Before KISOR, BURGTORF, and MIZER Appellate Military Judges
_________________________
UNITED STATES Appellee
v.
Dylan S. HITCHCOCK Lance Corporal (E-3), U.S. Marine Corps Appellant
No. 202300080
Decided: 30 April 2024
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges: Melanie M. Mann (arraignment) Eric A. Catto (trial)
Sentence adjudged 6 December 2022 by a general court-martial convened at Joint Base Pearl Harbor-Hickam, Hawaii, consisting of a military judge sitting alone. Sentence in the Entry of Judgment: reduction to E-1, confinement for 39 months, forfeiture of all pay and allowances, and a dishonorable discharge. 1
For Appellant: Lieutenant Commander Megan P. Marinos, JAGC, USN
For Appellee: Lieutenant Rachel E. Noveroske, JAGC, USN
1 The military judge credited Appellant with 209 days of administrative confinement credit
based on an Article 13, UCMJ, violation. 10 U.S.C. § 813. United States v. Hitchcock, NMCCA No. 202300080 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: Appellant was convicted, consistent with his pleas, of: two specifications of at- tempted sexual abuse of a child; one specification of distribution of child pornography; and one specification of receipt, possession, and viewing of child pornography, in vio- lation of Articles 80 and 134, Uniform Code of Military Justice. 2 Appellant submits two assignments of error: (1) the military judge erred in certi- fying the Entry of Judgment, which failed to summarize the charges, specifications, sentence, and pretrial confinement; and (2) the Statement of Trial Results did not accurately reflect the plea agreement. We order corrective action in our decretal par- agraph, to ensure Appellant’s record of trial is correct and accurately reflects the pro- ceedings. We otherwise find no prejudicial error and affirm the findings and sentence.
I. BACKGROUND
Appellant entered into a plea agreement with the convening authority. He agreed to plead guilty to the above charges and specifications, with exceptions and substitu- tions for dates in the child pornography specifications. The convening authority agreed to dismiss the remaining twenty-seven specifications, including two additional charges, without prejudice, to ripen into prejudice upon completion of our review. After accepting Appellant’s pleas and adjourning the court-martial, the military judge omitted from the Statement of Trial Results that the plea agreement permitted adjudged forfeitures. 3 The military judge also neglected to include in the Entry of Judgement: (1) that Appellant’s pleas included exceptions and substitutions for dates,
2 10 U.S.C. §§ 880, 934.
3 Both Parties agree that the Statement of Trial Results in block 24 is inaccurate in that
adjudged forfeiture of pay and allowances was an authorized punishment negotiated pursuant to the plea agreement. App. Ex. II at 19. We agree. We are skeptical, however, that we have the authority to correct an erroneous Statement of Trial Results without remanding the case back to the military judge to correct. In this case, remand is unnecessary because the scrive- ner’s error is minor, we find no prejudice to Appellant, and Appellant alleges no prejudice from
2 United States v. Hitchcock, NMCCA No. 202300080 Opinion of the Court
related to the child pornography specifications; (2) that the charges to which Appellant pleaded not guilty were withdrawn, without prejudice, to ripen into prejudice upon completion of our review; (3) the sentence adjudged, by specification; (4) whether the sentences would be served consecutively, or concurrently; and (5) pretrial confinement credit awarded. Appellant made no post-trial motion to correct either the Statement of Trial Results or the Entry of Judgment. 4
II. DISCUSSION
Whether a record of trial is accurate and complete is a question of law that we review de novo. 5 Appellants are entitled to have their official records accurately reflect what happened in their proceedings. 6 The Parties agree that error occurred and that we can correct these errors, pursuant to United States v. Crumpley. 7
III. CONCLUSION
The Statement of Trial Results and Entry of Judgment are inaccurate for the rea- sons stated above. In accordance with Rule for Courts-Martial 1111(c)(2), we modify the Entry of Judgment, and direct that it be included in the record. After careful consideration of the record, we have otherwise determined that the findings and sentence are correct in law and fact, and that no error materially preju- dicial to Appellant’s substantial rights occurred. 8 The findings and sentence are AF- FIRMED.
FOR THE COURT:
MARK K. JAMISON Clerk of Court
it. Inasmuch as the Entry of Judgment is the official document that terminates the proceed- ings, R.C.M. 1111(a)(2), we modify the Entry of Judgment. R.C.M. 1111(c)(2). 4 R.C.M. 1104(b)(2)(C).
5 United States v. Crumpley, 49 M.J. 538 (N-M. Ct. Crim. App. 1998).
6 Id. at 539.
7 Id. at 538.
8 Articles 59 & 66, UCMJ, 10 U.S.C. §§ 859, 866.
3 UNITED STATES NMCCA NO. 202300080
v. ENTRY OF Dylan S. HITCHCOCK JUDGMENT Lance Corporal (E-3) U.S. Marine Corps As Modified on Appeal Accused 30 April 2024
On 6 December 2022, the Accused was tried at Joint Base Pearl Harbor-Hickam, Hawaii, by general court-martial consisting of a military judge sitting alone. Military Judge Eric A. Catto, presided.
FINDINGS
The following are the Accused’s pleas and the Court’s finding 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: Guilty. Finding: Guilty
Additional Specification 1: Attempted Sexual Abuse of a Child Involving Indecent Communication between on or about 25 February 2021 and on or about 11 May 2022. Plea: Guilty Finding: Guilty
Additional Specification 2: Attempted Sexual Abuse of a Child Involving Indecent Exposure between on or about 25 February 2021 and on or about 11 May 2022. United States v. Hitchcock, NMCCA No. 202300080 Modified Entry of Judgment
Plea: Guilty Finding: Guilty
Specification 1: Attempted Sexual Abuse of a Child Involving Indecent Communication between on or about 15 February 2022 and on or about 23 February 2022. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 2: Attempted Sexual Abuse of a Child Involving Indecent Communication on or about 11 August 2021. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 3: Attempted Sexual Abuse of a Child Involving Indecent Exposure on or about 11 August 2021. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 4: Attempted Sexual Abuse of a Child Involving Indecent Communication between on or about 30 July 2021 and on or about 31 July 2021. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
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Before KISOR, BURGTORF, and MIZER Appellate Military Judges
_________________________
UNITED STATES Appellee
v.
Dylan S. HITCHCOCK Lance Corporal (E-3), U.S. Marine Corps Appellant
No. 202300080
Decided: 30 April 2024
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges: Melanie M. Mann (arraignment) Eric A. Catto (trial)
Sentence adjudged 6 December 2022 by a general court-martial convened at Joint Base Pearl Harbor-Hickam, Hawaii, consisting of a military judge sitting alone. Sentence in the Entry of Judgment: reduction to E-1, confinement for 39 months, forfeiture of all pay and allowances, and a dishonorable discharge. 1
For Appellant: Lieutenant Commander Megan P. Marinos, JAGC, USN
For Appellee: Lieutenant Rachel E. Noveroske, JAGC, USN
1 The military judge credited Appellant with 209 days of administrative confinement credit
based on an Article 13, UCMJ, violation. 10 U.S.C. § 813. United States v. Hitchcock, NMCCA No. 202300080 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: Appellant was convicted, consistent with his pleas, of: two specifications of at- tempted sexual abuse of a child; one specification of distribution of child pornography; and one specification of receipt, possession, and viewing of child pornography, in vio- lation of Articles 80 and 134, Uniform Code of Military Justice. 2 Appellant submits two assignments of error: (1) the military judge erred in certi- fying the Entry of Judgment, which failed to summarize the charges, specifications, sentence, and pretrial confinement; and (2) the Statement of Trial Results did not accurately reflect the plea agreement. We order corrective action in our decretal par- agraph, to ensure Appellant’s record of trial is correct and accurately reflects the pro- ceedings. We otherwise find no prejudicial error and affirm the findings and sentence.
I. BACKGROUND
Appellant entered into a plea agreement with the convening authority. He agreed to plead guilty to the above charges and specifications, with exceptions and substitu- tions for dates in the child pornography specifications. The convening authority agreed to dismiss the remaining twenty-seven specifications, including two additional charges, without prejudice, to ripen into prejudice upon completion of our review. After accepting Appellant’s pleas and adjourning the court-martial, the military judge omitted from the Statement of Trial Results that the plea agreement permitted adjudged forfeitures. 3 The military judge also neglected to include in the Entry of Judgement: (1) that Appellant’s pleas included exceptions and substitutions for dates,
2 10 U.S.C. §§ 880, 934.
3 Both Parties agree that the Statement of Trial Results in block 24 is inaccurate in that
adjudged forfeiture of pay and allowances was an authorized punishment negotiated pursuant to the plea agreement. App. Ex. II at 19. We agree. We are skeptical, however, that we have the authority to correct an erroneous Statement of Trial Results without remanding the case back to the military judge to correct. In this case, remand is unnecessary because the scrive- ner’s error is minor, we find no prejudice to Appellant, and Appellant alleges no prejudice from
2 United States v. Hitchcock, NMCCA No. 202300080 Opinion of the Court
related to the child pornography specifications; (2) that the charges to which Appellant pleaded not guilty were withdrawn, without prejudice, to ripen into prejudice upon completion of our review; (3) the sentence adjudged, by specification; (4) whether the sentences would be served consecutively, or concurrently; and (5) pretrial confinement credit awarded. Appellant made no post-trial motion to correct either the Statement of Trial Results or the Entry of Judgment. 4
II. DISCUSSION
Whether a record of trial is accurate and complete is a question of law that we review de novo. 5 Appellants are entitled to have their official records accurately reflect what happened in their proceedings. 6 The Parties agree that error occurred and that we can correct these errors, pursuant to United States v. Crumpley. 7
III. CONCLUSION
The Statement of Trial Results and Entry of Judgment are inaccurate for the rea- sons stated above. In accordance with Rule for Courts-Martial 1111(c)(2), we modify the Entry of Judgment, and direct that it be included in the record. After careful consideration of the record, we have otherwise determined that the findings and sentence are correct in law and fact, and that no error materially preju- dicial to Appellant’s substantial rights occurred. 8 The findings and sentence are AF- FIRMED.
FOR THE COURT:
MARK K. JAMISON Clerk of Court
it. Inasmuch as the Entry of Judgment is the official document that terminates the proceed- ings, R.C.M. 1111(a)(2), we modify the Entry of Judgment. R.C.M. 1111(c)(2). 4 R.C.M. 1104(b)(2)(C).
5 United States v. Crumpley, 49 M.J. 538 (N-M. Ct. Crim. App. 1998).
6 Id. at 539.
7 Id. at 538.
8 Articles 59 & 66, UCMJ, 10 U.S.C. §§ 859, 866.
3 UNITED STATES NMCCA NO. 202300080
v. ENTRY OF Dylan S. HITCHCOCK JUDGMENT Lance Corporal (E-3) U.S. Marine Corps As Modified on Appeal Accused 30 April 2024
On 6 December 2022, the Accused was tried at Joint Base Pearl Harbor-Hickam, Hawaii, by general court-martial consisting of a military judge sitting alone. Military Judge Eric A. Catto, presided.
FINDINGS
The following are the Accused’s pleas and the Court’s finding 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: Guilty. Finding: Guilty
Additional Specification 1: Attempted Sexual Abuse of a Child Involving Indecent Communication between on or about 25 February 2021 and on or about 11 May 2022. Plea: Guilty Finding: Guilty
Additional Specification 2: Attempted Sexual Abuse of a Child Involving Indecent Exposure between on or about 25 February 2021 and on or about 11 May 2022. United States v. Hitchcock, NMCCA No. 202300080 Modified Entry of Judgment
Plea: Guilty Finding: Guilty
Specification 1: Attempted Sexual Abuse of a Child Involving Indecent Communication between on or about 15 February 2022 and on or about 23 February 2022. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 2: Attempted Sexual Abuse of a Child Involving Indecent Communication on or about 11 August 2021. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 3: Attempted Sexual Abuse of a Child Involving Indecent Exposure on or about 11 August 2021. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 4: Attempted Sexual Abuse of a Child Involving Indecent Communication between on or about 30 July 2021 and on or about 31 July 2021. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 5: Attempted Sexual Abuse of a Child Involving Indecent Communication between on or about 15 August 2021 and on or about 17 August 2021. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 6: Attempted Sexual Abuse of a Child Involving Indecent Exposure on or about 16 August 2021. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
2 United States v. Hitchcock, NMCCA No. 202300080 Modified Entry of Judgment
Specification 7: Attempted Sexual Abuse of a Child Involving Indecent Conduct on or about 28 August 2021. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 8: Attempted Sexual Abuse of a Child Involving Indecent Exposure on or about 2 September 2021. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 9: Attempted Sexual Abuse of a Child Involving Indecent Exposure on or about October 2021. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 10: Attempted Sexual Abuse of a Child Involving Indecent Exposure on or about 6 December 2021. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Charge II: Violation of Article 82, Uniform Code of Military Justice, 10 U.S.C. § 882. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 1: Solicitation to Produce and Distribute Child Pornography between on or about August 2021 and on or about 28 August 2022. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 2: Solicitation to Sexually Abuse a Child on or about 12 November 2021. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
3 United States v. Hitchcock, NMCCA No. 202300080 Modified Entry of Judgment
Specification 3: Solicitation to Produce and Distribute Child Pornography on or about 5 August 2021. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Charge III: Violation of Article 120b, Uniform Code of Military Justice, 10 U.S.C. § 920b. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 1: Sexual Abuse of a Child Involving Indecent Communication between on or about March 2022 and about May 2022. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 2: Sexual Abuse of a Child Involving Indecent Exposure between on or about March 2022 and about May 2022. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Charge IV: Violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. Plea: Guilty. Finding: Guilty
Specification 1: Distribution of Child Pornography between on or about August 2021 and on or about May 2022. Plea: Guilty, except for the words “August 2021” and substituting the words “25 February 2021.” Finding: Guilty, as excepted and substituted.
Specification 2: Receipt, Possession, and Viewing of Child Pornography between on or about August 2021 and on or about May 2022. Plea: Guilty, except for the words “August 2021” and substituting the words “25 February 2021.” Finding: Guilty, as excepted and substituted.
4 United States v. Hitchcock, NMCCA No. 202300080 Modified Entry of Judgment
Specification 3: Indecent Language between on or about 30 June 2021 and on about 20 August 2021. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 4: Indecent Language between on or about 30 July 2021 and on or about 25 September 2021. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 5: Indecent Language between on or about 19 August 2021 and on or about 10 June 2022. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 6: Indecent Language between on or about 12 October 2021 and on or about 19 April 2022. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 7: Indecent Language between on or about 5 November 2021 and on or about 23 November 2021. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 8: Indecent Language between on or about 16 October 2021 and on or about 18 November 2021. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 9: Indecent Language between on or about 29 November 2021 and on or about 7 December 2021. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
5 United States v. Hitchcock, NMCCA No. 202300080 Modified Entry of Judgment
Specification 10: Indecent Language between on or about 22 October 2021 and on or about 16 November 2021. Plea: Not Guilty Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
SENTENCE
On 6 December 2022, the Military Judge sentenced the Accused to the following: Reduction to pay grade E-1. Confinement for a total of 39 months, as follows: For Additional Specification 1 of Charge I: confinement for 39 months. For Additional Specification 2 of Charge I: confinement for 39 months. For Specification 1 of Charge IV: confinement for 20 months. For the Specification 2 of Charge IV: confinement for 20 months. The terms of confinement will run concurrently. The Accused shall be credited with 209 days of administrative confinement credit, to be deducted from the adjudged sentence to confinement. Forfeiture of all pay and allowances. A dishonorable discharge.