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

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

                      UNITED STATES OF AMERICA

                                     v.

                      STEVEN C. POTTMEYER
              STAFF SERGEANT (E-6), U.S. MARINE CORPS

                           NMCCA 201300293
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 29 March 2013.
Military Judge: Maj Nicholas Martz, USMC.
Convening Authority: Commanding General, Marine Corps
Recruit Depot/Eastern Recruiting Region, Parris Island, SC.
Staff Judge Advocate's Recommendation: Capt J.A. Hill,
USMC.
For Appellant: C. Ed Massey, Esq.; Maj John Stephens, USMC.
For Appellee: Maj Crista Kraics, USMC.

                            26 August 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, in accordance with his pleas, of seven
specifications for violating a general order for various
misconduct involving prospective recruit applicants in violation
of Article 92, Uniform Code of Military Justice, and one
specification each of making a false official statement,
committing an indecent act, and abusive sexual contact, in
violation of Articles 107 and 120, UCMJ.1 The military judge
sentenced him to four years’ confinement, total forfeitures,
reduction to E-1, and a bad-conduct discharge. The convening
authority approved the sentence as adjudged and suspended
adjudged and waived automatic forfeitures in accordance with the
pretrial agreement (PTA).

     On appeal, the appellant raises three assignments of error.
First, he argues that the evidence underlying his convictions is
both legally and factually insufficient and his guilty pleas
were improvident because of “the toxicity of the legal
environment aboard Parris Island, South Carolina due to the
prosecution of cases on the allegation of sexual assault
offenses.” Appellant’s Brief of 2 Dec 2013 at 20. Second, he
claims that the results of his court-martial were affected by
apparent unlawful command influence (UCI) stemming from the
Commandant of the Marine Corps’ (CMC) “Heritage Brief.” Last,
he claims unlawful pretrial punishment occurred during his
pretrial confinement.

     After careful consideration of the record and the briefs of
the parties, 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 occurred.2

                                      Background

     The appellant, a Marine Corps recruiter in Ohio, faced a
number of charges involving his inappropriate conduct with
potential female recruits while he was on recruiting duty.
While the appellant’s trial was pending, the CMC and the
Sergeant Major of the Marine Corps (SMMC) embarked upon a
nation-wide tour speaking to the leadership of the Marine Corps
on a variety of subjects. In April 2012, the CMC and the SMMC
visited Parris Island. During the brief, the CMC made various
remarks addressing issues pertaining to military justice,
discipline, and sexual assault.3




1
    10 U.S.C. §§ 892, 907; 10 U.S.C. § 920 (Supp. 2007).
2
    10 U.S.C. §§ 859(a) and 866(c).
3
  Appellate Exhibit LIX at 3-5. For an in-depth description of the “Heritage
Brief” conducted at Parris Island, see United States v. Howell, 2014 CCA
LEXIS 321, unpublished op. (N.M.Ct.Crim.App. 22 May 2014).


                                          2
     In the wake of the Heritage Tour’s stop through Parris
Island, the appellant filed a motion complaining of UCI.4 After
finding that some of the CMC’s remarks raised the appearance of
UCI, the military judge ordered as curative measures a venire of
at least fifteen members, expansive voir dire and the liberal
granting of challenges, and the use of supplemental
questionnaires to identify and remove any member who may appear
improperly influenced. In addition, the military judge granted
the defense one additional peremptory challenge.5

     Prior to assembly, however, the appellant entered pleas of
guilty pursuant to a pretrial agreement in exchange for a
sentence limitation and dismissal of some of the more serious
offenses.6

                                 Discussion

1.       Providence of the Pleas

     The appellant styles his first assignment of error as a
question of legal and factual sufficiency of the evidence. But
when, as here, an appellant pleads guilty, “the issue must be
analyzed in terms of providence of his plea, not sufficiency of
the evidence.”7 We review a military judge’s decision to accept
a guilty plea for an abuse of discretion.8 “‘If an accused sets
up matter inconsistent with the plea at any time during the
proceeding, the military judge must either resolve the apparent
inconsistency or reject the plea.’”9 Failure to do so is an
abuse of discretion.10

     Here, we find no substantial basis in law or fact to
question the appellant’s pleas. Although he admitted his guilt
to every element without hesitancy, he now contends that he did
so solely because of “the toxicity of the environment aboard
4
     AE XXIV.
5
     AE LIX at 9-11.
6
     AE XLVI and   XLVII.
7
     United States v. Faircloth, 

, 174 (C.A.A.F. 1996).
8
     United States v. Inabinette, 

, 322 (C.A.A.F. 2008).
9
  United States v. Phillippe, 

, 309 (C.A.A.F. 2006) (quoting United
States v. Garcia, 

, 498 (C.A.A.F. 1996)).
10
     United States v. Schell, 

, 345 (C.A.A.F. 2013).


                                         3
Parris Island.”11 Specifically, he points to his knowledge of
several harsh sentences in unrelated sexual assault cases and
the potential maximum punishment he faced. But neither the
appellant nor his counsel raised these concerns with the
military judge during the providence inquiry despite ample
opportunity to do so.

