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_________________________ No. 201600 362

_________________________ 

### UNITED STATES OF AMERICA

Appellee

v.


### DILLON C. NYE Religious Program s Specialist Third Class ( E

- 4 ) , U.S. Navy Appellant

___________

______________ Appeal from the United States Navy

- Marine Corps Trial Judiciary

Military Judge: C ommander Jason L. Jones , JAGC, USN

. Convening Authority: Commanding Officer, Naval Support Activity Mid

- South, Millington, T N

. Staff Judge Advocate’s Recommend ation: Lieutenant N icole T. Staring, JAGC, USN

. For Appellant: Lieutenant Rachel E. Weidemann, JAGC, USN ; Captain Daniel Douglass, USMC

. For Appellee: Lieutenant Commander Justin C. Henderson , JAGC,

USN; Lieutenant Robert J. Miller , JAGC, USN

.

____________

_____________ Decided 18 January 2018

_________________________ This opinion does not serve as binding precedent but may be cited as persuasive authority under NMCCA Rule of Practice and Procedure 18.2.

Before G LASER

- A LLEN , M ARKS , and W OODARD , Appe llate M ilitary Ju dges

_________________________ GLASER

- ALLEN, Chief Judge : A military judge sitting as a special court

- martial convicted the appel lant, pursuant to his pleas, of unauthorized absence terminated by apprehensi on, falsifying official records , wrongfu l use of marijuana, and larceny
, in violationUnited States v. Nye , No. 201600 3 6 2

2 of Articles 86, 107, 112a , and 121 , Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886, 907, 912a , and 921

. The military judge sentenced the appellant to reduction to pay grade E

- 1, confinement for 11 mo nths
, forfeiture of $900.00 pay per month for 11 months , and a bad

- conduct discharge

. The convening authority (CA) approved the sentence as adjudged and
, except for the punitive discharge , ordered it executed. The appellant raises a single assignment of error (AOE): the military judge e rred by misinterpreting the pretrial agreement (PTA) and refusing to rule on whether the appellant was entitled to Mason credit. United States v. Mason , 19 M.J. 274 (C.M.A. 1985). After carefully considering the pleadings

a nd the record of trial, we find no error materially prejudicial to the substantial rights of the appellant and affirm the findings and sentence. Arts. 59(a) and 66(c), UCMJ.

I. B ACKGROUND The appellant was assigned to the base chapel at Naval Support Activ ity Mid

- South in Millington, Tennessee. He was the designated custodian of funds for the command’s Consolidated Religio us Offering Fund (ROF) from Sep tember 2014 to October 2015. From August to October 2015, t he appellant drafted 58 ROF checks to himself

— t otaling $32,600 .00

— and deposited them into his personal bank accounts. He concealed th ese act ions by falsely representing in official records that ROF funds were properly contributed to charitable organizations. I n January 2016, the appellant wrongfully sm oked marijuana. When his command received the positive urinalysis results in March 2016
, the appellant was placed on pretrial restriction. The appellant served h is pretrial restriction at Naval Air Technical Training Center, Naval Air Station (NAS) Pensaco la , Florida

. He served 93 days at the restriction barracks from 17 March to 17 June 2016

. On 18 June 2016 , he signed out of the restricted barracks indicating th at he was going to medical and chow but instead began a pe riod of unauthorized absence during

w hich he traveled to Ohio

. On 22 July 2016, t he a ppellant was apprehended in Ohio pursuant to a deserter warrant and placed in to pretri al confinement upon his return to military control.
II. D ISCUSSION
The a ppellant asserts that his pretrial restriction was tanta mount to confinement
, and he is therefore entitled to Mason credit. He further contends that the military judge erred by not ruling on this issue during his guilty plea.
“We review de novo the ultimate legal question of whether certain pretrial
rest rictions are tantamount to confinement.” United States v. King, 58 M.J. 110, 113 (C.A.A.F. 2003) (citations omitted). However, we need not reach thatUnited States v. Nye , No. 201600 3 6 2

3 issue here. Like our superior court in United States v. McFadyen, we are “not called upon by the [ AOE ] to resolve the question of whether the appellant’s treatment at NAS Pensacola amounted to pretrial punishment

. ” 51 M.J. 289, 290 (C.A.A.F. 1999). Rather , the determinative issue is whether the appellant’s PTA , which included a generic “waive all waivable moti ons” provision, properly removed the issue of Mason credit from his trial. 1 The C ourt of Appeals for the Armed Forces (C AAF ) has held that a knowing and voluntary “

