . that right cannot be waived in a PTA, even when a “ waive all waivable motions ” provision is given full effect.

Id . at 223 (internal citations omitted). A “ waive all waivable motions” provision and unconditional guilty plea are factor s for a CCA to weigh in determining whether to nonetheless disapprove a finding or sentence. Id.

In the answer to the show cause order in Appellant’s case , the Government identified two aspects of the record to support its contention that “Appellant describe[d] occasions where he possessed heroin separate and apart from those occasions where he used it.” First, the Government points to Appellant’s statement during the providence inquiry that ES would bring heroin to Appellant’s home and Appellant wou ld purchase it . Appellant was not, however, asked a follow

- up question regarding what he did with this heroin. During the later inquiry as to Appellant’s use of heroin, Appellant described using heroin in his home with ES , and Appellant was not asked if th ese uses of heroin in his home with ES matched the possession of heroin brought to his home by ES and then purchased by Appellant

. To demonstrate further that Appellant discussed possession of heroin distinct from his use , the Government points to Appell ant’s written statement that was made to the Air Force Office of Special Investigations ( AFOSI ) and attached to the stipulation of fact

. In the statement, Appellant wrote
, “I purchased heroin and cocaine from [ES] for a friend named [J]. Sometimes I would pick up the drugs from ES, sometimes ES would pick the drugs up from me.” We are not persuaded.

We note Appellant did not specifically stipulate to the truth of his writte n statement to the AFOSI. Appellant stipulated only that th e attachment to the stipulation of fact was “a true and accurate copy of the written statement.” More importantly, Appellant was not asked about the statement during the providence inquiry. H owever , when asked why he was guilty of divers possession of cocaine
, Appellant gave an answer that mirrored his written statement
to the AFOSI. When [ES] and I would use cocaine toge ther, I would give him
money to buy cocaine and he would either bring it back t o hisUnited States v

. Grieco , No. ACM S32508

6 house or to my house. He wou ld give me some amount for me to use and then he would keep some amount for him t o use. There were a couple of occasions where he asked me to pick up cocaine for him from his dealer and bring it back to him and sometimes

o ur friend [J] . When I would pick it up, I would transport it ba ck to his house or my house. Each time I would transport it, I possessed the cocaine in my car. I could have prevented it from being in my car if I wanted to. Appellant did not give a similar a nswer when asked why he was guilty of possession of heroin . Instead Appellant described being handed heroin powder, possessing it, and then snorting it and ES sometime s bring ing heroin to Appellant’s house for purchase by Appellant. Appellant was not asked and did not
say exactly what he did with this purchased heroin , but the clear implication was that he used it, particularly because he never said that he passed it on to anyone else . He did discuss using heroin in his home with ES. Most importantly, Appel lant did not state on the record or even write in his statement
to the AFOSI that he ever possessed any amount of heroin and then stored it or transferred it to the possession of another.

In Bullington , the CAAF held that separate specifications alleging use and possession of the same amount of a controlled substance are multiplicious. Consistent with that legal principle
, w e conclude the stipulation of fact and Appellant’s providence inquiry , which con stitute all of the evidence of Appellant’s guilt of heroin possession, do not support finding a possession of any amount of heroin by Appellant distinct from Appellant’s contemporaneous use of the same heroin possessed. 4 On the record before us
, w e find no clear and specific possession of any amount of heroin by Appellant that did not also result in Appellant’s contemporaneous use. Thus, w e conclude the separate specifications alleging the use and possession of heroin are multiplicious in light of the facts established, or more pointedly, not established by the record

. Having found the heroin possession specification multiplicious for findings, we are left to decide whether we should affirm a conviction that violates the

4 T he deficiency in the record regarding Appellant’s possession of heroin distinct from Appellant’s u se may pre sent questions as to the legal and factual basis of Appellant ’s guilty plea as to the possession of heroin. See United States v. Inabinette , 66 M.J. 320 (C.A.A.F. 2008). However, g iven our dismissal of S pecification 4 , we need not a ddress those questions

