Opinion Analysis: A guilty plea waives any unreasonable multiplication of charges, in United States v. Hardy
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.