United States v. Tolbert, ACM S32373

Appellant, experiencing financial problems, stole over $2,500 of merchandise from the Davis-Monthan Base Exchange with assistance from his wife; items included electronics, tools, and cosmetics.
At a judge-alone special court-martial Appellant pleaded guilty to larceny (Article 121, UCMJ) and was sentenced to a bad-conduct discharge, two months confinement, and reduction to E-1.
A pretrial agreement (PTA) required the convening authority to disapprove any confinement over 60 days and to defer reduction in rank and mandatory forfeitures until action.
The military judge and parties on the record agreed the convening authority could approve up to 60 days; however, the convening authority’s action approved “as adjudged” two months, which due to timing could total 62 days.
Appellant raised three issues on appeal: improper trial counsel sentencing argument, convening authority’s failure to honor the PTA, and alleged incomplete record due to defective exhibits (later rendered moot when court accessed the exhibits).
The court found the PTA violation material and modified the sentence to 60 days’ confinement; otherwise affirmed the findings and sentence as modified.

Issue	Appellant's Argument	Government's Argument	Held
Whether trial counsel’s sentencing argument improperly injected facts not in evidence	Trial counsel argued Appellant abused unit trust and lacked integrity; Appellant said this was improper and demands disapproval of punitive discharge	Argument was a fair inference from evidence of squadron aid and the theft	No plain error; argument permissible inference, conviction not reversed
Whether convening authority failed to honor PTA limiting confinement to 60 days and deferral terms	PTA required disapproval of any confinement > 60 days; Appellant sought specific performance/new action	SJAR and action approved sentence as adjudged (two months), but parties had on-record understanding of 60-day limit	Court held convening authority must honor PTA; modified confinement to 60 days and ordered corrected promulgating order
Whether record of trial was incomplete due to defective Prosecution Exhibits 5 and 7	Appellant claimed record incomplete, affecting appeal	Court was later able to access and view exhibits	Issue moot; no relief required

United States v. Pope, 69 M.J. 328 (prosecutorial-argument de novo review principle)
United States v. Halpin, 71 M.J. 477 (plain-error review when no objection at trial)
United States v. Erickson, 65 M.J. 221 (plain-error test elements)
United States v. Kho, 54 M.J. 63 (plain-error framework citation)
United States v. Frey, 73 M.J. 246 (three-part test for sentencing-misconduct prejudice)
United States v. Baer, 53 M.J. 235 (prosecutor may argue reasonable inferences from record)
United States v. Bungert, 62 M.J. 346 (burden on appellant to satisfy plain-error prongs)
United States v. Lundy, 63 M.J. 299 (interpretation and enforcement of PTAs; mixed question review)
United States v. Perron, 58 M.J. 78 (remedies for government noncompliance with material PTA terms)
United States v. Muller, 21 M.J. 205 (accused entitled to bargain as understood on the record)
United States v. Davis, 20 M.J. 903 (ambiguities in PTAs resolved for the accused)