## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before LIND, KRAUSS, and BORGERDING Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant DEREK R. TOPE United States Army, Appellant

ARMY 20130103

Headquarters, 25th Infantry Division David Conn, M ilitary Judge (arraignment) Stefan Wolfe, Military Judge (trial) Colonel Mark A. Bridge s, Staff Judge Advocate

For Appellant: Colone l Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr., JA; Major Amy E. Nieman, JA ; Captain James S. Trieschm ann, Jr., JA (on brief).

For Appellee: Colonel John P. Carrell, JA ; Lieutenant Colonel James L. Varley, JA; Major Robert A. Rodrigues, JA; Capt ain Carl L. Moore, JA (on brief).

16 June 2014

--------------------------------- SUMMARY DISPOSITION

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BORGERDING, Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to hi s pleas, of two specifications of false official statement; one specification of wrongful disposition of mi litary property; on e specification of wrongful introduction of heroin into an installation; one spec ification of wrongful possession of heroin; one specification of wrongful use of heroin; and one specification of larceny of m ilitary property in violation of Arti cles 107, 108, 112a, and 121, Uniform Code of Mil itary Justice, 10 U.S.C. §§ 907, 908, 912a, 921 (2012) [hereinafter UCMJ]. The military judge sentenced ap pellant to confinement for thirty-three months. Pursuant to a pret rial agreement, the convening authority approved only so much of the adjudged sentence as provided for confinement for twenty-four months.TOPE — ARMY 20130103

2 This case is before the court for review under Article 66, UC MJ. Appellant assigns two erro rs, both relating to his convictions for wrongful use, possession, and
introduction of heroin . He also raises matters pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), which we find are without merit.

Appellant first asserts that his convictions for intr oduction, possession, and
use of a controlled substance are an un reasonable multiplicat ion of charges for findings. See United Stat es v. Quiroz

, 55 M.J. 334 (C.A.A.F. 2001). 1 The government disagrees that the specifications constitute an unreasonable multiplication of charges, but concedes the specification a lleging wrongful possession of heroin (Specifi cation 2 of Charge II) is a lesser-included offense of, and therefore impermissibly multiplicious with, the specification alleging wrongful
introduction of heroin (Specification 1 of Charge II). The gover nment asks us to set aside and dismiss Specificat ion 2 of Charge II.

“[A]ppellate consideration of multiplicit y claims is effectively waived by unconditional guilty pleas, ex cept where the record shows that the challenged
offenses are ‘facia lly duplicative.’” United States v. St. John , 72 M.J. 685, 687 (Army Ct. Crim. App. 2013) (quoting United States v. Lloyd , 46 M.J. 19, 23 (C.A.A.F. 1997)); 2 see also United States v. Heryford , 52 M.J. 265, 266 (C.A.A.F. 2000). “Facially duplicativ e means the factual component s of the charged offenses
are the same.” St. John , 72 M.J. at 687 (citing Lloyd , 46 M.J. at 23). “Whether specifications are facially duplicative is de termined by reviewing the language of the specifications and ‘facts apparent on the face of the record.’” Heryford , 52 M.J.at 266 (quoting Lloyd , 46 M.J. at 24).

In all three specifications alleged as violations of Ar ticle 112(a), UCMJ, appellant is charged with th e use, possession, or introduction of he roin “on divers
occasions between on or ab out 12 April 2012 and 30 May 2012.” The specifications alleging possession and introduction both charge appellant with possessing or introducing “some amount ” of heroin. We find the r ecord reflects the amount of heroin appellant used and in troduced is precisely the sa me amount he possessed. The stipulation of fact states appellant “w ould purchase heroin off the installation, Schofield Barracks, Hawaii . . . and then br ing the drugs backs on post to wrongfully use. Specifically, he would tr ansport the drugs onto the installation in his personally

1 The military judge consid ered the three specificat ions “as one offense for sentencing purposes.”

2 “We interpret this to mean that an uncond itional guilty plea, w ithout an affirmative waiver, results in a forfeiture of multiplicity issues absent plain error. An appellant may show plain error and overcome forfe iture by proving the specifications are facially duplicative.” St. John , 72 M.J. at 687 n.1 (citing United States v. Harcrow

, 66 M.J. 154, 156 n.1 (C.A.A.F. 2008)).TOPE — ARMY 20130103

3 owned vehicle and use them in Mr. [D’s] barracks room.” Neither the stipulation of fact nor appellant’s admissio ns during the providence inquir y establish any facts that appellant possessed a different amount of he roin than what he used or introduced
into Schofield Barracks. Acco rdingly, under the f acts of this case, we agree with the government and further find th at Specification 2 of Charge II (wrongful possession) is “facially duplicative” wi th both Specification 1 of Charge II (wrongful introduction) and with the Sp ecification of the Additional Charge (wrongful use).
See United States v. Bullington

