          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                          _________________________

                              No. 201600362
                          _________________________

                  UNITED STATES OF AMERICA
                                   Appellee
                                       v.

                             DILLON C. NYE
     Religious Programs Specialist Third Class (E-4), U.S. Navy
                             Appellant
                      _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

    Military Judge: Commander Jason L. Jones, JAGC, USN.
Convening Authority: Commanding Officer, Naval Support Activity
                   Mid-South, Millington, TN.
  Staff Judge Advocate’s Recommend ation: Lieutenant Nicole 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 GLASER-ALLEN, M ARKS , and W OODARD , Appellate Military
                               Judges
                        _________________________

   GLASER-ALLEN, Chief Judge:
    A military judge sitting as a special court-martial convicted the appellant,
pursuant to his pleas, of unauthorized absence terminated by apprehension,
falsifying official records, wrongful use of marijuana, and larceny, in violation
                      United States v. Nye, No. 201600362


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 months, 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 erred 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
and 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. BACKGROUND
    The appellant was assigned to the base chapel at Naval Support Activity
Mid-South in Millington, Tennessee. He was the designated custodian of
funds for the command’s Consolidated Religious Offering Fund (ROF) from
September 2014 to October 2015. From August to October 2015, the appellant
drafted 58 ROF checks to himself—totaling $32,600.00—and deposited them
into his personal bank accounts. He concealed these actions by falsely
representing in official records that ROF funds were properly contributed to
charitable organizations. In January 2016, the appellant wrongfully smoked
marijuana. When his command received the positive urinalysis results in
March 2016, the appellant was placed on pretrial restriction.
   The appellant served his pretrial restriction at Naval Air Technical
Training Center, Naval Air Station (NAS) Pensacola, 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 that he was going to
medical and chow but instead began a period of unauthorized absence during
which he traveled to Ohio. On 22 July 2016, the appellant was apprehended
in Ohio pursuant to a deserter warrant and placed into pretrial confinement
upon his return to military control.
                               II. DISCUSSION
    The appellant asserts that his pretrial restriction was tantamount 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
restrictions 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 that


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                           United States v. Nye, No. 201600362


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 motions”
provision, properly removed the issue of Mason credit from his trial.1 The
Court of Appeals for the Armed Forces (CAAF) has held that a knowing and
voluntary “. . . waiver of Article 13 motions is a permissible plea agreement
term.” United States v. Felder, 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 voluntarily “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). We have also found that a
PTA’s “waive all waivable motions” provision is a valid term which precludes
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 2010).
    The 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 if 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, the 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 RULE FOR COURTS-MARTIAL
(R.C.M.) 802, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 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 evidence was admitted.2


   1   Appellate Exhibit II at 4, ¶ 18g.
   2   Record at 125.


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                          United States v. Nye, No. 201600362


    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
restriction barracks procedures. Similarly, in 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 evidence into account, including the
conditions 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 appellant
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:
              Well, Your Honor, the defense position—and certainly we
          are not—do not want to make any motions 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 restriction 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 that 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
compelled 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.”


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         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 has 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—that’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, the military judge reasoned that he did not
need to rule on 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 formulating 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 judge disagreed with the TDC regarding the PTA
waiver’s effect on Mason credit, he also clearly understood his responsibility
to ensure a knowing and voluntary Article 13, UCMJ waiver and to consider
the nature of pretrial restraint in formulating his sentence—agreeing
repeatedly to do so. That the military judge’s sentence was nearly at the
jurisdictional maximum for a special court-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.


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                       United States v. Nye, No. 201600362


   The TDC ultimately was clear that she was not raising the Article 13
motion. She secured a beneficial PTA sending the case to a special court-
martial by, inter alia, agreeing to waive all waivable motions. She understood
that raising an Article 13 motion risked the deal 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 effect 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 supporting his position that
Mason credit is an unwaivable motion, and the CAAF has recognized
otherwise. McFadyen, 51 M.J. at 290-91.
   Therefore, we agree with the government that the PTA’s “waive all
waivable motions” provision was valid, and that the Mason credit 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 an appropriate sentence; eliminating any potential prejudice to
the appellant.
    Although not raised as error, we note 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. CONCLUSION
    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 specification 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




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