United States v. Hopper

• Court: Navy-Marine Corps Court of Criminal Appeals
• Decided: April 30, 2020
• Docket: 201900335
• Status: Published

Opinion

This opinion is subject to administrative correction before final disposition.

Before TANG, LAWRENCE, and GERRITY Appellate Military Judges

_________________________

UNITED STATES Appellee

v.

Gerald A. HOPPER Staff Sergeant (E-6), U.S. Marine Corps Appellant

No. 201900335

Decided: 30 April 2020

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judges: Keaton H. Harrell (arraignment) K. Scott Woodard (trial)

Sentence adjudged 16 August 2019 by a general court-martial con- vened at Marine Corps Base Camp Lejeune, North Carolina, consist- ing of a military judge sitting alone. Sentence in the Entry of Judg- ment: reduction to E-1, confinement for 18 months, and a bad-conduct discharge. 1

For Appellant: Lieutenant Commander W. Scott Stoebner, JAGC, USN

1 The Convening Authority suspended confinement in excess of 9 months for 12 months from the date of the Convening Authority’s Action pursuant to a pretrial agreement. United States v. Hopper, NMCCA No. 201900335 Opinion of the Court

For Appellee: Brian K. Keller, Esq.

This opinion does not serve as binding precedent under NMCCA Rule of Appellate Procedure 30.2(a).

PER CURIAM: After careful consideration of the record, submitted without assignment of error, we have determined that the approved findings and sentence are correct in law and fact and that no error materially prejudicial to Appellant’s substantial rights occurred. Articles 59, 66, Uniform Code of Military Justice, 10 U.S.C. §§ 859, 866. However, we note that the Entry of Judgment is incomplete, as Block 34 (Sentence adjudged, accounting for any modifications by reason of any post- trial action by the convening authority) only lists the adjudged sentence and does not address the suspension of all confinement over 9 months for a period of 12 months from the date of the Convening Authority’s Action. However, this suspension was reflected in Block 28 of the Post-Trial Action (Convening Authority’s Action) and Block 35 of the Entry of Judgment (Deferment of Waiver and Forfeitures). Although we find no prejudice from this error, 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), 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

2 United States v. Hopper, NMCCA No. 201900335 Modified Entry of Judgment

UNITED STATES NMCCA NO. 201900335

v. ENTRY OF Gerald A. HOPPER JUDGMENT Staff Sergeant (E-6) U.S. Marine Corps As Modified on Appeal Accused 30 April 2020

On 31 May 2019 and 16 August 2019, the Accused was tried at Marine Corps Base Camp Lejeune, North Carolina, by a general court-martial, consisting of a military judge sitting alone. Military Judges Keaton H. Harrell and K. Scott Woodard, presided.

FINDINGS

The following are the Accused’s pleas and the Court’s findings to all offenses the convening authority referred to trial:

Charge: Violation of Article 80, Uniform Code of Military Justice, 10 U.S.C. § 880. Plea: Guilty. Finding: Guilty.

Specification: Attempted Sexual Abuse of a Child by Indecent Communication between on or about 26 June 2018 and on or about 3 July 2018. Plea: Guilty, except for certain words. Finding: Guilty of the Specification as excepted; the excepted words were withdrawn and dismissed without prejudice, to ripen into prejudice upon completion of appellate review.

1 United States v. Hopper, NMCCA No. 201900335 Modified Entry of Judgment

SENTENCE

On 16 August 2019, a military judge sentenced the Accused to the following: Reduction to pay grade E-1. Confinement for 18 months. A bad-conduct discharge. The convening authority suspended confinement in excess of 9 months for a peri- od of 12 months from 26 November 2019.