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 

2 

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. 
DIMAS—ARMY 20160784 

3 

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, 
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 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 H. SQUIRES, JR. 

Clerk of 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). 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: