United States v. Devonish

• Court: Navy-Marine Corps Court of Criminal Appeals
• Decided: February 14, 2019
• Docket: 201800339
• Status: Published

Opinion

United States Navy–Marine Corps Court of Criminal Appeals _________________________

UNITED STATES Appellee

v.

Abisha A. DEVONISH Lance Corporal (E-3), U.S. Marine Corps Appellant

No. 201800339

Appeal from the United States Navy-Marine Corps Trial Judiciary Decided: 14 February 2019. Military Judge: Lieutenant Colonel Jeffrey V. Munoz, USMC Sentence adjudged 14 August 2018 by a Special court-martial con- vened at Marine Corps Air Station Miramar, California, consisting of a military judge sitting alone. Sentence approved by convening au- thority: reduction to E-1, confinement for 5 months, and a bad conduct discharge. For Appellant: Captain Scott F. Hallauer, 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). _________________________

Before FULTON, CRISFIELD, and ELLINGTON, Appellate Military Judges. United States v. Devonish, No. 201800339

PER CURIAM: After careful consideration of the record, submitted without assignment of error, we have determined that the approved findings and sentence are cor- rect in law and fact and that no error materially prejudicial to Appellant’s substantial rights occurred. Articles 59 and 66, UCMJ, 10 U.S.C. §§ 859, 866. However, we note that the court-martial order (CMO) does not accurately re- flect the findings as to Specification 2 of Charge III. Although we find no prejudice from a scrivener’s error in a footnote erroneously referring to Charge II, the appellant is entitled to have court-martial records that correct- ly reflect the content of his proceeding. United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998). Accordingly, the convening authority shall issue a supplemental CMO reflecting (in footnote **) that the appellant was found Guilty, except for the words “on divers occasions”, as excepted in Specification 2 of Charge III. The findings and sentence as approved by the convening authority are AFFIRMED.

FOR THE COURT:

RODGER A. DREW, JR. Clerk of Court