United States v. Mahlenkamp ( 2015 )

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.
CODY A. MAHLENKAMP
LANCE CORPORAL (E-3), U.S. MARINE CORPS
NMCCA 201400328
SPECIAL COURT-MARTIAL
Sentence Adjudged: 7 July 2014.
Military Judge: LtCol C.M. Greer, USMC.
Convening Authority: Commanding Officer, Marine Medium
Tiltrotor Training Squadron 204, MAG 26, 2d MAW,
Jacksonville, NC.
Staff Judge Advocate's Recommendation: LtCol J.J. Murphy,
USMC.
For Appellant: CDR Suzanne M. Lachelier, JAGC, USN.
For Appellee: Capt Dale O. Harris, USMC; LT Ann E. Dingle,
JAGC, USN.
26 February 2015
---------------------------------------------------
OPINION OF THE COURT
---------------------------------------------------
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 special court-martial
convicted the appellant, pursuant to his pleas, of failure to go
at the time prescribed to his appointed place of duty, wrongful
possession of cocaine, and wrongful use of alprazolam and
oxycodone, in violation of Articles 86 and 112a, Uniform Code of
Military Justice, 10 U.S.C. §§ 886 and 912a. The military judge
sentenced the appellant to confinement for a period of 30 days,
reduction to pay grade E-1, and a bad-conduct discharge. The
convening authority approved the sentence as adjudged but,
pursuant to a pretrial agreement, deferred and waived all
automatic forfeitures.
In his sole assignment of error, the appellant contends
that the approved bad-conduct discharge is inappropriately
severe. After carefully considering the record of trial and the
submissions of the parties, we find that no error materially
prejudicial to substantial rights of the appellant occurred. We
therefore affirm the findings and the approved sentence. Arts.
59(a) and 66(c), UCMJ.
Background
On 6 February 2014, the appellant was working on the night
shift at his squadron’s hanger. At approximately 2230, his
supervisor released him to go get chow, directing him to return
by 2300 hours. Instead, the appellant, a mechanic for ground
support equipment supporting the squadron’s aircraft, went to
his off-base home, took Xanax and Percocet —— neither of which
had been prescribed to him or were medically necessary —— and
fell asleep. Awaking after midnight, he called into work and
was told to return immediately. On his way back, he drove his
vehicle off the roadway and became stuck on the shoulder.
Personnel responding to the vehicle found cocaine, which the
appellant admitted was his.
Analysis
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, 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 preserved for
other authorities. United States v. Healy, 26 M.J. 394, 395
(C.M.A. 1988).
Having carefully reviewed the record of trial and the
parties’ submissions, we are satisfied that the appellant got
2
the punishment he deserved. Anything further would be an act of
mercy for other authorities’ consideration. Id.
Although not raised, we note that the court-martial order
(CMO), in what clearly is a scrivener’s error, states for
Specification 2 of Charge I, “Not Plea: Guilty” when it should
read “Plea: Not Guilty.” Though we find no prejudice to the
appellant, we will, to ensure accuracy of records, 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 the appellant’s plea to
Specification 1 of Charge I was Not Guilty.
For the Court
R.H. TROIDL
Clerk of Court
3