### UNITED STATES NAVY

- MARINE CORPS
COURT OF CRIMINAL APPEALS WASHINGTON, D.C.

Before F.D. MITCHELL, J. R. MCFARLANE, G.G. GERDING Appellate Military Judges

UNITED STATES OF AMERICA

v.

DARREN J. EVANS LANCE CORPORAL (E

- 3), U.S. MARINE CORPS

NMCC A 201300248
GENERAL COURT

- MARTIAL

**Sentence Adjudged:** 14 February 2013. **Military Judge:** CAPT Kevin R. O'Neil, JAGC, USN. **Convening Authority :**  Commanding General, 3d MAW, MCAS Miramar, San Diego, CA

. **Staff Judge Advocate's Recommendation:** LtCol K.C Har ris

, USMC

. **For Appellant:** Capt Jason R. Wareham, USMC. **For Appellee:** Maj David N. Roberts, USMC; LT Ian D.
MacLean, JAGC, USN.

**29 July 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 appell ant, pursua nt to his pleas, of one specification each of violating a general order, murder, and

assault consummated by a battery

, in violation of Articles 92, 118, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 918, and 928

. The military judge sentence d the appellant2 to confinement for life with the possibility of parole

, forfeiture of all pay and allowances, reduction to p ay grade E

1, and a dishonorable discharge. The convening authority (CA) approved the adjudged sentence and, i n accordance with a

p retrial agreement, suspended confinement in excess of sixty

years

.

The appellant asserts two assignments of error: (1) that the sentence which includes life imprisonment with the possibly of parole is too severe because the Marine Corps failed on
multi ple occasions to provide adequate mental health and
substance abuse resources that he needed ; and

, (2) that it was cruel and unusual punishment and pretrial punishment in violation of Article 13, UCMJ, to confine the appellant in
maximum security condition s throughout the pendency of his
trial. 1

After careful consideration of the parties’ pleadings and the record of trial, we conclude that no error materially prejudicial to the substantial rights of the appellant occurred. Arts. 59(a) and 66(c), UCMJ.

**Background**

The appellant began drinking heavily in the summer of 2011. During the same period, the appellant began mutilating himself by burning his knuckles with cigarettes. The appellant eventually reached out to the flight surgeon of his unit a nd explained that he had been depressed for some time. Over Labor
Day W eekend of 2011, the appellant expressed suicidal ideations and was sent to the Camp Pendleton Mental Health Center

, where he was ultimately diagnosed with depressive neurosis and alcoh ol dependence. He was then referred to the Consolidated Substance Abuse Counseling Center for treatment of his alcohol dependence. The appellant’s diagnosis of alcohol dependence was later reduced to a diagnosis of alcohol abuse and he was referred to

tr eatment in an outpatient program. Shortly thereafter, three of the appellant’s peers reached out to Marine Corps leadership to request that the appellant be treated in an inpatient program because his drinking had not stopped during the outpatient

treatme nt.

On 5 November 2011, about four weeks after his initial evaluation, appellant began drinking early in the evening and

1 This summary assignment of error was submitted pursuant to United States v.

Groste fon , 12 M.J. 431 (C.M.A. 1982).3 continued drinking and socializing throughout the evening. Sometime later that night, the appellant returned to his

barracks room t o find his roommate

, Lance Corporal ( LCpl ) MA

, in bed with headphones in his ears lying on his stomach in the prone position. The appellant removed a crowbar from his locker and struck LCpl MA with the hooked end of the crowbar in the

back of the head mul tiple times

, leaving him dead where he lay.

**Sentence Severity**

In his initial assignment of error the appellant avers that the sentence awarded by the military judge to include confinement for life with the possibility of parole is inappropriately sev ere given his preexisting and undertreated
mental health issues. 2 “Sentence appropriateness involves the judicial function of assuring that justice is done and that the accused gets the punishment he deserves.” United State 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, 27 C.M.R. 176, 180

- 8 1 (C.M.A. 1959)). T he appellant asks this court approve no more than 30 years’ confinement. Appellant’s
Brief of 20 Nov 2013 at 18

- 19.

After closely considering the record, the evidence offered 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 these offense s

. Granting this appellant the requested relief would amount to an act of clemency, which is left to “command prerogative.” See Healy, 26 M.J. at 396. Accordingly, we decline to grant relief.

**Pretrial Confinement**

In his other assignment of error, the appellant contends
that his confinement under maximum security conditions prior to

2 The appellant does not allege and we do not find that his “severe mental

issues” were such that he lacked mental responsibility for his misconduct. To the contrary, on 22 and 26 December 2011, the appellant underwent a me ntal capacity and responsibility examination in accordance with R ULE FOR C OURTS

M ARTIAL 706, M ANUAL FOR C OURTS

- M ARTIAL , U NITED S TATES (2008 ed.) , and it was determined that his psychiatric disorder was not in such a severe state to negate his mental respon sibility . The attending psychiatrists additionally found that the appellant was able to participate in his own defense and understood the nature of the proceedings against him. See AE XVII at 5

- 6.4 his trial was cruel and unusual punishment and a violation of the Article 13 ban on pretrial punishment.

We first note that the record reflects the appellant pled guilty unconditionally which has the effect of “waiv[ing] all nonjurisdictional defects at earlier sta ges of the proceedings.” United States v. Bradley , 68 M.J. 279, 281 (C.A.A.F. 2010) (citations omitted) ; s ee also United States v. Lee, 73 M.J. 166,
170 (C.A.A.F. 2014) (quoting Blackledge v. Perry , 417 U.S. 21, 30 (1974)).

In addition to his guilty ple a, the appellant expressly waived the issue on the record as evidenced by the following colloquy:

MJ: [detailed defense counsel], in your opinion, has

the accused been subjected to any form of unlawful pretrial punishment or restraint? DC: No, sir.

MJ: Other than the confinement credit motion already conceded by the g overnment, any other issues? DC: No, sir.

Record at 354.

Finally, assuming arguendo that we chose not to apply waiver, the summary assignment of error does not establish that
the appellant was subjected to unlawful pretrial punishment, in violation or Article 13, UCMJ, merely because he was placed in maximum security. The facts show that the appellant brutally

murdered LCpl MA while he lay on his bunk by repeatedly striking
him in the head with a crowbar. Given the violent nature of the crime and the fact that the appellant once had suicidal ideations, we, like the Court of Appeals for the Armed Forces, are reluctant to second guess the security determinations of
confinement offic ials. See United States v. King , 61 M.J. 225 (C.A.A.F. 2005). There is nothing in the record or the pleadings to suggest that the appellant’s maximum security classification was so excessive as to amount to punishment. Accordingly

, we find this assignme nt of error to be without
merit.5 **Conclusion**

The findings and the sentence as approved by the CA are
affirmed.

For the Court

R.H. TROIDL
Clerk of Court