UNITED STATES v. BOOKER (2023)

PUBLISHED OPINION OF THE COURT

Appellant was convicted, pursuant to his pleas, of one specification of simple assault and one specification of assault consummated by a battery, in violation of Article 128, Uniform Code of Military Justice [UCMJ],² for unlawfully touching the trousers of Private Golf and for attempting to touch the lips of Lance Corporal Mike.³

In his sole assignment of error, Appellant asserts that the military judge erred when he included in the Entry of Judgment non-referred charges and specifications, as well as language to which Appellant pleaded not guilty. The Government concedes error regarding the inclusion of charges and specifications that were not referred to court-martial, but argues that the language that was referred and later withdrawn and dismissed was properly included in the Entry of Judgment. We agree with the Government's position. Although we find no prejudice, Appellant is entitled to have court-martial records that correctly reflect the content of his proceeding.⁴ In accordance with Rule for Courts-Martial [R.C.M.] 1111(c)(2), we modify the Entry of Judgment and direct that it be included in the record.

I. BACKGROUND

On 30 March 2022, the Government preferred five charges against Appellant. The convening authority then appointed a preliminary hearing officer under Article 32, UCMJ, to conduct a preliminary hearing and determine whether the charges were supported by probable cause.⁵ The preliminary hearing officer found no probable cause to support Specifications 1 and 2 of Charge I and Specification 2 of Charge II. After the preliminary hearing officer submitted her report, the Government preferred an additional charge on 27 May 2022. Appellant waived his right to a preliminary hearing regarding the Additional Charge.⁶

On 17 June 2022, the convening authority dismissed the specifications for which the preliminary hearing officer found no probable cause.⁷ On 21 June 2022, the convening authority referred the charges and remaining specifications to a general court-martial. The next day, all parties signed a plea agreement under which Appellant would plead guilty to Charge IV and its sole specification by exceptions and substitution and to the Additional Charge and its sole specification as referred. In return, the convening authority agreed to conditionally withdraw and dismiss the charges, specifications, and language to which Appellant pleaded not guilty.

Before arraignment, the military judge described an R.C.M. 802 conference he held with both counsel. During the conference the parties agreed that, because some of the specifications were dismissed prior to referral, the remaining specifications would be renumbered.⁸ They also agreed to make pen and ink changes to the sole specification of Charge IV, obviating the need for Appellant to plead guilty by exceptions and substitution.⁹ These changes were made to the charge sheet by lining through the language to which Appellant pleaded not guilty and adding language to which he pleaded guilty, accompanied by both counsel's initials and the date. There was no annotation regarding dismissal or withdrawal of the lined-through language.

Appellant then pleaded guilty to the sole specification of Charge IV and the sole specification of the Additional Charge and not guilty to the remaining charges. Upon the military judge accepting Appellant's pleas, the Government withdrew from the court-martial the charges and specifications to which Appellant pleaded not guilty and conditionally dismissed them. The military judge sentenced Appellant to reduction in grade to E-1, confinement for 104 days (equal to Appellant's time in pretrial confinement), and a bad-conduct discharge.

The Entry of Judgment, signed by the military judge on 7 August 2022, includes among the charges and specifications disposed of at the court-martial the three specifications that were dismissed by the convening authority prior to referral. Also, despite being renumbered at trial, the various specifications are listed with their original numbering. Finally, the military judge included in his summary of the plea and finding regarding the specification under Charge II a note that the words “pulling down” and “by unlawfully touching the buttocks of Private [Golf] with his hands” were “withdrawn and dismissed prior to the entry of pleas.”¹⁰

II. DISCUSSION

A. Original Specifications 1 and 2 of Charge I and Specification 2 of Charge II were never before the Court.

Rule for Courts-Martial 1111(b) requires that an entry of judgment include, for each charge referred to court-martial, a summary of each charge and specification, the plea of the accused, and the disposition of each charge, as well as the sentence awarded. The Rule's other provisions regarding what must be included in the entry of judgment refer to sentence-related matters, with one exception: it must include “[a]ny additional information the Secretary concerned may require by regulation.”¹¹ To date, the Secretary of the Navy has not required any additional information beyond what is already mandated by R.C.M. 1111.¹²

Here, the specifications dismissed prior to referral were: (a) determined by the preliminary hearing officer to be unsupported by probable cause; (b) recommended for dismissal by Appellant's commanding officer when forwarding the charges and specifications for disposition; (c) not included among those recommended for referral by the convening authority's staff judge advocate; and, (d) not referred to trial by the convening authority. Including these accusations in the Entry of Judgment when they were neither part of the court-martial proceedings nor required to be included by law or regulation was error. We address this error in our decretal paragraph.

B. The lined-through language in the sole specification under Charge IV was referred to trial.

The military judge properly included the language of Charge IV's specification that was dismissed post-referral, but pre-arraignment. The lined-through language was before the court. In fact, it appears from the record that the penand-ink changes were made at the military judge's suggestion during an R.C.M. 802 conference. We find both the lined-through and added language in that specification were reasonably included pursuant to R.C.M. 1111(b)’s requirement that the entry of judgment include, for each charge referred to court-martial, a summary of each charge and specification, the pleas of the accused, and the disposition of each charge. While “summary” is not defined in the Rule, we consider such pen-and-ink changes to a specification's language to support a complete description of the court-martial's result. Accordingly, we find it was not error to include the altered language to Charge IV’ specification in the Entry of Judgment.

