United States v. Carmack ( 2020 )

This opinion is subject to administrative correction before final disposition.
Before
TANG, LAWRENCE, and COGLEY
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Clayton R. CARMACK
Lance Corporal (E-3), U.S. Marine Corps
Appellant
No. 202000016
Decided: 8 June 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Andrea C. Goode
Sentence adjudged 23 August 2019 by a special court-martial con-
vened at Marine Corps Base Camp Pendleton, California, consisting of
a military judge sitting alone. Sentence as reflected in the Entry of
Judgment: reduction to E-1, confinement for five months, and a bad-
conduct discharge.
For Appellant:
Captain Kimberly D. Hinson, 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).
United States v. Carmack, NMCCA No. 202000016
Opinion of the Court
_________________________
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, 66, Uniform Code of Military Justice [UCMJ], 10
U.S.C. §§ 859, 866 (2019).
However, we note that the Entry of Judgment does not accurately reflect
the sentence, in that it erroneously omitted the adjudged reduction in rank to
E-1, which was announced on the record and included in the Statement of
Trial Results. We find no evidence of modification by reason 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
discrepancy is a scrivener’s error and ultra vires. Although we find no
prejudice, 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). In accordance with 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
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United States v. Carmack, NMCCA No. 202000016
Modified Entry of Judgment
UNITED STATES NMCCA NO. 202000016
v. ENTRY
OF
Clayton R. CARMACK JUDGMENT
Lance Corporal (E-3)
U.S. Marine Corps As Modified on Appeal
Accused
8 June 2020
On 23 August 2019, the Accused was tried at Marine Corps Base Camp
Pendleton, California, by a special court-martial, consisting of a military judge
sitting alone. Military Judge Andrea C. Goode presided.
FINDINGS
The following are the Accused’s pleas and the Court’s findings to all offenses
the convening authority referred to trial:
Charge I: Violation of Article 128, Uniform Code of Military Justice,
10 U.S.C. § 928.
Plea: Guilty.
Finding: Guilty.
Specification 1: Assault Consummated by a Battery on or about
22 April 2018.
Plea: Guilty.
Finding: Guilty.
Specification 2: Simple Assault on or about 22 April 2018.
Plea: Not Guilty.
Finding: Dismissed.
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United States v. Carmack, NMCCA No. 202000016
Modified Entry of Judgment
Specification 3: Assault Consummated by a Battery on or about
22 April 2018.
Plea: Guilty By Exceptions and Substitutions.*
Finding: Guilty By Exceptions and Substitutions.*
* GUILTY, except for the words, “commit an assault on
E.M.L. by putting his hands on her neck and applying
pressure, with a means or force likely to produce death
or grievous bodily harm, to wit: by applying pressure to
her neck with his hands” substituting therefor the
words “unlawfully push E.M.L. on her neck with his
hand”; of the excepted words, NOT GUILTY, of the
substituted words, GUILTY, of the Specification as
excepted and substituted, GUILTY.
Specification 4: Aggravated Assault on or about 22 April 2018.
Plea: Not Guilty.
Finding: Dismissed.
Charge II: Violation of Article 134, Uniform Code of Military Justice,
10 U.S.C. § 934.
Plea: Not Guilty.
Finding: Dismissed.
Specification: Obstruction of Justice between on or about
22 April 2018 and 31 July 2018.
Plea: Not Guilty.
Finding: Dismissed.
SENTENCE
On 23 August 2019, the military judge sentenced the Accused to the follow-
ing:
Reduction to pay grade E-1.
Confinement for five months.
A bad-conduct discharge.
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United States v. Carmack, NMCCA No. 202000016
Modified Entry of Judgment
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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