UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                          TOZZI, CAMPANELLA, and CELTNIEKS
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                        Private First Class TYLER L. SANKS
                           United States Army, Appellant

                                     ARMY 20130085

                      Headquarters, 82d Airborne Division
             Tara A. Osborn, Military Judge (arraignment & motions)
                    Kirsten V. Brunson, Military Judge (trial)
      Lieutenant Colonel John N. Ohlweiler, Staff Judge Advocate (pretrial)
      Lieutenant Colonel Dean L. Whitford, Staff Judge Advocate (post-trial)


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Jonathan F. Potter, JA;
Captain Patrick J. Scudieri, JA (on brief); Major Christopher D. Coleman, JA;
Captain Cody Cheek, JA (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Steven J. Collins, JA; Captain
Linda Chavez, JA (on brief).


                                       23 March 2016

                                -----------------------------------
                                 MEMORANDUM OPINION
                                -----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

TOZZI, Senior Judge:

       A panel of enlisted members sitting as a general court-martial convicted
appellant, contrary to his pleas, of one specification of attempted premeditated
murder, one specification of violating a lawful order, one specification of wrongful
appropriation of a motor vehicle, one specification of maiming, one specification of
aggravated assault, one specification of assault consummated by a battery, one
specification of burglary, and one specification of adultery in violation of Articles
80, 92, 121, 124, 128, 129, and 134, Uniform Code of Military Justice, 10 U.S.C. §§
880, 892, 921, 924, 928, 929, and 934 (2012) [hereinafter UCMJ]. The panel
sentenced appellant to confinement for seventeen years and a dishonorable
discharge. The convening authority approved only so much of the sentence
SANKS—ARMY 20130085

extending to confinement for sixteen years and six months, and a dishonorable
discharge. Appellant was credited with 255 days of confinement credit against his
sentence.

      Appellant’s case is before this court for review under Article 66, UCMJ.
Appellate counsel raised five errors, three of which merit discussion, and two of
which merit relief. Appellant personally raised matters pursuant to United States v.
Grostefon, 

(C.M.A. 1982) which are without merit.

                                 BACKGROUND

       Appellant and Specialist (SPC) AD were friends at Fort Bragg, North
Carolina. Specialist AD allowed appellant to stay at his house located at the Linden
Oaks housing area just outside Fort Bragg. Later, when SPC AD’s wife (Mrs. ND)
and three children arrived at Fort Bragg from Chicago, appellant continued to live
with them. Specialist AD deployed in May 2011 and appellant and Mrs. ND began a
sexual relationship, resulting in Mrs. ND becoming pregnant with appellant’s child.
Specialist AD redeployed in March 2012. Upon redeployment, SPC AD did not
move back into the marital home with Mrs. ND, but moved into a home down the
street from where appellant, Mrs. ND, and the children were living. Appellant
moved into the barracks on Fort Bragg in April 2012, and received an order from his
company commander to have no contact with Mrs. ND on 17 April 2012. Specialist
AD moved back in with Mrs. ND and the children in May 2012.

       On 23 May 2012, after calling Mrs. ND’s house and realizing that SPC AD
was there, appellant took a car owned by SPC DA from Fort Bragg, exceeding the
permission given to him by SPC DA, and drove to the home of Mrs. ND. After
parking across the street from the home, appellant went behind the house to avoid
detection by a military police patrol vehicle. Appellant then went to the front door.
When SPC AD answered the door, appellant, brandishing a knife, proceeded to
attack SPC AD, backing SPC AD into the house, stabbing and cutting him with the
knife multiple times. Specialist AD received a laceration near the temple, a
puncture wound to the throat, and multiple deep wounds to his back. Specialist AD
eventually “played opossum” on the kitchen floor, acting like he was dead.
Appellant then proceeded upstairs and found Mrs. ND, told her, “[SPC AD] is dead,
I killed him,” cut her thumb deeply with the knife, and physically assaulted her.

       After appellant went upstairs, SPC AD ran outside and alerted a neighbor to
help him. Specialist AD then returned to the house, procured a baseball bat from the
garage, and proceeded upstairs and confronted appellant in a guest bedroom with
Mrs. ND. Appellant saw SPC AD, looked surprised, and said, “[You are] supposed
to be dead.” Specialist AD hit appellant with the bat, and Mrs. ND was able to get
behind SPC AD and eventually run downstairs. Specialist AD, along with his



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neighbor, held appellant at bay until the military police arrived. The military police
eventually talked appellant into surrendering without further incident.

