## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Specialist CASEY A. PHILLIPS United States Army, Appellant

ARMY 20150373

Headquarters, Fort Carson Douglas K. Watkin s, Military Judge
Colonel Paul J. Perron e, Jr., Staff Judge Advocate (pretrial) Colonel Gregg A. Engler, Staff Judge Advocate (post-trial)

For Appellant: Colone l Mary J. Bradley, JA; Major Christopher D. Coleman, JA; Captain Cody D. Cheek, JA (on brief); Major Christopher D. Coleman, JA; Captain Cody D. Cheek, JA (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major Melissa Dasg upta Smith, JA; Captain Chri stopher A. Clausen, JA (on brief).

1 March 2017

---------------------------------- MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

WOLFE, Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of one specificat ion of attempting to sell military property; one specification of conspi racy to commit larceny of military property; four specifications of making a fa lse official statement; two specifications of willfully destroying military property; seven specific ations of larceny of military, private, and Army and Air Force Exchange Service (AAF ES) property; and one specification of forging and uttering four checks; in violation of Ar ticles 80, 81, 107, 108, 121, and
123 of the Uniform Code of Military Justice [h ereinafter UCMJ], 10 U.S.C. §§ 880, 881, 907, 908, 921, 923 (2012). The military judge sentenced appell ant to a badconduct discharge and confinement for thir ty months. Pursuant to a pretrialPHILLIPS—ARMY 20150373

2 agreement, the convening authority approve d only so much of the sentence that provided for a bad-conduct discharge and fifteen months confinement.

This case is before the court for review pursuant to Article 66, UCMJ. Appellant raises, for the firs t time on appeal, Specificatio ns 1 and 2, 3 and 4, and 5 and 6 of Charge II should be consolidated since the “l arceny of mili tary and nonmilitary property [was] at substantiall y the same time and place,” and therefore Specifications 2, 4, and 6 should be set aside and dism issed. Appellant alleges without consolidation of the specifications there was an unreasonable multiplication of charges since the la rceny offenses were committed at substantially the same time and place. The six specifications appe llant challenges as an unreasonable multiplication of charges invo lve multiple items of mil itary and non-military owned property stolen at Fort Ca rson on three different dates—between on or about 1
November 2012 on or abou t 6 January 2013, 23 April 2014, and 30 April 2014.
After review of the en tire record, we find that appe llant’s uncondition al guilty plea waived this issue, and, in any event, th e charges were not un reasonably multiplied. 1

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.
“Waiver” is the “intention al relinquishment or aband onment of a known right,” which would preclude appellate review of an issue. Id. On the other hand,
“forfeiture” is “the fa ilure to make th e timely assertion of a right,” which requires a review for plain error on appeal. Id. (quoting United States v. Olano , 507 U.S. 725, 733 (1993) (interna l quotation marks omitted); see also, United States v. Sweeney

, 70 M.J. 296 (C.A.A.F. 2011).

In the instant case, appell ant entered into an uncon ditional guilty plea. “By pleading guilty, an accus ed does more than admit that he did the variou s acts alleged in a specification; ‘he is admitting guilt of a substantive crime.’” United States v. Campbell , 68 M.J. 217, 219 (C.A .A.F. 2009) (citing Unites States v. Broce , 488 U.S. 563, 570 (1989)). “An unconditional guilty pl ea generally waives all pre-trial and trial defects that are not jurisdictional nor a deprivation of due process of law.”
United States v. Jones , 69 M.J. 294, 299 (C.A .A.F. 2011) (citing United States v. Schweitzer , 68 M.J. 1 33, 136 (C.A.A.F. 2009). As Schweitzer was decided shortly
after Gladue, the court’s use of “waiver” in Schweitzer was clearly intentional.
Unless offenses are “faciall y duplicative” a guilty plea waives any claim that the
offenses are unreas onably multiplied. Schweitzer , 68 M.J. at 136. (citing United States v. Pauling , 60 M.J. 91, 94 (C.A.A.F. 2004).

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.PHILLIPS—ARMY 20150373

3 Before entering his guilty plea, the military judge specifically asked appellant if there were any motions to dismiss 2 or to grant other appropriate relief. Appellant’s defense counse l did not ask the court fo r any relief or allege unreasonable multiplication of charges. We find that appellant pleaded guilty unconditionally and waived th e issue of unreasonable mu ltiplication of charges.

