United States v. Golden

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
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No. 201600046
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UNITED STATES OF AMERICA
Appellee
v.
JONATHAN C. GOLDEN
Seaman (E-1), U.S. Navy
Appellant
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Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Captain Robert J. Crow, JAGC, USN.
For Appellant: Lieutenant Doug Ottenwess, JAGC, USN.
For Appellee: Lieutenant Commander Catheryne Pully, JAGC, USN ;
Major Tracey Holtshirley, USMC.
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Decided 20 October 2016
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Before MARKS , F ULTON , and G LASER -A LLEN , 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:
This is a mixed pleas case. A military judge sitting as a general court-
martial convicted the appellant, consistent with his pleas, of one specification
of unauthorized absence; three specifications of wrongful use of marijuana;
two specifications of larceny; one specification of obtaining services by false
pretenses; and two specifications of breaking restriction in violation of
Articles 86, 112a, 121, and 134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 886, 912a, 921, and 934 (2012). A members panel with enlisted
representation acquitted the accused of three specifications of sexual assault
in violation of Article 120(b), UCMJ, 10 U.S.C. § 920(b) (2012).
The members sentenced the appellant to three years’ confinement,
forfeiture of all pay and allowances, and a dishonorable discharge. The
convening authority (CA) approved the sentence and, except for the punitive
discharge, ordered it executed.
In his sole assignment of error, the appellant contends that three years’
confinement and a dishonorable discharge is an inappropriately severe
punishment under the unique facts and circumstances of this case. We find
no prejudicial error and affirm.
I. BACKGROUND
The appellant was stationed aboard USS IWO JIMA (LHD 7), homeported
in Mayport, Florida. In April 2014, he stole two cell phones and their cases
from the amnesty box outside the secure weapons space.1 He received
nonjudicial punishment (NJP) the next day.2 In November 2014, the
appellant absented himself from the ship for two days and then used false
pretenses to obtain a taxi ride back to the base.3 In November 2014 and
January 2015, he tested positive for marijuana use. In February 2015, he
went to NJP for these four new offenses.4 While on restriction from this
second NJP, he broke restriction twice by going off-base without permission.
Consequently, he was placed in pretrial confinement (PTC) in late February
2015, and again tested positive for marijuana.5
Although the members acquitted the appellant of the three sexual assault
specifications, they were tasked with sentencing him for the charges to which
he had previously pleaded guilty. Trial counsel argued for three years’
confinement and a dishonorable discharge; defense counsel argued for a bad-
conduct discharge. Members were instructed that the appellant had been
awarded NJP twice for all offenses except one specification of drug use and
1 The combined value of the property was $1,164.00. When confronted, the
appellant returned the phones, but not the cases.
2 On 13 April 2014, the appellant received reduction in grade to E-1, forfeiture of
$250.00 pay per month for two months, and three days’ bread and water.
3 The appellant failed to pay the driver the $150.00 fare upon arrival on base. In
sentencing, he provided proof of reimbursement on 26 March 2015.
4 On 4 February 2015, the appellant received restriction to Naval Station
Mayport for 30 days, extra duties for 45 days, and forfeiture of one-half month’s pay
for two months.
5 The sexual assault allegations arose on or about 18 April 2014, but do not
appear to have been a factor in the PTC decision.
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two specifications of breaking restriction. They were further informed that
they must consider the punishment already imposed, the appellant’s 226
days’ PTC credit, the fact that the appellant pleaded guilty, and that both
types of punitive discharges were severe punishments. The maximum
punishment was twelve years and three months’ confinement, total
forfeitures, a fine, and a dishonorable discharge.
II. DISCUSSION
We review 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 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) (citation and internal quotation marks omitted). Despite our
significant discretion in reviewing the appropriateness and severity of the
adjudged sentence, we may not engage in acts of clemency. United States v.
Nerad, 69 M.J. 138, 146-47 (C.A.A.F. 2010).
We have carefully reviewed the entire record. With individualized
consideration of the appellant, the nature and seriousness of his offenses, his
overall record of service, and all the matters within the record of trial, we find
the CA approved an appropriate sentence. The appellant first began his
misconduct about a year after entering the naval service and just a few
months into his tour aboard the IWO JIMA, by stealing phones and cases
worth over $1,100.00 from shipmates, committing an unauthorized absence,
obtaining a $150.00 taxi ride from a local driver through false pretenses, and
testing positive twice for marijuana use. These criminal choices culminated in
two different NJPs, where he received less than the maximum punishment.
Despite this measured discipline approach, the appellant continued his
misconduct by breaking restriction twice, resulting in PTC, and testing
positive for marijuana a third time. Therefore, we conclude that a
dishonorable discharge, total forfeitures, and three years’ confinement is
appropriate for this particular offender and his offenses. United States v.
Baier, 60 M.J. 382 (C.A.A.F. 2005). In this case, granting any sentence relief
would be to engage in clemency–a function reserved for the CA—and we
decline to do so.6 Healy, 26 M.J. at 395-96.
6 Although irrelevant to our sentence appropriateness determination, we note
that on 6 April 2016, the Naval Clemency and Parole Board (NCPB) directed the
appellant’s release from confinement and granted clemency by upgrading his
dishonorable discharge to an other than honorable discharge. NCPB ltrs
5815/NC&PB/5815/402 19 Apr 2016. See also, United States v. Champion, No.
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III. CONCLUSION
The findings and the sentence are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
200000890, 2003 CCA LEXIS 103, unpublished op. (N-M. Ct. Crim, App. 21 Apr
2003). Were we inclined to find the sentence inappropriately severe, the appellant’s
request to approve only so much of the sentence as relates to a bad-conduct discharge
and 12 months’ confinement is effectively mooted by NCPB’s action. See United
States v. Olinger, 45 M.J. 644, 650 (N-M. Ct. Crim. App. 1997); RULE FOR COURTS-
MARTIAL 1108, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).
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