. . . waiver of Article 13 motions is a permissible plea agreement term .” United States v. F elder , 59 M.J. 444, 445

- 46 (C.A.A.F. 2004) (internal citation omitted)

. Our sister service court declined to grant relief where an informed appellant had vo l untarily “agreed [via pretrial agreement] to waive ‘any motion for illegal pretrial punishment or pretrial restriction tantamount to confinement.’” United States v. Barrett , No. S31531, 2009 LEXIS 233 , at *5
, unpublished op. (A.F. Ct. Crim. App. 12 Jun 2009) . W e have also found that a PTA’s “waive all waivable motions” provision is a valid term which p recludes

an appellant from raising waivable issues on appeal. United States v. Murphy , No. 201000262, 2010 CCA LEXIS 774, at *3

- 4 (N

- M. Ct. Crim. App. 23 Nov 20 10).

T he CAAF has long recognized that as to their review authority and as a general matter “‘ [ w]hen an error is waived

. . . the result is that there is no error at all and an appellate court is without authority to reverse a conviction on that basis.’ ” United States v. Chin , 75 M.J. 220, 222 (2016) (quoting United States v. Weathers , 186 F.3d 948, 955, (D.C. Cir. 1999) (additional citation omitted)). However, the plenary review mandate of Article 66(c), UCMJ requires “the CCAs . . . to assess the entire record to determine whether to leave an accused's waiver intact, or to correct the error” even i f the error was subject to a “waive all waivable motions” provision of a PTA. Chin , 75 M.J. at 223 (citing United States v. Tardif , 57 M.J. 219, 223 (C.A.A.F. 2002) )

. See also
, United States v. Nerad , 69 M.J. 138, 145

- 46 (C.A.A.F. 2010)

. Here, t he military judge discussed the generic “waive all waivable motions” provision extensively. The Mason credit issue and potential conflict with the PTA provision first arose during a R ULE FOR C OURTS

- M ARTIAL (R.C.M.) 802, M ANUAL FOR C OURTS

- M ARTIAL , U NITED S T ATES ( 201 6 ed. ) conference the day prior to trial. The military judge acknowledged that he had “kind of shot [ trial defense counsel ( TDC ) ] down” when they discussed the issue during that session and delayed further discussion of it until after sentencing e vidence was admitted. 2

1 Appellate Exhibit II at 4, ¶ 18g.

2 Record at 125.United States v. Nye , No. 201600 3 6 2

4 Prior to hearing sentencing argument , the military judge noted that the TDC called the restriction barracks’ Leading Petty Officer to testify about the conditions of restriction and submitted two defense exhibits regarding restricti on barracks procedures

. Similarly
, i n his unsworn statement, the appellant claimed that restriction was “way harder than the brig

. ” 3 The military judge explained that regardless of his prior comments at the R.C.M. 802 conference
, he would take all the evid ence into account, including the

con ditions of pretrial restriction when “ formulating an appropriate sentence
, one way or another. Whether Mason credit exists or not, that evidence is going to be there.” 4 The military judge then specifically asked the TDC whether the appella nt was “moving the court for Mason credit ” because he thought doing so would violate the PTA. 5 The TDC’s response was initially somewhat nuanced :

W ell, Your Honor, the defense position

— and certainly we are not

— do not want to make any m otions in violation of the terms of the pretrial agreement. That is not our intent; however, our position is that this is not a motion, but rather it is equivalent to Allen credit that

— the ruling in Mason simply extended the application of credit to restri ction tantamount to confinement. Therefore, because in

— in U.S. v. Rock , that cannot be bargained away by pretrial agreement, that it is a matter of credit and not something that a motion need be provided for. That aside, as you’ve said, Your Honor, we ask you to take it into consideration on sentence, and

— and we’ll do that through argument. But that

— that’s our position. 6 The military judge noted that paragraph 18g of the PTA required that all waivable motions be waived

. 7 He then explained :

I know that the defense often kind of goes and presents information th a t would normally be presented in a motion.

3 Id

. at 123.

4 Id

. at 125.

5 Id

. at 125

.

6 Id . at 125

- 126.

