United States v. Torres ( 2017 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
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No. 201700152
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UNITED STATES OF AMERICA
Appellee
v.
XAVIER A. TORRES
Lance Corporal (E-3), U.S. Marine Corps
Appellant
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Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Colonel Peter S. Rubin, USMC.
Convening Authority: Commanding Officer, Marine Medium
Tiltrotor Training Squadron 204, Marine Aircraft Group 26, 2d
Marine Aircraft Wing, Jacksonville, NC.
Staff Judge Advocate’s Recommendation: Colonel John M. Henry,
USMC.
For Appellant: Lieutenant Commander Paul D. Jenkins, JAGC,
USN.
For Appellee: Commander Joseph E. Stolasz, JAGC, USN; Major
Kelli A. O’Neil, USMC.
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Decided 21 September 2017
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Before M ARKS , W OODARD , and LOCHNER, Appellate Military Judges
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This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
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PER CURIAM:
At a special court-martial a military judge convicted the appellant,
pursuant to his pleas, of wrongful disposition of military property, larceny,
and housebreaking in violation of Articles 108, 121, and 130, Uniform Code of
United States v. Torres, No. 201700152
Military Justice (UCMJ), 10 U.S.C. §§ 908, 921, and 930. The military judge
sentenced the appellant to 11 months’ confinement, reduction to pay grade E-
1, and a bad-conduct discharge. The convening authority (CA) approved the
sentence as adjudged. In accordance with the pretrial agreement, the CA
suspended all confinement and, except for that part of the sentence extending
to the bad-conduct discharge, ordered the sentence executed.
The appellant raises a single assignment of error: the report of results of
trial and the court-martial order (CMO) fail to reflect the military judge’s
conditional dismissal of the sole specification under Charge I, and
accordingly, the record should be corrected. The government concedes the
error, and we agree.
I. BACKGROUND
During the plea colloquy, the appellant admitted to stealing a barracks
key and later throwing it away. This conduct was the basis for his convictions
for larceny of military property (Charge III, Specification 4) and wrongful
disposition of military property (Charge I, sole specification). Prior to the
plea, the military judge, summarizing an earlier RULE FOR COURTS-MARTIAL
802, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.) conference,
noted that he would likely conditionally dismiss the sole specification of
Charge I on the basis of unreasonable multiplication of charges with
Specification 4 of Charge III.1 After findings, the military judge conditionally
dismissed the sole specification of Charge I with no government objection.2
The CMO does not reflect the military judge’s conditional dismissal.
II. DISCUSSION
We have previously held that, when faced with findings that reflect an
unreasonable multiplication of charges, and where the consolidation of the
charges is impracticable—such as when guilty findings involve violations of
different UCMJ articles—a military judge should consider conditional
dismissal. United States v. Thomas, 74 M.J. 563, 569 (N-M. Ct. Crim. App.
2014). That is precisely what the military judge did here.
Unfortunately, the military judge’s action was not appropriately reflected
in the CMO. The appellant does not assert, and we do not find, any prejudice
resulting from this error. Nevertheless, the appellant is entitled to have the
CMO accurately reflect the results of the proceedings. United States v.
Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998). We thus order
corrective action in our decretal paragraph.
1 Record at 5.
2 Id. at 60.
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United States v. Torres, No. 201700152
III. CONCLUSION
After carefully considering the pleadings and the record of trial, we find
no error materially prejudicial to the substantial rights of the appellant, and
affirm the findings and sentence. Arts. 59(a) and 66(c), UCMJ. The
supplemental CMO shall reflect the military judge conditionally dismissed
Charge I and its sole specification pending the completion of appellate
review.
For the Court
R.H. TROIDL
Clerk of Court
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