United States v. Gonzalez ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
MONAHAN, STEPHENS, and DEERWESTER
Appellate Military Judges
_________________________
UNITED STATES
Appellee
Rodolfo M. GONZALEZ
Lance Corporal (E-3), U.S. Marine Corps
Appellant
No. 201900281
Decided: 2 March 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Glen R. Hines, Jr.
Sentence adjudged 13 June 2019 by a special court-martial convened
at Camp Lejeune, North Carolina, consisting of a military judge
sitting alone. Sentence in the Entry of Judgment: confinement for 180
days, reduction to E-1, and a bad-conduct discharge.
For Appellant:
Commander Daniel J. McCoy, JAGC, USN
For Appellee:
Major Kyle D. Meeder, USMC
Judge DEERWESTER delivered the opinion of the Court, in which
Chief Judge MONAHAN and Senior Judge STEPHENS joined.
_________________________
United States v. Gonzalez, NMCCA No. 201900281
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.
_________________________
DEERWESTER, Judge:
Appellant was convicted, pursuant to his pleas, of four specifications of
orders violations, in violation of Article 92, Uniform Code of Military Justice
[UCMJ]; one specification of use of a controlled substance in violation of
Article 112a, UCMJ; five specifications of assault consummated by a battery,
in violation of Article 128, UCMJ; and one specification each of communi-
cating a threat and obstruction of justice, in violation of Article 134, UCMJ,
10 U.S.C. §§ 892, 912a, 928, 934.
Appellant asserts three assignments of error: (1) the Court should disap-
prove guilty findings for five specifications for which there was no factual
inquiry and one specification for which the factual inquiry was inadequate;
(2) the Court should disapprove findings that are not recorded in the Entry of
Judgment; and (3) the Court should refuse to accept for appellate review a
record that is not certified by a detailed court reporter or verified by either of
the military judges who participated in the proceedings.
I. DISCUSSION
Appellant asserts that the military judge failed to conduct a proper provi-
dence inquiry for multiple specifications prior to finding him guilty. He
further asserts that the record as transcribed and certified was so poor as to
render appellate review impossible. Finally, he asserts that the Entry of
Judgment did not contain findings of several specifications to which he
pleaded guilty, which should result in this Court setting aside those
convictions not found in the entry of judgment.
The record of trial originally submitted to the Court for review contained
an incomplete, incorrect transcript of the proceedings. The transcribed
portions for approximately 41 minutes of the proceedings were missing,
including the providence inquiry for the majority of the specifications of
which Appellant was convicted. This error was not corrected at certification
by the military judge, nor addressed by either appellate defense counsel or
appellate government counsel, who both submitted extensive pleadings under
the assumption that the providence inquiry conducted by the military judge
was incomplete.
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United States v. Gonzalez, NMCCA No. 201900281
Opinion of the Court
The record of trial did, however, contain the entire audio recording, in-
cluding the entire providence inquiry for all charges and specifications to
which Appellant pleaded and was found guilty, as required under Rule for
Courts Martial [R.C.M.] 1112(b)(1).
The Court ordered the Government to provide a complete and correct
transcript pursuant to R.C.M. 1114(a)(1), as well as the entire Entry of
Judgment. Those documents were received by the Court on 24 November
2020. The Court granted appellate defense counsel an additional 30 days to
provide supplemental briefing, which he declined.
II. CONCLUSION
After careful consideration of Appellant’s assigned error, the record of
trial, and the parties’ submissions, we conclude the findings and sentence are
correct in law and fact and that no error materially prejudicial to Appellant’s
substantial rights occurred. UCMJ arts. 59, 66. Accordingly, the findings and
sentence are AFFIRMED.
Chief Judge MONAHAN and Senior Judge STEPHENS concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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