United States v. Gevero

This opinion is subject to administrative correction before final disposition.
Before
TANG, LAWRENCE, and J. STEPHENS,
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Sean M. GEVERO
Electrician’s Mate (Nuclear) Second Class (E-5), U.S. Navy
Appellant
No. 201900148
Decided: 27 November 2019.
Appeal from the United States Navy-Marine Corps Trial Judiciary.
Sentence adjudged 14 February 2019 by a special court-martial con-
vened at Fleet Activities Yokosuka, Japan, consisting of a military
judge sitting alone. Military Judge: Captain Stephen C. Reyes, JAGC,
USN. Sentence approved by the convening authority: reduction to E-1,
confinement for 90 days, and a bad-conduct discharge. 1
For Appellant: Lieutenant Daniel E. Rosinski, JAGC, USN.
For Appellee: Brian K. Keller, Esq.
_________________________
1 The convening authority suspended the adjudged bad-conduct discharge pursu-
ant to a pretrial agreement.
United States v. Gevero, NMCCA No. 201900148
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
PER CURIAM:
After careful consideration of the record, submitted without assignment of
error, we have determined that the approved findings and sentence are cor-
rect in law and fact and that no error materially prejudicial to Appellant’s
substantial rights occurred. Articles 59 and 66, UCMJ, 10 U.S.C. §§ 859, 866.
However, we note that the court-martial order (CMO) does not accurately
reflect the disposition of all charges and specifications.
Appellant pleaded not guilty to Specification 1 of the sole Charge, Article
112a, wrongful distribution of lysergic acid diethylamide, but guilty to the
lesser-included offense, possession with intent to distribute lysergic acid
diethylamide. However, the CMO is silent on the resolution of the original
greater offense of wrongful distribution despite both the military judge’s
grant of the Government’s motion before findings to withdraw and dismiss
this greater offense language without prejudice to ripen into prejudice upon
completion of appellate review and the express terms of the pretrial agree-
ment (PTA). 2
The appellant is entitled to have court-martial records that correctly re-
flect the content of his proceeding. 3 Accordingly, the supplemental CMO shall
properly reflect the disposition of the language in Specification I of the sole
Charge.
2 Record at 299; Appellate Exhibit 21 at 4. In the PTA, the convening authority
agreed to “withdraw the language of the offense to which [Appellant pleaded] not
guilty” and to dismiss “without prejudice, to ripen into prejudice upon completion of
appellate review in which the findings and sentence are upheld.”
3 United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998).
2
United States v. Gevero, NMCCA No. 201900148
The findings and sentence are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
3