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

                               Before
          J.R. MCFARLANE, K.M. MCDONALD, M.C. HOLIFIELD
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                      MICHAEL C. WORKMAN
            PRIVATE FIRST CLASS (E-2), U.S. MARINE CORPS

                           NMCCA 201400080
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 18 October 2013.
Military Judge: LtCol Nicole K. Hudspeth, USMC.
Convening Authority: Commanding General, 2d Marine
Division, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: Maj J.N. Nelson,
USMC.
For Appellant: CDR Sabatino Leo, JAGC, USN.
For Appellee: Maj Paul M. Ervasti, USMC; Maj Suzanne M.
Dempsey, USMC.

                              29 July 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 three
specifications of sexual assault of a child, and one
specification of communicating indecent language to a child, in
violation of Articles 120b and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 920b and 934. The military judge
sentenced the appellant to confinement for 18 months, reduction
to pay grade E-1, and a bad-conduct discharge. The convening
authority (CA) approved the sentence as adjudged. The pretrial
agreement (PTA) had no effect on the sentence.

     The appellant asserts two assignments of error in this
case: first, that the bad-conduct discharge and 18 months’
confinement are inappropriate given the appellant’s background
and alcohol dependency, as well as the victim’s level of
maturity and willing participation; and, second, that the
military judge erred in not ensuring the appellant’s
understanding of two changes to the PTA’s sentencing limitation
provisions.

     After carefully considering the record of trial and the
submissions 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 was committed. Arts. 59(a) and 66(c), UCMJ.

                           Background

     The appellant, age 21, engaged in a sexual relationship
with a then 14-year-old MH. When the appellant first learned MH
was under 16, he attempted to end the relationship. Soon
thereafter, however, he began seeing her again, engaging in
further sexual activity.

     At trial, the appellant provided an unsworn statement
describing his dysfunctional upbringing, depression, and current
alcohol dependence. Defense counsel also offered evidence of
MH’s “sexual maturity.”

     Prior to accepting pleas, the military judge discussed with
the appellant the sentence limitation portion of the pretrial
agreement, ascertaining (without discussing the details) that
the appellant had discussed the terms with his counsel and fully
understood the maximum sentence the CA could approve in his
case. There was no discussion of the fact the term “1 year” had

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been lined through and replaced with “18 months” in the
confinement limitation paragraph. This change was made before
trial, and was accompanied by the initials of the appellant, his
defense counsel, and the CA.

     After announcing the sentence, the military judge reviewed
the specific language of the PTA’s sentencing limitation
provision and determined it did not affect the CA’s ability to
approve the sentence as adjudged. The military judge did,
however, question the following language regarding deferment of
confinement suspended by the CA: “and deferment for the days of
‘good time’ (as defined by SECNAVINST 1640.9C) that I might earn
in confinement”. Defense counsel’s response indicated some
uncertainty as to the meaning of this language, so the military
judge put the court in recess. When the court again came to
order, the military judge noted that the language had been lined
out, with the change initialed by trial counsel (for the CA),
the appellant and defense counsel. The military judge did not
discuss the deletion with the appellant to verify his
understanding.

                    Sentence Appropriateness

     In accordance with Article 66(c), UCMJ, a court of criminal
appeals “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.” Sentence appropriateness
involves the judicial function of assuring that justice is done
and that the appellant 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
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)).

     The appellant asserts that a bad-conduct discharge and 18
months’ confinement is an inappropriate punishment in light of
his dysfunctional upbringing and alcohol dependency, in addition
to MH’s maturity and persistence in pursuing a sexual
relationship with him.



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     We review sentence appropriateness de novo. United States
v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005); Healy, 26 M.J. at
395-96; Snelling, 14 M.J. at 268. After review of the entire
record, we find that the sentence is appropriate for this
offender and his offenses. In addition to considering the
serious nature of the specific offenses committed by the
appellant, we have carefully considered his background and
substance dependence. We have also weighed MH’s role in the
relationship and find it similarly outweighed by the seriousness
of the offenses. Article 120b, UCMJ, makes punishable the
commission of a sexual act upon a child over 12 years of age,
with no requirement that force, threats, or other means for
overcoming lack of consent be used. This strict liability
acknowledges the impossibility of consent in such situations,
placing the burden on the adult involved to refrain from sexual
activity with the child regardless of any perceived willingness
on the child’s part.

     Considering the entire record, we conclude that granting
sentence relief at this point would be to engage in clemency, a
prerogative reserved for the CA, and we decline to do so.
Healy, 26 M.J. at 395-96.

                  Changes to Pretrial Agreement Terms

     When this court examines “the meaning and effect of a
pretrial agreement, interpretation of the 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).

      A military judge must make “a meaningful inquiry into the
provisions of every pretrial agreement,” and failure to explain
a material provision is error. United States v. Felder, 59 M.J.
444, 446 (C.A.A.F. 2004); RULE FOR COURTS-MARTIAL 910(f), MANUAL FOR
COURTS-MARTIAL, UNITED STATEs (2012 ed.). In this case, before
accepting the pleas, the military judge determined the appellant
had discussed with defense counsel and understood the sentence
limitation portion of his pretrial agreement. At the time this
occurred, the “Confinement” provision had already been properly
changed to read “18 months”. Accordingly, the military judge
need not have treated this pen-and-ink change any differently
than if it had existed in the original, typed text.

     The next deletion is a slightly different matter. “[A]fter
the sentence is announced, the military judge both ‘shall
inquire’ into any parts of the PTA not previously examined, and

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ensure that an accused understands all material terms.” United
States v. Soto, 69 M.J. 304, 307 (C.A.A.F. 2011) (quoting R.C.M.
910(h)(3)). Ordinarily, a military judge is not required to
inquire into deleted provisions; they are no longer part of the
PTA. Here, however, it was appropriate for the military judge
to do so, as the deletion occurred after the appellant began
performing under the agreement. In order to ensure that the
appellant understood the deletion’s effect, the military judge
should have inquired directly of the appellant.

     For a finding or sentence to be held incorrect on grounds
of an error of law, Article 59(a), UCMJ, requires material
prejudice to a substantial right. Here, the deleted language
was a nullity. Had it remained in the agreement, it would have
had no effect on the sentence. Furthermore, the deleted
provision could only have worked to deny the appellant “good
time” credit. As deleting the clause could only benefit the
appellant, we conclude the appellant would have waived his
rights and pleaded guilty had he understood that the deleted
language was no longer part of the agreement. Thus, while the
military judge's failure to inquire directly with the appellant
into the deleted provision of the pretrial agreement may have
been error, the appellant can demonstrate no prejudice resulting
therefrom, and we find any error to be harmless.

                           Conclusion

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

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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