United States v. Ayala ( 2015 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
F.D. MITCHELL, K.J. BRUBAKER, M.C. HOLIFIELD
Appellate Military Judges
UNITED STATES OF AMERICA
v.
ROBERTO C. AYALA
MACHINIST'S MATE FIREMAN APPRENTICE (E-2), U.S. NAVY
NMCCA 201500008
GENERAL COURT-MARTIAL
Sentence Adjudged: 15 September 2014.
Military Judge: CDR John S. Han, JAGC, USN.
Convening Authority: Commander, Navy Region Mid-Atlantic,
Norfolk, VA.
Staff Judge Advocate's Recommendation: CDR S.J. Gawronski,
JAGC, USN.
For Appellant: Capt Michael B. Magee, USMC.
For Appellee: CAPT Diane L. Karr, JAGC, USN; LT Ann E.
Dingle, JAGC, USN.
18 June 2015
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OPINION OF THE COURT
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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.
PER CURIAM:
A military judge sitting as a general court-martial
convicted the appellant, pursuant to his pleas, of five
specifications of wrongful possession of controlled substances
in violation of Article 112a, Uniform Code of Military Justice,
10 U.S.C. § 912a. The appellant was sentenced to confinement
for 30 months, reduction to the lowest enlisted pay grade, and a
bad-conduct discharge. The convening authority (CA) approved
the sentence as adjudged, but suspended execution of confinement
in excess of 18 months in accordance with the terms of the
pretrial agreement.
In his sole assignment of error, the appellant contends
that he was denied “legally correct post-trial processing” and
asks that this court remand his case to the appropriate CA for
proper post-trial processing. Specifically, the appellant avers
that the staff judge advocate’s recommendation (SJAR) and the
CA’s action erroneously reflect that he pleaded guilty to and
was found guilty of five specifications of drug distribution.
We disagree with this contention but note that the court-martial
order does in fact erroneously reflect convictions for five
specifications of distribution vice possession and we shall
order the necessary corrective action in our decretal paragraph.
Otherwise, after conducting a thorough review of the record
of trial and allied papers, we are convinced that the findings
and the sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.
Errors in the Court-Martial Order
At trial, the appellant was charged with inter alia, five
specifications of drug distribution in violation of Article
112a, UCMJ. He was found guilty, pursuant to his pleas by
exceptions and substitutions, of the five specifications of
illegal drug possession vice distribution. The results of
trial, provided to the CA as an attachment to the SJAR, merely
states that the appellant pleaded guilty to the charge and
specifications in question by “exceptions and substitutions as
noted in the record of trial.” No other amplifying information
was provided in the results of trial. The appellant suggests
that because the results of trial did not specifically state the
conduct of which he was convicted and that it was attached to
the SJAR for the CA to consider, the CA misunderstood the
conduct of which the appellant was convicted when he took action
on the record of trial. We disagree.
While the results of trial were arguably incomplete by
indicating that the appellant pleaded guilty by exceptions and
substitutions but not specifically listing out the excepted and
substituted language, we cannot say that the results of trial
were in error. We do note, however, that in response to the
SJAR which contained the results of trial, the trial defense
counsel submitted a request for clemency which properly
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reflected that the appellant was convicted of five
specifications of drug possession vice distribution. We
additionally note that Part I of the pretrial agreement signed
by the CA specifically states that the agreement was predicated
on the appellant pleading guilty, by exceptions and
substitutions, to drug possession vice distribution. The court-
martial order clearly states that the CA considered the pretrial
agreement, the results of trial, the record of trial, and the
defense’s clemency request of 30 December 2014 prior to taking
action. We have little difficulty concluding that the CA
understood the conduct of which the appellant was convicted
prior to taking action on the record of trial, notwithstanding
the scrivener’s error on the court-martial order.
While we find the appellant’s argument that he was somehow
prejudiced by the error in the court-martial order to be without
merit, we do find that the appellant is entitled to records that
correctly reflect the results of court-martial proceedings. See
United States v. Crumpley, 49 M.J. 538, 539 (N.M.Ct.Crim.App.
1998).
Conclusion
The findings and the sentence are affirmed. The
supplemental court-martial order shall reflect that the
appellant pleaded guilty to and was found guilty of
Specifications 1-5 of Charge IV by exceptions and substitutions
of drug possession vice distribution.
For the Court
R.H. TROIDL
Clerk of Court
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