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

                                   Before
                   J.A. FISCHER, R.Q. WARD, D.C. KING
                          Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                          CORY A. BETTS
                  SERGEANT (E-5), U.S. MARINE CORPS

                           NMCCA 201300441
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 21 July 2013.
Military Judge: LtCol Karen Morrisroe, USMCR.
Convening Authority: Commanding General, 2d Marine
Division, Camp Lejuene, NC.
Staff Judge Advocate's Recommendation: Maj J.N. Nelson,
USMC.
For Appellant: Maj John Stephens, USMC.
For Appellee: Maj Paul Ervasti, USMC; LCDR Keith Lofland,
JAGC, USN.

                            14 October 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 one
specification of forcible sodomy, in violation of Article 125 of
the Uniform Code of Military Justice, 10 U.S.C. § 925. The
military judge sentenced the appellant to confinement for eight
years, reduction to pay grade E-1, and a dishonorable discharge.
Pursuant to a pretrial agreement (PTA), the convening authority
(CA) disapproved the dishonorable discharge, approved a bad-
conduct discharge, and suspended execution of all confinement in
excess of five years. The remainder of the sentence was
approved as adjudged.

     The appellant now raises four assignments of error: (1)
that the sentence was inappropriately severe; (2) that the
military judge erred in not voiding the provision of the
pretrial agreement wherein the appellant agrees to not raise a
motion for relief under Article 13, UCMJ; (3) that the
appellant’s counsel were ineffective for advising him to plead
guilty; and, (4) Article 125, UCMJ, is unconstitutionally vague.

     Having carefully considered the pleadings and the record of
trial, we conclude that the findings and sentence are correct in
law and fact and that no error materially prejudicial to the
substantial rights of the appellant was committed. Art. 66,
UCMJ.

                           Background

     The appellant made three combat deployments between the
years of 2005 and 2011. The appellant was diagnosed with post-
traumatic stress disorder and other conditions, and in 2010
began receiving mental health treatment which included inpatient
treatment at a mental health facility. On 9 March 2012, the
appellant was again admitted to the mental health ward of the
local Navy hospital.

     On 22 March 2012, the appellant’s wife was in the seventh
month of a “high-risk” pregnancy. While home, the appellant
initiated sexual intercourse with his wife, who refused,
reminding the appellant that her doctor had advised against it.
The appellant thereafter threw his wife onto the bed, pinned her
down with his body weight and forcibly sodomized her. When his
wife screamed for him to stop, the appellant covered her nose
and mouth with his hand and also with a pillow, preventing his
wife from breathing. Terrified, the victim asked the appellant
if he was going to kill her, to which the appellant responded in
the affirmative. The appellant later got off of the victim,
wiped her down with a washcloth, ordered her to take a shower
and, while she was doing so, changed the sheets on the bed. A
few hours after the attack, the appellant fell asleep and the



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victim made her way to the hospital where the incident was
reported to law enforcement.

     The appellant’s command immediately ordered the appellant
into pretrial confinement. In the course of processing the
appellant for confinement, he jumped a counter at a medical
facility and secured a bottle of pills, which he swallowed
before his chasers could reach him. As a result, the appellant
was again admitted to the mental health ward. Three days later,
he was returned to pretrial confinement.

      The appellant later entered into a PTA wherein he agreed
not to raise a motion for administrative credit under RULE FOR
COURT MARTIAL 305(k), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012) or
pursuant to Article 13, UCMJ. In exchange, the CA agreed to
approve a bad-conduct discharge if a dishonorable discharge was
awarded and suspend confinement in excess of five years.

                 PTA Provision Regarding Article 13

     The appellant now argues that the PTA provision wherein the
appellant agreed to waive any motion for relief due to illegal
pretrial confinement violates public policy. Therefore, the
appellant argues, the military judge abused her discretion by
accepting the PTA. We disagree.

     This court applies a de novo review in determining whether
a PTA provision violates law or “public policy.” United States
v. Sunzeri, 59 M.J. 758, 760 (N.M.Ct.Crim.App. 2004). A knowing
and voluntary waiver of an Article 13 violation is a permissible
term in a pretrial agreement, although a military judge should
“inquire into the circumstances of the pretrial confinement and
the voluntariness of the waiver, and ensure that the [appellant]
understands the remedy to which he would be entitled if he made
a successful motion.” United States v. McFadyen, 51 M.J. 289,
291 (C.A.A.F. 1999).

     Here, trial defense counsel unsuccessfully petitioned the
CA to release the appellant from pretrial confinement because he
believed that his client did not have access to adequate mental
health treatment while confined. Later, the appellant entered
into a PTA that stated, inter alia, that he agreed not to raise
a motion pursuant to Article 13, UCMJ, or R.C.M. 305 to request
credit against the sentence adjudged on grounds of pretrial
punishment or unduly-harsh circumstances of pretrial
confinement. In the PTA, the appellant acknowledges that he had
discussed this choice with his counsel and that he fully

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understood the provision’s effect and meaning, and the military
judge conducted an extensive inquiry on the record to ensure
that the provision was the result of a knowing and voluntary
choice on the appellant’s part.

     Here, the military judge asked the trial defense counsel
“[w]hat is it about the pretrial restraint that you believe may
have been illegal?” Record at 269. Trial defense counsel
responded that the issue was one of the appellant’s “ability to
seek proper mental health treatment while in pretrial
confinement.” Id. In the course of further inquiry on the
matter, trial defense counsel informed the military judge that
he, in fact, did not believe that the pretrial confinement was
illegal and that “we didn’t intend to bring the issue in the
first place.” Id. The military judge then engaged in a lengthy
inquiry of the appellant to ensure that he understood the
requirements of Article 13 and that his waiver of the issue was
knowing and voluntary. This inquiry was consistent with
McFayden and revealed the appellant thoroughly understood the
ramifications of declining to petition the court for relief
under Article 13, UCMJ. Accordingly, we decline to hold that
this waiver violated public policy.

                    Sentence Appropriateness

     Arguing that a sentence to eight years of confinement is
inappropriate, the appellant petitions this court to reduce
confinement to two years.

     A military appellate court “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.” Art.
66(c), UCMJ. Sentence appropriateness involves the judicial
function of assuring that justice is done and that the accused
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 the 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))

     After review of the entire record, we find that the
sentence is appropriate for this appellant and his offenses.
Healy, 26 M.J. at 395-96; Snelling, 14 M.J. at 268. The
appellant forcibly sodomized his seven-month pregnant wife while

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he covered her mouth to silence her screams. During the course
of this assault, the appellant placed his wife in fear for her
life and took steps seemingly intended to eradicate evidence of
his crime. While we acknowledge the appellant’s service and the
impact that service may have had on his mental and emotional
well-being, we also note that the appellant himself negotiated
for and accepted a PTA limit of five years confinement.
Considering the entire record, we conclude that justice was done
and the appellant received the punishment he deserved.

                           Conclusion

     We have considered the remaining assignments of error and
find they lack merit. United States v. Clifton, 35 M.J. 79, 81-
82 (C.M.A. 1992). Accordingly, the findings and sentence as
approved by the CA are affirmed.


                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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