United States v. Ayalacruz ( 2020 )


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  • This opinion is subject to administrative correction before final disposition.
    Before
    CRISFIELD, HOLIFIELD, and ATTANASIO,
    Appellate Military Judges
    _________________________
    UNITED STATES
    Appellee
    v.
    Felix AYALACRUZ
    Sergeant (E-5), U.S. Marine Corps
    Appellant
    No. 201800193
    Decided: 5 October 2020
    Appeal from the United States Navy-Marine Corps Trial Judiciary
    upon further review
    Military Judge:
    Eugene H. Robinson, Jr.
    Sentence adjudged 2 March 2018 by a special court-martial convened
    at Camp Foster, Okinawa, Japan, consisting of officer members. Sen-
    tence approved by the convening authority: no punishment.
    For Appellant:
    Lieutenant Gregory Hargis, JAGC, USN
    For Appellee:
    Lieutenant Commander Jeffrey S. Marden, JAGC, USN;
    Major Clayton L. Wiggins, U.S. Marine Corps
    _________________________
    This opinion does not serve as binding precedent under
    NMCCA Rule of Appellate Procedure 30.2(a).
    United States v. Ayalacruz, No. 201800193
    Opinion of the Court
    _________________________
    PER CURIAM:
    In our initial review of Appellant’s court-martial pursuant to Article 66,
    Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 866 (2012), we set
    aside and dismissed with prejudice the findings of guilty to Charge II and its
    sole specification. United States v. Ayalacruz, 
    79 M.J. 747
    (N-M. Ct. Crim.
    App. 2020). We found that the remaining findings were correct in law and
    fact. We set aside the sentence and remanded the record of trial to the con-
    vening authority with authorization to order a rehearing on sentence or to
    approve a sentence of no punishment. We also directed the convening author-
    ity to correct his convening authority’s action to indicate that Appellant was
    arraigned on four charges and specifications and that the original Charge II
    was withdrawn and dismissed and the remaining charges were renumbered.
    We called on the convening authority to correctly reflect the findings to all
    charges and specifications including that renumbered Charge II and its Spec-
    ification were dismissed with prejudice.
    The convening authority chose to not order a rehearing and simply ap-
    proved a sentence of no punishment. Unfortunately, he failed once again to
    accurately document the charges and specifications on which Appellant was
    arraigned as is required by Rule for Courts-Martial 1114(c)(1).
    We reiterate that Appellant is entited to accurate court-martial records.
    United States v. Crumpley, 
    49 M.J. 538
    , 539 (N-M. Ct. Crim. App. 1998);
    
    Ayalacruz, 79 M.J. at 755
    . To that end, the supplemental promulgating order
    shall indicate that the Appellant was arraigned on four charges and specifica-
    tions; that the original Charge II and its sole specification, alleging a viola-
    tion of Art. 107, UCMJ, were withdrawn and dismissed; and that the original
    Charges III and IV were renumbered as Charges II and III, respectively. It
    shall also reflect that renumbered Charge II and its specification were set
    aside on appeal and dismissed with prejudice.
    We have determined that the findings and sentence are now correct in
    law and fact and that no error materially prejudicial to Appellant’s substan-
    tial rights occurred. UCMJ arts 59, 66. The findings and sentence are there-
    fore AFFIRMED.
    2
    United States v. Ayalacruz, No. 201800193
    Opinion of the Court
    FOR THE COURT:
    RODGER A. DREW, JR.
    Clerk of Court
    3
    

Document Info

Docket Number: 201800193

Filed Date: 10/5/2020

Precedential Status: Precedential

Modified Date: 10/6/2020