III. CONCLUSION

Appellant is entitled to have court-martial records that correctly reflect the content of his proceeding.¹³ We hold that this includes the absence in the Entry of Judgment of accusations not part of those proceedings. In accordance with R.C.M. 1111(c)(2), we modify the Entry of Judgment and direct that it be included in the record. After careful consideration of the record and briefs of appellate counsel, we have determined that the findings and sentence as reflected in the modified Entry of Judgment are correct in law and fact and that no error materially prejudicial to Appellant's substantial rights occurred.¹⁴ The findings and sentence are AFFIRMED.

FOR THE COURT:

MARK K. JAMISON Clerk of Court

United States Navy-Marine Corps

Court of Criminal Appeals

UNITED STATES

v.

Terance A. BOOKER Private First Class (E-2), U.S. Marine Corps Accused

NMCCA NO. 202200182

ENTRY OF JUDGMENT

As Modified on Appeal

28 February 2022

On 23 June 2022, the Accused was tried at Marine Corps Base Quantico, Virginia, by a general court-martial consisting of a military judge alone. Military Judge Michael D. Zimmerman 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 80, Uniform Code of Military Justice, 10 U.S.C. § 880.

Plea: Not Guilty.

Finding: Dismissed.

Specification: Attempted abusive sexual contact of Lance Corporal T.M. between on or about 21 June 2021 and 1 October 2021.

Plea: Not Guilty.

Finding: Dismissed.

Charge II: Violation of Article 120c, Uniform Code of Military Justice, 10 U.S.C. § 920c.

Plea: Not Guilty.

Finding: Dismissed.

Specification: Indecent Exposure between on or about 21 June 2021 and on or about 1 October 2021.

Plea: Not Guilty.

Finding: Dismissed.

Charge III: Violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920.

Plea: Not Guilty.

Finding: Dismissed.

Specification: Abusive sexual contact on Private R.G. on or about 22 November 2021.

Plea: Not Guilty.

Finding: Dismissed.

Charge IV: Violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928.

Plea: Guilty.

Finding: Guilty.

Specification: Assault consummated by a battery upon Private R.G. on or about 22 November 2021.

Plea: Guilty.

Finding: Guilty.

Charge V: Violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934.

Plea: Not Guilty.

Finding: Dismissed.

Specification: Sexual harassment of Private First Class N.J. on or about 18 February 2022.

Plea: Not Guilty.

Finding: Dismissed.

Additional Violation of Article 128, Uniform Code of Military Justice, Charge: 10 U.S.C. § 928.

Plea: Guilty.

Finding: Guilty.

Specification: Simple assault of Lance Corporal T.M. between on or about 21 June 2021 and on or about 1 October 2021.

Plea: Guilty.

Finding: Guilty.

SENTENCE

On 23 June 2022, a military judge sentenced the Accused to the following (as modified, if at all, during any post-trial action):

Reduction to pay grade E-1.

For the Sole Specification of Charge IV: confinement for 104 days.

For the Sole Specification of Additional Charge: confinement for 104 days.

The terms of confinement will run concurrently.

Confinement for a total of 104 days.

A bad-conduct discharge.

The Accused has served 104 days pretrial confinement and shall be credited with 104 days of confinement already served, to be deducted from the adjudged sentence to confinement.

FOR THE COURT:

MARK K. JAMISON Clerk of Court

FOOTNOTES

2.   10 U.S.C. § 928.

3.   All names in this opinion, other than those of Appellant, the judges, and counsel, are pseudonyms.

4.   United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998).

5.   10 U.S.C. § 832.

6.   R. at 10-12.

7.   We note that, although the pen and ink amendments to the Charge Sheet regarding these specifications indicate that they were “withdrawn and dismissed,” they had not yet been referred to court-martial. While we infer the convening authority's intention simply to dismiss the relevant charges, we stress the importance of judge advocates understanding the significance of the referral process and the correct use of these terms.

8.   R. at 4.

9.   Id. The specific acts alleged in the specification were that Appellant committed assault “(a) by unlawfully pulling down the trousers of Private [Golf]; and (b) by unlawfully touching the buttocks of Private [Golf] with his hands.” Trial counsel lined through the words “pulling down” and replaced them with “touching,” and lined through the word “and” and everything following it.

10.   Entry of Judgment at 4.

11.   R.C.M. 1111(b)(3)(F).

12.   See Dep't of the Navy, Judge Advocate General of the Navy Instr. 5800.7G CH-1, Manual of the Judge Advocate General para 0156.b (Feb. 14, 2022).

13.   Crumpley, 49 M.J. at 539.

14.   Articles 59 & 66, Uniform Code of Military Justice, 10 U.S.C. §§ 859, 866.

HOLIFIELD, Chief Judge: