              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.
                              Before
          M.D. MODZELEWSKI, F.D. MITCHELL, J.A. FISCHER
                     Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                          TONY L. PIATTI
                  CORPORAL (E-4), U.S. MARINE CORPS

                           NMCCA 201300316
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 23 April 2013.
Military Judge: Maj Y.J. Lee, USMCR.
Convening Authority: Commanding Officer, Marine Corps Air
Station, Beaufort, SC.
Staff Judge Advocate's Recommendation: Maj H.J. Brezillac,
USMC.
For Appellant: Maj John J. Stephens, USMC.
For Appellee: Maj Paul M. Ervasti, USMC; Capt Matthew M.
Harris, USMC.

                            23 January 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 abusive
sexual contact with a child and obstructing justice, in
violation of Articles 120(i) and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 920(i) and 934. The military judge
imposed a sentence of three years confinement, reduction to pay
grade E-1, and a dishonorable discharge. Pursuant to a pretrial
agreement, the convening authority approved the adjudged
sentence, but suspended confinement in excess of 24 months.

     The appellant alleges that the military judge erred in
refusing to give him day-for-day pretrial confinement (PTC)
credit and additional administrative credit for the period
during which he was confined to a military hospital for
psychiatric evaluation and treatment. After thoroughly
examining the record of trial and the pleadings 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 occurred. Arts. 59(a) and
66(c), UCMJ.

                       Factual Background

     While pending trial by general court-martial, the appellant
was placed under a military protective order (MPO) following a
domestic dispute with his wife. Following a violation of the
MPO, the appellant was placed in the psychiatric ward of a
military hospital for twelve days and then confined to a brig
for sixty-three days prior to his court-martial. At trial, the
defense counsel sought day-for-day PTC credit for all 75 days,
while the trial counsel argued that the appellant was entitled
to credit only for the sixty-three days spent in the brig. The
only evidence presented on the motion was the testimony of the
appellant, from which the following narrative largely derives.

     On the evening of 6 February 2013, the appellant visited
his wife at their off-base residence in Beaufort, South
Carolina, in violation of the MPO. The visit escalated into a
conflict, during which the appellant broke a beer bottle and
threatened to damage her vehicle. When he suspected that his
wife may call authorities, the appellant ran into nearby woods
and ascended a 60 foot tree. He remained there overnight,
securing his position on the tree with his shoelaces. The
following day, a member of his command found the appellant
around 1200 or 1300. After the Beaufort Fire Department
retrieved the appellant from the tree with a ladder, civilian
authorities handcuffed him, and turned him over at the scene to
personnel from the base Provost Marshal’s Office (PMO).
Although the local authorities un-cuffed the appellant upon
turnover, the military authorities promptly handcuffed him again
before transporting him to the naval hospital at Marine Corps
Air Station (MCAS) Beaufort.




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     At the hospital, medical personnel evaluated the appellant,
evidently to ensure that he was not suffering from hypothermia
from his night outdoors. While at the hospital, the appellant
overheard conversations between his command representative and
PMO personnel indicating that he would shortly be placed in the
brig for violating the MPO. However, during his evaluation at
the naval hospital, the decision was made that the appellant
should receive a psychiatric evaluation. The only evidence of
record as to how that decision was made is the testimony of the
appellant: “Later on, while at the hospital, they had me talk to
a . . . psychologist to the best of my knowledge, and she
recommended that I go to a hospital prior to going to the Brig.”
Record at 259.

     Later that evening, the appellant was transported by
ambulance, unrestrained, to the psychiatric ward at the Army
hospital onboard Fort Stewart, Georgia. There, he appears to
have been subject to the same level of restraint as other
patients. The doors to the ward were locked, and he left only
to go to the chow hall or the gym, both under supervision. He
remained at that facility from 7 February 2013 until 19 February
2013. On that date, a command representative arrived to drive
him back to MCAS Beaufort. When the appellant asked whether he
was going to the brig, the command representative told him that
the commanding officer (CO) was “over at legal determining
that.” Id. at 271. Later that day, the CO informed the
appellant that he would be taken to the brig, and he was
presented with a confinement order. Id. After an overnight
stay in the PMO’s detention cell, the appellant was taken to the
Naval Consolidated Brig, where he stayed confined until his
trial.

