United States v. Andersen ( 2020 )

This opinion is subject to administrative correction before final disposition.
Before
CRISFIELD, HOLIFIELD, and LAWRENCE
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Mathew W. ANDERSEN
Private (E-1), U.S. Marine Corps
Appellant
No. 201900233
Decided: 30 October 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Roger E. Mattioli
Sentence adjudged 12 June 2019 by a special court-martial convened
at Marine Corps Base Quantico, Virginia, consisting of a military
judge sitting alone. Sentence in the Entry of Judgment: forfeiture of
$1120.60 per month for four months and a bad conduct discharge.
For Appellant:
Commander Mark Takla, JAGC, USN
For Appellee:
Lieutenant Kevin G. Edwards II, JAGC, USN
Lieutenant Joshua C. Fiveson, JAGC, USN
_________________________
30 October 2020: Administrative correction to add Appellee counsel.
United States v. Andersen, NMCCA No. 201900233
Opinion of the Court
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
PER CURIAM:
A military judge sitting as a special court-martial convicted Appellant,
pursuant to his pleas, of three specifications of larceny and one specification
of unlawful entry, in violation of Articles 121 and 134, Uniform Code of
Military Justice [UCMJ], 10 U.S.C. §§ 921, 934. Appellant asserts one
assignment of error: that the military judge erred when he failed to announce
forfeitures as an exact dollar amount per month. We agree.
“Unless a total forfeiture is adjudged, a sentence to forfeiture shall state
the exact amount in whole dollars to be forfeited each month and the number
of months the forfeitures will last.” Rule for Courts-Martial 1003(b)(2)
(emphasis added). Here, the military judge announced the forfeitures as
“$1120.60 per month for a period of four months” instead of expressing the
partial forfeitures as a whole dollar amount per month. The Entry of
Judgment repeats the forfeiture language as announced.
“The failure of the military judge to account for forfeitures in a dollar
amount is a clerical error with ‘no prejudicial impact on the accused,’ and it is
easily remedied.” United States v. Jewett, No. 200900167, 2009 CCA LEXIS
688, at *2 (N-M. Ct. Crim. App. 24 Sept. 2009) (unpublished op.) (quoting
United States v. Gilgallon, 2 C.M.R. 170, 172 (C.M.A. 1952)). Failure to use
whole dollars is no different, with the remedy being to reduce forfeitures
approved by the convening authority to a whole dollar amount per month.
Accordingly, the findings and only so much of the sentence approved
below as provides for forfeiture of $1,120.00 pay per month for four months
and a bad-conduct discharge are affirmed. All rights, privileges, and property
of which Appellant has been deprived by virtue of execution of forfeitures in
the Entry of Judgment which have not been affirmed will be restored. We
issue a corrected Entry of Judgment, in accordance with Rule for Courts-
Martial 1111(c)(2). After careful consideration of the record, we have
determined that the findings and sentence as modified are correct in law and
fact and that no error materially prejudicial to Appellant’s substantial rights
occurred. UCMJ arts. 59, 66.
2
United States v. Andersen, NMCCA No. 201900233
Opinion of the Court
The findings and sentence as modified are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
3
UNITED STATES NMCCA NO. 201900233
v. ENTRY
OF
Mathew W. ANDERSEN JUDGMENT
Private (E-1)
U.S. Marine Corps As Modified on Appeal
Accused
30 October 2020
On 12 June 2019, the Accused was tried at Marine Corps Base Quantico, Virgin-
ia, by a special court-martial, consisting of a military judge sitting alone. Military
Judge Roger E. Mattioli, 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 121, Uniform Code of Military Justice,
10 U.S.C. § 921.
Plea: Guilty.
Finding: Guilty.
Specification 1: Larceny between on or about 23 June 2018 and 21 July
2018.
Plea: Guilty.
Finding: Guilty.
Specification 2: Larceny between on or about 30 June 2018 and 26 July
2018.
Plea: Guilty.
Finding: Guilty.
30 October 2020: Administrative correction to add Appellee counsel.
United States v. Andersen, NMCCA No. 201900233
Modified Entry of Judgment
Specification 3: Larceny between on or about 8 August 2018 and 23
August 2018.
Plea: Guilty.
Finding: Guilty.
Charge II: Violation of Article 134, Uniform Code of Military Justice,
10 U.S.C. § 934.
Plea: Guilty.
Finding: Guilty.
Specification: Unlawful entry on or about 7 October 2018.
Plea: Guilty.
Finding: Guilty.
SENTENCE
On 12 June 2019, a military judge sentenced the Accused to the following: 1
Forfeiture of $1120.00 pay per month for four months.
A bad-conduct discharge.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
1 The military judge also sentenced the Accused to confinement for four months. Howev-
er, the convening authority disapproved all confinement in accordance with the plea
agreement.
2