U.S. v. Hardy, 77 M.J. 438

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. as a practical matter, a UMC objection must be raised before the accused enters a guilty plea because the objection may affect the maximum sentence that the court-martial may impose; under RCM 910(c)(1), before a military judge accepts a guilty plea, the military judge must inform the accused of the maximum possible penalty provided by law and determine that the accused understands; the military judge cannot perform this duty accurately if a UMC objection later will result in a merger of specifications; typically, before accepting the guilty plea, the military judge asks trial counsel what the government calculates the maximum punishment to be, and the military judge then asks defense counsel if the accused agrees; by so agreeing, the accused implicitly concedes that there is no UMC objection because the remedy for such an objection would affect the maximum sentence

Trial Stages: Merits: Guilty Pleas

1. under the plain language of RCM 905(b)(2) and (e) and past CAAF precedent, an unconditional guilty plea waives an unpreserved UMC objection; however, a service court of criminal appeals may exercise its powers under Article 66(c), UCMJ, to address an unpreserved UMC objection; but note that an executive order effective 1 January 2019 will amend RCM 905(e), likely affecting the analysis of future cases involving unpreserved UMC objections in which there is no other ground for finding waiver; the amended RCM 905(e) will specify that a failure to raise an objection under RCM 905(b)(pretrial motions) forfeits the objection absent an affirmative waiver
2. it is a general principle of criminal law that an unconditional plea of guilty waives all nonjurisdictional defects at earlier stages of the proceedings; because an unreasonable multiplication of charges is not a jurisdictional defect, a guilty plea waives the objection

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. under the plain language of RCM 905(b)(2) and (e) and past CAAF precedent, an unconditional guilty plea waives an unpreserved UMC objection; however, a service court of criminal appeals may exercise its powers under Article 66(c), UCMJ, to address an unpreserved UMC objection; but note that an executive order effective 1 January 2019 will amend RCM 905(e), likely affecting the analysis of future cases involving unpreserved UMC objections in which there is no other ground for finding waiver; the amended RCM 905(e) will specify that a failure to raise an objection under RCM 905(b)(pretrial motions) forfeits the objection absent an affirmative waiver
2. the CCA is well within its authority to determine the circumstances, if any, under which it will apply waiver or forfeiture to a UMC issue, and it may apply the following five factors in exercising its Article 66(c), UCMJ, powers: (1) did appellant 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 appellant’s criminality; (4) does the number of charges and specifications unreasonably increase appellant’s punitive exposure; and (5) is there any evidence of prosecutorial overreaching or abuse in the drafting of the charges

Trial Stages: Appeals: Preservation of Error / Plain Error

1. under the plain language of RCM 905(b)(2) and (e) and past CAAF precedent, an unconditional guilty plea waives an unpreserved UMC objection; however, a service court of criminal appeals may exercise its powers under Article 66(c), UCMJ, to address an unpreserved UMC objection; but note that an executive order effective 1 January 2019 will amend RCM 905(e), likely affecting the analysis of future cases involving unpreserved UMC objections in which there is no other ground for finding waiver; the amended RCM 905(e) will specify that a failure to raise an objection under RCM 905(b)(pretrial motions) forfeits the objection absent an affirmative waiver
2. when an appellant has forfeited an issue, an appellate court may review the issue for plain error, but when an appellant has waived an issue, it cannot review it at all
3. it is a general principle of criminal law that an unconditional plea of guilty waives all nonjurisdictional defects at earlier stages of the proceedings; because an unreasonable multiplication of charges is not a jurisdictional defect, a guilty plea waives the objection

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. when an appellant has forfeited an issue, an appellate court may review the issue for plain error, but when an appellant has waived an issue, it cannot review it at all

Trial Stages: Appeals: Waiver

1. under the plain language of RCM 905(b)(2) and (e) and past CAAF precedent, an unconditional guilty plea waives an unpreserved UMC objection; however, a service court of criminal appeals may exercise its powers under Article 66(c), UCMJ, to address an unpreserved UMC objection; but note that an executive order effective 1 January 2019 will amend RCM 905(e), likely affecting the analysis of future cases involving unpreserved UMC objections in which there is no other ground for finding waiver; the amended RCM 905(e) will specify that a failure to raise an objection under RCM 905(b)(pretrial motions) forfeits the objection absent an affirmative waiver
2. when an appellant has forfeited an issue, an appellate court may review the issue for plain error, but when an appellant has waived an issue, it cannot review it at all
3. it is a general principle of criminal law that an unconditional plea of guilty waives all nonjurisdictional defects at earlier stages of the proceedings; because an unreasonable multiplication of charges is not a jurisdictional defect, a guilty plea waives the objection

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Unreasonable Multiplication of Charges

1. under the plain language of RCM 905(b)(2) and (e) and past CAAF precedent, an unconditional guilty plea waives an unpreserved UMC objection; however, a service court of criminal appeals may exercise its powers under Article 66(c), UCMJ, to address an unpreserved UMC objection; but note that an executive order effective 1 January 2019 will amend RCM 905(e), likely affecting the analysis of future cases involving unpreserved UMC objections in which there is no other ground for finding waiver; the amended RCM 905(e) will specify that a failure to raise an objection under RCM 905(b)(pretrial motions) forfeits the objection absent an affirmative waiver
2. RCM 307(c)(4) directs that what is substantially one transaction should not be made the basis for an unreasonable multiplication of charges against one person; if charges have been unreasonably multiplied, the accused may seek appropriate relief from the military judge; the relief may include dismissal of lesser offenses, merger of offenses into one specification, or a determination that the maximum punishment for the unreasonably multiplied offenses is the maximum authorized punishment of the offense carrying the greatest maximum penalty
3. it is a general principle of criminal law that an unconditional plea of guilty waives all nonjurisdictional defects at earlier stages of the proceedings; because an unreasonable multiplication of charges is not a jurisdictional defect, a guilty plea waives the objection
4. as a practical matter, a UMC objection must be raised before the accused enters a guilty plea because the objection may affect the maximum sentence that the court-martial may impose; under RCM 910(c)(1), before a military judge accepts a guilty plea, the military judge must inform the accused of the maximum possible penalty provided by law and determine that the accused understands; the military judge cannot perform this duty accurately if a UMC objection later will result in a merger of specifications; typically, before accepting the guilty plea, the military judge asks trial counsel what the government calculates the maximum punishment to be, and the military judge then asks defense counsel if the accused agrees; by so agreeing, the accused implicitly concedes that there is no UMC objection because the remedy for such an objection would affect the maximum sentence
5. the CCA is well within its authority to determine the circumstances, if any, under which it will apply waiver or forfeiture to a UMC issue, and it may apply the following five factors in exercising its Article 66(c), UCMJ, powers: (1) did appellant 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 appellant’s criminality; (4) does the number of charges and specifications unreasonably increase appellant’s punitive exposure; and (5) is there any evidence of prosecutorial overreaching or abuse in the drafting of the charges