      On 9 February 2013, while his client was hospitalized at
Fort Stewart, the trial defense counsel requested a RULE FOR
COURTS-MARTIAL 706, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.)
board, noting that he had learned that his client “had undergone
a mental breakdown . . . made suicidal ideations, undertook an
unauthorized absence, and was later found by emergency personnel
in a tree.” Appellate Exhibit XXXVII at 147. The record
indicates that the evaluation was not performed at Fort Stewart,
but instead was completed at the Parris Island Branch Health
Clinic, Naval Hospital Beaufort, on 20 February 2013, after the
appellant was returned to his command and prior to transport to
the Naval Consolidated Brig. AE XXXIV.

     At trial, the military judge denied the defense counsel’s
motion for twelve days of PTC credit for the period spent at

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Fort Stewart, ruling that PTC began on 19 February 2013, when
the command ordered the appellant placed in pretrial
confinement. Record at 273.

                           Discussion

     On appeal, the appellant seeks not only day-for-day credit
for the time spent at Fort Stewart, but also additional credit
for violation of the requirements of R.C.M. 305, which he argues
were triggered by his “confinement” at the psychiatric ward.

     An appellant is entitled to day-for-day credit for time
that he spends either in pretrial confinement, or in pretrial
restriction equivalent to confinement. United States v. Mason,
19 M.J. 274 (C.M.A. 1985) (summary disposition). Whether an
appellant is entitled to pretrial confinement credit for
restraint is an issue we review de novo. United States v.
Rendon, 58 M.J. 221, 224 (C.A.A.F. 2003) (citing United States
v. Smith, 56 M.J. 290 (C.A.A.F 2002)). An appellant subjected
to “the physical restraint attendant to pretrial confinement”
may be entitled to additional credit for violation of the
procedural requirements of R.C.M. 305. Id. at 224.

     This case differs from those cited and relied upon by the
defense in several fundamental facts. First, there is no
evidence before us in the record that the appellant’s command
ordered him into the psychiatric ward of the Fort Stewart
hospital, or played any role whatsoever in that decision. Cf.
United States v. Regan, 62 M.J. 299 (C.A.A.F. 2006) (trial judge
awarded Mason credit for days in a drug treatment program where
command gave the appellant a choice to enter the program or
enter confinement). The only evidence of record, provided by
the appellant himself, is that a health provider at Naval
Hospital Beaufort suggested that a psychiatric evaluation would
be necessary or helpful, and that he was transported by
ambulance from one hospital to the other.

     Second, there is no evidence that the referral was an
involuntary one. Although he testified under direct examination
that he did not feel free to leave the secure psychiatric ward,
the appellant did not testify that his admission for treatment
was itself involuntary. An involuntary admission for in-patient
psychiatric care within the military triggers a host of
notifications, procedural protections, and requirements for
documentation: this record lacks any indicia that the




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appellant’s admission to Fort Stewart for psychiatric care was
involuntary within the meaning of controlling instructions. 1

     Moreover, the record indicates that the appellant’s
hospitalization was for a valid medical purpose. The appellant
had been facing court-martial charges for many months. When he
engaged in unusual and reckless behavior, he was admitted to a
psychiatric ward upon recommendation of a mental health
professional. There, he appears to have been treated as all
other patients were treated. In his testimony, the appellant
indicated no way in which his restraint or conditions differed
from those of any other patient.

     In determining whether the appellant’s stay at the Fort
Stewart hospital for psychiatric evaluation was restraint
tantamount to confinement, we look to the circumstances of his
admission and stay and conclude that he was not in restraint
tantamount to confinement. Cf. Regan, 62 M.J. at 301.
Additionally, we note that the appellant would not be entitled
to administrative credit for violations of R.C.M. 305 even if
the trial judge or this court awarded Mason credit. The
conditions of the appellant’s inpatient stay at Fort Stewart’s
hospital did not amount to “physical restraint, the essential
characteristic of confinement,” thus entitling him to the
procedural protection of R.C.M. 305 and credit for its
violation. Rendon, 58 M.J. at 224; see also Regan, 62 M.J. at
302.

                                 Conclusion

     Accordingly, the findings and the sentence, as approved by
the convening authority, are affirmed.



                                       For the Court



                                       R.H. TROIDL
                                       Clerk of Court




1
  See Department of Defense Instruction 6490.4, “Requirements for Mental
Health Evaluations of Members of the Armed Forces,” August 28, 1997;
Secretary of the Navy Instruction 6320.24a (16 Feb 1999).

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