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. NAVY

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

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OPINION OF THE COURT 

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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.

 

PER CURIAM:

A military judge sitting as general court martial convicted 

the appellant, 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, Uniform Code of Military 

Justice, 10 U.S.C. §§ 892 and 928. The military judge sentenced 

the appellant to twenty months’ confinement, reduction to pay 
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grade E-1, and a bad-conduct discharge. The convening authority 

(CA) approved the sentence as adjudged and, except for the badconduct discharge, 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 pursuant 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 pretrial 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 error 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 forfeitures

pursuant to Article 58(a), UCMJ, were deferred until the date of 
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the CA’s action, and waived for a period of six months 

thereafter. 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court