This opinion is subject to administrative correction before final disposition.




                                    Before
                         TANG, STEPHENS, 1 and GEIS
                           Appellate Military Judges

                            _________________________

                              UNITED STATES
                                  Appellee

                                         v.

                         James E. STOGSDILL
                     Airman Apprentice (E-2), U.S. Navy
                                Appellant

                                 No. 201900203

                              Decided: 12 May 2020

     Appeal from the United States Navy-Marine Corps Trial Judiciary

                                  Military Judge:
                                Jonathan Stephens

 Sentence adjudged 3 April 2019 by a special court-martial convened at
 Naval Base San Diego, California, consisting of a military judge alone.
 Sentence in the Entry of Judgment: reduction to E-1, confinement for
 six months, and a bad-conduct discharge. 2

                              For Appellant:
                   Commander Robert D. Evans, JAGC, USN




 1   Judge Stephens is unrelated to the military trial judge.
 2   The pretrial agreement had no effect on the adjudged sentence.
               United States v. Stogsdill, NMCCA No. 201900203
                              Opinion of the Court

                                 For Appellee:
                       Major Kerry E. Friedewald, USMC
                   Lieutenant Joshua C. Fiveson, JAGC, USN

   Judge GEIS delivered the opinion of the Court, in which Senior Judge
   TANG and Judge STEPHENS joined.

                            _________________________

         This opinion does not serve as binding precedent, but
          may be cited as persuasive authority under NMCCA
                   Rule of Appellate Procedure 30.2.

                            _________________________

GEIS, Judge:
    A military judge sitting as a special court-martial convicted Appellant,
pursuant to his pleas, of one specification of violating a lawful general order
(hazing), three specifications of assault consummated by a battery, 3 one
specification of obstructing justice, and one specification of drunk and
disorderly conduct, in violation of Articles 92, 128, and 134, Uniform Code of
Miltiary Justice [UCMJ], 10 U.S.C. §§ 892, 928, 934 (2012).
    Appellant raises two Assignments of Error [AOEs] on appeal: (1) the rec-
ord of his court-martial is incomplete because the record of trial did not
include as attachments either the Article 32 report or the Article 34 pre-trial
advice of the staff judge advocate, if any was provided; and (2) the Entry of
Judgment [EOJ] is inaccurate.
   The first AOE is moot based upon the Government’s response and sup-
plementation of the record. We find merit in the second AOE and issue a
modified EOJ.




   3 After accepting Appellant’s guilty pleas, the military judge consolidated two of
what were originally four assault consummated by a battery specifications, leaving
three. Specifically, to avoid an unreasonable multiplication of charges, he merged
Additional Charge III and its sole specification with Charge II, Specification 1, then
dismissed Charge III and its sole specification.




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              United States v. Stogsdill, NMCCA No. 201900203
                             Opinion of the Court

                               I. BACKGROUND

    Pursuant to a pretrial agreement, Appellant pleaded guilty to the offenses
listed above. The underlying conduct giving rise to the charges and specifica-
tions involved Appellant’s assault of two shipmates on three different
occasions, one of which also involved his drunk and disorderly behavior; his
violation of a lawful general order of the Department of the Navy prohibiting
hazing, and his obstruction of justice by attempting to interfere with a law-
enforcement investigation into his conduct.
    After accepting Appellant’s guilty pleas, the military judge consolidated
two Article 128 specifications into one, dismissing the redundant specifica-
tion. The military judge found consolidation and dismissal warranted because
the two charges reflected Appellant’s single, continuing assaultive act upon
the same victim. This merger is not reflected in the EOJ as it should be.

