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

                                 Before
              K.J. BRUBAKER, M.C. HOLIFIELD, A.Y. MARKS
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                    ANGEL M. MORALESMELENDEZ
                  SERGEANT (E-5), U.S. MARINE CORPS

                           NMCCA 201500146
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 8 January 2015.
Military Judge: Col D.J. Daugherty, USMC.
Convening Authority: Commanding General, 1st MAW, Okinawa,
Japan.
Staff Judge Advocate's Recommendation: Maj J.M. Hackel,
USMC.
For Appellant: CDR Sabatino F. Leo.
For Appellee: CAPT Dale O. Harris, JAGC, USN; LT James M.
Belforti, JAGC, USN.

                           19 November 2015

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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 attempting to
receive child pornography, committing indecent exposure, and
communicating indecent language in violation of Articles 80,
120c, and 134, Uniform Code of Military Justice, 10 U.S.C.
§§ 880, 920c, and 934. The military judge sentenced the
appellant to confinement for 24 months, reduction to pay grade
E-1, and a bad-conduct discharge. Pursuant to a pretrial
agreement (PTA), the convening authority (CA) waived imposition
of automatic forfeitures1 for a period of six months from the
date of his action, provided that the appellant establish and
maintain a dependent’s allotment.2

     The appellant asserts a single assignment of error: that
he was denied the benefit of his bargain, through no fault of
his own, when the Government was unable to remit payment of the
waived forfeitures, as required by the PTA, due to his wife’s
“noncooperation.”3 The appellant has provided no evidence in
support of his brief.

     After carefully considering the record of trial and the
submissions of the parties, we find the findings and sentence
are correct in law and fact, and we find no error materially
prejudicial to the substantial rights of the appellant. Arts.
59(a) and 66(c), UCMJ.

                                   Background

     In October 2014, the Government preferred six
specifications related to the appellant’s online conduct with
someone he believed to be younger than 16.   The appellant
unconditionally waived his Article 32, UCMJ, investigation and
negotiated a PTA with the CA in which he agreed to plead guilty
to the three charges with one specification under each. In
return, the CA agreed to withdraw and dismiss the remaining
specifications, to suspend all confinement in excess of 24
months, to suspend any fine or adjudged forfeitures, and to
defer and then waive imposition of automatic forfeitures,
provided that the appellant established and maintained a
dependent’s allotment for his wife.4

1
    Automatic forfeitures were deferred pending the CA’s action.
2
  As a matter of clemency, the CA also suspended all confinement in excess of
18 months for a period ending six months from the appellant’s release from
confinement.
3
  Appellant’s Brief of 30 Jul 2015 at 1. This alleged error is raised
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
4
  The provision regarding automatic forfeitures reads as follows:
“All automatic forfeitures will be deferred provided that the accused
establishes and maintains a dependent’s allotment in the total amount of the
deferred forfeiture amount during the entire period of deferment. This
Agreement constitutes the appellant’s request for, and the Convening
Authority's approval of, deferment of all automatic forfeitures per month
pursuant to Article 58b(a)(1), UCMJ. The period of deferment will run from
                                        2
      Following announcement of sentence, the military judge
conducted his inquiry under RULE FOR COURTS-MARTIAL 910(h)(3), MANUAL
FOR COURT-MARTIAL, UNITED STATES (2012 ed.) to ascertain whether the
appellant understood the meaning and effect of the PTA. With
regard to the automatic forfeiture provision, the military judge
asked whether the appellant understood that any waiver of
automatic forfeitures was dependent upon the appellant
establishing an allotment for his wife. The appellant indicated
that he understood.

     On 3 April 2015, the staff judge advocate (SJA) submitted
his SJA Recommendation (SJAR) to the CA. In the SJAR, the SJA
specifically concluded that the appellant had “complied with the
terms of the [pretrial] agreement and is entitled to the agreed
upon benefit. Accordingly, [the CA was] required to waive all
automatic forfeitures from the date of [his] action for six
months. The waived forfeitures shall be paid to [Mrs. KM], the
wife and dependent of the [appellant].”5 On 14 April 2015, the
CA took his action, indicating that imposition of automatic
forfeitures had been deferred to that point. Additionally, the
CA waived automatic forfeitures for a period of six months,
“provided the [appellant] creates and maintains an allotment in
the amount of the waived forfeitures, during the period of
waiver, to [Mrs. KM], who is the wife and dependent of the
[appellant].”6

     The appellant did not establish the required allotment,
and, therefore, no automatic forfeitures were waived. The
record is silent regarding what efforts the appellant made, or
what part his wife’s noncooperation played in the matter. There
is no allegation that the Government was in any way responsible
for the appellant’s failure to establish an allotment.




the date automatic forfeitures would otherwise become effective under Article
58b(a)(1), UCMJ, until the date the Convening Authority acts on the Sentence.
Further, this Agreement constitutes the accused's request for, and the
Convening Authority's approval of, waiver of all automatic forfeitures. The
period of waiver will run from the date the Convening Authority takes action
on the sentence for six months. The deferred and waived forfeitures shall be
paid to [Mrs. KM], who is the wife and dependent of the accused.” Appellate
Exhibit II at 2.
5
    SJAR at 1.
6
    CA’s Action at 3.
                                      3
                           Discussion

     Interpretation of the “meaning and effect of a pretrial
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). Although a PTA is a
contract between an accused and the CA, “contract law principles
are outweighed by the Constitution’s Due Process Clause
protections.” United States v. Lundy, 63 M.J. 299, 301
(C.A.A.F. 2006) (quoting United States v. Acevedo, 50 M.J. 169,
172 (C.A.A.F. 1999)). When an appellant pleads guilty pursuant
to a PTA, the voluntariness of his plea hinges upon the
Government’s performance of those promises made in order to
secure the plea of guilty from the appellant. See United States
v. Perron, 58 M.J. 78, 82 (C.A.A.F. 2003). “Whether the
government has complied with the material terms and conditions
of an agreement presents a mixed question of law and fact.”
Lundy, 63 M.J. at 301 (citations omitted). The appellant bears
the burden of establishing that a term or condition of the
pretrial agreement was material to his decision to plead guilty,
that the Government failed to comply with that term or
condition, and therefore that his plea was improvident. Id. at
302. To assure that an appellant who has waived “bedrock
constitutional rights and privileges,” United States v. Soto, 69
M.J. 304, 306 (C.A.A.F. 2011), receives the benefit of his
bargain, we look beyond the terms of the PTA itself and consider
“the accused’s understanding of the terms of an agreement as
reflected in the record as a whole.” Lundy, 63 M.J. at 301.

     Here, there is no question that the appellant understood
the PTA’s terms, including the fact that the waiver of automatic
forfeitures would only occur if he established an allotment for
his wife. The record indicates the CA performed his obligations
under the PTA——that is, ordering waiver of automatic forfeitures
provided the appellant established an allotment for his wife.
The appellant has not shown what steps he took to set up such an
allotment. Nor has he demonstrated that he was somehow
prevented from doing so by the Government. Instead, he offers
only a bald assertion that he was denied the benefit of his
bargain. Given this lack of factual support, we find no error.




                               4
                           Conclusion

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

                             For the Court




                             R.H. TROIDL
                             Clerk of Court




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