United States v. Frye ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, LAWRENCE, and STEWART
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Nicholus Z. FRYE
Information Systems Technician Third Class (E-4), U.S. Navy
Appellant
No. 202000090
Decided: 2 February 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Wilber Lee (arraignment)
Ann K. Minami (trial)
Sentence adjudged 12 December 2019 by a general court-martial
convened at Joint Base Pearl Harbor-Hickam, Hawaii, consisting of a
military judge sitting alone. Sentence in the Entry of Judgment:
reduction to E-1, confinement for eighteen months, forfeiture of all pay
and allowances, and a bad-conduct discharge. 1
For Appellant:
Captain Thomas P. Belsky, JAGC, USN
1 The convening authority suspended the reduction to E-1 and the first six
months of the adjudged forfeitures as a matter of clemency.
United States v. Frye, NMCCA No. 202000090
Opinion of the Court
For Appellee:
Brian K. Keller, Esq.
_________________________
This opinion does not serve as binding precedent under
NMCCA Rule of Appellate Procedure 30.2(a).
_________________________
PER CURIAM:
After careful consideration of the record, submitted without assignment of
error, we have determined that the findings and sentence are correct in law
and fact and that no error materially prejudicial to Appellant’s substantial
rights occurred. 2
The findings and sentence are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
2 Uniform Code of Military Justice arts. 59, 66, 10 U.S.C. §§ 859, 866. We note
that the military judge announced Appellant guilty of the specification to which he
pleaded guilty, but failed to announce him guilty of the underlying Charge as
required under Rule for Courts-Martial 918(a). However, we find the clear intent of
the military judge, in accordance with Appellant’s pleas, the plea agreement, and the
understanding of the parties, was to find Appellant guilty of the Charge. See United
States v. Perkins, 56 M.J. 825, 827 (A. Ct. Crim. App. 2001) (citation omitted)
(“Inaccuracies in a verdict have been held to be immaterial if the intention is evident
from the record.”). Under these facts, and as the finding of guilty as to the Charge is
reflected in the Entry of Judgment, we find no error materially prejudicial to
Appellant’s substantial rights and the record in no need of corrective action.
2