United States v. Belk ( 2020 )

This opinion is subject to administrative correction before final disposition.
Before
KING, GASTON, and GEIS
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Jacob T. BELK
Corporal (E-4), U.S. Marine Corps
Appellant
No. 201900294
Decided: 25 June 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Glenn Hines (arraignment)
Kyle Phillips (trial)
Sentence adjudged 10 July 2019 by a general court-martial convened
at Marine Corps Base Camp LeJeune, North Carolina, consisting of a
military judge sitting alone. Sentence in the Entry of Judgment:
reduction to E-1, confinement for 24 months, 1 and a dishonorable
discharge.
1 The convening authority suspended all confinement in excess of 18 months
pursuant to a pretrial agreement.
United States v. Belk, NMCCA No. 201900294
Opinion of the Court
For Appellant:
Captain Jeremiah J. Sullivan, III, JAGC, USN
For Appellee:
Brian K. Keller, Esq.
_________________________
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, 10
U.S.C. §§ 859, 866.
However, we note that the Entry of Judgment does not accurately reflect
the disposition of the specifications of the Charge. The Entry of Judgment
reflects that Appellant pleaded guilty, in Specification 2 of the Charge, to
Attempted Sexual Abuse of a Child under Article 80, UCMJ, when he
actually pleaded and was found guilty of Attempted Sexual Assault of a Child
under Article 80. The Statement of Trial Results accurately reflects this plea,
and we find no evidence of modification by 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. We find no prejudice in this
clerical error, and Appellant asserts none. In accordance with this Court’s
authority under Rule for Court-Martial 1111(c)(2), Manual for Courts-
Martial, United States (2019 ed.), we modify the Entry of Judgment to correct
this clerical error and direct that it be included in the record.
The findings and sentence as modified are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
2
United States v. Belk, NMCCA No. 201900294
Modified Entry of Judgment
UNITED STATES NMCCA NO. 201900294
v. ENTRY
OF
Jacob T. BELK JUDGMENT
Corporal (E-4)
U.S. Marine Corps As Modified on Appeal
Accused 25 June 2020
On 29 May and 10 July 2019, the Accused was tried at Marine Corps Base Camp
LeJeune, North Carolina, by a general court-martial consisting of a military judge
sitting alone. Military Judges Glenn Hines and Kyle Phillips presided.
FINDINGS
The following are the Accused’s pleas and the Court’s findings to all offenses the
convening authority referred to trial:
Charge: Violation of Article 80, Uniform Code of Military Justice,
10 U.S.C. § 880.
Plea: Guilty.
Finding: Guilty.
Specification 1: Attempted Sexual Abuse of a Child by Indecent
Communication on or about 26 June 2018.
Plea: Guilty.
Finding: Guilty.
Specification 2: Attempted Sexual Assault of a Child on or about
28 June 2018.
Plea: Guilty.
Finding: Guilty.
3
United States v. Belk, NMCCA No. 201900294
Modified Entry of Judgment
SENTENCE
On 10 July 2019, the military judge sentenced the Accused to the following (as
modified, if at all, during any post-trial action):
Reduction to pay grade E-1.
Confinement for 24 months.
A dishonorable discharge.
The convening authority suspended confinement in excess of 18 months.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
4