Notwithstanding appellant’s waiver, after assessing th e entire 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. Cr im. App. 2005). It is in the exercise of this discretionary authority with regards to one pair of specifications that we disagree with our dissenting co lleague, and therefore explain our reasoning at some length.

Specification 1 and 2 of Charge II

Appellant pleaded guilty to stealing an assault pack valued at less than $500.00 (Specification 1) and stealing four blank chec ks that had some value (Specification 2). Appellant found the chec ks inside the assau lt pack several weeks
later. It is undis puted when appellant took the assault pack he also took the blank checks—there is but one “taking.” However, because the offense of larceny involves an element of specific in tent, it does not always fo llow that when appellant stole the assault pack he also stole the checks.

Here appellant established during his pr ovidence inquiry that he formed the intent to permanently deprive the owner of the value of the assault pack when he took the assault pack. He stipulated, howe ver, that he did not have the intent to permanently deprive the owner of the value of the checks until he found the checks several days later. In the co ntext of a guilty plea, appellant cannot be guilty of stealing the checks until he formed th e specific intent to deprive the owner permanently of their use. Since the parties stip ulated that this did not occur when appellant stole the assault pack, th ere cannot be on ly one larceny. 3

2 Motions to dismiss under Rule for Courts-Martial [h ereinafter R.C.M.] 907, include nonwaivable grounds, waivable grounds, and permissible grounds for dismissal. Permissible grounds for dismissal include if a specification is mulitiplicous with another specification. After United States v. Campbell , 71 M.J. 19 (C.A.A.F 2012), “unreasonable multiplication of charges” encompasses wh at has previously been described as “multiplicity in sentencing.” Id. at 26.

3 Put differently, if appellant had told the mi litary judge that he had no intent to steal
the checks until he found th em, and upon finding the chec ks he decided to return them to their owner, we would surely sa y that he was improvident to stealing the
checks.PHILLIPS—ARMY 20150373

4 We would agree with our dissenting colleague that “[w]hen a larceny of
several articles is committed at substantially the sa me time and place, it is a single larceny even though the articles belong to diffe rent persons.” Manual for CourtsMartial

, United States (2012 ed.) [hereinafter MCM ], pt. IV, ¶ 46(c)(1)(i)(ii). However, the key to us in understanding that provision is that there must be a larceny of several articles at the same time. In other word s, the accused must intend to permanently depr ive the owner of all the articles taken. Without the requisite intent, there is no larceny. If appellant di d not have the requisite intent to steal the checks when he stole the assault pack, th en there was not a “larceny of several
items.”

We would also agree that it is a permissible inference that when an accused
takes one item with an intent to permanently deprive the owner of the item, it is a permissible inference that he intends to steal any items contai ned within. Thus, when one steals a purse, one can infer the thief intended to al so steal the wallet
within. See United States v. Dicario , 8 U.S.C.M.A. 353, 361, 24 C.M.R. 163, 171 (1957) (“It is also the gene ral rule that only a single theft is committed when the
thief takes one article which contains other articles within it, as in th e case of a purse containing a wallet, which in turn contains a sum of money.").

Here, however, appell ant specifically stip ulated that he did not have the intent
to steal the checks until he found them. Appellant stipulated that only upon finding
the checks did “he then form[] the intent” to permanently deprive the owner of the
value of the checks. He further stated in his provid ence inquiry that he was unaware the assault pack contained blank checks when he stole the assault pack. It was only “[a]fter finding these checks, I had no inte ntion of returning th em to the rightful
owner. . . . At that point, my sole intent was to depr ive [the owner] of his checks.”

Therefore, we find Specifications 1 and 2 of Charge II, at least as stipulated by the parties and as descri bed during appellant’s provide nce inquiry, constituted separate larcenies; we do not find the specif ications to be unreasonably multiplied.
To the extent the record is unclear or unde veloped, it is the na tural consequence of appellant entering an uncondition al guilty plea to both specifications, and weighs in favor of leaving appellant’s wa iver of the i ssue intact.

CONCLUSION

The findings and sentence are AFFIRMED.

Senior Judge MULLIGAN concurs.

FEBBO, Judge, concurring in pa rt and dissenting in part.

