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

                                      Before
                    J.A. FISCHER, A.C. RUGH, T.H. CAMPBELL
                             Appellate Military Judges

                             UNITED STATES OF AMERICA

                                                 v.

                             JEFFREY J. COY
                  LANCE CORPORAL (E-3), U.S. MARINE CORPS

                                  NMCCA 201600017
                              GENERAL COURT-MARTIAL

Sentence Adjudged: 29 Sep 2015.
Military Judge: Maj M.D. Zimmerman, USMC.
Convening Authority: Commanding General, 1st Marine Logistics Group, Camp
Pendleton, CA.
Staff Judge Advocate's Recommendation: Maj T.B. Merritt, Jr., USMC.
For Appellant: Maj Jason Morris, USMCR.
For Appellee: CAPT Dale Harris, JAGC, USN.

                                         28 June 2016

                        ---------------------------------------------------
                                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, in accordance
with his pleas, of violating a lawful order, assault with a means likely to produce death or
grievous bodily harm, assault consummated by battery, and disorderly conduct in violation of
Articles 92, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 928, and 934,
and sentenced him to 14 months’ confinement, reduction to pay grade E-1, and a bad-conduct
discharge. The convening authority (CA) approved the sentence.
        The appellant now raises two assignments of error: (1) that the CA’s action fails to
accurately reflect the appellant’s plea of “Not Guilty” to Additional Charge I and its sole
specification; and (2) that the CA failed to suspend confinement in excess of 11 months as
required by the pretrial agreement. The Government concedes the errors, and we agree.

         Although not raised by the appellant, we note that the CA’s action also fails to accurately
reflect that the military judge merged Specification 2 of Additional Charge II with Specification
1 of Additional Charge II and conditionally dismissed Specification 1 of Charge III—both
actions taken by the military judge to remedy an unreasonable multiplication of charges for
findings.1

Discussion

        Both the staff judge advocate’s recommendation and the report of results of trial correctly
articulated the suspended confinement benefit the appellant was to receive from his pretrial
agreement, and the CA implicitly acknowledged that benefit when he deferred all confinement in
excess of 11 months from the date of sentencing until the date of his action. At the same time,
the appellant does not allege that he served any confinement in excess of 11 months. As a result,
we are “left with an abiding conviction that” the CA’s omission here “was entirely inadvertent.”
United States v. Cox, 46 C.M.R. 69, 72 (C.M.A. 1972) (quoting United States v. Braxton, 27
C.M.R. 124, 125 (C.M.A. 1967)).

         Regardless, “[a]n accused who pleads guilty pursuant to a pretrial agreement is entitled to
the fulfillment of any promises made by the Government as part of that agreement.” United
States v. Engel, No. 201100512, 2011 CCA LEXIS 555, at *1, unpublished op.
(N.M.Ct.Crim.App. 28 Dec 2011) (per curiam) (citing Santobello v. New York, 404 U.S. 257,
262 (1971); United States v. Smith, 56 M.J. 271, 272 (C.A.A.F. 2002)). Here, the CA erred by
failing to implement the terms of the pretrial agreement. When such an error occurs, we will
enforce the agreement. Id. at *2.

       Otherwise, we are satisfied 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. The findings and the sentence are affirmed.

       Regardless, servicemembers are entitled to records that correctly reflect the results of
court-martial proceedings. United States v. Crumpley, 49 M.J. 538, 539 (N.M.Ct.Crim.App.
1998). Therefore, the supplemental court-martial order shall correctly reflect that all confinement
in excess of 11 months is suspended for a period of 12 months from 11 January 2016; that the
appellant pleaded “Not Guilty” to Additional Charge I and its sole specification; that
Specification 2 of Additional Charge II was merged with Specification 1 of Additional


1
   See United States v. Thomas, 74 M.J. 563, 568 (N.M.Ct.Crim.App. 2014) (instructing that when a panel returns
guilty findings for multiple specifications charged for exigencies of proof, it is incumbent upon the military judge
either to consolidate or dismiss the contingent specification, not merely merge them for sentencing purposes) (citing
United States v. Elespuru, 73 M.J. 326, 329-30 (C.A.A.F. 2014)).


                                                         2
Charge II as an unreasonable multiplication of charges; and that Specification 1 of Charge III
was conditionally dismissed as an unreasonable multiplication of charges.

                                            For the Court



                                           R.H. TROIDL
                                           Clerk of Court




                                                3
