### UNITED STATES NAVY

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

Before K.J. BRUBAKER, M.C. HOLIFIELD, A.Y. MARKS Appellate Military Judges

UNITED STATES OF AMERICA

v.

THOMAS J. HARRIS LIEUTENANT JUNIOR GRADE (O

- 2), U.S. NAVY

NMCC A 201400382
GENERAL COURT

- MARTIAL

**Sentence Adjudged:** 29 July 2014

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

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

. **Staff Judge Advocate's Recommendation:** LCDR E.K. Westbrook
II, JAGC, U SN

. **For Appellant:** LT Jacqueline Leonard, JAGC, USN ; LT Jessica
L. Ford, JAGC, USN

. **For Appellee:** LCDR Keith B. Lofland, JAGC, USN

.

**1 8**  **August 2015**

**--------------------------------------------------- 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 appellan t, pursuant to his pleas, of one specification of receiving child pornography and one specification of possessing child pornography in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. Members sentenced the appellant to 18 month s’ confinement and a dismissal. Pursuant to a pretrial agreement, the convening2 authority (CA) waived all automatic forfeitures for six months but otherwise approved the sentence as adjudged.

The appellant raises two assignments of error: that his

sent ence was inappropriately severe and that the CA’s action incorrectly omitted mention of pretrial confinement credit. We find no prejudicial error but order corrective action regarding the CA’s action in our decretal paragraph. Arts. 59(a) and 66(c), UCMJ

.

**Sentence Appropriateness**

We review the appropriateness of a sentence de novo

, United
States v. Cole , 31 M.J. 270, 272 (C.M.A. 1990 **),** giving "'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) (quoting United States v. Mamaluy , 10 C.M.A. 102, 27 C.M.R. 176, 180

- 81 (C.M.A. 1959)). Sentence appropriateness “ involves the judicial function of ass uring that justice is done and that the accused gets the punishment he deserves” while clemency “involves bestowing mercy” and is a power reserved for other authorities. United States v. Healy

, 26 M.J. 394, 395 (C.M.A. 1988).

We are mindful of the matte rs presented in extenuation and mitigation as well as the sentencing authority’s recommendation of “clemency of 6 months upon demonstrated rehabilitation counseling based on the counselor’s recommendation.” 1
Nonetheless, the nature and seriousness of the offense are significant: the appellant searched for and downloaded over 3,000 pictures and 24 videos of graphic child pornography. He then transferred those images to his cloud storage account. Weighing these offenses with an individualized consideration of the appellant, we conclude that the sentence is appropriate.
Further r elief would be a matter of clemency, reserved for other
authorities. Healy , 26 M.J. at 395

– 96.

**Convening Authority’s Action**

The military judge ordered that the appellant be cred ited with six days spent in pretrial confinement; there is no dispute the appellant is entitled to this credit. W hile the credit is accurately reflected in the results of trial, the CA’s action omits any mention of it

.

1 Record at 461.3 While t he appellant asserts this is error, he cites no authority for the proposition that credit for lawful pretrial
confinement is required to be noted i n the CA’ s action

. R ULE FOR
C OURTS

- M ARTIAL 1107(f)(4)(F)

, M ANUAL FOR C OURTS

- M ARTIAL , U NITED S TATES (2012 ed.) requires that when a mi litary judg e awards
administrative credit for illegal pretrial confinement, the CA
“shall so direct in the action.” T here is no similar requirement for legal pretrial confinement

. Noting this, our Army brethren have held “ there is no requirement that the convening authority order sentence credit for legal pretrial
confinement in his action. ” United States v. Bales , 34 M.J.

1217 , 1218 (A.C.M.R. 1992) . We agree. Further, there is no
indication that confinement facility authorities, relying on the

results of trial, did not properly account for pretrial
confinement credit. W hile mention of all credit for pretrial
confinement , illegal or not, certainly is more prudent to ensure clarity in CA’s actions , it is not required , so no corrective action on this poi nt is necessary.

Another matter, however, does require corrective action. Although not raised by the parties, we note an error in the staff judge advocate’s recommendation (SJAR) and the CA’s action. Prior to entering pleas, the Government withdrew a nd
dismissed the language “on divers occasions from between” and “to on or about 9 January 2014” in Specifications 1 and 2 of Charge II. The results of trial, incorporated into the SJAR by reference, and the CA’s action, nonetheless, incorrectly
indicate this language remained. The appellant did not object to this error in the SJAR and has not asserted any error or prejudice here.

We find no prejudice resulting from this error but, to ensure accuracy of records, we will direct corrective action in

our decretal paragraph. United States v. Crumpley , 49 M.J. 538, 539 (N.M.Ct.Crim.App. 1998).

**Conclusion**

The findings and the sentence are affirmed. The supplemental CMO will reflect that Specifications 1 and 2 of Charge II did not include the language “ on divers occasions from4 between” and “to on or about 9 January 2014” at the time of the pleas and the findings.

For the Court

R.H. TROIDL
Clerk of Court