                               II. DISCUSSION

A. Incomplete Record
   In his first AOE, Appellant asserts that the Article 32 report and Article
34 advice were not attached to the record of trial. “Whether a record of trial is
complete is a question of law we review de novo.” United States v. Henry, 53
M.J. 108, 110 (C.A.A.F. 2000).
   Article 32, UCMJ, 10 U.S.C. § 832, requires a preliminary hearing before
charges may be referred to a general court-martial. Article 34, UCMJ, 10
U.S.C. § 834, requires a convening authority to receive advice from a staff
judge advocate before referring charges to general court-martial.
    Appellant was convicted at a special court-martial, but his case was re-
ferred to that forum as part of a pretrial agreement after an Article 32
hearing was held. The charges were never referred to any other court-
martial. Although an Article 32 hearing occurred, and thus Appellant’s case
could have been referred to a general court-martial, Article 34 advice was
required only if the convening authority desired it. See Art. 34(a), UCMJ.
    Following Appellant’s submission of an appellate brief raising this AOE,
the Government moved to attach to the record of trial a copy of the Article 32
report along with a declaration from the trial counsel stating that no Article
34 advice was ever prepared. This Court granted the motion, and Appellant
neither challenged the authenticity of the Article 32 report nor the accuracy
of the declaration.
   The Article 32 report is not considered part of the record of trial under
Rule for Court-Martial 1112(b). However, if, as here, it was not used as an


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              United States v. Stogsdill, NMCCA No. 201900203
                             Opinion of the Court

exhibit at trial, it must be attached to the record under R.C.M. 1112(f)(1)(A)
and (B) in order to allow for appellate review. Thus, though the Article 32
report was not part of the record of trial proper, it should have been included
in the materials submitted to this Court to ensure appropriate appellate
review.
   By attaching the report, the Government corrected this error, rendering
any assertion of error in this regard moot. See United States v. Lynn, 50 M.J.
570, 574 (N.-M. Ct. Crim. App. 1999).
    As to the Article 34 advice, it was not possible for the Government to at-
tach a document that was never prepared. Nor was such advice required for
this special court-martial. Therefore, this AOE is without merit.

B. Inaccurate of Entry of Judgment
   Appellant also asserts that the Entry of Judgment incorrectly lists his
plea to Additional Charge III and its sole Specification, and the Government
agrees.
    Rule for Courts-Martial 1111 requires the military judge in a special or
general court-martial to place the judgment of the court into the record of
trial, and ensure this judgment “reflects the results of the court-martial . . . .”
R.C.M. 1111(a)(2).
    Appellant pleaded guilty to Additional Charge III and its Specification,
and the Statement of Trial Results accurately reflects this plea and its
dismissal following its consolidation with Charge II, Specification 1. Howev-
er, the Entry of Judgment erroneously states that Appellant pleaded not
guilty to Additional Charge III and its specification. Therefore, the Entry of
Judgment does not reflect the results of the court-martial.
    A service member “is entitled to have . . . official records correctly reflect
the results of [a court-martial] proceeding,” even if he suffers no prejudice
from the error. United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim.
App. 1998). Here, Appellant does not allege prejudice, and we find none, but
he is still entitled to have the record correctly reflect his plea. Id. We take
corrective action in our decretal paragraph.

                               III. CONCLUSION

    After careful consideration of the record, the briefs of appellate counsel,
and other post-trial submissions, we have determined that the findings and
sentence are correct in law and fact and that no error materially prejudicial
to Appellant’s substantial rights occurred. Arts. 59, 66, UCMJ. In accordance



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            United States v. Stogsdill, NMCCA No. 201900203
                           Opinion of the Court

with 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.
   Senior Judge TANG and Judge STEPHENS concur.


                             FOR THE COURT:




                             RODGER A. DREW, JR.
                             Clerk of Court




                                   5
UNITED STATES                                     NMCCA NO. 201900203

       v.                                                ENTRY
                                                          OF
James E. STOGSDILL                                     JUDGMENT
Airman Apprentice (E-2)
U.S. Navy                                          As Modified on Appeal

                     Accused
                                                         12 May 2020



   On 3 April 2019, the Accused was tried at Naval Base San Diego, California, by a
special court-martial, consisting of a military judge sitting alone. Military Judge
Jonathan Stephens 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 120, Uniform Code of Military Justice,
              10 U.S.C. § 920.
               Plea: Not Guilty.
               Finding: Dismissed.

