## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, SCHASBERGER, and BURTON Appellate Military Judges UNITED STATES, Appellee v. Private First Cl ass 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 Co lonel Christopher D. Carrier, JA; Capt ain 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

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

---------------------------------- Per Curiam: A military judge sitting as a general cour t-martial convicted appellant, pursuant to his pleas, of two specificat ions of abusive se xual 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 di scharge, confinement for ten months, and reduction in grade to E-1. The convening authority appr oved the adjudged sentence.
This case is before the court for review pursuant to Article 66, UCMJ. Appellant asks this court to dismiss Specific ation 2 of The Ch arge because the misconduct is based on the same transaction and impulse as the misconduct in Specification 3 and is, therefor e, an unreasonable multiplication of ch arges. We find appellant affirmatively waived this is sue through his pret rial agreement and unconditional guilty plea, and, in any event, the specific ations were no t 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

2 BACKGROUND Appellant and other So ldiers from his unit rented two rooms at a hotel near their post. Afte r an evening of drinking alcohol, Private (PV2) JM and her boyfriend retired to one of the rooms. Appellant entered the room, climbed in to 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 real ized the person in her bed was not her boyfriend, she st ood 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 fi ve-page pretrial agreement (PTA) with the convening authority. Paragrap h five of the PTA read as follows: 5. I agree to waive the follow ing motions thatare capable of being waived:

. . . b. Defenses or objectio ns based on defects in the charges and specifications (oth er than any failure to show jurisdiction or to charge an offense, which objections shall be resolved by th e military judge at any time during the pendency of the proceedings);

. . . j. Unreasonable multi plication of charges for sentencing purp oses; . . . . Additionally, paragraph twelve of the PTA st ated: “I specifically acknowledge that by pleading guilty, I expr essly waive on appeal any motion that is capable of being waived . . . .” During the providence inquiry, the military ju dge went over the PTA paragraph-by-paragraph. After reading para graph five, the mil itary judge had the following colloquy with appellant: MJ: And paragraph number fi ve says you agree to waive the following motion s that are capable of being waived, correct? ACC: Yes, Your Honor.DIMAS—ARMY 20160784

3 MJ: Now I advise you certain motions are waived or given up if your defense counsel does n’t make the mo tion prior to entering your plea. You’ve al ready entered a plea, so some of these motions are already gone, right? ACC: Yes, Your Honor. MJ: And you unders tood that coming in, based on you reading this pretrial agreement, correct? ACC: Yes, Your Honor.

. . . . [MJ:] Do you understand th is 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 initia ted 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 e ffect of “waiver” and “forfeit ure” of an is sue on appeal. “‘[W]aiver is the intentional relinquishm ent or abandonment ofa 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 th e issue of whether the spec ifications of The Charge were unreasonably multiplied. First, his un conditional guilty plea served to waive the issue. Second, if that wa s 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 re view waived issues because a valid waiver leaves no error to correct on appeal.” United States v. Ahern , 76 M.J. 194,DIMAS—ARMY 20160784

4 197 (C.A.A.F. 2017) (citing United States v. Campos , 67 M.J. 330, 332 (C.A.A.F. 2009)). Notwithstanding appe llant’s waiver, afte r assessing the entir e record we are required to determine wh ether 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 e rror to notice. See 55 M.J. 334, 338 (C.A.A.F. 2001). 2 Specifically, appellant did not object at tria l; 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 exagge rate appellant’s criminality ; Specification 2 does not unreasonably increase appe llant’s punitive exposure; and the record shows no evidence of prosecutorial overreach or abus e. Though the cond uct 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 H. SQUIRES, JR. Clerk of Court

2The Quiroz test: “(1) Did the accused object at trial that there was an unreasonable multiplication of charges and/or specificati ons?; (2) Is each char ge and specification aimed at distinctly separate criminal ac ts?; (3) Does the number of charges and specifications misrepresent or exaggerate the appellant's criminality?; (4) Does the number of charges and specifications [unrea sonably] increase th e appellant’s punitive exposure?; and (5) Is there an y evidence of prosec utorial overreaching or abuse in the drafting of the charges?” 55 M.J. at 338 (int ernal quotation marks and citation omitted). MALCOLM H. SQUIRES, JR. Clerk of Court FOR THE COURT: