United States v. Smetanka

This opinion is subject to administrative correction before final disposition.

Before HITESMAN, GASTON, and FOIL, Appellate Military Judges _________________________ UNITED STATES Appellee v. Thomas J. SMETANKA Hospitalman (E-3), U.S. Navy Appellant No. 201900252 Decided: 18 March 2020.

Appeal from the United States Navy-Marine Corps Trial Judiciary.

Military Judge: Hayes C. Larson

Sentence adjudged 10 May 2019 by a general court-martial convened at Naval Station Norfolk, Virginia, consisting of a military judge sit- ting alone. Sentence in the Entry of Judgment: reduction to E-1, con- finement for 60 months, 1 and a dishonorable discharge.

For Appellant:

Lieutenant Commander Derek C. Hampton, JAGC, USN.

For Appellee: Brian K. Keller, Esq.

1 In accordance with the pretrial agreement, the convening authority suspended confinement in excess of 36 months.

_________________________

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. Articles 59 and 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 859, 866.

However, we note that the Entry of Judgment does not accurately reflect the disposition of the charges. The Entry of Judgment omits that Appellant pleaded and was found guilty of Specification 4 of Charge I, Attempted Sexu- al Abuse of a Child Involving Indecent Conduct, on or about 21 September 2017. The Statement of Trial Results accurately reflects the guilty plea and finding for this specification, and we find no evidence of modification by rea- son of any post-trial action by the convening authority or any ruling, order, or other determination by the military judge. See Article 60c(a)(1)(B), UCMJ. Hence, we conclude the omission is a scrivener’s error and ultra vires. Alt- hough we find no prejudice, Appellant is entitled to have court-martial rec- ords that correctly reflect the content of his proceeding. United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998). In accordance with this Court’s authority under Rule for Courts-Martial 1111(c)(2), we modify the Entry of Judgment and direct that it be included in the record.

The findings and sentence are AFFIRMED.

FOR THE COURT:

RODGER A. DREW, JR. Clerk of Court

UNITED STATES NMCCA NO. 201900252

v. ENTRY

OF Thomas J. S M ET AN KA JUDGMENT Hospitalman (E-3) U.S. Navy As Modified on Appeal

Accused 18 March 2020 On 10 May 2019, the Accused was tried at Naval Station Norfolk, Virgin- ia, by a general court-martial, consisting of a military judge sitting alone. Military Judge Hayes C. Larson presided.

FINDINGS

The following are the Accused’s pleas and the Court’s findings to all of- fenses the convening authority referred to trial:

Charge I: Violation of Article 80, Uniform Code of Military Justice,

10 U.S.C. § 880.

Plea: Guilty.

Finding: Guilty.

Specification 1: Attempted Sexual Assault of a Child on or about

21 September 2017.

Plea: Guilty.

Finding: Guilty.

Specification 2: Attempted Receipt of Child Pornography on or about 21 September 2017.

Plea: Guilty.

Finding: Guilty.

Modified Entry of Judgment

Specification 3: Attempted Sexual Abuse of a Child Involving

Indecent Communication on or about 21

September 2017.

Plea: Guilty.

Finding: Guilty.

Specification 4: Attempted Sexual Abuse of a Child Involving

Indecent Conduct on or about 21 September

2017.

Plea: Guilty.

Finding: Guilty.

Charge II: Violation of Article 107, Uniform Code of Military

Justice, 10 U.S.C. § 907.

Plea: Guilty.

Finding: Guilty.

Specification: False Official Statement on or about 21

September 2017.

Plea: Guilty.

Finding: Guilty.

Charge III: Violation of Article 120, Uniform Code of Military

Justice, 10 U.S.C. § 920.

Plea: Guilty.

Finding: Guilty.

Specification 1: Sexual Assault on or about 16 March 2015.

Plea: Not Guilty.

Finding: Withdrawn and dismissed.

Specification 2: Sexual Assault on or about 16 March 2015.

Plea: Not Guilty.

Finding: Withdrawn and dismissed.

Specification 3: Abusive Sexual Contact on or about 16 March

2015.

Plea: Guilty.

Finding: Guilty.

Modified Entry of Judgment SENTENCE

On 10 May 2019, a military judge sentenced the Accused to the following sentence:

Reduction to pay grade E-1.

Confinement for 60 months.

A dishonorable discharge.

The convening authority suspended confinement in excess of 36 months for a period of 12 months from 6 August 2019.

FOR THE COURT:

RODGER A. DREW, JR. Clerk of Court