   Specification 1: Rape on or about 24 July 2018.
                       Plea: Not Guilty.
                       Finding: Dismissed.

   Specification 2: Sexual Assault on or about 24 July 2018.
                       Plea: Not Guilty.
                       Finding: Dismissed.

   Specification 3: Abusive Sexual Contact on or about 24 July 2018.
                       Plea: Not Guilty.
                       Finding: Dismissed.
               United States v. Stogsdill, NMCCA No. 201900203
                         Modified Entry of Judgment

   Specification 4: Abusive Sexual Contact on or about 1 July 2018.
                     Plea: Not Guilty.
                     Finding: Dismissed.

Charge II:   Violation of Article 128, Uniform Code of Military Justice,
             10 U.S.C. § 928.
             Plea: Guilty.
             Finding: Guilty.

   Specification 1: Assault Consummated by Battery on or about
                    1 July 2018.
                     Plea: Guilty.
                     Finding: Guilty.

   Specification 2: Assault Consummated by Battery on or about
                    24 July 2018.
                     Plea: Guilty.
                     Finding: Guilty.

   Specification 3: Assault Consummated by Battery on or about
                    8 December 2018.
                     Plea: Guilty.
                     Finding: Guilty.

Charge III: Violation of Article 134, Uniform Code of Military Justice,
            10 U.S.C. § 934.
             Plea: Guilty.
             Finding: Guilty.

   Specification:    Obstructing Justice on divers occasions from on or
                     about 24 July 2018 to about August 2018.
                     Plea: Guilty.
                     Finding: Guilty.




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                  United States v. Stogsdill, NMCCA No. 201900203
                            Modified Entry of Judgment

Additional Charge I: Violation of Article 92, Uniform Code of Military
            Justice, 10 U.S.C. § 892.
                Plea: Guilty.
                Finding: Guilty.

   Specification:       Violation of a Lawful Order (Hazing) on divers
                        occasions from about June 2018 to about July 2018.
                        Plea: Guilty.
                        Finding: Guilty.

Additional Charge II: Violation of Article 120, Uniform Code of Military
            Justice, 10 U.S.C. § 920.
                Plea: Not Guilty.
                Finding: Dismissed.

   Specification: Abusive Sexual Contact on or about 1 July 2018.
                        Plea: Not Guilty.
                        Finding: Dismissed.

Additional Charge III: Violation of Article 128, Uniform Code of Military
            Justice, 10 U.S.C. § 928.
                Plea: Guilty.
                Finding: Dismissed. 1

   Specification:       Assault Consummated by a Battery on or about
                        1 July 2018.
                        Plea: Guilty.
                        Finding: Dismissed.

Additional Charge IV: Violation of Article 134, Uniform Code of Military
            Justice, 10 U.S.C. § 934.
                Plea: Guilty.
                Finding: Guilty.




   1  After findings, the military judge merged Additional Charge III and its Specification
into Charge II, Specification 1 and dismissed Charge II, Specification 1.




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                United States v. Stogsdill, NMCCA No. 201900203
                          Modified Entry of Judgment

   Specification:     Drunk and Disorderly Conduct on or about
                      8 December 2018.
                      Plea: Guilty.
                      Finding: Guilty.

                                  SENTENCE

   On 3 April 2019, a military judge sentenced the Accused to the following:
      Reduction to pay grade E-1.
      Confinement for 6 months.
      A bad-conduct discharge.
    The Accused served 112 days of pretrial confinement, to be deducted from the
adjudged sentence to confinement


                               FOR THE COURT:




                               RODGER A. DREW, JR.
                               Clerk of Court




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