United States v. Huggins

12 M.J. 657, 1981 CMR LEXIS 603

• Court: U.S. Army Court of Military Review
• Decided: November 18, 1981
• Docket: SPCM 15774
• Status: Published

Opinions

OPINION OF THE COURT

FOREMAN, Judge:

The appellant was convicted of three specifications of larceny, in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921 (1976). These specifications alleged that, at the same time and place, the appellant stole a radio from a Private Gannon, a radio from a Specialist Four Floyd, and $597.00 in currency from Specialist Floyd. The appellant made no motions and entered pleas of guilty to all charges.

The appellant explained to the military judge during the inquiry into the providence of his pleas that he shared a room in the barracks with Gannon and Floyd and that he permitted a civilian named Smith to go into the room to steal the two radios. Smith also took Floyd’s money which was inside his radio.

The court-martial sentenced the appellant to a bad-conduct discharge, confinement at hard labor for five months, and forfeiture of $334.00 per month for five months. Pursuant to a pretrial agreement, the convening authority approved only the bad-conduct discharge, confinement at hard labor for three months and forfeiture of $334.00 per month for three months. The case is before this Court for mandatory review pursuant to Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (1976).

The appellant contends on appeal, for the first time, that since there was a single larceny, the offenses are multiplicious for both findings and sentence. We agree that it was improper to charge the appellant with separate offenses when the articles were all taken in one transaction.

When a larceny of several articles is committed at substantially the same time and place, it is a single larceny even though the articles belong to different persons. Thus, if a thief steals a suitcase containing the property of several persons or goes into a room and takes property belonging to various persons, there is but one larceny, which should be alleged in but one specification. [Emphasis added.]

Paragraph 200a(8), Manual for Courts-Martial, United States, 1969, (Revised edition). See paragraph 26b, Manual for Courts-Martial, United States, 1969 (Revised edition); United States v. Gutierrez, 42 C.M.R. 521 (A.C.M.R.1970); United States v. Brown, 38 C.M.R. 524 (A.B.R.), pet. denied, 38 C.M.R. 441 (C.M.A.1967).

Three issues are raised by the appellant’s contention: Whether we must dismiss one or more of the multiplicious specifications, whether we must set aside the pleas of guilty as improvident because of a substantial misunderstanding of the maximum punishment, and whether we must grant sentence relief because of the military judge’s incorrect sentencing instructions.

We first turn to the question whether we must dismiss one or more of the multiplicious specifications. In this case the trial defense counsel made no objections or motions regarding the multiplicious specifications. The appellant entered pleas of guilty to all specifications and the charge. The specifications do not duplicate or include each other. If a timely objection had been made at or before the trial, the appropriate remedy would not have been to dismiss one or more of the larceny specifications, but rather to consolidate the three specifications into one. Since the trial defense counsel did not make timely objection to the multiplicious pleading, we hold that the multiplicity for findings was waived. Paragraph 67b, Manual for Courts-Martial, United States, 1969 (Revised edition). We are satisfied that invoking waiver will not result in a manifest injustice, nor will it seriously affect the fairness, integrity or public reputation of judicial proceedings. Accordingly, we need not dismiss any of the multiplicious specifications. United States v. Dupuis, 10 M.J. 650 (N.C.M.R.1980); United States v. Sweney, 48 C.M.R. 476 (A.C.M.R.), pet. denied, 48 C.M.R. 1000 (C.M.A.1974); United States v. Buchholtz, 47 C.M.R. 177 (A.C.M.R.), pet. denied, 48 C.M.R. 999 (C.M.A.1973).

*

On the question of providency, we are satisfied that the pleas of guilty were not rendered improvident by any misunderstanding regarding the maximum punishment, since the maximum punishment was the same for one larceny or three, due to the jurisdictional limits of a special court-martial. See generally United States v. Hunt, 10 M.J. 222 (C.M.A.1981); United States v. Walls, 9 M.J. 88 (C.M.A.1980); United States v. Harden, 1 M.J. 258 (C.M.A.1976).

Turning lastly to the sentencing instructions, we believe that substantial errors in the military judge’s instructions on sentencing are not waived by a failure to object. See United States v. Posnick, 8 U.S.C.M.A. 201, 205, 24 C.M.R. 11, 15 (1957); cf. United States v. Holsworth, 7 M.J. 184 (C.M.A.1979) (court found error, albeit harmless, where judge and counsel failed to consider offenses multiplicious); United States v. Harden, supra (even in bench trial, judge’s incorrect computation of maximum punishment not waived in spite of agreement by defense counsel); United States v. Johnson, 18 U.S.C.M.A. 436, 437, 40 C.M.R. 148, 149 (1969) (failure to instruct court members to begin voting with lightest sentence is “plain error”). In this case the trial judge erroneously instructed the court members that for sentencing purposes there were two larcenies: the theft of a radio from Private Gannon (Specification 1 of the Charge), and theft of a radio and $597.00 from Specialist Floyd (Specifications 2 and 3 of the Charge). However, we believe that no sentence relief is warranted in this case. Even though the trial judge permitted the court members to sentence the appellant for two larcenies when in fact there was only one, he correctly advised them of the maximum punishment. Furthermore, any prejudicial impact of incorrect instructions on sentencing was cured by the convening authority’s substantial reduction of the period of confinement, in accordance with the pretrial agreement. See United States v. Thomas, 11 M.J. 388 (C.M.A.1981); United States v. Goodwin, 9 M.J. 216 (C.M.A.1980); Cf., United States v. Rushing, 11 M.J. 95, 98 (C.M.A.1981) (multiplicious specifications dismissed but sentence affirmed in consideration of “the number and nature of the remaining findings of guilty and the sentence adjudged at trial.”); compare United States v. Gibson, 11 M.J. 435 (C.M.A.1981), (convening authority not only approved the adjudged sentence but rejected the military judge’s recommendation to suspend the bad-conduct discharge).

The findings of guilty and the sentence are AFFIRMED.

Chief Judge CARNE concurs.

Where the multiplicity issue has been raised at trial, appellate courts may dismiss specifications which include or duplicate other specifications. See, e. g., United States v. Rushing, 11 M.J. 95 (C.M.A.1981) (one specification dismissed where single altercation split into two specifications of assault); United States v. Thompson, 10 M.J. 405 (C.M.A.1981) (memo.) (assault specification set aside as multiplicious with rape where the assault was the force employed to perpetrate the rape); United States v. Stegall, 6 M.J. 176 (C.M.A.1979) (assault and battery dismissed as multiplicious with striking noncommissioned officer in execution of his office).