                               LAW AND DISCUSSION

                                 Sentencing Instructions

       Appellant alleges the military judge erred in instructing the panel of the
effects of parole and who has the authority to grant parole and early release from
confinement.

       When the panel returned from deliberating on appellant’s sentence, the
sentence worksheet appeared to indicate the panel returned a sentence of fifteen
years confinement with eligibility for parole at eleven years. The following
colloquy occurred between the military judge and the members of the panel:

             MJ:     [Examining the sentence worksheet.] Okay. Could
             you    return this to the president? The additional language
             that   was written in is not something that you can give. Do
             you    understand what I’m referring to?

             PRES: [Affirmative response.]

             MJ: Does that effect your decision?

             PRES: One moment, Your Honor [conferring with the
             members]. Yes.

             MJ: That’s not something that’s in control of the court.

             PRES: Your Honor, we would like to reconsider.

             MEMBER [MSG PHELPS]: So, Your Honor, we can’t
             consider that at all then?

             MJ: As to at what point, no; it’s not something that’s part
             of the sentence. It’s not something that’s in the control of
             the court at all. That’s in control of another authority.

             MEMBER [MSG PHELPS]: So you can say “with” or
             “without”?

             MJ: You can either say “without.” If you don’t say
             “without” -- your possibilities for confinement are

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         confinement for life without eligibility for parole,
         confinement for life which assumes eligibility for parole,
         or confinement for a term, meaning a certain number of
         days, months, or years. So the only sentence to
         confinement that does not include a possibility of parole is
         confinement for life without eligibility for parole. When
         parole occurs, it is up to the prison authority.

         MEMBER [MSG PHELPS]: So if we say a set year, if it’s
         less than life without parole, if we say a set year, then that
         means they will be eligible for parole at some point, Your
         Honor.

         MJ: No. If you sentence him to confinement, for
         example, 10 years, then at some point in the prison
         system, he may become eligible for parole. The terms of
         that, when the eligibility arises is not part of the judicial
         system, it is part of the prison system. That’s an
         administrative matter that goes according to their rules. Is
         that clear for everyone? Any other questions on that
         issue?

         MEMBER [CSM LACLAIR]: Your Honor, do we know
         what that would be?

         MJ: We do not. Part of it may depend upon where he is
         confined. I don’t have information regarding that because
         it’s just not something that we do; it’s not in our purview.
         We can either - - the sentencing authority in this case can
         either sentence him to no eligibility for parole or it is
         assumed that if the system allows for parole, he would be
         eligible. Again, when he would be eligible, what the
         terms of that, whether it would actually come to fruition is
         completely out of our control.

         MEMBER [CSM LACLAIR]: Your Honor, when we asked
         if there is no eligibility for parole, is there a minimum
         number of years for no eligibility? Does it have to be
         life?

         MJ: It’s life, yes. Anything less than life, then he is
         eligible for parole; even with life, he can be eligible for
         parole. Any other questions?



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       The military judge then gave the panel instructions on the process
reconsideration of the sentence. The military judge then asked if there were any
other questions. The following colloquy occurred:

             MEMBER [CSM LACLAIR]: Your Honor, is there like - -
             I understand that it depends on the system they’re in, but
             is there like a norm of how many years someone would
             serve before they are considered for parole?

             MJ: I have no idea. I have no idea what the rules are
             regarding that, and even if I did, I don’t think I’d be
             allowed to tell you because it’s not something you’re
             supposed to consider.

             MEMBER [CSM LECLAIR]: Roger, Your Honor.

      The panel then continued its deliberations and returned with a sentence of
seventeen years confinement and a dishonorable discharge.

       Appellant asserts the military judge incorrectly instructed the panel with
regard to parole, by failing to explain when a prisoner becomes eligible for parole,
by stating that parole eligibility would depend upon “…where he is confined,” and
by providing instructions that were generally muddled, confusing, and internally
inconsistent. Appellant asserts the military judge did not clearly state the panel
“could not consider [the possibility of parole] in arriving at an appropriate
sentence.” United States v. McNutt, 

, 19 (C.A.A.F 2005).

        The government asserts the military judge correctly stated appellant’s parole
eligibility may depend upon where he is confined, particularly if he is confined in a
facility under the control of the U.S. Parole Commission, as their policies and
procedures would apply. See Army Reg. 15-130, Army Clemency and Parole Board,
para. 3-1e.(9) (23 Nov. 1998). The government further asserts the military judge did
not commit error in providing an overview of the parole system and emphasizing the
panel did not have the authority to determine when someone is eligible for parole.
Finally, the government asserts that even assuming error, any error was harmless
because the military judge properly instructed the panel that parole is a collateral
matter that should not be considered in determining appellant’s sentence. See
United States v. Duncan, 

, 499-500 (C.A.A.F. 2000).