, 18 M.J. 164 (C.M.A . 1984) (per cu riam) (holding use and possession of a controlled substance was multiplicious where appellant used the same amount at the same pl ace and on the same date); United States v.
Hendrickson , 16 M.J. 62 (C.M.A. 1983) (per curiam) (h olding possession and
introduction of a controlled substance was multiplicious where appellant possessed
and introduced the same amount at the same place and on the same date); United
States v. Thomas , 65 M.J. 132, 135 (C.A.A.F. 2 007) (“[W]rongful possession of drugs is itself a lesser included offense of wrongful introducti on under Article 112a, UCMJ.”)). We will grant relief in our decretal paragraph.

In his second assignm ent of error, appellant asserts, inter alia

, 3 that the military judge failed to define “divers occasions” when reading the elements for wrongful introduction of heroin and th en failed to discuss with appellant the factual
basis for the “on divers occa sions” language with respec t to this sp ecification. Appellant is co rrect on both counts.

We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Inabinette , 66 M.J. 320, 322 (C.A.A .F. 2008). A guilty plea will only be set aside if we find a subs tantial basis in law or fact to question the plea. Id. (citing United States v. Prater , 32 M.J. 433, 436 (C.M.A. 1991)). The court applies this “substantial basis” test by determining whether the record raises a substantial question about the factua l basis of appellant’s guilty plea or the law underpinning the plea. Id. ; see also UCMJ art. 45(a); Rule for Courts-Martial [hereinafter R.C.M.] 910(e). “For this [c]ourt to find a plea of guilty to be knowing and voluntary, the reco rd of trial must re flect that the elements of each offense charged have been explained to th e accused by the military judge.” United States v.
Schell , 72 M.J. 339, 345 (C.A .A.F. 2013) (quoting United States v. Redlinski

, 58 M.J. 117, 119 (C.A.A .F. 2003) (internal qu otations omitted); see also United
States v. Care , 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247, 25 3 (1969); UCMJ art. 45(a); R.C.M. 910(c)(1). “‘ Rather than focusing on a technical listing of the

3 Appellant’s claim that the military judge di d not discuss with a ppellant whether or not he knew the substance he possessed was, in fact, heroin is re ndered moot by our ruling on his first as signment of error. We nonetheless note that appellant admitted
that he knew the substance he used and in troduced into post wa s heroin because he “recognized it to be he roin” and because he fe lt the effects of the drug after using it, indicating to him that it was heroin.TOPE — ARMY 20130103

4 elements of an offense, this [c]ourt looks at the context of the entire record to
determine whether an accuse d is aware of the elemen ts, either explicitly or inferentially.’” Schell , 72 M.J. at 345 (quoting Redlinski , 58 M.J. at 119). “If the military judge fails to explain the elements to an accused, it is reversible error
unless ‘it is clear from th e entire record that the accused knew the elements, admitted them freely, and pleaded gu ilty because he was guilty.’” Schell , 72 M.J. at 345 (quoting United States v. Jones , 34 M.J. 270, 27 2 (C.M.A. 1992)).

In this case, the military judge read the definition of “divers occasions” with respect to the specific ation alleging wrongful possession of heroi n. The language in the stipulation of fact supports multiple instances of use, possession, and
introduction. Moreov er, during the colloquy as to the wrongful possession specification, appellant stated, “I had a controlled substance at least twice, sir.” Appellant confirmed that these were “two different instances se parated in time.” Appellant also admitted that he “used he roin twice.” In accord ance with our finding
that the amount of he roin appellant posses sed is the exact same amount of heroin that appellant introduced on to Schofield Barracks an d then used, we find that appellant understood the mean ing and effect of pleading guilty to using heroin and introducing it onto Sc hofield Barracks on “div ers occasions” and find no substantial basis in fact or law to ques tion his plea to Specificati on 1 of Charge II (wrongful
introduction on di vers occasions).

Therefore, after considering the entire record and the partie s’ briefs, we set aside and dismiss the finding of guilty of Specification 2 of Charge II (wrongful possession). The remaini ng findings of guilty are AF FIRMED. Reassessing the
sentence on the basis of the error noted , the entire record , and applying the principles of United States v. Sales , 22 M.J. 305 (C.M.A. 19 86) and the factors set
forth in United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013), the
sentence is AFFIRMED. All rights, privileges, and propert y, of which appellant has been deprived by virtue of that portion of the findings set aside by this decision, are
ordered restored.

Senior Judge LIND an d Judge KRAUSS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: