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

                                 Before
               J.A. FISCHER, M.C. HOLIFIELD, A.C. RUGH
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        MARC C. NICHOLS
              LANCE CORPORAL (E-3), U.S. MARINE CORPS

                           NMCCA 201500131
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 19 December 2014.
Military Judge: LtCol J.D. Groharing, USMC.
Convening Authority: Commander, Marine Corps Base,
Quantico, VA.
Staff Judge Advocate's Recommendation: Maj Troy H.
Campbell, USMC.
For Appellant: LT Ryan W. Aikin, JAGC, USN.
For Appellee: Mr. Brian K. Keller, Esq.

                             6 August 2015

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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 one
specification of receipt of child pornography and two
specifications of possession of child pornography in violation
of Article 134, Uniform Code of Military Justice, 10 U.S.C.
§ 934. The military judge sentenced the appellant to
confinement for a period of three years, reduction to pay grade
E-1, forfeiture of all pay and allowances, and a dishonorable
discharge. The convening authority (CA) approved the adjudged
sentence and, pursuant to a pretrial agreement, suspended all
confinement in excess of 18 months.
     Although not raised as error, we note that the court-
martial order (CMO) fails to indicate that the military judge
merged Specifications 2 and 3 of the Charge and dismissed
Specification 3. We order corrective action in our decretal
paragraph.
     After carefully considering the record of trial, 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.

                            Post-Trial Processing

     Immediately following the announcement of findings, the
military judge sua sponte evaluated Specifications 2 and 3 for
an unreasonable multiplication of charges applying United States
v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001), and merged the two
specifications. 1 He then dismissed Specification 3. The report
of results of trial, staff judge advocate’s recommendation
(SJAR), supplemental SJAR, and CMO failed to reflect this action
of merger and dismissal by the military judge. Although trial
defense counsel’s clemency request correctly noted that the
appellant had been convicted of only two violations of Article
134, UCMJ, it did not note the errors in the report of results
of trial and SJAR.

     “The applicable statutory and Manual provisions, as well as
. . . prior cases, establish the following process for resolving
claims of error connected with the convening authority's post-
trial review. First, an appellant must allege the error at the
Court of Criminal Appeals. Second, an appellant must allege
prejudice as a result of the error. Third, an appellant must
show what he would do to resolve the error if given such an
opportunity. If an appellant meets this threshold, then it is

1
    The new Specification 2 hence read:

“In that Lance Corporal Marc C. Nichols, U.S. Marine Corps, did, on active
duty, on or near Marine Corps Base Quantico, Virginia, between on or about 25
July 2013 and on or about 16 August 2013 knowingly and wrongfully possess
child pornography on his laptop computer and his cellular phone, to wit:
images and videos of minors, or what appear to be minors engaging in sexually
explicit conduct and that said conduct was of a nature to bring discredit
upon the armed forces.” Record at 170-71.
                                          2
incumbent upon the Courts of Criminal Appeals, given their
plenary review authority under Article 66(c), as amplified by
the guidance found in RCM 1106(d)(6), to remedy the error and
provide meaningful relief.” United States v. Wheelus, 49 M.J.
283, 288-89 (C.A.A.F. 1998). The appellant has not met his
threshold, and we find that these errors did not materially
prejudice the appellant’s substantial rights.

     Nonetheless, the appellant is entitled to “have [his]
official records correctly reflect the results of this
proceeding.” United States v. Crumpley, 49 M.J. 538, 539
(N.M.Ct.Crim.App. 1998). Accordingly, we order the necessary
corrective action in our decretal paragraph.

                           Conclusion
     The findings and the sentence as approved by the CA are
affirmed. The supplemental CMO shall correctly reflect the
merger of Specifications 2 and 3 of the Charge and dismissal of
Specification 3.

                                For the Court




                                R.H. TROIDL
                                Clerk of the Court




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