United States v. Fairley ( 2014 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER
Appellate Military Judges
UNITED STATES OF AMERICA
v.
GERALD A. FAIRLEY
SEAMAN APPRENTICE (E-2), U.S. NAVY
NMCCA 201400268
GENERAL COURT-MARTIAL
Sentence Adjudged: 15 April 2014.
Military Judge: Col Daniel J. Daugherty, USMC.
Convening Authority: Commandant, Naval District Washington,
Washington, D.C.
Staff Judge Advocate's Recommendation: LCDR J.D. Pilling,
JAGC, USN; Addendum: LT J.T. Taylor, JAGC, USN.
For Appellant: LCDR John T. Zelinka, JAGC, USN.
For Appellee: Maj Suzanne M. Dempsey, USMC.
23 December 2014
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A military judge sitting as general court martial convicted
the appellant, pursuant to his pleas, of three specifications of
assault consummated by a battery, in violation of Articles 128,
Uniform Code of Military Justice, 10 U.S.C. § 928. The military
judge sentenced the appellant to fourteen months confinement,
reduction to pay grade E-1, total forfeitures, and a bad-conduct
discharge. The convening authority (CA) approved the sentence
as adjudged and, except for the bad-conduct discharge, ordered
it executed. Although the CA was obligated, pursuant to a
pretrial agreement, to suspend all confinement in excess of six
months for the period of confinement served by the appellant
plus six months thereafter, the CA’s action fails to do so.
On appeal, the appellant alleges that the CA’s action is
defective and that he is entitled to a new post-trial review or,
in the alternative, that he is entitled to have the CA’s action
accurately reflect the results of his court-martial. The
appellant has not alleged that he was actually required to serve
additional confinement as a result of the error. After
carefully considering the record of trial, the appellant's
assignments of error, and the Government's response, we conclude
that the findings and sentence are correct in law and fact and
that following our corrective action no error materially
prejudicial to the substantial rights of the appellant remains.
Arts. 59(a) and 66(c), UCMJ.
An appellant who pleads guilty pursuant to a pretrial
agreement is entitled to the fulfillment of any promises made by
the Government as part of that agreement. Santobello v. New
York, 404 U.S. 257, 262, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971);
United States v. Smith, 56 M.J. 271, 272 (C.A.A.F. 2002). Here,
the CA erred by failing to comply with the terms of the pretrial
agreement in his action. This court has the authority to
enforce the agreement and will correct the error in our decretal
paragraph. United States v. Cox, 46 C.M.R. 69, 72 (C.M.A.
1972); United States v. Carter, 27 M.J. 695, 697 n.1 (N.M.C.M.R.
1988); see also United States v. Bernard, 11 M.J. 771, 772-74
(N.M.C.M.R. 1981).
The findings and the sentence as approved by the CA are
affirmed, but all confinement in excess of six months is
suspended for the period of confinement served by the appellant
plus six months thereafter.
For the Court
R.H. TROIDL
Clerk of Court
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