26 July 2007, Navy-Marine Corps Court of Criminal Appeals released U.S. v. Bossheart, No. 200602420, unpublished op. (N.M.Ct.Crim.App. 26 Jul 2007). GCM, military judge alone, guilty pleas to Arts 80 and 8 specs of 112a drug offenses. Sentence: 3 years, E-1, BCD. CAX approved but per PTA suspended all confinement in excess of 2 years 6 months from 12 months from date of CAX. Appellant claimed MJ’s failure to announce findings to one of the 8 specifications of 112a drug offenses prejudiced him. Appellant cited US v. Diaz, 40 MJ 335 (CMA 1994), where CMA reversed and dismissed NMCCA’s opinion in part where CA had approved findings per the SJAR, (1) where the SJAR had omitted findings of 2 of the charges, and (2) there was no evidence the CA considered the record of trial when taking action.
Court held: Statutory right of announcement of findings indeed is a statutory right of an accused, but not all errors are prejudicial. NMCCA said it followed the Army in US v. Perkins, 56 MJ 825 (Army Ct.Crim.App. 2001) where MJ misspoke during findings but the CAX was upheld, because it was “clear . . . The military judge misspoke” and equally clear “the intent of the military judge.” Here, NMCCA found several factors that indicated as in Perkins a scrivener’s error in the ROT preparation or mere MJ misstatement: (1) App signed a stip of fact detailing the misconduct charged in the omitted spec; (2) App pled guilty to that spec as part of the PTA and further elaborated his guilt of that offense in a detailed providence inquiry; (3) At conclusion of the providence inquiry and the discussion regarding Part I of the pretrial agreement, MJ accepted App’s pleas finding “that [the appellant’s] pleas are made voluntarily and with a factual basis.” ALSO note (4) that SJAR correctly referred to the plea and finding of guilty in Spec 4, and (5) that TDC’s response to SJAR does not raise MJ’s omission as error. Because all of this NMCCA upheld, finding App demonstrated no prejudice, and hence omission was harmless beyond a reasonable doubt.