UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Senior Airman BRANDON K. PRITZ

United States Air Force

ACM 38712

21 January 2016

Sentence adjudged 30 September 2014 by GCM convened at Joint Base 

Elmendorf–Richardson, Alaska. Military Judge: Matthew P. Stoffel

(sitting alone).

Approved Sentence: Bad-conduct discharge, confinement for 1 year,

forfeiture of $1020.00 pay per month until execution of the adjudged

punitive discharge, and reduction to E-1.

Appellate Counsel for the Appellant: Captain Annie W. Morgan.

Appellate Counsel for the United States: Major Mary Ellen Payne; Major 

Roberto Ramirez; and Gerald R. Bruce, Esquire.

Before

MITCHELL, DUBRISKE, and BROWN

Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent

under AFCCA Rule of Practice and Procedure 18.4.

BROWN, Judge:

At a general court-martial composed of a military judge sitting alone, Appellant 

was convicted, consistent with his pleas, of disrespect to a superior commissioned officer;

three specifications of failure to obey a general regulation by using Spice; violation of a 

restriction order; physically controlling a passenger car while drunk; wrongful use of 

cocaine; wrongful use of marijuana; wrongful possession of a Schedule I controlled 

substance, AM-2201 (1-(5-Fluoropentyl)-3-(1-naphthoyl) indiole); wrongful provision of 
2 ACM 38712

alcohol to a person under the age of 21; and two specifications of drunk and disorderly 

conduct, in violation of Articles 89, 92, 111, 112a, and 134, UCMJ, 10 U.S.C. §§ 889, 

892, 911, 912a, 934.1The military judge sentenced Appellant to a bad-conduct 

discharge, confinement for one year, forfeiture of all pay and allowances, and reduction 

to E-1. The convening authority approved only so much of the sentence as provided for a 

bad-conduct discharge, confinement for one year, forfeiture of $1,020.00 pay per month 

until execution of the adjudged punitive discharge, and reduction to E-1. 

On appeal, Appellant contends the three specifications for failure to obey a general 

regulation by using Spice constituted an unreasonable multiplication of charges. He also 

argues that, if we find Appellant waived this issue, we find his trial defense counsel 

provided ineffective assistance of counsel by failing to object to this issue or raise it in 

clemency. We disagree and affirm the findings and sentence.

Background

Appellant engaged in a course of continuing misconduct over a 14-month time 

period that ranged from various drug offenses, to alcohol offenses, to disrespect, to 

violation of orders. Appellant’s misconduct only ceased when he was placed into pretrial 

confinement. 

Appellant’s laundry list of misconduct included three specifications of failure to 

obey a lawful general regulation by wrongfully using an intoxicating substance 

commonly known as Spice. The three specifications covered distinct uses of Spice at 

three different times: divers uses between 1 March 2013 and 25 June 2013, use between 

1 August 2013 and 3 September 2013, and use between 15 September 2013 and 18 

October 2013. 

Appellant subsequently entered into a pretrial agreement where he agreed to plead 

guilty to all but two specifications, enter into a stipulation of fact, be sentenced by a 

military judge, and waive all waivable motions other than an illegal pretrial punishment 

motion that had been previously filed. In return, the convening authority agreed to 

withdraw and dismiss two specifications and to approve no more than 24 months of

confinement. Based solely on the offenses for which Appellant entered a guilty plea, 

Appellant faced a maximum sentence of a dishonorable discharge, 20 years and 11 

months of confinement, forfeiture of all pay and allowances, and reduction to E-1.

 

1

 As part of a pretrial agreement, the government agreed to withdraw and dismiss a specification of disobeying a 

lawful order by possessing alcohol in the dormitories and a specification of dereliction of duty for failing to refrain 

from having fireworks in his dormitory room, in violation of Article 92, UCMJ, 10 U.S.C. § 892. Appellant did not 

enter a plea as to these offenses.
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Unreasonable Multiplication of Charges

During his providence inquiry, Appellant described his multiple uses of Spice during 

each of the time periods set forth in the three specifications. Between 1 March and 25 

June 2013, Appellant purchased Spice at least 20 different times and smoked what he 

purchased by using a pipe, an aluminum can, or a hand-rolled cigarette while in his 

vehicle, in his dormitory room, or at the smoke pit at his work location. For the 

specification covering the time period between 1 August and 3 September 2013, 

Appellant admitted smoking Spice on numerous occasions in his car and in his dormitory 

room and that he ingested it in the three ways previously described. This group of uses 

resulted in a positive urinalysis for Spice. Finally, during the last distinctly charged time 

period between 15 September and 15 October 2013, Appellant admitted to additional 

uses of Spice, ingested in a similar manner and in similar places. This third group of uses 

resulted in a second positive urinalysis for Spice.

