United States v. Victrelli ( 2019 )

United States Navy–Marine Corps
Court of Criminal Appeals
_________________________
UNITED STATES
Appellee
v.
Joseph M. VICTRELLI
Lance Corporal (E-3), U.S. Marine Corps
Appellant
No. 201900075
Appeal from the United States Navy-Marine Corps Trial Judiciary.
Decided: 13 May 2019.
Military Judge:
Colonel Glen R. Hines, USMC.
Sentence adjudged 19 December 2018 by a special court-martial con-
vened at Marine Corps Air Station Cherry Point, North Carolina, con-
sisting of a military judge sitting alone. Sentence approved by conven-
ing authority: reduction to E-1, confinement for 60 days, and a bad-
conduct discharge.
For Appellant:
Lieutenant Colonel Lee C. Kindlon, USMCR.
For Appellee:
Brian K. Keller, Esq.
_________________________
This opinion does not serve as binding precedent under
NMCCA Rule of Appellate Procedure 30.2(a).
_________________________
Before HUTCHISON, TANG, and ATTANASIO,
Appellate Military Judges.
United States v. Victrelli, No. 201900075
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 the offenses to which the appellant entered pleas of
not guilty. The CMO lists the disposition as “Dismissed without prejudice.”
The trial counsel moved to “withdraw the offenses to which the [appellant]
pled not guilty . . . without prejudice to ripen into prejudice upon completion
of appellate review.” Record at 48. The trial counsel’s motion was incorrect. It
is the dismissal of specifications, not the withdrawal of specifications, that is
done with or without prejudice. Pursuant to the pretrial agreement, those
specifications were to be withdrawn after the military judge accepted the ap-
pellant’s pleas of guilty and they were to be subsequently “dismissed without
prejudice, to ripen into prejudice upon completion of appellate review in
which the findings and sentence have been upheld.” Appellate Exhibit VI at
5.
As a result of this CMO error, the record does not properly reflect that the
appellant may not be retried for the three specifications to which he entered
pleas of not guilty. If allowed to persist, this error could result in prejudice to
the appellant. The appellant is entitled to have court-martial records that
correctly reflect the content of his proceeding. United States v. Crumpley, 49
M.J. 538, 539 (N-M. Ct. Crim. App. 1998). Accordingly, the supplemental
CMO shall reflect that the government withdrew Charge I and its sole Speci-
fication and Specifications 2 and 3 of Charge III before the military judge an-
nounced findings and that those specifications were dismissed without preju-
dice when the military judge announced the sentence, to ripen into prejudice
upon completion of appellate review. The findings and sentence as approved
by the convening authority are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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