United States v. Coppa ( 2016 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201600305
_________________________
UNITED STATES OF AMERICA
Appellee
v.
CARLO COPPA
Petty Officer Third Class (E-4), U.S. Navy
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Captain Bethany Payton-O’Brien, USN.
For Appellant: Commander R.D. Evans, JAGC, USN.
For Appellee: Brian Keller, Esq.
_________________________
Decided 30 November 2016
_________________________
Before CAMPBELL, HUTCHISON, and GROHARING, Appellate Military
Judges
_________________________
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 failing to obey a lawful general order, wrongfully
introducing heroin onto an installation used by the armed forces with the
intent to distribute, and wrongfully using heroin, in violation of Articles 92
and 112a of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892and 912a (2012). The military judge sentenced the appellant to 80 days’
confinement and a bad-conduct discharge.
A pretrial agreement required the convening authority (CA) to suspend
any adjudged punitive discharge and remit it without further action,
United States v. Coppa, No. 201600305
contingent upon the appellant’s waiver of an administrative separation board
and ultimate administrative separation. Consequently, the accused waived
his right to administrative separation board proceedings and has since been
administratively discharged from the Navy.
Although not raised as an assignment of error, we note that the CA
approved the sentence as adjudged and ordered it executed—acknowledging
that the punitive discharge’s execution would occur only after final judgment
upon appellate review—and mentioned the pretrial agreement’s relevant
sentence limitation terms without actually suspending the bad-conduct
discharge.1 When a CA fails to take action required by a pretrial agreement,
this court has authority to enforce the agreement. United States v. Cox, 46
C.M.R. 69, 72 (C.M.A. 1972).
The findings and sentence, as approved by the CA, are affirmed. The
supplemental court-martial order will reflect that the bad-conduct discharge
was suspended until the appellant’s administrative discharge, at which time
the suspended punitive discharge was automatically remitted.
For the Court
R.H. TROIDL
Clerk of Court
1 The pretrial agreement also deferred adjudged confinement in excess of time-
served as of the date of trial, and required the CA to suspend, as part of the CA’s
action, that deferred confinement for six months from the appellant’s release from
confinement. While the CA’s action also failed to suspend the deferred 31 days of
confinement along with the punitive discharge, that confinement and its negotiated
suspension period have both now lapsed—thereby eliminating any risk of prejudice.
2