I concur that an unconditional guilty plea generally waives the issue of unreasonable multiplication of charges on appeal. Similarly, to allow the trial courtPHILLIPS—ARMY 20150373

5 to resolve challenges based on an alleged unreasonable multiplication of charges and develop a more clear record on appeal, appe llant should have raised the issue before the military judge. I concur there was no unr easonable multiplication for Specification 3 and 4 and Specifications 5 and 6 of Charge II. For those specifications, appellant had to cut locks to doors and wall lockers, cut locks to shipping containers, enter separate motor pools, enter separate offices and different areas in the motor po ol building, and stea l items contained with in separate wall lockers and a locked desk. Appellant’s act ions for those specif ications involved distinctly separate acts and, therefore, these larcenies did not occur at substantially the same time and place.

In contrast, I find Specifications 1 and 2 of Charge II constitute an unreasonable multiplication of charges because of the long-standing policy 4 in the

MCM and precedence in case law on how to charge larcen ies involving the contents of a single item stolen. The two specifications to wh ich appellant pleaded guilty were not aimed as distinctly separate criminal acts.

I understand that several weeks 5 after stealing the as sault pack, appellant
looked inside and found a check book contai ning four blank checks that belonged to

SPC MH. 6 Upon discovery of the checks, appellant formed the intent to steal the checks. Although the intent to steal th e checks occurred seve ral weeks later, the
actions to steal the as sault pack and blank checks inside occurred at su bstantially the same time and place. The MCM provides guidance on ap pellant’s non-concurrent

4 This policy is firm ly rooted in the MCM . The 1949 edition of the MCM discussion of charging larcen y under Article of War 93, stated:

“When a larceny of seve ral articles is committed at substantially the same time and place it is a single larceny even though the articles belong to different pe rsons. Thus, if a th ief steals a suitcase containing the prop erty of several persons or goes into a room and takes property belonging to vari ous persons, ther e is but one larceny, which shou ld alleged in but one specification.”

MCM , 1949, ¶ 180g at 240.

5 Appellant stipulated betw een on or about 1 November 2012 and on or about 6 January 2013, he contacted an other soldier for assistance in cashing the checks.

6 There was no rank on the blank checks and the larceny of th e blank checks was charged as the property of Mr. MH. Appellant later, with intent to defraud, signed
the four blank checks with Mr. MH’s name and through an other soldier attempted to
cash them in the total am ount of $4,620. The checks bounced. Appellant pleaded guilty to this separate o ffense, Article 123, UCMJ.PHILLIPS—ARMY 20150373

6 intent to steal the checks that he later found in the assault pack he stole. Para. 46c(1)(f)(i), Part IV, Manual for Courts-Martial, United States (2012 ed.)("Although a person gets property by a taking or obtaining which . . . was without a concurrent intent to steal, a larceny is nevertheless committed if an intent to steal is formed after the taking or obtaini ng and the property is wrongf ully withheld with that intent."). See United States v. Helms , 47 M.J. 1 (C.A.A.F. 1997) (citing United States v. Aldridge , 2 U.S.C.M.A. 330, 8 C.M.R. 130 (1953); United States v. Cox , 37 M.J. 543 (N-M. Ct. Crim. App. 1993)(when an article is ta ken without consent it is immaterial if an appellant did not decide to retain the article until a later time); see also State v. Langford , 467 So. 2d 41 (La. Ct. App. 1985); United States v. Suthanaviroj , NMCM 200000763, 2002 CCA LEXIS 159 at *12 (N-M. Ct. Crim. App. 22 July 2002). "It is clear that larceny is comm itted when an intent to permanently deprive the owner of property of its use and benefit is formed at any time after the event, even when the original taking . . . was done with the intent to
return it . . . ." United States v. Lee , 37 M.J. 1020, 1021 (A.F .C.M.R. 1993) (citing
United States v. Vardiman , 35 M.J. 132 (C.M.A. 1992)).

In Helms , our superior court conc luded that “this latter larceny relies on the
‘fictional notion of continuing trespass ’ to find the concurre nt existence of the taking element and the requisite intent.” Helms , 47 M.J. at 3 (citing LaFave &

Scott

, Substantive Criminal Law, § 8.5 (f) at 366 (1986). Although Helms was considering the application of MCM, pt IV . ¶ 46c(1)(f)(i) to fraud involving Basic Allowance for Housing (BAH), th e same rational applies to appellant’s later intent
to steal checks that he did not know were in side the assault pack he stole. In fact,
the rationale of findi ng a single larceny is even stro nger when a sold ier steals an item that would normally be used to store items inside, such as a wallets, purses, duffel bags, and assault packs. See Dicario , 8 U.S.C.M.A. at 361.

