CAAF decided the Air Force case of United States v. Hardy, 77 M.J. 438, No. 17-0553/AF (CAAFlog case page) (link to slip op.), on Tuesday, June 5, 2018. A somewhat fractured court concludes that an unconditional plea of guilty waives any issue of unreasonable multiplication of charges (UMC) (a doctrine that addresses uniquely-military factors increasing the potential for prosecutorial overreach). The decision both extends and affirms the reasoning of the Air Force CCA that found waiver in a published decision almost one year ago today (analyzed here).

Judge Maggs writes for the court, joined by Judges Ryan and Sparks. Chief Judge Stucky concurs. Judge Ohlson dissents. This is Judge Maggs’ first opinion of the court.

Captain (O-3) Hardy pleaded guilty to numerous child sex offenses and was sentenced to confinement for 16 years and one day, total forfeitures, and a dismissal. Hardy’s defense counsel did not seek relief from any UMC at trial. A pretrial agreement limited Hardy’s confinement to 12 years. The pretrial agreement did not, however, include a relatively-common term agreeing to waive all waivable motions.

Waiver is the intentional relinquishment or abandonment of a known right, extinguishes an error, and was the basis for the #3 Military Justice Story of 2017. The mere failure to raise an issue, however, is generally forfeiture, not waiver. A forfeited error is reviewed for plain error (where the burden is on the appellant to prove error that is both plain and prejudicial).

In United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009) (discussed here), CAAF split 3-2 to find that a waive all waivable motions provision waived – rather than merely forfeited – any objection to both multiplicity and unreasonable multiplication of charges. Without such a provision in Hardy’s case, however, Hardy’s appellate defense counsel raised UMC for the first time on appeal. But the Air Force CCA found waiver nonetheless. In a published decision a three-judge panel of the CCA concluded that:

where Appellant both failed to raise unreasonable multiplication of charges at trial and pleaded guilty unconditionally, we find he waived his claim of unreasonable multiplication of charges.

United States v. Hardy, 76 M.J. 732, 739 (A.F. Ct. Crim. App. 2017). CAAF then granted review to determine:

Whether the Air Force Court of Criminal Appeals erred by holding that Appellant waived, rather than forfeited, his claim of unreasonable multiplication of charges.

In today’s opinion four judges agree that the Air Force court was right and any unreasonable multiplication of charges was waived by Hardy’s unconditional plea and failure to object at trial. But Judge Maggs and the majority reach that result with an analysis that Chief Judge Stucky does not join. Judge Ohlson, in turn, doesn’t reach that result at all, concluding that a waiver must be more explicit than the mere failure to object at trial.

At the beginning of Judge Maggs’ majority opinion he explains that:

We granted review on the issue of whether an unconditional guilty plea waives an unpreserved UMC objection. We conclude that it does, based on Rules for Courts-Martial (R.C.M.) 905(b)(2) and (e) and our recent precedents. Our decision does not affect the power of a Court of Criminal Appeals (CCA) to exercise its powers under Article 66(c), UCMJ, to address an unpreserved UMC objection. We also note that an executive order soon will amend R.C.M. 905(e), likely affecting the analysis of future cases involving unpreserved UMC objections in which there is no other ground for finding waiver.

Slip op. at 2-3. From this, the majority opinion may be divided into three parts: The Rules, the alternative holding, and what the opinion does not do.

First is the rules. Judge Maggs writes:

we begin with R.C.M. 905(b)(2). This rule requires objections “based on defects in the charges and specifications” to be raised before a guilty plea is entered. Id. A UMC objection is such an objection because the accused is asserting that the charges and specifications violate R.C.M. 307(c). See R.C.M. 905(b)(2) Discussion (cross-referencing R.C.M. 307); United States v. Mincey, 42 M.J. 376, 378 (C.A.A.F. 1995) (similarly holding that an objection to “the misjoinder of numerous bad-check offenses into one duplicitous specification” should have been made under R.C.M. 905(b)(2)). The first two sentences of R.C.M. 905(e) address the consequences of not raising objections listed in R.C.M. 905(b). These sentences currently say:

“Failure by a party to raise defenses or objections or to make motions or requests which must be made before pleas are entered under subsection (b) of this rule shall constitute waiver. The military judge for good cause shown may grant relief from the waiver.”