     In his PTA, the appellant agreed that he had not been
coerced into pleading guilty.12 During the providence inquiry,
the appellant told the military judge that he was pleading
guilty voluntarily.13 And on appeal, the appellant’s defense
counsel essentially admits as much:

        Albeit that SSgt Pottmeyer pled guilty to certain
        offenses freely and voluntarily, he did so out of fear
        that proceeding to trial in the current environment
        aboard Parris Island, South Carolina would have
        resulted in a much harsher sentence than he would
        receive by entering negotiated pleas.14

Pleading guilty to avoid a harsh sentence does not render a plea
improvident. Nothing in the record set up matter inconsistent
with the appellant’s pleas. Consequently, we find no abuse of
discretion by the military judge in accepting the appellant’s
guilty pleas.




11
  Appellant’s Brief at 22. Among the facts he cites as evidence of this
“toxicity” are significant sentences in contested courts-martial involving
sexual assault tried at Parris Island in the same general time frame; the
excessive number of charges on his charge sheet; the potential sentence to
confinement he faced; and an underlying investigation behind the offenses
that amounted to a “witch hunt.” 

Despite this environment, he
successfully negotiated withdrawal and dismissal of all but one nonconsensual
sexual offense (Abusive Sexual Contact) and negotiated a confinement
limitation of 48 months —- far less than the sentence of confinement for life
without eligibility of parole he could have faced. Among the offenses
dismissed pursuant to the PTA were attempted forcible sodomy, rape,
aggravated sexual assault, aggravated sexual contact, and aggravated assault.
12
     AE XLVI at 2.
13
     Record at 209.
14
     Appellant’s Brief at 22.


                                      4
     2. Unlawful Command Influence

     We review a military judge’s ruling on UCI de novo.15 We
review the military judge’s findings of fact under a clearly
erroneous standard, but review the question of command influence
flowing from those facts de novo.16 While we review a military
judge’s remedy for UCI for an abuse of discretion,17 ultimately
on appeal we review de novo whether UCI affected the findings or
sentence.18 We will reverse if we find that “an objective,
disinterested observer, fully informed of all the facts and
circumstances, would harbor a significant doubt about the
fairness of the proceeding.”19

     We note that the appellant, both at trial and on appeal,
focused on the Heritage Brief’s impact on potential members at
his trial.20 Here, the military judge found an appearance of UCI
and adopted curative measures to remove any effect.21 We find
those measures well-within a reasonable range of choices to
address the appearance of unlawful influence on the prospective
court-martial panel. However, those remedies were rendered moot
when the appellant elected to waive his right to a trial by
members and plead guilty under the protection of a PTA. We find
his claim on appeal that he was forced into this course of
action because of the inadequacy of the military judge’s
remedies wholly unsupported by the record. Having reviewed the
record, we conclude beyond a reasonable doubt that “any unlawful
command influence did not affect the findings or sentence.”22
     3. Pretrial Confinement

     In his final assignment of error, the appellant contends
that his pretrial confinement in this case amounted to a


15
     United States v. Salyer, 

, 423 (C.A.A.F. 2013).
16
     United States v. Wallace, 

, 286 (C.M.A. 1994).
17
     United States v. Douglas, 

, 354 (C.A.A.F. 2010).
18
     

States v. Biagase, 

, 150-51 (C.A.A.F. 1999)).
19
     United States v. Lewis, 

, 415 (C.A.A.F. 2006).
20
     Record at 48-54; AE XXIV at 11; Appellant’s Brief at 36-37.
21
     AE LIX at 9-11.
22
  

(citing 

). Although not
raised, we have reviewed and found no evidence of any actual UCI.
                                         5
violation of his right against illegal pretrial punishment under
Article 13, UCMJ.

     Here, the appellant was placed in pretrial confinement
pending trial. After charges were referred, the appellant filed
a motion for release from pretrial confinement which the
military judge denied.23 The appellant later filed a motion to
reconsider.24 The military judge denied the motion to
reconsider.25 Of note, the appellant never voiced any complaint
under Article 13, UCMJ. Rather, he argued solely that the
magistrate abused his discretion by ordering the appellant’s
continued confinement.26 Now he claims that these same
circumstances amount to illegal pretrial punishment. Under the
facts of this case, however, we conclude that the appellant
waived any Article 13, UCMJ claim based on his pretrial
confinement.27

                                 Conclusion

     We affirm the findings and sentence as approved by the
convening authority.

                                        For the Court




                                        R.H. TROIDL
                                        Clerk of Court




23
     AE VIII; Record at 24-26.
24
     AE XIV.
25
     Record at 36.
26
     Record at 33-34.
27
  After calculating the applicable pretrial confinement credit, the military
judge asked “[d]efense, do you have any motions requesting relief from
unlawful pretrial punishment or restraint?” Trial defense counsel replied,
“No, sir.” Record at 222. Finding waiver we do not reach the merits.


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