United States v. Murray

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
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No. 201600161
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UNITED STATES OF AMERICA
Appellee
v.
SHARONDA R. MURRAY
Private First Class (E-2), U.S. Marine Corps
Appellant
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Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Lieutenant Colonel Christopher M. Greer, USMC .
For Appellant: Commander Richard E.N. Federico, JAGC, USN.
For Appellee: Lieutenant Commander Clay Trivett, JAGC, USN ;
Lieutenant Jetti L. Gibson, JAGC, USN.
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Decided 13 October 2016
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Before CAMPBELL, RUGH, and HUTCHISON, Appellate Military
Judges
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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.
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PER CURIAM:
A military judge sitting as a special court-martial convicted the appellant,
consistent with her pleas, of one specification each of desertion, unauthorized
absence terminated by apprehension, willful disobedience of a lawful order of
a noncommissioned officer, escape from custody, and larceny, in violation of
Articles 85, 86, 91, 95, and 121, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 885, 886, 891, 895, and 921 (2012). The military judge sentenced
the appellant to 12 months’ confinement, reduction to pay grade E-1, and a
bad-conduct discharge, but recommended that the convening authority (CA)
United States v. Murray, No. 201600161
“consider clemency by immediately releasing the accused from confinement.”1
The CA approved the sentence and, pursuant to a pretrial agreement (PTA),
suspended all confinement in excess of 180 days.
In her sole assignment of error, the appellant contends that a bad-conduct
discharge is inappropriately severe under the unique facts and circumstances
of this case. We disagree, find no error materially prejudicial to the
appellant’s substantial rights, and affirm the findings and sentence. Arts.
59(a) and 66(c), UCMJ.
I. BACKGROUND
While stationed at Camp Lejeune, North Carolina and the subject of two
pending investigations for larceny, the appellant commenced an
unauthorized absence on 8 May 2006.2 When she returned to Camp Lejeune
on 15 June 2006 to retrieve some personal items, she was quickly identified,
apprehended, taken into custody, and ordered by her platoon sergeant to
remain in her barracks room “until otherwise directed by the command.”3 On
16 June 2006, the appellant took her roommate’s car keys as her roommate
slept with the keys under her pillow for safekeeping from the appellant. She
left her barracks room, stole her roommate’s car, and drove to New York.
There she abandoned the vehicle and remained in a deserter status until 13
October 2015, when she was arrested after being pulled over for a traffic
violation.
The appellant’s unsworn statement during presentencing alleged that she
was hazed and treated unfairly after members of her command discovered
she was gay.4 The appellant stated she felt like “all hope was lost” and that
deserting the Marine Corps “was [her] only escape.”5 The appellant also
1 Record at 97. The military judge merged the orders violation and the escape
from custody specifications for sentencing, and credited appellant with 103 days in
pretrial confinement.
2 Prosecution Exhibit 1 at 2. The investigations involved several items: two
cellular phones and accessories, four credit/debit cards, two wallets containing
various credit/debit cards, two social security cards, and a portable DVD player. A
search of the appellant’s person, barracks room, vehicle, and wall locker revealed the
location of many of those items. A monthly statement from a stolen credit card also
showed that the appellant had used the card to pay her cellular phone bill.
3 Id. at 2-3. The appellant does not contest the order to remain in her barracks
room or the circumstances of her apprehension, and we find no error or prejudice.
4 Record at 68.
5 Id. at 70. The military judge reopened the providence inquiry and discussed the
potential defense of duress with the appellant and her trial defense counsel before
continuing to find the pleas provident. Both the appellant and trial defense counsel
reiterated that nothing in the appellant’s unsworn statement amounted to any
2
United States v. Murray, No. 201600161
presented evidence of both her and her fiancee’s medical issues, her
employment and educational accomplishments during her desertion, and her
role as a foster parent and mentor to troubled children.
II. DISCUSSION
This court reviews sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). “Sentence appropriateness involves the
judicial function of assuring that justice is done and that the accused gets the
punishment [s]he deserves.” United States v. Healy, 26 M.J. 394, 395 (C.M.A.
1988). As part of that review, we give “‘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)).
We have carefully reviewed the entire record, including both the
extenuating circumstances and the facts related to the misconduct.
Recognizing that the appellant first began her unauthorized absence while
under investigation for larcenies, was apprehended, escaped from custody,
stole her roommate’s vehicle, and then deserted for nine years, we conclude
that a bad-conduct discharge is appropriate for this particular offender and
her offenses. See United States v. Baier, 60 M.J. 382, 384 (C.A.A.F. 2005) (“A
Court of Criminal Appeals must determine whether it finds the sentence to
be appropriate.”). In this case, granting any sentence relief would be to
engage in clemency–a function reserved for the convening authority–and we
decline to do so. Healy, 26 M.J. at 395-96.
III. CONCLUSION
The findings and the sentence as approved by the CA are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
justification or excuse for the crimes to which she pleaded guilty. Likewise, the
appellant does not now argue that her pleas were improvident.
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