Appellant’s pretrial agreement contained a “waive all waivable motions” 

provision. This provision preserved only those motions filed as of the date of the offer 

for pretrial agreement. When discussing this provision, trial defense counsel did not 

reference unreasonable multiplication of charges as a specific motion that Appellant

would have raised but for that provision in the pretrial agreement.

Although Appellant did not raise it at trial, he now contends that charging multiple 

uses of Spice in three specifications, rather than charging all of the uses as one 

consolidated “divers” specification, constituted an unreasonable multiplication of 

charges. From the plea and the stipulation of fact, Appellant smoked Spice more than 24 

times at three different places, in three different ways, and his uses resulted in two 

separate positive urinalysis results.

In United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009), our superior court held a 

“waive all waivable motions” provision waived, rather than forfeited,2a claim of 

multiplicity and unreasonable multiplication of charges on appeal, and, therefore, it was 

appropriate for the service court to treat these issues as waived on appeal. The court held 

this issue was waived even though trial defense counsel did not say that they considered 

these potential motions, or had previously advised Appellant regarding them. Id. at 314. 

The court held the appellant in Gladue waived both of these issues because the pretrial 

agreement required him to waive “all” waivable motions. Id. The court noted the 

military judge conducted a thorough inquiry to ensure the appellant understood the effect 

of this provision, and he explicitly indicated his understanding that he was waiving the 

right to raise any waivable motion. Id. 

 

2 As our superior court explained, while “forfeiture is the failure to make the timely assertion of a right, waiver is the 

‘intentional relinquishment or abandonment of a known right’.” United States v. Gladue, 67 M.J. 311, 313 

(C.A.A.F. 2009) (quoting United States v. Olano, 507 U.S. 725, 733 (1993)). 
4 ACM 38712

In this case, Appellant waived all waivable motions as part of his pretrial 

agreement, and the military judge ensured he understood the meaning and effect of this 

provision. While trial defense counsel did not specifically articulate that the defense was 

waiving a potential unreasonable multiplication of charges motion, this is not required. 

Consistent with Gladue, we find Appellant has waived his right to raise the issue of 

unreasonable multiplication on appeal; and, therefore, he is not entitled to relief on this 

issue. See also United States v. Kuhn, ACM 37357 (A.F. Ct. Crim. App. 16 March 2010) 

(unpub. op.) (finding that a “waive all waivable motions” provision in a pretrial 

agreement waived all claims that charging five uses of cocaine as separate specifications 

constituted an unreasonable multiplication of charges).

Additionally, we have considered whether we should decline to apply waiver 

under our broad authority under Article 66(c), UCMJ, 10 U.S.C. § 866(c). Under that 

authority, we only approve those findings of guilty and the sentence, or such part of the 

sentence, as we find should be approved. See United States v. Quiroz, 55 M.J. 334 

(C.A.A.F. 2001) (“Particularly in view of the extraordinary power of a Court of Criminal 

Appeals to ‘substitute its judgment’ for that of the court-martial, the court below was well 

within its authority to determine the circumstances, if any, under which it would apply 

waiver or forfeiture to [unreasonable multiplication of charges].”) (citation omitted); 

United States v. Butcher, 56 M.J. 87 (C.A.A.F. 2001) (noting that service courts’ “highly 

discretionary [Article 66(c), UCMJ] power includes the power to determine that a claim 

of unreasonable multiplication of charges has been waived or forfeited when not raised at 

trial”); United States v. Chin, ACM 38452 (recon), unpub. op. at 6 (A.F. Ct. Crim. App. 

12 June 2015) (noting that Article 66(c), UCMJ, empowers the service courts to 

“consider claims of unreasonable multiplication of charges even when those claims have 

been waived”). We decline to exercise that authority in this case.

Ineffective Assistance of Counsel

Appellant also contends that if we find the unreasonable multiplication of charges 

issue waived by his guilty plea and pretrial agreement, his trial defense counsel was 

ineffective for failing to object to this charging scheme and failing to object to the 

purported error during the clemency proceedings.

The Sixth Amendment3guarantees the accused the “right to the effective 

assistance of counsel.” United States v. Cronic, 466 U.S. 648, 654 (1984) (quoting 

McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970)). We review such claims de 

novo under the standards and two-prong test set forth by the Supreme Court in Strickland 

v. Washington, 466 U.S. 668, 687 (1984). United States v. Green, 68 M.J. 360, 361 

(C.A.A.F. 2010); United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009). “In order 

to prevail on a claim of ineffective assistance of counsel, an appellant must demonstrate 

 

3 U.S. CONST. amend. VI.
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both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted 

in prejudice.” Green, 68 M.J. at 361 (citing Strickland, 466 U.S. at 687). 

We find that defense counsel’s not filing an unreasonable multiplication of 

charges motion at trial was reasonable under the facts and circumstances of this case. 

See, e.g., United States v. Johnson, 38 M.J. 89 (C.M.A. 1993) (no error to charge five 

different instances of adultery with the same woman as five separate specifications); 

United States v. Belton, ACM 37484 (A.F. Ct. Crim. App. 19 May 2010) (unpub. op.) (no 

error to charge different AWOLs and different instances of communicating indecent 

language as separate specifications rather than consolidating the conduct as two “divers” 

specifications); United States v. Murphy, NMCCA 201200486 (N.M. Ct. Crim. App. 30 

May 2013) (unpub. op.) (no error to charge assaults against the same victim on three 

different dates as three separate specifications); United States v. Cordle, NMCCA 

200600570 (N.M. Ct. Crim. App. 17 April 2007) (unpub. op.) (no error to charge five 

instances of attempted indecent language as separate specifications rather than a 

consolidated “divers” specification). Such a motion was unlikely to succeed and could 

have jeopardized Appellant’s efforts to secure a pretrial agreement.

Additionally, in the guilty plea context, “[t]o satisfy the ‘prejudice’ requirement, 

the defendant must show there is a reasonable probability that, but for counsel’s errors, he 

would not have pleaded guilty and would have insisted on going to trial.” United States 

v. Bradley, 71 M.J. 13, 16 (C.A.A.F. 2011) (quoting Hill v. Lockhart, 474 U.S. 52, 59 

(1985)). “‘A reasonable probability is a probability sufficient to undermine confidence in 

the outcome.’ That requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a 

different result.” Id. at 16–17 (quoting Cullen v. Pinholster, 563 U.S. 170, 189 (2011)). 

Appellant must satisfy an objective inquiry—he must show that if he had been advised 

properly, then it would have been rational for him to reject the benefits of the pretrial 

agreement and to plead not guilty. Id. at 17. Here, Appellant has not met his burden. 

Appellant also contends his trial defense counsel should have raised this issue to 

the convening authority in clemency. In the context of an allegation of ineffective 

assistance during the post-trial phase, because of the highly discretionary nature of the 

convening authority’s clemency power, Appellant meets his burden if he “makes some 

colorable showing of possible prejudice.” United States v. Lee, 52 M.J. 51, 53 (C.A.A.F. 

1999) (quoting United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)) (internal 

quotation marks omitted). An appellant meets his burden where he demonstrates that 

effective representation from his trial defense counsel “could have produced a different 

result.” United States v. Frederickson, 63 M.J. 55, 57 (C.A.A.F. 2006) (quoting United 

States v. Brown, 54 M.J. 289, 293 (C.A.A.F. 2000)) (internal quotation marks omitted). 

We find Appellant has not made a “colorable showing of possible prejudice.” Thus he 

has not satisfied the second prong of the Strickland test as applied in the post-trial 

context. 
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In clemency, Appellant’s trial defense counsel4requested a reduction in forfeitures 

and a disapproval of the bad-conduct discharge. The basis for this request was: (1) there 

was additional delay in bringing the case to trial when the government elected to go to a 

general court-martial rather than a special court-martial (and the sentence reflected that a 

special court-martial was the appropriate forum); (2) the conditions of pretrial 

confinement were such that Appellant should receive additional clemency in addition to 

the 167 additional days of confinement credit provided by the military judge; 

(3) investigators damaged some of Appellant’s computer equipment when they seized it; 

(4) additional pay would allow Appellant to travel home and to fix his damaged computer 

equipment; and (5) the potential impact of a punitive discharge on Appellant. The 

convening authority reduced Appellant’s adjudged sentence of forfeiture of all pay and 

allowances to forfeiture of $1,020.00 pay per month until execution of the adjudged 

punitive discharge. The approved forfeiture was less than the monthly pay of an E-1

5

and 

permitted Appellant to be paid any allowances to which he was entitled. 

Considering Appellant’s clemency submission, his misconduct, and the facts and 

circumstances of this case, we find he has not made a colorable showing of possible 

prejudice from this allegedly deficient performance by the trial defense counsel. We 

reject the notion that trial defense counsel provided ineffective assistance, as it is 

apparent the bargained for and agreed to deal was advantageous to Appellant and a 

motion for unreasonable multiplication of charges had little chance of success either at 

trial or during the clemency stage.

 

4 Appellant’s counsel submitted a clemency request on behalf of his client. Appellant did not submit a separate, 

personalized request for clemency.

5

In 2014, the monthly pay for an E-1 was $1,531.50. Pay chart for 1 January 2014 at 

http://www.dfas.mil/militarymembers/payentitlements/military-pay-charts.html (last accessed on 19 January 2016).
7 ACM 38712

Conclusion

The approved findings and sentence are correct in law and fact, and no error 

materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a) 

and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). 

Accordingly, the approved findings and sentence are 

AFFIRMED.

FOR THE COURT

 LEAH M. CALAHAN

Clerk of the Court