              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.

                       EMMANUEL J. SMITH
              LANCE CORPORAL (E-3), U.S. MARINE CORPS

                            NMCCA 201500194
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 9 March 2015.
Military Judge: LtCol D.M. Jones, USMC.
Convening Authority: Commanding Officer, Marine Fighter
Attack Squadron 251, MAG 31, 2d MAW, U.S. Marine Corps
Forces Command, Beaufort, SC.
Staff Judge Advocate's Recommendation: LtCol J.J. Murphy
III, USMC.
For Appellant: CAPT Glenn G. Gerding, JAGC, USN.
For Appellee: CDR C. Eric Roper, JAGC, USN; Maj Suzanne M.
Dempsey, USMC.

                            29 October 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 special court-martial
convicted the appellant, pursuant to his pleas, of driving
recklessly, three specifications of wrongfully using marijuana,
and one specification of wrongfully possessing marijuana, in
violation of Articles 111 and 112a, Uniform Code of Military
Justice, 10 U.S.C. §§ 911 and 912a. The appellant was sentenced
to confinement for 240 days, reduction to pay grade E-1,
forfeiture of pay of $1000.00 per month for eight months, and a
bad-conduct discharge. The convening authority (CA) approved
the sentence as adjudged; however, pursuant to a pretrial
agreement (PTA), the CA suspended all confinement in excess of
43 days.
     In his sole assignment of error, the appellant contends
that the CA’s action is improper. First, he argues that the
action purports to suspend confinement that had already run.
Second, he argues that the period of suspension for the
remaining period of confinement should have started when the
appellant was released from confinement, not when the CA acted.
We agree and order corrective action in our decretal paragraph.

     Otherwise, after conducting a thorough review of the record
of trial and allied papers, we are convinced that the findings
and the sentence are correct in law and fact and that following
our corrective action no error materially prejudicial to the
substantial rights of the appellant remains. Arts. 59(a) and
66(c), UCMJ.

                                   Background

     The appellant was sentenced on 9 March 2015, after having
served 44 days in pretrial confinement. As the PTA required
suspension of all confinement in excess of 43 days, the
appellant was released from confinement that day. The PTA
stated that “all confinement in excess of 43 days will be
suspended for the period of confinement served plus twelve (12)
months thereafter.” 1 The CA acted on the case on 3 June 2015,
suspending all confinement in excess of 43 days, “with the
suspension period [to] begin from the date of this action and
continue for the period of confinement served plus twelve (12)
months thereafter.” 2

                        Errors in the Court-Martial Order

     “[C]onfinement begins to run on the date it is adjudged,
and the appellant is entitled to confinement credit once the
confinement is adjudged, whether or not he is actually confined,
unless the confinement is suspended or deferred.” United States
v. Lamb, 22 M.J. 518, 518 (N.M.C.M.R. 1986) (citation omitted).
Here, the PTA had no clause deferring execution of that portion
of confinement to be suspended from the date that the appellant

1
    Appellate Exhibit III at 1.
2
    CA’s Action at 2.
                                        2
was released from confinement until the date of the CA’s action.
Thus, despite the appellant’s release from confinement on 9
March 2015, the appellant’s confinement continued to run until
the CA acted on 3 Jun 2015——86 days later. Combined with the 44
days credit for pretrial confinement, the appellant should have
been credited with serving 130 days of confinement, leaving only
110 days left to suspend. The Government concedes the CA erred
in purporting to suspend more.

     The next question before us is whether the period of
suspension started at the appellant’s actual release from
confinement or on the date the CA approved the sentence. This
court has long held that, absent evidence or agreement to the
contrary, the period of suspension begins to run as of the date
of the CA’s action. United States v. Elliott, 10 M.J. 740, 741
(N.C.M.R. 1981). Fortunately for the appellant, the record here
reveals such evidence to the contrary.

     First, the plain language of the PTA——“for the period of
confinement served plus twelve (12) months thereafter”——evinces
an understanding that the period of suspension was to start when
the appellant was released from confinement. At sentencing, all
parties were aware the appellant would be released from
confinement that day. The fact that confinement credit
continued to accrue for lack of a Lamb clause does not change
these facts.

     Second, during a colloquy with the military judge regarding
the PTA’s sentence limitation terms, all parties agreed with the
military judge’s explanation:

        Do you understand that . . . that extra time I gave
        you is suspended? It’s held over your head, and it
        won’t be remitted or disappear until 12 months
        thereafter. So if you go out after today’s trial and
        you . . . violate the pretrial agreement in any way
        . . . you could . . . have to do the rest of the
        sentence that you are protected for here. 3

In so doing, the parties effectively agreed that the period of
suspension would end on 8 March 2016. 4 We find this agreement to

3
    Record at 150 (emphasis added).
4
  Taken as a whole, the colloquy demonstrates an understanding that the period
of suspension began that day, rather than simply an understanding that any
post-trial misconduct by the appellant would allow the CA to withdraw from
the PTA. When the military judge discussed Paragraph 12 of the PTA, which
                                      3
constitute the law of the case, and binding on the CA as a term
of the PTA.

     Thus, the CA erred twofold in failing to enforce the terms
of the PTA. When a CA fails to take action required by a
pretrial agreement, this court has authority to enforce the
agreement. United States v. Cox, 46 C.M.R. 69, 72 (C.M.A.
1972).

                                 Conclusion

     The findings and the sentence are affirmed. The
supplemental court-martial order shall reflect that all
confinement in excess of 130 days is suspended for a period
ending 8 March 2016.

                                       For the Court




                                       R.H. TROIDL
                                       Clerk of Court




addressed CA withdrawal, he made no mention of suspension. Record at 71. In
contrast, the post-sentencing discussion quoted above focused on the terms of
the suspension.
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