U.S. v. Malone, 86 M.J. 297

First Principles: Constitutional Matters: Generally

1. even if specifications are facially duplicative, express waiver or voluntary consent will foreclose a multiplicity inquiry because an accused may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution, including a double jeopardy objection based on multiplicity
2. there is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment of a known right or privilege

First Principles: Constitutional Matters: Double Jeopardy

1. even if specifications are facially duplicative, express waiver or voluntary consent will foreclose a multiplicity inquiry because an accused may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution, including a double jeopardy objection based on multiplicity

Military Justice Personnel: Defense Function: Responsibilities

1. a trial defense counsel can waive a facially duplicative multiplicity claim on behalf of his or her client

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. the fact that an accused chose not to file an ineffective assistance of counsel claim against his trial defense counsel who failed to raise a multiplicity motion at trial results in a presumption that the trial defense counsel acted in a competent manner

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Generally

1. there is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment of a known right or privilege
2. the fact that an accused chose not to file an ineffective assistance of counsel claim against his trial defense counsel who failed to raise a multiplicity motion at trial results in a presumption that the trial defense counsel acted in a competent manner

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Presumptions

1. there is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment of a known right or privilege

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Presumptions, Inferences

1. there is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment of a known right or privilege

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

1. an appellate court reviews de novo whether an accused has waived an issue

Trial Stages: Appeals: Waiver

1. waiver extinguishes an issue, and as a result, that issue cannot be reviewed on appeal
2. waiver of an issue can occur either by a party's intentional relinquishment or abandonment of a known right or by operation of law
3. generally, an unconditional guilty plea operates to waive all defects which are neither jurisdictional nor a deprivation of due process of law
4. an unconditional guilty plea waives a multiplicity issue unless the offenses are facially duplicative, that is, factually the same
5. even if specifications are facially duplicative, express waiver or voluntary consent will foreclose a multiplicity inquiry because an accused may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution, including a double jeopardy objection based on multiplicity
6. an express waiver of an issue occurs when there is the intentional relinquishment or abandonment of a known right and is accomplished via affirmative action by the accused or the accused's counsel
7. an affirmative action in the context of an express waiver may occur when a trial defense counsel states that there is no objection to a proposed course of legal action; affirmative action also may occur when an accused chooses to enter into a plea agreement with a waive all waivable motions provision; and affirmative action may further occur when a party seeks no changes to a military judge's instructions
8. there is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment of a known right or privilege
9. no magic words are required to establish a waiver; instead, the determination of whether there has been an intelligent waiver must depend, in each case, upon the particular facts and circumstances surrounding that case

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Multiplicity

1. RCM 907(b)(3)(B) explicitly states that multiplicity serves as a proper ground for dismissal of specifications
2. dismissal and consolidation of specifications are remedies for multiplicity
3. the fact that an accused chose not to file an ineffective assistance of counsel claim against his trial defense counsel who failed to raise a multiplicity motion at trial results in a presumption that the trial defense counsel acted in a competent manner
4. in this case, the accused and his counsel knew they had a right to seek dismissal of some of the domestic violence specifications on multiplicity grounds where (1) counsel was presumed competent because no claim of ineffective assistance had been raised, (2) competent counsel would know that RCM 907(b)(3)(B) plainly stated that multiplicity serves as a proper ground for dismissal of specifications, (3) competent counsel would not overlook a potentially meritorious multiplicity claim where the issue was obvious on the face of the charge sheet, in the stipulation of fact, and during the providence inquiry since the three specifications of domestic violence occurred on same night, at same location, and with same victim, (4) review of savings clause in the plea agreement would have triggered consideration and discussion of potential to consolidate and dismiss specifications as multiplicious, and (5) the accused acknowledged that he understood the plea agreement and that counsel reviewed it with him
5. in this case, the accused affirmatively waived the issue of multiplicity regarding three specifications of domestic violence where (1) the military judge specifically advised trial defense counsel that any motions to dismiss should be made prior to the accused's unconditional guilty pleas, (2) RCM 907(b)(3)(B) explicitly states that motions to dismiss include any multiplicity claims, (3) the potential merits of a multiplicity claim in this case were obvious on the face of the charge sheet, in the stipulation of fact, and during the providence inquiry, (4) trial defense counsel unambiguously stated that he would not be filing any motions, and (5) the accused received substantial benefit in exchange for pleas, and under plea agreement, the penalties for the potentially multiplicious offenses were required to run concurrently
6. because at trial the accused affirmatively waived his ability to raise a multiplicity claim on appeal and because waiver extinguishes the issue, the question of whether the three specifications of domestic violence were, in fact, multiplicious cannot be reached on appeal