.United States v

. Grieco , No. ACM S32508

7 Double Jeopardy Clause of the Fifth Amendment. 5 We decline to do so. In reaching this conclusion
, we gave due weight to the “waive all waivable motions” provision of the PTA and Appellant’s unconditional guilty plea
, but were also struck by the parties’ apparent lack of awareness at trial of the obvious application of the legal principle established in Bullington to thi s case. No matter contained in the stipulation of fact, addressed during the providence inquiry, or otherwise discussed in the record of this case demonstrates a recognition of the legal significance of establishing even a single possession of heroin distinct from its use , much less on divers occasions

. The finding of guilty as to Specification 4 of the Charge (divers possession of heroin) is set aside and the specification is d ismissed with prejudice. Having dismissed Specification 4 of the Charge
, we consider whether we should reassess the sentence or return this case for a sentence rehearing. We are confident we can accurately reassess an appropriate sentence

. This court has “ broad discretion ” in deciding to reassess a sentence to cure error and in arriving at an appropriate reassessed sentence. United States v. Winckelmann , 73 M.J. 11, 12 (C.A.A.F. 2013). The CAAF has observed that CCA judges can modify sentences “‘ more expedi tiously, more intelligently, and more fairly’ than a new c ourt

- martial . . . .” Id . at 15 (quoting Jackson v. Taylor
, 353 U.S. 569, 580 (1957)).

Pursuant to Winckelmann
, 73 M.J. at 15

– 1 6, we use four factors to guide

our determination whether to reassess a sentence when apply ing them to Appellant’s case :

• Dramatic changes in the penalty landscape and exposure : As Appellant was tried at a special court

- martial, the jurisdictional maximum was the maximum imposable punishment with or without Specificat ion 4 of the Charge. There is no change in the penalty landscape.

• Whether an appellant chose sentencing by members or a military judge alone : A ppellant was sen tenced by officer members

. While it is conventional wisdom that o ur certainty as to the s entence absent the error is greater with a military judge, we are likewise certain of what this officer panel would have done in this case in light of the other three factors

.

5 U.S. C ONST

. amend. V ; s ee also United States v. Forrester , 76 M.J. 389 (C.A.A.F. 201 7 ) ( holding that the concept of multiplicity is grounded in the Double Jeopardy Clause of the Fifth Amendment, which prohibits multiple punishments for the same offense
, and multiplicious prosecutions when the G overnment charges a defendant twice for what is essentially a single crime).United States v

. Grieco , No. ACM S32508

8 • Whether the nature of the remaining offenses captures the gravamen of criminal conduct included within the original offenses and, in a related manner, whether significant or aggravating circumstances addressed at the court

- martial remain admissible and rel evant to the remaining offenses : A ppellant still stands properly convicted of divers use of heroin and divers use and possession of cocaine. Because the remaining specifications capture the underlying conduct of the dismissed specification , all of the e vidence presented at trial remains relevant and admissible. This factor weighs heaviest in our determination that we may confidently reassess Appellant’s sentence.

• Whether the remaining offenses are of the type that CCA judges should have experie nce and familiarity with to reliably determine what sentence would have been imposed at trial : This court has ample experience with the types of drug charges and with drug cases with similar facts as in Appellant’s case . Our experience informs us that w e are able to reliably determine what sentence wo uld have been imposed at trial. Therefore, considering the facts of Appellant’s case and the totality of the circums tances, we find we are able to determine to our satisfaction that, “ absent any error, the s entence adjudged would have been of at least a certain severity

. . . .” United States v. Sales , 22 M.J. 305, 308 (C.M.A. 1986). Having so found, we reassess A ppellant ’ s sentence to the same sentence that was approved by the convening authority: a bad

- condu ct discharge, confinement for three months, and reduction to the grade of E

- 1

.

III. C ONCLUSION The finding of guilt for Specification 4 of the Charge is SET ASIDE and Specification 4 of the Charge is DISMISSED WITH PREJUDICE . The remaining finding s an d the sentence as reassessed are correct in law and fact, and no other er ror materially prejudicial to the substantial rig hts of Appellant occurred. Arti cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) , 866(c). Accordingly, the remaining find ings and the re assessed sentence are AFFIRMED

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court