The plain language of R.C.M. 905(b)(2) and (e) leads to the conclusion that Appellant waived his UMC objection by not raising it before pleading guilty.

Slip op. at 5-6 (paragraphing added). But the meaning of the word waiver in R.C.M. 905(e) is not so certain. The Rules for Courts-Martial and Military Rules of Evidence don’t use the word forfeiture as a noun (though they will when Annex II of the 2018 Amendments to the Manual for Courts-Martial take effect on January 1, 2019). Currently, the Rules use the word waiver in ways that CAAF has long held mean forfeiture. See, for example, United States v. Andrews, __ M.J. __ (C.A.A.F. May 22, 2018) (CAAFlog case page) (applying stare decisis to hold that the word waiver in R.C.M. 919(c) means forfeiture). See also United States v. Burris, No.17-0605/AR (CAAFlog case page) (argued on Thursday, March 22, 2018) (disclaimer: I represent Major Burris and argued the case before CAAF).

So Judge Maggs and the majority must determine whether the word waiver in R.C.M. 905(e) really means waiver or whether it actually means forfeiture.

They conclude it really means waiver:

[T]he matter is complicated because of disagreement about whether the word “waiver” in R.C.M. 905(e) really means “waiver” or instead means “forfeiture.” See United States v. Gudmundson, 57 M.J. 493, 495 n.3 (C.A.A.F. 2002) (discussing the disagreement). Some older cases have reviewed issues “waived” under R.C.M. 905(b) and (e) for plain error, suggesting that the “waiver” should be treated as forfeiture. See, e.g., United States v. Reist, 50 M.J. 108, 109−10 (C.A.A.F. 1999) (holding that an objection to defects in the preferral under R.C.M. 905(b)(1) was waived under R.C.M. 905(e) but reviewing the issue for plain error). But we did not follow this approach in our most recent case addressing R.C.M. 905(b) and R.C.M. 905(e), United States v. Swift, 76 M.J. 210 (C.A.A.F. 2017) [ (CAAFlog case page)].

In Swift, we held that a motion to suppress a confession should have been made before trial under R.C.M. 905(b)(3) and that the failure to raise the issue permanently waived it under the language of the first two sentences of R.C.M. 905(e). 76 M.J. at 217−18 (citing R.C.M. 905(e) in addition to Military Rule of Evidence 304(f)(1) as grounds for finding waiver). Because the issue was permanently waived, this Court did not review it for plain error. See id. We think that Swift is the correct approach for deciding whether UMC objections are waived permanently or merely forfeited under R.C.M. 905(b)(2) and R.C.M. 905(e). Thus, in accordance with the text of these rules, the Swift precedent, and the Denton order, we conclude that Appellant waived the UMC objection and that the objection is not reviewable for plain error.

Slip op. at 5-6 (paragraphing added). There’s just one catch:

The President amended the language of R.C.M. 905(e) in Executive Order No. 13,825. See Exec. Order No. 13,825, 83 Fed. Reg. 9889 (Mar. 8, 2018) (effective Jan. 1, 2019). The amendment specifies that a failure to raise an objection under R.C.M. 905(b) “forfeits” the objection “absent an affirmative waiver.” This amendment is not yet in effect and will not apply to cases in which charges were referred to trial prior to the effective date. Id.

Slip op. at 3 n.2. In other words, the word waiver in R.C.M. 905(e) has been interpreted as meaning forfeiture in the past, and the rule will be changed to actually say forfeiture in the near future, but from now until then it means waiver.

Judge Ohlson’s dissent seizes on this point:

Thus, in light of the majority’s opinion, we are left with the anomalous situation where R.C.M. 905(e) has been interpreted as a forfeiture provision in the past, will be interpreted as a forfeiture provision in the future, but will be interpreted as a waiver provision right here and right now.

For these reasons, I would follow the principle of stare decisis and reaffirm our prior precedent by continuing to treat R.C.M. 905(e) as a forfeiture provision.

Diss. op. at 3. And with a footnote Judge Ohlson adds a hefty dose of pragmatism to the first paragraph:

The question that naturally follows is, “To what end?” Applying forfeiture instead of waiver in this case would not lead to a windfall for Appellant, nor would it impose an undue burden on the Government. Forfeiture is reviewed for plain error, Gladue, 67 M.J. at 313, and plain error is a difficult hurdle for an appellant to surmount. (Indeed, within the context of a UMC claim, for example, courts look to five factors when determining error, the first of which is whether or not the accused objected at trial. United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001).)

