              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

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

                              29 July 2014

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                     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 appellant, pursuant 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 sentenced the appellant
to confinement for life with the possibility of parole,
forfeiture of all pay and allowances, reduction to pay grade E-
1, and a dishonorable discharge. The convening authority (CA)
approved the adjudged sentence and, in accordance with a
pretrial 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
multiple 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 conditions 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 and
explained that he had been depressed for some time. Over Labor
Day Weekend 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 alcohol
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
treatment 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
treatment.

     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.
Grostefon, 12 M.J. 431 (C.M.A. 1982).
                                      2
continued drinking and socializing throughout the evening.
Sometime later that night, the appellant returned to his
barracks room to 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 multiple 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 severe 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, 180-81 (C.M.A. 1959)). The 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 offenses.
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 mental
capacity and responsibility examination in accordance with RULE FOR COURTS-
MARTIAL 706, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.), and it was
determined that his psychiatric disorder was not in such a severe state to
negate his mental responsibility. 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.
                                      3
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 stages of the proceedings.”
United States v. Bradley, 68 M.J. 279, 281 (C.A.A.F. 2010)
(citations omitted); see 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 plea, 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 government, 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 officials. 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 assignment of error to be without
merit.




                                4
                           Conclusion

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


                                For the Court




                                R.H. TROIDL
                                Clerk of Court




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