### 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.

DANIEL L. MOSS CULINARY SPECIALIST SECOND CLASS (E

- 5), U.S. N AVY

NMCCA 201400286
GENERAL COURT

- MARTIAL

Sentence Adjudged: 2 May 2014

. Military Judge: LtCol C.J. Thielemann, USMC

. Convening Authority: Commander, Navy Region Northwest, Silverdale, WA

. Staff Judge Advocate's Recommendation: CDR E.K. Westbrook
, II , JAGC, USN

. For Appellant: CDR Ricardo A. Berry, JAGC, USN. For Appellee: LCDR Keith B. Lofland, JAGC, USN ; LT Ann E. Dingle, JAGC, USN

.

23 December 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 general court martial convicted the ap pellant, pursuant to his pleas, of four specifications of violating a general order or regulation (Sexual Harassment), and four specifications of assault consummated by a battery, in violation of Articles 92 and 128, U niform C ode of M ilitary

J ustice , 10 U. S.C. §§ 892 and 928. The military judge sentenced the appellant to twenty months ’ confinement, reduction to pay2

grade E

- 1, and a bad

- conduct discharge. The c onvening a uthority (CA) approved the sentence as adjudged and, except for the bad

conduct dischar ge, ordered it executed. Although the CA was obligated, pursuant to a pretrial agreement (PTA) , to suspend all confinement in excess of nine months for the period of confinement served plus six months thereafter, and to defer
automatic forfeitures pursuan t to Article 58(a), UCMJ, until the date of the CA action, and then waive them for a period of six months thereafter, the CA’s action did not do either.

On appeal, the appellant alleges that the CA’s action fails to implement the terms of the pretria l agreement. However, the appellant also noted in his brief that the brig is “calculating Appellant’s release date in conformity with the PTA [and that his] dependent spouse is being paid by allotment in conformity with the PTA.” Appellant’s Brief of 22 Sep 2014 at 5 n

. 1. After carefully considering the record of trial, the appellant's assignments of error, and the Government's response, we conclude that the findings and sentence are correct in law and fact and

that following our corrective action no err or materially prejudicial to the substantial rights of the appellant remains

. Arts. 59(a) and 66(c), UCMJ.

An appellant who pleads guilty pursuant to a PTA is entitled to the fulfillment of any promises made by the Government as part of that agreement

. Santobello v. New York
, 404 U.S. 257, 262, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971);
United States v. Smith , 56 M.J. 271, 272 (C.A.A.F. 2002). Here, the CA erred by failing to comply with the terms of the PTA in
his action

. This court has the authority to enforce the agreement and will correct the error in our decretal paragraph

. United States v. Cox , 46 C.M.R. 69, 72 (C.M.A. 1972); United

States v. Carter , 27 M.J. 695, 697 n.1 (N.M.C.M.R. 1988); see also United States v. Bernard , 11 M.J. 771, 772

- 74 (N .M.C.M.R. 1981).

The findings and the sentence as approved by the CA are
affirmed , but all confinement in excess of nine months is suspended for the period of confinement served by the appellant plus six months thereafter ; and automatic forfeiture s

pu rsuant to Article 58(a), UCMJ, were deferred until the date of3

the CA’s action, and waived for a period of six months

thereafter.

For the Court

R.H. TROIDL
Clerk of Court