United States v. Harris ( 2015 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
K.J. BRUBAKER, M.C. HOLIFIELD, A.Y. MARKS
Appellate Military Judges
UNITED STATES OF AMERICA
v.
THOMAS J. HARRIS
LIEUTENANT JUNIOR GRADE (O-2), U.S. NAVY
NMCCA 201400382
GENERAL COURT-MARTIAL
Sentence Adjudged: 29 July 2014.
Military Judge: LtCol C.J. Thielemann, USMC.
Convening Authority: Commander, Navy Region Northwest,
Silverdale, WA.
Staff Judge Advocate's Recommendation: LCDR E.K. Westbrook
II, JAGC, USN.
For Appellant: LT Jacqueline Leonard, JAGC, USN; LT Jessica
L. Ford, JAGC, USN.
For Appellee: LCDR Keith B. Lofland, JAGC, USN.
18 August 2015
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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 a general court martial
convicted the appellant, pursuant to his pleas, of one
specification of receiving child pornography and one
specification of possessing child pornography in violation of
Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934.
Members sentenced the appellant to 18 months’ confinement and a
dismissal. Pursuant to a pretrial agreement, the convening
authority (CA) waived all automatic forfeitures for six months
but otherwise approved the sentence as adjudged.
The appellant raises two assignments of error: that his
sentence was inappropriately severe and that the CA’s action
incorrectly omitted mention of pretrial confinement credit. We
find no prejudicial error but order corrective action regarding
the CA’s action in our decretal paragraph. Arts. 59(a) and
66(c), UCMJ.
Sentence Appropriateness
We review the appropriateness of a sentence de novo, United
States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990), giving
"'individualized consideration' of the particular accused 'on
the basis of the nature and seriousness of the offense and the
character of the offender.'" United States v. Snelling, 14 M.J.
267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy, 10
C.M.A. 102, 27 C.M.R. 176, 180-81 (C.M.A. 1959)). Sentence
appropriateness “involves the judicial function of assuring that
justice is done and that the accused gets the punishment he
deserves” while clemency “involves bestowing mercy” and is a
power reserved for other authorities. United States v. Healy,
26 M.J. 394, 395 (C.M.A. 1988).
We are mindful of the matters presented in extenuation and
mitigation as well as the sentencing authority’s recommendation
of “clemency of 6 months upon demonstrated rehabilitation
counseling based on the counselor’s recommendation.” 1
Nonetheless, the nature and seriousness of the offense are
significant: the appellant searched for and downloaded over
3,000 pictures and 24 videos of graphic child pornography. He
then transferred those images to his cloud storage account.
Weighing these offenses with an individualized consideration of
the appellant, we conclude that the sentence is appropriate.
Further relief would be a matter of clemency, reserved for other
authorities. Healy, 26 M.J. at 395–96.
Convening Authority’s Action
The military judge ordered that the appellant be credited
with six days spent in pretrial confinement; there is no dispute
the appellant is entitled to this credit. While the credit is
accurately reflected in the results of trial, the CA’s action
omits any mention of it.
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Record at 461.
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While the appellant asserts this is error, he cites no
authority for the proposition that credit for lawful pretrial
confinement is required to be noted in the CA’s action. RULE FOR
COURTS-MARTIAL 1107(f)(4)(F), MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.) requires that when a military judge awards
administrative credit for illegal pretrial confinement, the CA
“shall so direct in the action.” There is no similar
requirement for legal pretrial confinement. Noting this, our
Army brethren have held “there is no requirement that the
convening authority order sentence credit for legal pretrial
confinement in his action.” United States v. Bales, 34 M.J.
1217, 1218 (A.C.M.R. 1992). We agree. Further, there is no
indication that confinement facility authorities, relying on the
results of trial, did not properly account for pretrial
confinement credit. While mention of all credit for pretrial
confinement, illegal or not, certainly is more prudent to ensure
clarity in CA’s actions, it is not required, so no corrective
action on this point is necessary.
Another matter, however, does require corrective action.
Although not raised by the parties, we note an error in the
staff judge advocate’s recommendation (SJAR) and the CA’s
action. Prior to entering pleas, the Government withdrew and
dismissed the language “on divers occasions from between” and
“to on or about 9 January 2014” in Specifications 1 and 2 of
Charge II. The results of trial, incorporated into the SJAR by
reference, and the CA’s action, nonetheless, incorrectly
indicate this language remained. The appellant did not object
to this error in the SJAR and has not asserted any error or
prejudice here.
We find no prejudice resulting from this error but, to
ensure accuracy of records, we will direct corrective action in
our decretal paragraph. United States v. Crumpley, 49 M.J. 538,
539 (N.M.Ct.Crim.App. 1998).
Conclusion
The findings and the sentence are affirmed. The
supplemental CMO will reflect that Specifications 1 and 2 of
Charge II did not include the language “on divers occasions from
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between” and “to on or about 9 January 2014” at the time of the
pleas and the findings.
For the Court
R.H. TROIDL
Clerk of Court
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