Diss. op. at 3 n.3.

Yet Judge Maggs and the majority don’t stop there. The second part of the majority decision identifies an alternative basis to find that Hardy’s unconditional guilty plea waived any UMC:

This result is also required by the general principle of criminal law that an unconditional plea of guilty waives all nonjurisdictional defects at earlier stages of the proceedings.

Slip op. at 7 (marks and citations omitted). And the majority has its own pragmatic rationale:

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 R.C.M. 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, as in this case, 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. See R.C.M. 906(b)(12)(i) & (ii) (specifying remedies for valid objections).

Slip op. at 8.

Chief Judge Stucky’s concurring opinion adopts the majority’s alternative holding. The Chief Judge writes:

I agree with the majority’s alternative holding: Appellant’s guilty plea waived all nonjurisdictional defects and unreasonable multiplication of charges is not a jurisdictional defect. I disagree, however, that the waiver provision of R.C.M. 905(e) applies to Appellant’s case and that therefore the results of a similar case would be different after January 1, 2019, when amendments to that rule are scheduled to take effect that will change the standard of review from waiver to plain error.

Con. op. at 1. A big part of the Chief Judge’s disagreement is his conclusion that the “appellate standards cited in R.C.M. 905(e) apply . . . during a contested trial. R.C.M. 905(e) simply does not apply to guilty pleas.” Con. op. at 2. But he does not explicitly reject the majority’s conclusion that the word waiver in R.C.M. 905(e) means actual waiver; rather, he implicitly adopts it with his reference to “the waiver provision of R.C.M. 905(e).” Con. op. at 1.

Judge Ohlson’s dissent rejects the majority’s alternative holding with much the same reasoning as he rejects the rules-based holding:

The second point underlying the majority’s opinion is the general principle of waiver as it relates to unconditional guilty pleas. For the reasons cited below, I once again conclude that the better approach would be to apply forfeiture in the instant case.

Waiver constitutes “the intentional relinquishment or abandonment of a known right.” Gladue, 67 M.J. at 313 (emphasis added) (citation omitted) (internal quotation marks omitted). An unconditional guilty plea, standing alone, only constitutes the waiver of “all nonjurisdictional defects at earlier stages of the proceeding.” United States v. Bradley, 68 M.J. 279, 281 (C.A.A.F. 2010) (emphasis added). Claims of UMC, however, can be made at both the findings and sentencing phases of a court-martial and are distinct at each phase. United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012) (“[T]he concept of [UMC] may apply differently to findings than to sentencing.”). To ensure that an accused understands that he is relinquishing all nonjurisdictional defects not only at the findings phase of the hearing but also at the later sentencing phase, this point should be more clearly spelled out to him. Then it would be clear on the record that the accused has intentionally relinquished his rights regarding issues such as UMC and, consequently, that waiver applies.

Diss. op. at 3-4 (emphases in original).

The third part of Judge Maggs’ majority opinion is what it does not do. CAAF does not restrict the power of a CCA:

Our decision does not affect the power of a Court of Criminal Appeals (CCA) to exercise its powers under Article 66(c), UCMJ, to address an unpreserved UMC objection.

Slip op. at 2. That specific power was last acknowledged in United States v. Chin, 75 M.J. 220 (C.A.A.F. Apr. 29, 2016) (CAAFlog case page), where a sharply-divided CAAF affirmed the CCA’s power to grant relief for UMC in a guilty plea case where the appellant agreed to waive all waivable motions as part of a pretrial agreement (something that Hardy did not do). But this reference to the unbridled power of a court of criminal appeals to determine what sentence should be approved – despite waived issues or even mandatory minimums – isn’t without context; part of Hardy’s argument to CAAF seems to have conflated the waiver issue with the CCA’s exercise of its independent sentence appropriateness power. Judge Maggs explains that:

Appellant argues that this Court has treated unpreserved UMC objections as forfeited rather than waived, and has reviewed them for plain error. As a prominent example, Appellant cites United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001). We disagree. Quiroz is not a case about whether a guilty plea waives or forfeits an unreasonable multiplication of charges claim. On the contrary, Quiroz is about how a CCA may exercise its special power under Article 66(c), UCMJ, to revise a case notwithstanding the failure to preserve the objection at trial.

