UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           COOK, TELLITOCCI, and HAIGHT
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Specialist ROBBIE A. KNIGHT
                          United States Army, Appellant

                                   ARMY 20140422

                           Headquarters, Fort Campbell
                        Steven E. Walburn, Military Judge
          Lieutenant Colonel Sebastian A. Edwards, Staff Judge Advocate


For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Major M. Patrick
Gordon, JA (on brief).

For Appellee: Major Daniel D. Derner, JA (on brief).


                                      9 April 2015

                              ----------------------------------
                               SUMMARY DISPOSITION
                              ----------------------------------

HAIGHT, Judge:

       A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of premeditated murder and maiming, in violation of Articles
118 and 124, Uniform Code of Military Justice, 10 U.S.C. §§ 918, 924 [hereinafter
UCMJ]. The military judge sentenced appellant to a dishonorable discharge,
confinement for life with eligibility for parole, forfeiture of all pay and allowances,
and reduction to the grade of E-1. In accordance with a pretrial agreement, t he
convening authority approved only so much of the sentence as provides for a
dishonorable discharge, confinement for fifty-two years, reduction to the grade of E -
1, and credited appellant with 190 days of confinement . 





 Automatic and adjudged forfeitures were deferred until time of Action, and then
automatic forfeitures were waived for a period of six months for the benefit of
appellant’s wife.
KNIGHT—ARMY 20140422

        This case is before us for review pursuant to Article 66, UCMJ. Appellant
submitted a merits pleading and personally raised several matters pursuant to United
States v. Grostefon, 

(C.M.A. 1982), one of which merits discussion and
relief.

                                  BACKGROUND

       Appellant’s wife had moved in with and was living with her paramour, JP.
Appellant went to JP’s house, confronted him, and violence ensued. During the
altercation, appellant was able to hand cuff JP yet continued to viciously and
repeatedly beat his defenseless victim with a tactical baton, bludgeoning JP all over
to include his head, torso, and testicles. After the severe and bloody beating,
because JP was still breathing and there was a cha nce he could reveal his attacker’s
identity, appellant shot and killed JP.

       For his misconduct, appellant was charged with, pleaded guilty to, and was
convicted of both murdering JP “by means of striking him on his head with a baton
or similar instrument and by shooting him with a firearm” and maiming JP “by
fracturing his skull and bludgeoning his torso and testicles with a baton .”

                              LAW AND DISCUSSION

       “What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.” Rule for Courts -Martial
307(c)(4). The prohibition against unreasonable multiplication of charges
“addresses those features of military law that increase the potential for overreaching
in the exercise of prosecutorial discretion.” United States v. Quiroz, 

,
337 (C.A.A.F. 2001); see also United States v. Campbell, 

, 23 (C.A.A.F.
2012).

       Here, it is clear the government desired to treat the beating with the baton and
the shooting of JP in the head as separate crimes and not as components of
“substantially one transaction.” While this approach is permissible, the charged
language undermines the government’s attempt to treat these offenses separately.
Simply, the murder specification overlaps the maiming specification and combines
two crimes which could have otherwise been argued, in theory, as being completely
distinct. We find that the “wording of the two specifications”—one alleging
maiming by striking with a baton and another alleging killing by strik ing with a
baton and shooting—is not “sufficiently discrete” as to make separate convictions a
reasonable outcome in this case. United States v. Valdez, 

, 565
(A.C.M.R. 1992); see also Quiroz, 

. Accordingly, we will set aside the
finding of guilty to maiming and reassess the sentence.




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KNIGHT—ARMY 20140422

                                   CONCLUSION

      The findings of guilty of Charge IV and its Specification are set aside and that
charge and specification are DISMISSED. The remaining findings of guilty are
AFFIRMED.

       We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 

, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 

(C.M.A. 1986). This analysis is made somewhat
easier by the fact that appellant’s remaining conviction for premeditated murder
carries with it a mandatory minimum sentence of life in prison (with parole) .
Accordingly, after considering the gravamen of the remaining offense and the other
Winckelmann factors, we are satisfied that even absent appellant’s maiming
conviction, the military judge would have adjudged a sentence of at least the
severity of that which was originally imposed at appellant’s trial. See 

.

       Nonetheless, “[t]his court can conduct [a sentence appropriateness] review
even in a case where the sentence adjudged was a mandatory minimum of
confinement for life in prison.” United States v. Roukis, 

, 931 (Army Ct.
Crim. App. 2005); see also UCMJ art. 66(c); United States v. Bauerbach, 

(Army Ct. Crim. App. 2001). In doing so, we find that based on the entire
record and in light of the totality of the circumstances —to include the nature of
appellant’s misconduct, the pretrial agreement and its attendant qua ntum, and our
dismissal of the maiming offense—appellant’s approved sentence to confinement
should be reduced from 52 years to 50 years. Therefore, we AFFIRM only so much
of the sentence as provides for a dishonorable discharge, confinement for 50 years,
and reduction to the grade of E-1. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of the findings and sentence set
aside by this decision are ordered restored. See UCMJ arts. 58b(c) and 75(a).

      Senior Judge COOK and Judge TELLITOCCI concur.


                                       FORTHE
                                      FOR  THECOURT:
                                               COURT:




                                      MALCOLM
                                       MALCOLMH.H.SQUIRES,
                                                       SQUIRES,JR.
                                                                JR.
                                      Clerk
                                       ClerkofofCourt
                                                 Court




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