7 Appellate Exhibit II at 4 , ¶ 18g. “ I agree to waive all motions except those that are otherwise non

- waivable, pursuant to R.C.M. 705 (c)(1)(B). I have not been compell ed to waive my right to due process, the right to challenge the jurisdiction of the court

- martial, the right to a speedy trial, the right to raise the issue of unlawful command influence or any other motion that cannot be waived. I have no motions to bring and I am not aware of any motion that was waived pursuant to this provision. ”United States v. Nye , No. 201600 3 6 2

5 What the court asked earlier is, is there any illegal pretrial restraint or confinement, and the answer to that is no. And so I don’t believe that the court h as an immediate duty to say that this is restriction tantamount to confinement or not. The case law that I’ve looked up about Mason credit deals with

— with people affirmatively coming to court and saying “ this is Mason credit; give me Mason credit; ” that

— th at’s my experience as

a

— as a litigator also. So I’m not inclined to make a ruling this is restriction tantamount to confinement, which essentially flips this into Allen credit, day for day, unless the defense stands up and says “I want to make this motion, ” at which point I’d look over at the government and say, “Well, does this break the PTA? What are you all going to do?” So I’m going to take everything

— all this information that’s come at me in formulating a sentence, but I don’t think the court, at this time, needs to make a decision whether this is or isn’t Mason credit.

.

. . DC: Understood, Your Honor. And just for the record, we

-- we understand that we did waive any Article 13 motion, which is why we didn’t put that forward earlier. 8 In light of this discussion, t he military judge reasoned that he did not need to rule o n the issue because the TDC was not actually making a motion for Mason credit . And he reiterated his earlier position that he would consider “all this information that’s come at me in fo rmulating a sentence [

. ] ” 9 The TDC was then permitted to argue the conditions of the appellant’s pretrial restriction as a matter in mitigation.
While the military j udge disagreed with the TDC regarding the PTA waiver’s effect on Mason credit , he also clea rly understood his responsi bility to ensure a knowing and voluntary Article 13 , UCMJ waiver and to consider the nature of pretrial restraint in formulating his s entence

— agreeing repeatedly to do so. That the military judge’s sentence was nearly at the juri sdictional maximum for a special c ourt

- martial does not alone imply he failed to properly consider the pretrial restriction conditions. Indeed
, when considering the entire record, it reflects at most that the military judge simply disagreed with the weight that the appellant desired him to give that restriction.

8 Record at 126

- 27.

9 Id . at 127.United States v. Nye , No. 201600 3 6 2

6 T h e TDC ultimately was clear that she was not raising the Article 13 motion

. S he secured a beneficial PTA sending the case to a special court

martial by
, inter alia
, agreeing to waive all waivable m otions . She understood that raising an Article 13 motion risked the dea l and the appellant potentially going to general court

- martial for his offenses. The colloquy between the military judge and TDC makes it clear that she understood the meaning and effec t of the waiver provision

— the voluntary relinquishment of a known right

— while making a good faith effort nonetheless to ensure the military judge gave appropriate credit for the appellant’s pretrial restriction. The appellant is unable to produce any case supportin g his position that Mason credit is an unwaiv able motion
, and the CAAF has recognized otherwise. McFadyen
, 51 M.J. at 290

- 91

. Therefore, w e agree with th e government tha t the PTA’s “ waive all waivable motions” provision was valid
, and that the Ma son credi t motion was knowingly and voluntarily waived. After consideration of the entire record we are also satisfied that the military judge properly considered both the duration of pretrial restraint and the conditions of that restraint in determining a n appropriate sentence ; eliminating any potential prejudice to the appellant. Although not raised as error, we not e that the court

- martial order (CMO) incorrectly reflects a finding of not guilty to Charge III and its sole specification. The appellant does not assert, and we do not find, any prejudice resulting from this error. Nevertheless, the appellant is entitled to have the CMO accurately reflect the results of the proceedings. United States v. Crumpley , 49 M.J. 538, 539 (N

- M. Ct. Crim. App. 1998). We thus order corrective action in our decretal paragraph.
III. C ONCLUSION The findings and the sentence as approved by the CA are affirmed. The supplemental CMO shall correctly reflect that the appellant pleaded not guilty to Charge III and its sole specific ation and that this offense was withdrawn and dismissed without prejudice prior to the entry of findings by the military judge. Senior Judge M ARKS and Judge W OODARD concur.

For the Court

R.H. TROIDL Clerk of Court