United States v. Lacount

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
F.D. MITCHELL, J.A. FISCHER, M.K. JAMISON
Appellate Military Judges
UNITED STATES OF AMERICA
v.
BRYAN S. LACOUNT
SERGEANT (E-5), U.S. MARINE CORPS
NMCCA 201300259
GENERAL COURT-MARTIAL
Sentence Adjudged: 19 March 2013.
Military Judge: LtCol Nicole K. Hudspeth, USMC.
Convening Authority: Commanding General, 2d Marine
Division, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: Maj J.N. Nelson,
USMC.
For Appellant: CDR Michael C. Pallesen, JAGC, USN.
For Appellee: LT Ann E. Dingle, JAGC, USN.
19 June 2014
---------------------------------------------------
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 general court-martial
convicted the appellant, pursuant to his pleas, of one
specification of committing an indecent act in violation of
Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920.
The appellant was sentenced to confinement for four years,
reduction to pay grade E-1, and a dishonorable discharge. The
convening authority (CA) approved the sentence as adjudged and,
pursuant to a pretrial agreement (PTA), suspended execution of
confinement in excess of twenty-four months and waived
imposition of automatic forfeitures for a period of six months.
In his two assignments of error, the appellant alleges: (1)
that the Government violated the PTA by failing to defer or
waive the automatic forfeitures associated with the appellant’s
sentence after the appellant had established an allotment in
favor of his dependents1; and (2)that the sentence awarded the
appellant is inappropriately severe.
After careful examination of the record of trial and the
pleadings of the parties, we are satisfied that the findings and
the sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.
Sentence Severity
In his remaining assignment of error averring that his
sentence is inappropriately severe, the appellant makes two
arguments: (1) that because the appellant did not receive the
benefit of his bargain with the CA regarding the deferral and
subsequent waiver of automatic forfeitures, he asks that the
sentence affirmed by the court not include the reduction in pay
grade awarded by the military judge; and, (2) that his sentence
which includes a dishonorable discharge is unduly severe.
“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). This requires “‘individualized
consideration’ of the particular accused ‘on the basis of the
nature and seriousness of the offense and 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)).
The appellant pleaded guilty to one specification of
violating Article 120, UCMJ, in that he committed an indecent
act upon his stepdaughter, who was then 11 years old. Based on
1
One of the alternative forms of relief requested by the appellant was that
the court order “immediate compl[iance] with the forfeiture waiver portion of
the Pretrial Agreement.” Appellant’s Brief of 15 Nov 2013 at 8. The
Government in its Answer moved to attach an affidavit from CWO2 ST, Officer
in Charge, Legal Section, Installation Personnel Administration Center, Camp
Lejuene, confirming that on 5 February 2014, the appellant’s wife received
all monies due from the appellant’s automatic forfeiture of pay. That motion
was granted by this court and this assignment of error is now moot.
2
the circumstances surrounding the indecent act, the
psychological impact upon the child as indicated by the record,
together with the remaining evidence in aggravation, as well as
the evidence offered by the defense in extenuation and
mitigation, we find that the punishment awarded was appropriate
for this offender and this offense. Granting the appellant the
requested relief would amount to an act of clemency which is
left to “command prerogative” of the CA. Healy, 26 M.J. at 396.
Accordingly, we decline to grant relief.
Conclusion
The findings and the sentence approved by the CA are
affirmed.
For the Court
R.H. TROIDL
Clerk of Court
3