Argument Preview: Whether a guilty plea waives any unreasonable multiplication of charges, in United States v. Hardy
CAAF will hear oral argument in the Air Force case of United States v. Hardy, No. 17-0553/AF (CAAFlog case page), on Tuesday, February 27, 2018, after the argument in Barker. The court 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.
Unreasonable multiplication of charges (UMC) is a doctrine that addresses uniquely-military factors increasing the potential for prosecutorial overreach. The general rule is that “what is substantially one transaction should not be made the basis for an UMC against one person.” R.C.M. 307(c)(4).
Waiver is the intentional relinquishment or abandonment of a known right, extinguishes an error, and was 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).
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 to waive all waivable motions.
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 provisions waived – rather than merely forfeited – any objection to both multiplicity and unreasonable multiplication of charges. Without such a provision in Hardy’s case, 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 (analyzed here), 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 will determine if that’s right.