UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

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No. ACM 38923

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UNITED STATES

Appellee

v.

Joshua D. HNATIUK

Senior Airman (E-4), U.S. Air Force, Appellant

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Appeal from the United States Air Force Trial Judiciary

Decided 22 May 2017

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Military Judge: Lyndell M. Powell.

Approved sentence: Bad-conduct discharge, confinement for 32 months, 

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

adjudged 21 August 2015 by GCM convened at Ellsworth Air Force 

Base, South Dakota.

For Appellant: Major Isaac C. Kennan, USAF; Captain Allen S. 

Abrams, USAF.

For Appellee: Major Mary Ellen Payne, USAF; Gerald R. Bruce, Esquire.

Before DREW, J. BROWN, and MINK, Appellate Military Judges.

Judge MINK delivered the opinion of the court, in which Chief Judge 

DREW and Senior Judge J. BROWN joined. 

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This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 18.4.

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MINK, Judge:

A military judge sitting as a general court-martial convicted Appellant, 

consistent with his pleas pursuant to a pretrial agreement (PTA), of conspir-
United States v. Hnatiuk, No. ACM 38923

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ing to wrongfully distribute marijuana, wrongfully distributing marijuana, 

and wrongfully possessing marijuana with the intent to distribute it, in violation of Articles 81 and 112a of the Uniform Code of Military Justice (UCMJ), 

10 U.S.C. §§ 881, 912a.1 The adjudged and approved sentence was a badconduct discharge, confinement for 32 months, forfeiture of all pay and allowances, and reduction to the grade of E-1.2

Appellant raises two issues on appeal: (1) that the staff judge advocate’s 

recommendation (SJAR) contained plain and prejudicial error by incorrectly 

stating the results of the court-martial, and (2) that the specification for 

possession with intent to distribute marijuana was unconstitutionally multiplicious where Appellant was also charged with distribution of that marijuana. Finding no relief is warranted, we affirm the findings and sentence as 

approved by the convening authority. 

I. BACKGROUND 

Sometime around February 2014, Appellant and another Airman, Airman 

Basic (AB) SM, developed a plan to have marijuana shipped from California 

to South Dakota, where Appellant would then sell the marijuana to a civilian, 

Mr. JC. Appellant and AB SM financed their marijuana distribution scheme 

by combining their own money with money supplied by another Airman. The 

first shipment of approximately one pound of marijuana arrived in South 

Dakota on or about 14 March 2014. Appellant and AB SM then divided the 

marijuana into 16 one-ounce portions and sold them to Mr. JC. A second 

shipment of approximately one pound of marijuana arrived on or about 14 

April 2014. Appellant and AB SM again divided the shipment into 16 oneounce portions. AB SM, with Appellant’s authorization, then distributed two 

of the one-ounce portions to Mr. JC. The additional amount of approximately 

14 ounces of marijuana remained at Appellant’s off-base residence where, 

pursuant to Appellant’s grant of consent to search his residence, it was discovered by agents from the Air Force Office of Special Investigations (AFOSI) 

on 16 April 2014. 

 

1 In accordance with the pretrial agreement (PTA), a charge and specification alleging a violation of Article 134, UCMJ, 10 U.S.C. § 834, was withdrawn and dismissed 

with prejudice following Appellant’s arraignment.

2 The PTA between Appellant and the convening authority provided the latter would 

approve no confinement in excess of 33 months, but included no other limitations on 

the sentence that could be approved. Accordingly, the PTA had no impact on the 

convening authority’s ability to approve the adjudged sentence.
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II. DISCUSSION

A. Staff Judge Advocate’s Recommendation (SJAR)

As a part of his PTA, Appellant agreed to plead guilty to conspiring with 

AB SM to engage in the wrongful distribution of marijuana. However, the 

Specification of Charge I, alleging the conspiracy, contained nine separate 

overt acts allegedly committed by Appellant in furtherance of the conspiracy.

Under the terms of the PTA, Appellant agreed to plead guilty to the conspiracy offense in exchange for the convening authority “lining through” three of 

the nine alleged overt acts. The convening authority agreed to this provision

in the PTA and Appellant pleaded guilty at the court-martial to this conspiracy offense, except for the language discussing three of the nine alleged overt 

acts, to which Appellant pleaded not guilty.