This guidance is consistent with how the government charged the larceny of the assault pack and checks. In reviewing Specification 1 and 2, the date range of when appellant formed the intent to steal the assault pack and the checks is exactly
the same . The government charged appellant an d he pleaded guilty to stealing the assault pack and four checks between “1 Novemb er 2012 and on or about 6 January

2013.”

Specifications constitute an unreasonable mu ltiplication of ch arges when what is substantially one transaction is unnecessarily br oken down into component parts and charged separately. See R.C.M. 307(c)(4) discussion; United States v. Quiroz, 55 M.J. 334, 336-38 (C.A.A.F. 2001). Likewise, the explanat ory text of Article 121, UCMJ, in the Manual for Courts-Martial provides guidance on what the government should consider when charging a “multiple article larceny”:

When a larceny of several articles is committed at substantially the same time and pl ace, it is a single larceny even though the articl es belong to differe nt persons. Thus,PHILLIPS—ARMY 20150373

7 if a thief steals a suitcase containing the property of several persons or goes into a room and ta kes property belonging to various persons, there is but one larceny, which should alleged in but one specification.

MCM, pt. IV, ¶ 46(c)(1)(i)(ii). 7

“When determining the sepa rateness of two or more larceny specifications, therefore, the pivotal consideration is no t what was stolen, no r from whom it was stolen, but whether the thefts occurred ‘at substantiall y the same time and place;’ or, in essence, whether they ‘arose from the same act or transaction.’" United States v.
Jobes , 20 M.J. 506, 508, (A.F. Ct. Crim. App. 1985) (citing United States v. Hall , 6 U.S.C.M.A. 562, 20 C.M.R. 278 (C.M.A. 1955)).

The larcenies did not requ ire distinct and separa te acts to complete the larceny of the assault pack an d checks. These two specifications should be merged as a single larce ny. This court in addressing similar
facts and circumstances has held that charging them se parately was an unreasonable multiplica tion of charges. See United States v. Flinner

, ARMY 20140704, 2015 CCA LEXIS 126, *3 (Army Ct. Crim, App. 23 March 2015) (summ. disp.). See also, United States v. Sharp , ARMY 20130998, 2014 CCA LEXIS 856,(Army Ct. Crim, A pp. 25 November 2014) (“The moment appellant stole the trailer, he came into unlawful possession of the tools inside of the trailer.”); United States v. Box , ARMY 20071166, 2009 CCA LEXIS 198, (Army Ct. Crim, A pp. 27 February 2009) (affirming consolidation of separate larceny specifi cations involving “the same victim, at the same time, from th e same gym locker.”)( United States v. Vandenberg

, ARMY 20020991, 2005 CCA LEXIS 562, *3 (Army Ct. Crim, A pp. 16 August 2005) (affirming consolidation of separate larcen y specifications involving the theft of checkbooks belong ing to two different soldiers in the same barracks room); United States v. Coffman , 45 M.J. 669, 671 (Army Ct.

7 The explanatory text of MCM , pt. IV, ¶ 46c(1)(i)(ii) ap plies “even when personal property belonging to an in dividual and military proper ty belonging to the United States government (alt hough issued to the individual) are stolen at the same time and place.” United States v. Flinner , ARMY 20140704, 2015 CCA LEXIS 126, at *3-4 (Army Ct. Crim, App. 23 March 2015) (sum. disp .). “The fact that the President has prescribed enhanced penalties when military property is the subjec t of a larceny does not transform a single larceny of military and non-military property at the same time and place into two separate larcenies. See MCM , pt. IV, ¶ 46.c(1)(i )(ii), 46.e(1)(a)- (b).” Id .; see also

, United States v. McLaurin , 2001 CCA LEXIS 484 (Army Ct. Crim, App. 18 April 2001) (“Th e President, exercising hi s statutory authority under Article 56, UCMJ, to prescr ibe maximum punishments for offenses, chos e to provide a greater penalty for larcenies of military property than for private property, but his
actions did not create two separate statut ory violations.”). Flinner at *4.PHILLIPS—ARMY 20150373

8 Crim. App. 1997) (affirming consolidation of separate larceny specifications involving theft of a wallet and theft of a military identificati on card contained within). The facts and circumstances of this larceny fit sq uarely within the

MCM , pt. IV, ¶46(c)(1)(i) (ii) example of charging a larceny of several articles as a single larceny.

Therefore, I find Specifications 1 and 2 of Charge II constitute an unreasonable multiplication of charges because the larcenies arose from the
same act and occurred at substantiall y the same time and place. For these reasons, I respec tfully dissent.

FOR THE COURT:

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