United States v. Russell

This opinion is subject to administrative correction before final disposition.
Before
KING, STEPHENS, and COGLEY,
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Wriley A. RUSSELL
Lance Corporal (E-3), U.S. Marine Corps
Appellant
No. 202000017
Decided: 30 April 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Wilbur Lee
Sentence adjudged 1 November 2019 by a special court-martial con-
vened at Marine Corps Base Camp Hawaii, Kaneohe Bay, consisting
of a military judge sitting alone. Sentence approved by the convening
authority: reduction to E-1, confinement for 90 days, forfeiture of
$1,100 per month for three 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. Russell, NMCCA No. 202000017
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 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 forfeiture portion of the sentence that was adjudged. The Entry of
Judgment shows that the forfeiture portion of the sentence was for “$1,000
per month for months.” The missing figure between the words “for” and
“months” presumably should contain a number specifying the number of
months the forfeitures would run. However, the Statement of Trial Results
accurately reflects the sentence announced by the Military Judge on the
record, which was that the forfeiture portion of the sentence was for $1,100
per month for three months. The convening authority took no action to
modify the adjudged sentence. We find no other 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
this Court’s authority under Rule for Courts-Martial 1111(c)(2), Manual for
Courts-Martial, United States (2019 ed.), 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 NMCCA NO. 202000017
v. ENTRY
OF
Wriley A. RUSSELL JUDGMENT
Lance Corporal (E-3)
U.S. Marine Corps As Modified on Appeal
Accused
30 April 2020
On 1 November 2019, the Accused was tried at Marine Corps Base Hawaii,
Kaneohe Bay, by a special court-martial, consisting of a military judge sitting alone.
Military Judge Wilbur Lee 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 81, Uniform Code of Military Justice,
10 U.S.C. § 881.
Plea: Not Guilty.
Finding: Withdrawn and dismissed.
Specification: Conspiracy to Use a Controlled Substance between on
or about 12 April 2019 and on or about 1 June 2019.
Plea: Not Guilty.
Finding: Withdrawn and dismissed.
Charge II: Violation of Article 112a, Uniform Code of Military Justice,
10 U.S.C. § 912a.
Plea: Guilty.
Finding: Guilty.
United States v. Russell, NMCCA No. 202000017
Modified Entry of Judgment
Specification 1: Wrongful Use of a Controlled Substance (Cocaine)
between on or about 9 March 2019 and on or about 12
March 2019.
Plea: Guilty.
Finding: Guilty.
Specification 2: Wrongful Use of a Controlled Substance (Cocaine)
between on or about 12 April 2019 and on or about 22
April 2019.
Plea: Guilty.
Finding: Guilty.
Specification 3: Wrongful Use of a Controlled Substance (Cocaine)
between on or about 29 May 2019 and on or about 3
June 2019.
Plea: Guilty.
Finding: Guilty.
Specification 4: Wrongful Use of a Controlled Substance (Cocaine)
between on or about 4 June 2019 and on or about 2
July 2019.
Plea: Guilty.
Finding: Guilty.
Specification 5: Wrongful Distribution of a Controlled Substance
(Cocaine) between on or about 27 May 2019 and on or
about 3 June 2019.
Plea: Not Guilty.
Finding: Withdrawn and Dismissed.
Charge III: Violation of Article 120, Uniform Code of Military Justice,
10 U.S.C. § 920.
Plea: Not Guilty.
Finding: Withdrawn and Dismissed.
Specification: Abusive Sexual Contact on or about 26 June 2019.
Plea: Not Guilty
Finding: Withdrawn and Dismissed.
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United States v. Russell, NMCCA No. 202000017
Modified Entry of Judgment
Charge IV: Violation of Article 134, Uniform Code of Military Justice,
10 U.S.C. § 934.
Plea: Guilty.
Finding: Guilty.
Specification 1: Indecent Conduct on or about 28 April 2019.
Plea: Not Guilty.
Finding: Withdrawn and Dismissed.
Specification 2: Drunk and Disorderly on or about 28 April 2019.
Plea: Guilty.
Finding: Guilty.
SENTENCE
On 1 November 2019, a military judge sentenced the Accused to the following:
Reduction to pay grade E-1.
Confinement:
For Specification 1 of Charge II: confinement for 90 days.
For Specification 2 of Charge II: confinement for 90 days;
For Specification 3 of Charge II: confinement for 90 days;
For Specification 4 of Charge II: confinement for 90 days;
For Specification 2 of Charge IV; confinement for 30 days.
The terms of confinement will run concurrently.
Forfeiture of $1,100 pay per month for three months.
A bad-conduct discharge.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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