United States v. Mathews

Before
HITESMAN, GASTON, and ATTANASIO
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Jonathan T. MATHEWS
Electronics Technician Third Class (E-4), U.S. Navy
Appellant
No. 201900297
Decided: 30 April 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Michael J. Luken
Sentence adjudged 2 July 2019 by a general court-martial convened at
Naval Station Norfolk, Virginia, consisting of a military judge sitting
alone. Sentence approved by the convening authority: confinement for
18 years and a dishonorable discharge. 1
For Appellant:
Commander Scott Stoebner, JAGC, USN
For Appellee:
Brian K. Keller, Esq.
1 The convening authority suspended confinement in excess of eight years pursu-
ant to a pretrial agreement. While the convening authority failed to explicitly
approve the adjudged mandatory dishonorable discharge, we find any such purported
action to be ultra vires and take corrective action below.
_________________________
This opinion does not serve as binding precedent under
NMCCA Rule of Appellate Procedure 30.2(a).
_________________________
PER CURIAM:
Appellant was convicted, pursuant to his pleas, of rape of a child, sexual
abuse of a child, and violation of a lawful general regulation, in violation of
Articles 120b and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920b,
134 (2012). Although the offense of rape of a child carries a mandatory
minimum sentence of dishonorable discharge, the convening authority failed
to explicitly approve the adjudged dishonorable discharge in taking action on
the case. 2 We find any suggestion in the CMO that the mandatory dishonora-
ble discharge was disapproved is ultra vires. We have held that in such cases
the ultra vires portion of the CA’s action is a legal nullity that we will
disregard. United States v. Kruse, 75 M.J. 971, 975 (N-M. Ct. Crim. App.
2016) (involving the purported disapproval of a bad-conduct discharge).
Accordingly, we approve the adjudged dishonorable discharge and order
corrective action below, as Appellant is entitled to have the error corrected so
as to accurately reflect the proceedings. See United States v. Crumpley, 49
M.J. 538, 539 (N-M. Ct. Crim. App. 1998).
After careful consideration of the record, submitted without assignment of
error, we have determined that the findings and sentence, as modified by this
Court, 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, 10 U.S.C. §§ 859, 866. The supplemental CMO will reflect
that the convening authority approved the dishonorable discharge.
The findings and sentence as modified and approved are AFFIRMED.
2 The Court-Martial Order [CMO] states, somewhat ambiguously, that “only so
much of the sentence as provides for confinement for a period of 18 years is approved
and with the exception of the dishonorable discharge, will be executed.” Commander,
Navy Region Mid-Atlantic, General Court-Martial Order No. 21-19, dated 22 October
2019, at 2.
2
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
3