United States v. Smetanka ( 2020 )

This opinion is subject to administrative correction before final disposition.
Before
HITESMAN, GASTON, and FOIL,
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Thomas J. SMETANKA
Hospitalman (E-3), U.S. Navy
Appellant
No. 201900252
Decided: 18 March 2020.
Appeal from the United States Navy-Marine Corps Trial Judiciary.
Military Judge: Hayes C. Larson
Sentence adjudged 10 May 2019 by a general court-martial convened
at Naval Station Norfolk, Virginia, consisting of a military judge sit-
ting alone. Sentence in the Entry of Judgment: reduction to E-1, con-
finement for 60 months, 1 and a dishonorable discharge.
For Appellant:
Lieutenant Commander Derek C. Hampton, JAGC, USN.
For Appellee:
Brian K. Keller, Esq.
1 In accordance with the pretrial agreement, the convening authority suspended
confinement in excess of 36 months.
United States v. Smetanka, NMCCA No. 201900252
_________________________
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 (UCMJ),
10 U.S.C. §§ 859, 866.
However, we note that the Entry of Judgment does not accurately reflect
the disposition of the charges. The Entry of Judgment omits that Appellant
pleaded and was found guilty of Specification 4 of Charge I, Attempted Sexu-
al Abuse of a Child Involving Indecent Conduct, on or about 21 September
2017. The Statement of Trial Results accurately reflects the guilty plea and
finding for this specification, and we find no evidence of modification by rea-
son 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 omission is a scrivener’s error and ultra vires. Alt-
hough we find no prejudice, Appellant is entitled to have court-martial rec-
ords 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
this Court’s authority under 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
2
UNITED STATES NMCCA NO. 201900252
v. ENTRY
OF
Thomas J. S M ET AN KA JUDGMENT
Hospitalman (E-3)
U.S. Navy As Modified on Appeal
Accused 18 March 2020
On 10 May 2019, the Accused was tried at Naval Station Norfolk, Virgin-
ia, by a general court-martial, consisting of a military judge sitting alone.
Military Judge Hayes C. Larson presided.
FINDINGS
The following are the Accused’s pleas and the Court’s findings to all of-
fenses the convening authority referred to trial:
Charge I: Violation of Article 80, Uniform Code of Military Justice,
10 U.S.C. § 880.
Plea: Guilty.
Finding: Guilty.
Specification 1: Attempted Sexual Assault of a Child on or about
21 September 2017.
Plea: Guilty.
Finding: Guilty.
Specification 2: Attempted Receipt of Child Pornography on or
about 21 September 2017.
Plea: Guilty.
Finding: Guilty.
United States v. Smetanka, NMCCA No. 201900252
Modified Entry of Judgment
Specification 3: Attempted Sexual Abuse of a Child Involving
Indecent Communication on or about 21
September 2017.
Plea: Guilty.
Finding: Guilty.
Specification 4: Attempted Sexual Abuse of a Child Involving
Indecent Conduct on or about 21 September
2017.
Plea: Guilty.
Finding: Guilty.
Charge II: Violation of Article 107, Uniform Code of Military
Justice, 10 U.S.C. § 907.
Plea: Guilty.
Finding: Guilty.
Specification: False Official Statement on or about 21
September 2017.
Plea: Guilty.
Finding: Guilty.
Charge III: Violation of Article 120, Uniform Code of Military
Justice, 10 U.S.C. § 920.
Plea: Guilty.
Finding: Guilty.
Specification 1: Sexual Assault on or about 16 March 2015.
Plea: Not Guilty.
Finding: Withdrawn and dismissed.
Specification 2: Sexual Assault on or about 16 March 2015.
Plea: Not Guilty.
Finding: Withdrawn and dismissed.
Specification 3: Abusive Sexual Contact on or about 16 March
2015.
Plea: Guilty.
Finding: Guilty.
4
United States v. Smetanka, NMCCA No. 201900252
Modified Entry of Judgment
SENTENCE
On 10 May 2019, a military judge sentenced the Accused to the following
sentence:
Reduction to pay grade E-1.
Confinement for 60 months.
A dishonorable discharge.
The convening authority suspended confinement in excess of 36 months for a
period of 12 months from 6 August 2019.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
5