UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

J.R. MCFARLANE, K.M. MCDONALD, M.C. HOLIFIELD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

MICHAEL C. WORKMAN

PRIVATE FIRST CLASS (E-2), U.S. MARINE CORPS

NMCCA 201400080

GENERAL COURT-MARTIAL

Sentence Adjudged: 18 October 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 Sabatino Leo, JAGC, USN.

For Appellee: Maj Paul M. Ervasti, USMC; Maj Suzanne M. 

Dempsey, USMC.

29 July 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 a general court-martial, 

convicted the appellant, pursuant to his pleas, of three 

specifications of sexual assault of a child, and one 

specification of communicating indecent language to a child, in 
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violation of Articles 120b and 134, Uniform Code of Military 

Justice, 10 U.S.C. §§ 920b and 934. The military judge 

sentenced the appellant to confinement for 18 months, reduction 

to pay grade E-1, and a bad-conduct discharge. The convening 

authority (CA) approved the sentence as adjudged. The pretrial 

agreement (PTA) had no effect on the sentence. 

The appellant asserts two assignments of error in this 

case: first, that the bad-conduct discharge and 18 months’ 

confinement are inappropriate given the appellant’s background 

and alcohol dependency, as well as the victim’s level of 

maturity and willing participation; and, second, that the 

military judge erred in not ensuring the appellant’s 

understanding of two changes to the PTA’s sentencing limitation 

provisions. 

After carefully considering the record of trial and the 

submissions of the parties, we conclude 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 was committed. Arts. 59(a) and 66(c), UCMJ. 

Background

The appellant, age 21, engaged in a sexual relationship 

with a then 14-year-old MH. When the appellant first learned MH 

was under 16, he attempted to end the relationship. Soon 

thereafter, however, he began seeing her again, engaging in 

further sexual activity. 

At trial, the appellant provided an unsworn statement 

describing his dysfunctional upbringing, depression, and current 

alcohol dependence. Defense counsel also offered evidence of 

MH’s “sexual maturity.”

Prior to accepting pleas, the military judge discussed with 

the appellant the sentence limitation portion of the pretrial 

agreement, ascertaining (without discussing the details) that 

the appellant had discussed the terms with his counsel and fully 

understood the maximum sentence the CA could approve in his 

case. There was no discussion of the fact the term “1 year” had 
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been lined through and replaced with “18 months” in the 

confinement limitation paragraph. This change was made before 

trial, and was accompanied by the initials of the appellant, his

defense counsel, and the CA.

After announcing the sentence, the military judge reviewed 

the specific language of the PTA’s sentencing limitation 

provision and determined it did not affect the CA’s ability to 

approve the sentence as adjudged. The military judge did, 

however, question the following language regarding deferment of 

confinement suspended by the CA: “and deferment for the days of 

‘good time’ (as defined by SECNAVINST 1640.9C) that I might earn 

in confinement”. Defense counsel’s response indicated some 

uncertainty as to the meaning of this language, so the military 

judge put the court in recess. When the court again came to 

order, the military judge noted that the language had been lined 

out, with the change initialed by trial counsel (for the CA), 

the appellant and defense counsel. The military judge did not 

discuss the deletion with the appellant to verify his 

understanding. 

Sentence Appropriateness 

In accordance with Article 66(c), UCMJ, a court of criminal 

appeals “may affirm only such findings of guilty and the 

sentence or such part or amount of the sentence, as it finds 

correct in law and fact and determines, on the basis of the 

entire record, should be approved.” Sentence appropriateness 

involves the judicial function of assuring that justice is done 

and that the appellant 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, 27 

C.M.R. 176, 180-81 (C.M.A. 1959)). 

The appellant asserts that a bad-conduct discharge and 18 

months’ confinement is an inappropriate punishment in light of 

his dysfunctional upbringing and alcohol dependency, in addition 

to MH’s maturity and persistence in pursuing a sexual 

relationship with him. 
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We review sentence appropriateness de novo. United States 

v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005); Healy, 26 M.J. at 

395-96; Snelling, 14 M.J. at 268. After review of the entire 

record, we find that the sentence is appropriate for this 

offender and his offenses. In addition to considering the 

serious nature of the specific offenses committed by the 

appellant, we have carefully considered his background and 

substance dependence. We have also weighed MH’s role in the 

relationship and find it similarly outweighed by the seriousness 

of the offenses. Article 120b, UCMJ, makes punishable the 

commission of a sexual act upon a child over 12 years of age, 

with no requirement that force, threats, or other means for 

overcoming lack of consent be used. This strict liability 

acknowledges the impossibility of consent in such situations, 

placing the burden on the adult involved to refrain from sexual 

activity with the child regardless of any perceived willingness 

on the child’s part. 

Considering the entire record, we conclude that granting 

sentence relief at this point would be to engage in clemency, a 

prerogative reserved for the CA, and we decline to do so. 

Healy, 26 M.J. at 395-96. 

Changes to Pretrial Agreement Terms

When this court examines “the meaning and effect of a 

pretrial agreement, interpretation of the agreement is a 

question of law, subject to review under a de novo standard.” 

United States v. Smead, 68 M.J. 44, 59 (C.A.A.F. 2009) (citation 

omitted).

A military judge must make “a meaningful inquiry into the 

provisions of every pretrial agreement,” and failure to explain 

a material provision is error. United States v. Felder, 59 M.J. 

444, 446 (C.A.A.F. 2004); RULE FOR COURTS-MARTIAL 910(f), MANUAL FOR 

COURTS-MARTIAL, UNITED STATEs (2012 ed.). In this case, before 

accepting the pleas, the military judge determined the appellant 

had discussed with defense counsel and understood the sentence 

limitation portion of his pretrial agreement. At the time this 

occurred, the “Confinement” provision had already been properly 

changed to read “18 months”. Accordingly, the military judge 

need not have treated this pen-and-ink change any differently 

than if it had existed in the original, typed text. 

The next deletion is a slightly different matter. “[A]fter 

the sentence is announced, the military judge both ‘shall 

inquire’ into any parts of the PTA not previously examined, and 
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ensure that an accused understands all material terms.” United 

States v. Soto, 69 M.J. 304, 307 (C.A.A.F. 2011) (quoting R.C.M. 

910(h)(3)). Ordinarily, a military judge is not required to 

inquire into deleted provisions; they are no longer part of the 

PTA. Here, however, it was appropriate for the military judge 

to do so, as the deletion occurred after the appellant began 

performing under the agreement. In order to ensure that the 

appellant understood the deletion’s effect, the military judge 

should have inquired directly of the appellant.

For a finding or sentence to be held incorrect on grounds

of an error of law, Article 59(a), UCMJ, requires material 

prejudice to a substantial right. Here, the deleted language 

was a nullity. Had it remained in the agreement, it would have 

had no effect on the sentence. Furthermore, the deleted 

provision could only have worked to deny the appellant “good 

time” credit. As deleting the clause could only benefit the 

appellant, we conclude the appellant would have waived his 

rights and pleaded guilty had he understood that the deleted 

language was no longer part of the agreement. Thus, while the 

military judge's failure to inquire directly with the appellant

into the deleted provision of the pretrial agreement may have 

been error, the appellant can demonstrate no prejudice resulting 

therefrom, and we find any error to be harmless. 

Conclusion 

The findings and the sentence as approved by the CA are 

affirmed.

 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court