While discussing the terms of the PTA with Appellant and counsel during 

the court-martial, the military judge asked the assistant trial counsel if the 

language in the Specification of Charge I to which Appellant had pleaded not 

guilty was going to be withdrawn and dismissed. The assistant trial counsel 

acknowledged that it would be, and then made the changes to the charge 

sheet, which was then reviewed by the military judge. A short time later, 

immediately prior to announcing his findings, the military judge stated: “As 

we discussed previously, the language was excepted from the Specification of 

Charge I. That language has now been withdrawn and dismissed, so my 

announcement of findings won’t exactly match the pleas that were entered 

with regard to the Specification of Charge I.” The military judge then announced that Appellant was guilty of the Specification of Charge I and 

Charge I, without further addressing the excepted language. 

Following the conclusion of Appellant’s court-martial, the Report of Result 

of Trial (RRT) summarizing the charges, specifications, pleas, findings, and 

sentence was prepared. With respect to the Specification of Charge I, the 

RRT correctly stated that Appellant pleaded guilty except for the specified 

language pertaining to the three alleged overt acts and correctly identified 

the language of the specification to which Appellant pleaded not guilty. The 

RRT then stated the military judge found Appellant guilty of the Specification of Charge I, but omitted that the language of the Specification to which 

Appellant pleaded not guilty was withdrawn and dismissed prior to the announcement. 

The convening authority’s staff judge advocate (SJA) attached a copy of 

the RRT to his SJAR. The SJAR also discussed the provisions of the PTA and 

concluded by recommending the convening authority approve the sentence as 

adjudged. In his clemency request, neither Appellant nor his trial defense 

counsel asserted the SJAR or the attached RRT was erroneous in any way.
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Consequently, the addendum to the SJAR also did not address any issue with 

respect to the language withdrawn and dismissed from the Specification of 

Charge I.

The convening authority concurred with the SJA’s recommendation and 

approved the adjudged sentence. 

Now on appeal, Appellant for the first time asserts that the RRT attached 

to the SJAR, and therefore the SJAR, erroneously reported that Appellant 

was found guilty of the Specification of Charge I, including the language to 

which Appellant pleaded not guilty. Appellant asks us to set aside the action 

taken by the convening authority and remand the case for new post-trial 

processing, beginning with the preparation of a new SJAR. We decline to do 

so. 

The “proper completion of post-trial processing is a question of law, which 

this court reviews de novo.” United States v. LeBlanc, 74 M.J. 650, 660 (A.F. 

Ct. Crim. App. 2015) (citing United States v. Sheffield, 60 M.J. 591, 593 (A.F. 

Ct. Crim. App. 2004)). “If defense counsel does not make a timely comment on 

an omission [or error] in the [SJAR], the error is [forfeited] unless it is prejudicial under a plain error analysis.” United States v. Scalo, 60 M.J. 435, 436 

(C.A.A.F. 2005) (citing R.C.M. 1106(f); United States v. Kho, 54 M.J. 63, 65 

(C.A.A.F. 2000)). Under a plain error analysis, Appellant must persuade this 

court that: “(1) there was an error; (2) it was plain or obvious; and (3) the 

error materially prejudiced a substantial right.” Id. (quoting Kho, 54 M.J. at 

65).

The standard for meeting the test of prejudice is low, requiring only “some 

colorable showing of possible prejudice.” Kho, 54 M.J. at 65 (quoting United 

States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)). “The low threshold for 

material prejudice with respect to an erroneous post-trial recommendation . . . is designed to avoid undue speculation as to how certain information 

might impact the convening authority’s exercise of such broad discretion.” 

Scalo, 60 M.J. at 437. While the threshold is low, there must be some colorable showing of possible prejudice. Id.

Because Appellant did not object to the SJAR, we review for plain error.

Applying this standard, even were we to assume error, Appellant fails as he 

has not demonstrated a colorable showing of possible prejudice. The record of 

the court-martial proceedings and, perhaps more importantly, the PTA,

which was signed by both the Appellant and the convening authority, made it 

clear that Appellant would plead not guilty to the language in the Specification of Charge I and it would be “lined through.” This agreement was reinforced by the convening authority’s action in disapproving the findings as to 

the Specification of Charge I regarding the language to which Appellant 
United States v. Hnatiuk, No. ACM 38923

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pleaded not guilty. Any confusion that may have resulted from the announcement of findings by the military judge as to the Specification of Charge

I, and what was stated on the RRT, was eliminated by the convening authority’s specific action disapproving the finding as to the language to which Appellant pleaded not guilty. 

B. Multiplicity of Charges

Appellant next contends that the offenses of wrongful distribution of marijuana and wrongful possession of marijuana with intent to distribute are

multiplicious and asks this court to dismiss the latter. Despite pleading 

guilty to both specifications alleging these two offenses during his courtmartial and waiving “all waivable motions” pursuant to the PTA, Appellant

argues that the two specifications are multiplicious since the charged 

timeframe for the possession with intent to distribute offense falls within the 

charged timeframe for the wrongful distribution offense. Appellant also argues that since the two offenses are “facially duplicative,” his claim of unconstitutional multiplicity was not waived by his guilty plea. We disagree. 

In United States v. Heryford, 52 M.J. 265 (C.A.A.F. 2000), our superior 

court addressed the analysis to be applied when a claim of multiplicity is 

raised in an unconditional guilty plea case:

Ordinarily, an unconditional guilty plea waives a multiplicity 

issue. United States v. Lloyd, 46 M.J. 19, 23 ([C.A.A.F.] 1997).

Furthermore, double jeopardy claims, including those founded 

in multiplicity, are waived by failure to make a timely motion 

to dismiss, unless they rise to the level of plain error. United 

States v. Britton, 47 M.J. 195, 198 ([C.A.A.F.] 1997).

Appellant has the burden of persuading [the appellate court] 

that there was plain error. United States v. Powell, 49 M.J. 

460, 464–65 ([C.A.A.F.] 1998). An appellant may show plain error and overcome waiver by showing that the specifications are 

“‘facially duplicative,’ that is, factually the same.” Britton, [47 

M.J.] at 198, quoting Lloyd, [46 M.J.] at 23. Whether the specifications are facially duplicative is determined by reviewing the 

language of the specifications and “facts apparent on the face of 

the record.” Lloyd, [46 M.J.] at 24; see also United States v. 

Harwood, 46 M.J. 26, 28–29 ([C.A.A.F.] 1997).

Heryford, 52 M.J. at 266.

In this case, since Appellant raised no issue of multiplicity at trial and 

pleaded guilty unconditionally, he waived any claim of multiplicity. The 

specification for wrongful distribution of marijuana alleges the offense occurred “between on or about 1 February 2014 and on or about 16 April 2014,” 
United States v. Hnatiuk, No. ACM 38923

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within the State of South Dakota. The specification for wrongful possession of 

marijuana with intent to distribute alleges the offense occurred “between on 

or about 14 April 2014 and on or about 16 April 2014,” at or near Box Elder, 

South Dakota. Both the stipulation of fact and the guilty plea inquiry make it 

clear that Appellant distributed marijuana on divers occasions during the 

period between 1 February 2014 and 16 April 2014. The stipulation of fact 

and the guilty plea inquiry make it equally clear that between 14 April 2014 

and 16 April 2014, Appellant possessed 14 ounces of marijuana in his off-base 

residence that he intended to distribute but did not do so prior to it being 

seized by AFOSI on 16 April 2014.

Based on the record, it is clear that Appellant committed two separate offenses at two separate times. Consequently, we hold that the two offenses are 

not facially duplicative and any issue of multiplicity was waived. 

III. CONCLUSION

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

error materially prejudicial to the substantial rights of Appellant occurred. 

Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the 

findings and the sentence are AFFIRMED.3

FOR THE COURT

KURT J. BRUBAKER

Clerk of the Court

 

3 Even though correctly stating the finding as to the Specification of Charge I as 

announced by the court-martial, we direct a corrected court-martial order reflecting 

that the language to which Appellant pleaded not guilty was withdrawn and dismissed after arraignment.