United States v. Lizotte

Before MONAHAN, HOLIFIELD, and HACKEL

Appellate Military Judges

_________________________ UNITED STATES

Appellee v.

Brett M. LIZOTTE

Machinist Mate First Class (E-6), U.S. Navy

Appellant No. 202100346

_________________________

Decided: 30 August 2022

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Chad C. Temple

Sentence adjudged 7 October 2021 by a special court-martial convened at Naval Base San Diego, California, consisting of a military judge sit- ting alone. Sentence in the Entry of Judgment: reduction to E-3 and a bad-conduct discharge.

For Appellant:

Captain Kimberly D. Hinson, JAGC, USN

For Appellee:

Lieutenant Michael A. Tuosto, JAGC, USN

Major Kerry E. Friedewald, USMC

United States v. Lizotte, NMCCA No. 202100346 Opinion of the Court _________________________

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:

Appellant was convicted, pursuant to his pleas, of two specifications of false official statement and a single specification of larceny, in violation of Articles 107 and 121, Uniform Code of Military Justice [UCMJ], 1 for fraudulently ob- taining military housing allowance by making multiple false statements about where his wife resided at the time.

Appellant asserts two assignments of error [AOEs]: (1) the sentence limi- tation portion of the plea agreement contained impermissible limitations un- der a plain reading of R.C.M. 705(d) and should not have been accepted; (2) the plea agreement contained a prohibited and unenforceable provision requiring the military judge to award a specific sentence, violating public policy. We find no prejudicial error and affirm.

I. BACKGROUND

Appellant pleaded guilty on 7 October 2021. Prior to his plea, he entered into a plea agreement with the convening authority. According to the terms of the plea agreement, Appellant would receive a bad conduct discharge and would be reduced to the grade of E-3; he could receive up to 3 months’ confine- ment for larceny; he would receive no confinement for the false official state- ments; and no fines and forfeitures would be adjudged. 2 In accordance with the terms of his plea agreement, Appellant was sentenced to be reduced to E- 3 and to receive a bad conduct discharge. He was not sentenced to confinement for any offenses.

United States v. Lizotte, NMCCA No. 202100346

Opinion of the Court

II. DISCUSSION

Consistent with our recent opinion in United States v. Rivero, we find that Appellant’s assignments of error lack merit. 3 As in Rivero, “Appellant negoti- ated the provisions of his plea agreement in accordance with R.C.M. 705(d)(1) and enjoyed complete sentencing proceedings as required by R.C.M. 1001 and 1002. Accordingly, we find the presence and effect of the sentence limitation provision in this case accorded with the President’s statement of public pol- icy.” 4 Because we find “that Appellant did receive complete presentencing pro- ceedings, that his plea agreement’s punishment limitations did not render those proceedings meaningless, and that the terms of his plea agreement did not violate public policy, we find [these AOEs] to be without merit.” 5

III. CONCLUSION

After careful consideration of the record and briefs of appellate counsel, 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. 6

The findings and sentence are AFFIRMED.

FOR THE COURT:

S. TAYLOR JOHNSTON Interim Clerk of Court