       “Whether a panel was properly instructed is a question of law reviewed de
novo.” United States v. Ober, 

, 405 (C.A.A.F. 2008) (citations omitted).
In the absence of defense objection, we apply waiver unless the military judge’s
instruction constituted plain error. Rule for Courts-Martial [hereinafter R.C.M.]
920(f). “To establish plain error, appellant must demonstrate: that there was

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‘error’; that such error was ‘plain, clear, or obvious’; and that the error ‘affect[ed]’
appellant’s ‘substantial rights.’” United States v. Czekala, 

, 170
(C.A.A.F. 1995) (quoting United States v. Olano, 

, 732-34 (1993)).

       In this case, defense counsel did not object to the instructions of the military
judge on appellant’s eligibility for parole. Considering the totality of the
instructions provided by the military judge on the issue of parole eligibility to an
active and inquisitive panel, we do not find plain error here. The military judge
provided adequate instructions in response to several questions of panel members on
parole eligibility. Importantly, the military judge provided the panel with an
instruction that parole eligibility is “…not something that’s part of the sentence.
It’s not something that’s in the control of the court at all. That’s in control of
another authority.” Later the military judge stated, in her last words on the matter,
the possibility of parole is “not something you’re supposed to consider.”

       In McNutt, our superior court stated, “[f]or example the ‘availability of parole
and rehabilitation programs are issues of general knowledge and concern, and as
such they may be instructed upon, especially when requested by the members.’”

(quoting 

). “However, in such a
situation, the military judge should then instruct the members that although the
possibility of parole exists in the military justice system, ‘they could not consider it
in arriving at an appropriate sentence for [the] appellant.’” 

judge
followed the dictates of McNutt and Duncan in her instructions to the panel and
clearly communicated to the panel that parole eligibility was “something you’re not
supposed to consider.” Although the military judge did not use the exact wording
that the panel “should not consider [parole eligibility],” she did correctly apply the
holding of Duncan. The panel was left with the clear understanding that the
possibility of parole existed, but that they should not consider it in arriving at an
appropriate sentence. We do not view the exact language of Duncan as talismanic in
nature. The instructions of the military judge on the issue of parole eligibility did
not constitute plain error.

            Aggravated Assault as a Lesser Included Offense of Maiming

       Appellant asserts the military judge erred when she instructed the panel that
aggravated assault by intentional infliction of grievous bodily harm was a lesser
included offense of maiming. Based upon this court’s holding in United States v.
Hanks, 

, 559 (Army Ct. Crim App. 2014), we agree. In Hanks, this court
held aggravated assault where grievous bodily harm is intentionally inflicted is not a
lesser included offense of maiming. 

panel returned a finding of not guilty to Specification 1 of Charge
IV (maiming of Mrs. ND), but guilty of aggravated assault, in violation of Article
128. Even though appellant was on notice of a theory of aggravated assault against

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Mrs. ND as evidenced by Specification 2 of Charge V on the charge sheet, the
government moved to dismiss this specification in satisfaction of a defense motion
for unreasonable multiplication of charges with the maiming specification against
Mrs. ND, premised upon defense counsel agreeing that the aggravated assault charge
was a lesser included offense of maiming. Accordingly, the military judge
dismissed Specification 2 of Charge V prior to pleas. Hanks was decided after the
conclusion of this case. Consistent with our holding in Hanks, Specification 1 of
Charge IV is dismissed. 1

                      Unreasonable Multiplication of Charges

       Appellant asserts the attempted murder of SPC AD and the maiming of SPC
AD constitute an unreasonable multiplication of charges. Appellant asks this court
to dismiss the maiming specification in Specification 2 of Charge IV. We agree.

      “What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.” R.C.M. 307(c)(4). We
consider five factors to determine whether charges have been unreasonably
multiplied:

             (1) Did the accused object at trial that there was an unreasonable
                 multiplication of charges and/or specifications?;

             (2) Is each charge and specification aimed at distinctly separate
                 criminal acts?;

             (3) Does the number of charges and specifications misrepresent or
                 exaggerate the appellant's criminality?;

             (4) Does the number of charges and specifications [unreasonably]
                 increase [the] appellant's punitive exposure?;

             (5) Is there any evidence of prosecutorial overreaching or
                 abuse in the drafting of the charges?

United States v. Quiroz, 

, 338-39 (C.A.A.F. 2001) (internal citation and
quotation marks omitted) (internal alteration reflects the holding by the United
States Court of Appeals for the Armed Forces (CAAF) in Quiroz that “unreasonably”
was the appropriate legal standard). Here, the Quiroz factors on balance weigh in
favor of appellant. First, defense counsel did not object at trial to the attempted
murder and maiming specifications against SPC AD as constituting an unreasonable

1
 This holding renders appellant’s claim that the military judge erred when she
instructed the panel about the difference between the elements of maiming and
aggravated assault moot.
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SANKS—ARMY 20130085

multiplication of charges. This factor weighs in favor of the government.
Regarding the second Quiroz factor, it is clear that appellant attempted to murder
SPC AD. It is also apparent, and the government concedes, that the maiming
specification was likely charged as an alternative theory of liability to account for
exigencies of proof. In addition, the language in both the murder and maiming
specifications is identical, stating “…by stabbing him [SPC AD] multiple times with
a knife in or about the area of the head, neck, and back.” When a fact finder
“return[s] guilty findings for [multiple] specifications and it was agreed that these
specifications were charged for exigencies of proof, it [is] incumbent either to
consolidate or dismiss a specification.” United States v. Elespuru, 

, 329
(C.A.A.F. 2014) (quoting United States v. Mayberry, 

, 467-68 (C.A.A.F.
2013) (internal citations and quotation marks omitted).

       The attempted murder specification and the maiming specification are aimed
at the same criminal act. The remaining factors do not weigh heavily for either the
appellant or the government. It is not clear that the number of charges misrepresent
or exaggerate appellant’s criminality, particularly considering that maiming requires
a different specific intent than attempted murder. Appellant’s punitive exposure is
not unreasonably increased as the maximum punishment in this case remains
unaffected. Finally, there is no evidence of prosecution overreaching or abuse in the
drafting of the charges, as exigencies of proof is the rationale for charging appellant
with the attempted murder and maiming of SPC AD. On balance, we find that the
Quiroz factors tip slightly in favor of appellant. Therefore, the maiming
specification of Specification 2 of Charge IV is dismissed.

                                Sentence Reassessment

       This court has “broad discretion” when reassessing sentences. United States
v. Winckelmann, 

, 12 (C.A.A.F. 2013). Our superior court has repeatedly
held that if we “can determine to [our] satisfaction that, absent any error, the
sentence adjudged would have been of at least a certain severity, then a sentence of
that severity or less will be free of the prejudicial effects of error.” United States v.
Sales, 

, 308 (C.A.A.F. 1986). This analysis is based on a totality of the
circumstances with the following as illustrative factors:

             (1) Dramatic changes in the penalty landscape and exposure.

             (2) Whether an appellant chose sentencing by members or a
             military judge alone. As a matter of logic, judges of the
             courts of criminal appeals are more likely to be certain of
             what a military judge would have done as opposed to
             members. This factor could become more relevant where
             charges address service custom, service discrediting conduct
             or conduct unbecoming.

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SANKS—ARMY 20130085


             (3) Whether the nature of the remaining offenses capture the
             gravamen of criminal conduct included within the original
             offenses and, in related manner, whether significant or
             aggravating circumstances addressed at the court-martial
             remain admissible and relevant to the remaining offenses.
             (4) Whether the remaining offenses are of the type that
             judges of the courts of criminal appeals should have the
             experience and familiarity with to reliably determine what
             sentence would have been imposed at trial.

United States v. Winckelmann, 

, 15-16 (C.A.A.F. 2013) (internal citations
omitted).

       Applying these factors to this case, we are confident that reassessment is
appropriate. First we look to the penalty landscape. The maximum punishment in
this case remains confinement for life without eligibility for parole. Second,
although appellant was sentenced by a panel of enlisted members, we have
experience dealing with cases like this involving violent crime. We are confident
we can discern what punishment a panel would adjudge in this case. Third, the
gravamen of the criminal conduct included within the original offenses remains
substantially the same. Appellant remains convicted of one specification of
attempted murder, one specification of violating a lawful order, one specification of
wrongful appropriation of a motor vehicle, one specification of assault consummated
by a battery, one specification of burglary, and one specification of adultery. Thus,
neither the penalty landscape nor the vast majority of admissible aggravation
evidence has significantly changed. Lastly, we have familiarity and experience with
the remaining offenses to reliably determine what sentence would have been
imposed at trial.