Slip op. at 8.

Chief Judge Maggs’ majority opinion is another shift in CAAF’s waiver jurisprudence. It’s a pretty significant one too, though perhaps one with few legs and a short lifespan. The waive all waivable motions provision absent from this case is increasingly common in pretrial agreements, and the future R.C.M. 705(d) will permit plea agreements that include provisions limiting both the maximum and minimum sentence that may be adjudged (never mind the future R.C.M. 905(e) that will say forfeiture instead of waiver). As a result – even without today’s decision – an appellant raising UMC for the first time on appeal is an increasingly unlikely occurrence.

Case Links:
• AFCCA decision (76 M.J. 732)
• Blog post: AFCCA finds guilty plea waives UMC
• Appellant’s brief
• Appellee’s (A.F. Gov’t App. Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

9 Responses to “Opinion Analysis: A guilty plea waives any unreasonable multiplication of charges, in United States v. Hardy”

  1. Alfonso Decimo says:

    The learning point for practitioners is to amend their standard plea agreements to ensure there’s no question the defendant intentionally waived all waivable motions.

  2. k fischer says:

    Oh wise one, I humbly ask the following question:
    Would a general waiving all waivable motions create a duty upon DC to go over all of the motions that the accused is waiving, and if the motion was not discussed, then create an issue that the accused’s plea was improperly accepted?  Would the judge have a duty to address any motions that appear from the charge sheet?  A smart MJ would ask defense counsel whether or not he or she knew of any motions he or she addressed with the client to at least put that motion on the record. 
    And, for tactical reasons, a defense counsel might want to let the Judge know they are waiving certain motions, so that the Judge might take into account the Accused’s willingness to cooperate and exactly what he was giving up with his plea of guilty.

  3. Zachary D Spilman says:

    That very question is what split the court in Gladue, k fischer.

  4. Tami a/k/a Princess Leia says:

    I would think something like this could be figured out quickly by comparing the charge sheet to the supporting evidence.  How could you not know you’re dealing with UMC?
    K Fischer, to answer your questions, I would say yes and yes.  An accused can’t waive a motion he wasn’t aware of, and if the accused wasn’t aware, it’s impossible to be provident to a “waive all waiveable motions” clause.  That’s the problem with “waive all waiveable motions.”  And would put everyone in a bind if the DC says “no, didn’t think of that motion.”  But again, with UMC, that’s a pretty obvious issue from looking at the charge sheet.

  5. k fischer says:

    I was posing the question to Alfonso X, not you. j/k  While he is wise, your brilliance is blinding.  Gladue was directly on point.
    Your Worship, that’s what troubles me with “waive all waivable motions” clauses, particularly when an Accused’s guilty plea is required to be “knowing” and “intelligent.”  I’m pretty good at issue spotting and have drafted some very creative motions in my day, but nobody is perfect.  Alas, I don’t have to worry about it anymore because I haven’t done a guilty plea since I left the Army in ’07……well, one that has been approved, anyways.  
    But, it would be wise for practitioners and TDS counsel who represent Accused who are pleading guilty with such clauses to at least have ONE or more motions in their backpocket, as well as the MJ inquiring during providence about any motions that could have been raised prior to pleading guilty.  

  6. Alfonso Decimo says:

    KF – Thank you for the honorifics. As usual, you make a good point and entertain us at once. I understand your concern centers on possible motions overlooked by trial defense counsel but spotted by appellate defense counsel. In my view, there’s no completely safe harbor for trial practitioners from the appellate trolls. As they say, they’re like the specialists who watch the battle from a safe distance and descend on the battlefield when it’s quiet to shoot all the wounded. In their spare time, they debate how many angels might fit on the head of a pin. – Alex

  7. stewie says:

    Having done trial and appellate defense…you learn way more in both volume and depth in the latter than the former…just saying.

  8. Alfonso Decimo says:

    Stewie – Just being a troll myself in fun. The Navy and USMC appellate attorneys I knew at the Navy Yard were some of the best attorneys I’ve known anywhere. – Alex

  9. Tami a/k/a Princess Leia says:

    Appellate defense work is Monday morning quarterbacking.  The easiest solution to the problem is to be specific at to which motions are being waived, which forces the parties to do their homework before entering into a PTA.  With a general waiver clause, no one does their homework before trial, which does everyone a disservice.