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

                                  Before
               J.A. FISCHER, R.Q. WARD, K.M. MCDONALD
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                          JOHN F. DOYLE III
                   CHIEF ENGINEMAN (E-7), U.S. NAVY

                           NMCCA 201300442
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 1 August 2013.
Military Judge: CDR John A. Maksym, JAGC, USN.
Convening Authority: Commander, U.S. Naval Forces Japan,
Yokosuka, Japan.
Staff Judge Advocate's Recommendation: CDR T.D. Stone,
JAGC, USN.
For Appellant: LT Jennifer L. Myers, JAGC, USN.
For Appellee: LCDR Keith B. Lofland, JAGC, USN; Capt
Suzanne M. Dempsey, USMC.

                            28 October 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 six
specifications of violating a lawful general order (sexual
harassment) and five specifications of wrongful sexual contact
in violation of Articles 92 and 120, Uniform Code of Military
Justice, 10 U.S.C. §§ 892 and 920. The military judge sentenced
the appellant to eight years’ confinement, reduction to pay
grade E-1, a fine of $50,000.00 and a dishonorable discharge.

     In accordance with the pretrial agreement (PTA), the
convening authority (CA) approved two years’ confinement, a
$2,000.00 fine, reduction to pay grade E-1, and the dishonorable
discharge. The CA also deferred automatic forfeitures, then
waived automatic forfeitures for six months, and suspended both
the adjudged and automatic reduction below pay grade E-5 for six
months from the date of his action.

      The appellant’s sole assignment of error (AOE) claims that
the military judge abused his discretion by denying his speedy
trial motion under RULE FOR COURT-MARTIAL 707, MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012).1

     After carefully considering the record of trial, the AOE,
and the pleadings 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

     Prior to trial, the appellant filed a motion to dismiss
arguing that the Government’s dismissal and repreferral of the
original charges amounted to a subterfuge to avoid the remedy
under R.C.M. 707(d)(1). The original charges were preferred on
26 October 2012. On 14 January 2013, the charges were dismissed
and subsequently repreferred on 16 January 2013 - 81 days after
the original charges were preferred. The appellant was
arraigned on 13 April 2013. After a hearing, the military judge
denied the motion, finding that the charges were dismissed and
repreferred to correct an “irregularity”2 on the original charge
sheet, rather than to evade the R.C.M. 707 speedy trial clock.

     At no time prior to trial was the appellant confined or
restricted.

     On 1 August 2013, the appellant pleaded guilty
unconditionally pursuant to a PTA.


1
  This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982).
2
    Record at 78.


                                      2
                             Waiver

     R.C.M. 707(e) states that except when a conditional plea is
entered pursuant to R.C.M. 910(a)(2), “a plea of guilty which
results in a finding of guilty waives any speedy trial issue as
to that offense.” We find that the appellant pleaded guilty
unconditionally and, thus, appellant’s failure to enter a plea
in compliance with R.C.M. 910(a)(2) waived his ability to raise
the speedy trial issue with the court. United States v. Lee, 73
M.J. 166, 170 (C.A.A.F. 2014); United States v. Tippit, 65 M.J.
69, 75 (C.A.A.F. 2007).

                          Speedy Trial

     Even assuming arguendo that the appellant had preserved the
speedy trial issue, we find appellant’s AOE to be without merit.

     We review a military judge’s decision to deny relief under
R.C.M. 707 for an abuse of discretion. United States v.
Anderson, 50 M.J. 447,448 (C.A.A.F. 1999). Consequently, we
will not overturn the military judge’s findings of fact unless
they are clearly erroneous. We have considered the military
judge’s findings and adopt them as our own. We further concur
with the military judge that the appellant’s motion is without
merit.

     Here, the military judge found that the dismissal and
subsequent repreferral was not a subterfuge to avoid an R.C.M.
707 violation. Rather, the military judge found that correcting
the irregularity in the original charge sheet was a legitimate
reason for the CA to dismiss and reprefer the charges. Tippit,
65 M.J. at 80. We agree.

     Thus, we find that the military judge did not abuse his
discretion by denying the appellant’s motion for speedy trial
relief under R.C.M. 707. The record amply supports that the
reasons for repreferral were not designed as a subterfuge to
avoid an R.C.M. 707 violation. We also agree with the military
judge that a new 120-day speedy trial period started on the date
the dismissed charges were repreferred.




                                3
                           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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