                                   CONCLUSION

       The findings of guilty for Charge IV and its specifications are set aside and
dismissed. The remaining findings of guilty are AFFIRMED. Reassessing the
sentence on the basis of the error noted, the entire record, and in accordance with the
principles of Winckelmann, we affirm the approved sentence. All rights, privileges,
and property, of which appellant has been deprived by virtue of that portion of his
findings set aside by this decision, are ordered restored.

CAMPANELLA, Judge, concurring in part, dissenting in part:

       I concur with the majority opinion that the military judge did not commit
plain error in her panel instructions regarding parole. I also concur with the
majority that aggravated assault is not a lesser-included offense of maiming. I

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SANKS—ARMY 20130085

respectfully dissent, however, from the ruling of the majority that the attempted
murder of SPC AD and the maiming of SPC AD constitute an unreasonable
multiplication of charges. In my opinion, these two charges, while related, firmly
stand separately and I am not compelled to dismiss the maiming charge as the
majority would have it.

        Looking to the Quiroz factors, at trial appellant did not specifically request
relief based on the principle of unreasonable multiplication of charges. 2 “While not
applying a blanket forfeiture rule, the failure to raise the issue at trial suggests that
the appellant did not view the multiplication of charges as unreasonable. This
approach is consistent with that taken on other issues where there was no objection
at trial.” United States v. Quiroz, 

, 603 (C.A.A.F. 2000); see also, e.g.,
United States v. Acosta, 

, 18 (1998) (lack of defense objection shows
defense belief in neutrality of the military judge); United States v. Huffman, 

, 227 (C.M.A. 1994) (failure to object to conditions of pretrial confinement is
strong evidence of a lack of an Article 13, UCMJ, violation). The lack of objection
at trial significantly weakens appellant's argument on appeal.

       Second, each charge is aimed at distinctly separate criminal acts and interests
to be protected in society. Maiming requires an act of physical injury that degrades
the appearance or function of a person in a substantially permanent nature and the
precise injury inflicted need not be intended specifically by the perpetrator. A
charge of attempted murder does not require such an injury occur. One could
commit the offense of maiming without also committing the act of attempted murder
if the perpetrator maimed a victim intending to cause some injury as required by the
elements of maiming, but did not intend to murder the victim. Likewise, one can
commit an attempted murder and not maim their victim. These offenses stand alone
as each provision requires proof of a fact or element that the other does not.

       While the government concedes that the maiming and the attempted murder
charge were likely charged as alternative theories due to “exigencies of proof,” this
concession is neither dispositive nor accurate. The majority cites United States v.
Elespuru, 

(C.A.A.F. 2014) for the proposition that it is incumbent upon
this court to either consolidate or dismiss when a fact finder “returns guilty findings
for specifications and it was agreed that these specifications were charged for
exigencies of proof.” First, in cases of sexual assault where society’s interest is to
prevent sexual assaults of all kinds, this proposition makes sense. This is not a
sexual assault case and the application of this principle herein would not achieve the


2
 Ordinarily, if an issue is forfeited, we review for plain error. “The plain error
standard is met when: (1) an error was committed; (2) the error was plain, or clear,
or obvious; and (3) the error resulted in material prejudice to substantial rights.”
United States v. Maynard, 

, 244 (C.A.A.F. 2008) (citation and internal
quotation marks omitted).
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SANKS—ARMY 20130085

same purpose. Society proscribes the two acts in this case as criminal for different
reasons – they are distinct acts that threaten different societal interests. Further, and
more persuasively, this is not a case of exigencies of proof. The two charges in this
case are not mutually exclusive.


       Third, the number of charges and specifications does not misrepresent or
exaggerate appellant's criminality. While the two distinct and separate charges are
based on the same course of conduct, together the two charges accurately reflect
appellant's criminality in a way that one charge standing alone does not. Fourth, the
number of charges and specifications do not unfairly increase the appellant's
punitive exposure. Appellant remains exposed to no greater maximum punishment
in this case with or without maiming on the charge sheet. Lastly, there is no
evidence of prosecutorial overreaching or abuse in the drafting of the charges.

       Having considered the Quiroz factors as applied to appellant's case, I would
not find an unreasonable multiplication of charges for findings. Finally, even if I
were so inclined to make such a finding, I would merge the two charges – not
dismiss one. Dismissing the charge of maiming eliminates altogether a separate and
distinct component of appellant’s conduct from the charge sheet – an aspect that is
not insignificant.


                                        FOR THE
                                        FOR THE COURT:
                                                COURT:



                                        JOHN P. TAITT
                                         JOHNClerk
                                        Acting P. TAITT
                                                    of Court
                                         Acting Clerk of Court




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