## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before COOK, GALLAGHER, and HAIGHT Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class WILLIAM J. PISER United States Army, Appellant

ARMY 20110723

Headquarters, United States Army Maneuver Center of Excellence Stephen E. Castle n, Military Judge Colonel Mary M. Foreman, Staff Judge Advocate

For Appellant: Colonel Patr icia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA (on brief and reply brief).

For Appellee: Major Robert A. Rodrigue s, JA; Major Catherine L. Brantley, JA; Captain Jessica J. Morales, JA (on brief).

13 March 2013

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

--------------------------------

Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of one specification of dr unken operation of a motor vehicle causing injury to others, one specification of involuntary mans laughter, one specification of negligent homicide, and three specifications of reckless endangerment, in violation of Articles 111, 119, and 1 34, Uniform Code of Military Justice, 10 U.S.C. §§ 911, 919, 934 (2 006) [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct disc harge, confinement fo r five years, and reduction to the grade of E-1. The convening author ity approved the adjudged

sentence.

This case is before our court for review und er Article 66, UCMJ. In his sole assignment of error, appell ant alleges Specification 1 of Charge III (negligent homicide) was unreas onably multiplied with the Spec ification of Charge II and Charge II (involuntary manslaughter). This assignme nt of error merits discussion

and relief.PISER—ARMY 20110723

2 LAW AND DISCUSSION

In the Specification of Charge II, ap pellant was charged with involuntary manslaughter in violation of Article 119, UCMJ. The specifica tion alleged appellant

“on or about 19 November 20 10, by culpable negligence, unlawfully killed PV2 SS by driving under the influence of alcohol and over the post ed speed limit . . . .” Additionally, in Specification 1 of Charge III, appellant was charged with negligent

homicide in violation of Arti cle 134, UCMJ. That specification alleged appellant,

“on 19 November 20 10, unlawfully killed PV2 SS by negligently operating a vehicle, to wit: driving a motor vehicle while under the influence of alcohol and over the posted speed limit . . . .” At trial, the defe nse did not object to these specifications as being an un reasonable multiplication of charges. However, the military judge sua sponte found the specifications to be multiplicious for sentencing.

Pursuant to Rule for Cour ts-Martial 307(c)(4), “[w]hat is substantially one

transaction should not be made the basis for an unre asonable multiplication of charges against one pers on.” This principl e is well establishe d in militar y law.

United States v. Quiroz , 55 M.J. 334, 336– 37 (C.A.A.F. 2001). Thus, even where two charges are not tech nically multiplicious und er the elements test:

[t]he prohibition against un reasonable multi plication of charges has long provided courts-martial and reviewing

authorities with a traditi onal legal standard —

reasonableness — to address th e consequences of an abuse of prosecutorial discretion in the context of the unique aspects of the militar y justice system.

Id . at 338.

In Quiroz , our superior court liste d five factors to help guide our analysis of whether charges have been un reasonably multiplied:

(1) Did the accused ob ject at trial th at there was an unreasonable multiplicati on of charges and/or specifications?;

(2) Is each charge and specification aimed at distinctly separate criminal acts?;

(3) Does the number of char ges and specifications misrepresent or exaggerate the appellant's criminality?;PISER—ARMY 20110723

3 (4) Does the number of char ges and specifications [unreasonably] increase [t he] appellant's punitive exposure?;

(5) Is there any evidence of pr osecutorial overreaching or

abuse in the drafting of the charges?

Id . at 338 (internal citation and quotation ma rks omitted) (internal alteration reflects the holding in Quiroz that “unreasonably” will be utilized inst ead of “unfairly.”).

In regards to the first Quiroz factor, appellant did not ra ise this issue at trial, and we, therefore, find this factor does not favor appella nt. However, failure to

raise this issue at tria l is not dispositive. United States v. Gilchrist , 61 M.J. 785, 789 (Army Ct. Crim. App. 2005); Quiroz , 55 M.J. at 338. We also do not find in appellant’s favor in regards to the fourth Quiroz factor. At trial, the military judge found the two specifications to be multiplicious for se ntencing and merged the specifications for purposes of sentencing. Thus , the specifications did not unfairly increase appellant’s punitive exposure. Likewise, regarding the fifth Quiroz factor,

we do not find in appellant’s favor because there is no evidence of prosecutorial overreaching or abuse. In stead, as the defense recognizes, it is likely the government utilized alternative theories of charging due to the deci sion by the Court of Appeals for the Armed Forces, in United States v. McMurrin , 70 M.J. 15 (C.A.A.F. 2011), which held negligent homicide was not a less er-included offense of involuntary manslaughter.

In regards to the remaining Quiroz factors, however, we find in favor of appellant. As to the second factor, each specification is not aimed at distinctly separate criminal acts. Rather, both speci fications criminalize a ppellant’s one act of causing the death of PV2 SS. Further, the third Quiro z factor is especially relevant here because appellant currently stands c onvicted twice for caus ing the death of but one person. Such a re sult exaggerates appell ant’s criminality.

We therefore hold there was an unreaso nable multiplication of charges in this

case. See United Stat es v. Campbell , 71 M.J. 19, 23 (C.A.A.F . 2012) (noting one or more factors may be suffici ently compelling, without more , to warrant relief.). Accordingly, we will take appropriat e action in our decr etal paragraph.

CONCLUSION

The finding of guilty of Specification 1 of Charge III (negli gent homicide) is set aside and that specification is dismis sed. The remaining findings of guilty are AFFIRMED. Reassessing the sentence on the basis of the error noted, the entire record, and in accordance with the principles of United States v. Sales , 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit , 63 M.J. 40 (C.A.A.F . 2006), to includePISER—ARMY 20110723

4 the factors identified by Judge Bake r in his concurri ng opin ion in Moffeit , the sentence approved by the convening author ity is affirmed.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: