## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before BURTON, CELTNIEKS, and SCHASBERGER Appellate Military Judges

UNITED STATES, Appellee

v. Chief Warrant Officer Three MICHAEL D. TROGDON United States Army, Appellant

ARMY 20160344

Headquarters, Fort Drum S. Charles Neill, Military Judge Lieutenant Colonel John J. Merriam, Sta ff Judge Advocate

For Appellant: Lieutenant Colo nel Tiffany Chapman, JA; Major B rendan Cronin, JA; Major Daniel E. Goldman, JA (on brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major C ormac M. Smith, JA; Major Ian M. Gu y, JA (on brief).

26 February 2018

--------------------------------------------------------------- - SUMMARY DISPOSITION ON RECONSIDERATION

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Per Curiam:

A military judge sitti ng as a general court-martial convicted a ppellant, pursuant to his pleas, of three specifications of sexual abuse of a child in violation of Article 120b, Uniform Code o f Military Justice, 10 U.S.C. § 920b (2012 & Supp. I 2014). The mili tary judge sen tenced appella nt to a dis missal and confinement for fifty-six months . The convening authority appr oved the sentence as adjudged.

This case is before us for rev iew pursuant to A rticle 66, UCMJ. Appellant originally raised two assignmen ts of error. Aft er considering all matters raised by appellant, we conclu ded his claims did no t warrant relief. Acc ordingly, we affirmed the findings of guilty and sentence in this case. United States v. Trogdon , ARMY 20160344 (Army Ct. Crim . App. 8 Jan. 2018) (unpublished).

On 7 February 2018, app ellant filed a motio n for reconsideratio n. Specifically, appellant alleged reconsideration was warranted b ecause “the Court’s decision overlooked a m aterial legal and factual matter.” In t he motion, appellantTROGDON—ARMY 20160344

2 correctly notes that our summary affirmance could stand for two different propositions: that there was no unreasonable multiplication of charges or that the issue was waived at trial. We granted appellant’s request for reconsideration to clarify our finding that appellant waived the issu e of unreason able multiplication of charges, and we again affirm the f indings of guil ty and the sen tence in this case.

BACKGROUND

The government charged appellant with three specifications of c ommitting a lewd act on a child. Appellant was arraigned on 2 May 2016; at that time he deferred pleas and a ll motions except one motion requesting the appointment of an expert witness. On 6 May 2016, appellant ent ered into a pretri al agreement (PTA) with the convening authority. T he PTA does not contain any lan guage regarding the waiver of motions. As part of the PTA, appellan t agreed to ple ad guilty to all three specifications of The C harge and to en ter into a s tipulation of fact. Also on 6 May 2016, appellant and th e government entered into a sti pulation o f fact. Paragraph 27 of the signed stipulation of fac t states: “[a]lthough the accus ed is pleading guilty to all three Specifications of The Charge, the parties stipulate that for purposes of sentencing, Specification 1 and S pecification 3 of The Charge s hould be merged.”

On the day before trial , appellant submitte d a motion for appro priate relief due to an unreasonable multiplic ation of charges. In the motio n, appellant sought to have the court merge Specifications 1 and 3 of The Charge for s entencing. In the motion, appellant noted the distinction between an unreasonable multiplication for findings and an unrea sonable multiplicatio n for sentencing. Af ter a discussion of the applicable law, the defense asked for the two specification s to be merged for sentencing in a paragraph with en tirely bold and u nderlined tex t. In the analysis that followed, appellant a pplied the five facto rs outlined in the United States v. Quiroz

, 55 M.J. 334, 338 (C .A.A.F. 2001). *When discussi ng the first Quiroz factor in Paragraph 9 of the motion, appell ant stated: “Whether the accus ed objects at trial: The Accused, through counsel, is objecting to an unreasonable m ultiplication of charges for findings and senten cing.” However, all the rest of the analysis and argument applied the test for a n unreasonable mu ltiplication of charges to sentencing.

*The five Quiroz factors are: “(1) Did the accused object at trial that there w as an unreasonable multiplication of cha rges 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 appel lant's crimi nality?; (4) Does the number of charges and specifications [unreasonably ] increase the appellant’s punitive e xposure?; and (5) Is there any evidence o f prosecutorial overreaching or ab use in the drafting of t he charges?” 55 M.J. at 338 (internal quotation marks and citation omitted).TROGDON—ARMY 20160344

3 At the commencement of the trial , the military jud ge recapped a discussion that took place i n a previous Rule for Co urts-Martial 802 sessi on. The military judge stated: “[W]e discussed th e maximum punishment in this ca se. The parties agreed that should the accuse d plead guilt y, pursuant to the st ipulation of fact, Specifications 1 and 3 of The Charge should be merged for sente ncing purposes.” The military judge as ked counsel if they had any add itions or c orrections, and both trial counsel and defe nse counsel had no cor rections or additio ns.
Before entering pleas , defense counse l indicated h e had one mot ion for appropriate relief for unreasonab le multiplication of charges. Specifically, he stated: “We do not believe it’s ripe at this tim e, but we ask t o address that issue after the providence inquir y.” Appellant then pl eaded guilty to The Charge and its specifications.

After the providence i nquiry but befo re findings, the military judge addressed the defenses motion.

MJ: Based on our discu ssion at the R.C.M. 802 conference and what the trial counsel just sa id regarding the maximum punishment, it see ms that both s ides agree that the Court, for sentenci ng purposes, s hould merge Specifications 1 and 3 of The Charge; is that correct?

DC: Yes, Your Honor.

MJ: Are you reques ting any other kind of remedy or just that remedy?

DC: Just that remedy, Your Honor.

The military judge the n granted the defense motion and merged t he specifications for sentencing purposes.

LAW AND DISCUSSION

Appellant argues that his guilty plea did no t waive the issue o f unreasonable multiplication of cha rges. We disagree.

“An unconditional guilty plea ge nerally waives all pretrial and trial defects that are not jurisdictional no r 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. 133, 136 (C.A.A.F. 2009 )). Unless offenses are “facially dupli cative,” a guilty plea waives any claim that the offens es are unreasonably multiplied. United States v. Craig , 68 M.J. 399, 400 (C.A .A.F. 2010) (citing United States v. Campbell , 68 M.J. 217, 220 (C.A.A.F. 2009). Moreov er, when an appel lant intentio nally waives aTROGDON—ARMY 20160344

4 known right, it is extinguished and may n ot be raised on appeal

. United States v. Olano , 507 U.S. 725, 733-34 (1993).

Appellant argues that unreasonable multipli cation of charges is not waived by an unconditional guilt y plea and the appropr iate stand ard is fo rfeiture. Even if we agreed with appellant’s assertion in cases where the record is silent, th e argument fails in this case. Our superior court has explained: “forfeit ure is the failure to make the timely assertion of a right, [and] waiver is t he intentiona l relinquishment or abandonment of a known right.” United States v. Gladue , 67 M.J. 311, 313 (C.A.A.F. 2009) (internal quotat ion marks and citation omitted)

. It is clear by the language in appellant’s motion that he was a ware of the issue of unreasonable multipl ication of charges. His motion distingu ished between findings and sen tencing, and h e specifically asked for relief o nly for sentencing. During trial the issue was discu ssed on the record two separate times. On both occasions the defense c learly sought relief based on s entencing concerns alone. When asked if he was requesting a remedy other th an merger of t wo specifications for sentencing, defense counsel said: “Just that remedy, Your H onor.” This is a clear relinquishment of a known right, the very definition of w aiver.

Notwithstanding appell ant’s waiver, we have the authority to no tice the issue and ignore the waiver. See UCMJ art. 66(c). To determi ne whether noticing the error is appropriate, we must first review the entire record. See United States v. Chin , 75 M.J. 220, 222 (C.A.A.F. 2016). After r eviewing t he record , we leave appellant’s waiver intact and, therefore, do not reach the subs tantive issue of whether the specifications are un reasonably multi plied as a mat ter of law.

CONCLUSION

The decision of this co urt in this case, da ted 8 Janua ry 2018, is reaffirmed and remains in effect.

FOR THE COURT:

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