United States v. Sergeant GARY S. KING ( 2015 )

                            TOZZI, CAMPANELLA, and CELTNIEKS
                                   Appellate Military Judges
                               UNITED STATES, Appellee
                                Sergeant GARY S. KING
                              United States Army, Appellant
                                       ARMY 20130808
                                   Headquarters, I Corps
                        Stefan Wolfe, Military Judge (arraignment)
                      David L. Conn, Military Judge (motions & trial)
                      Colonel William R. Martin, Staff Judge Advocate
    For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Aaron R.
    Inkenbrandt, JA; Captain Ryan T. Yoder, JA (on brief); Colonel Jonathan F. Potter,
    JA; Major Christopher D. Coleman, JA; Captain Ryan T. Yoder, JA (reply brief).
    For Appellee: Colonel Mark H. Sydenham, JA; Major A.G. Courie III, JA; Major
    John K. Choike, JA; Captain Robyn M. Chatwood, JA (on brief).
                                          31 July 2015
                                   SUMMARY DISPOSITION
    Per Curiam:
           A military judge sitting as a general court-martial convicted appellant,
    pursuant to his pleas, of two specifications of possessing digital images of child
    pornography, and two specifications of wrongfully possessing digital images of a
    sexual nature depicting a minor or minors (child erotica), in violation of Article 134
    Uniform Code of Military Justice, 10 U.S.C. § 934 (2006) [hereinafter UCMJ]. The
    military judge sentenced appellant to a bad-conduct discharge, confinement for
    twelve months, and reduction to the grade of E-1. The convening authority reduced
    the sentence to confinement by four months, approving eight months of confinement,
    but otherwise approved the adjudged sentence. Appellant was credited with eight
    days of confinement credit against the sentence.
          Appellant’s case is before this court for review under Article 66, UCMJ.
    Appellate counsel assigned one error to this court, and appellant personally raised
    KING—ARMY 201300808
    matters pursuant to United States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982). The
    assigned error warrants discussion and relief. The matters raised pursuant to
    Grostefon are without merit.
           In his assigned error, appellant alleges the military judge abused his
    discretion in accepting a guilty plea to Specifications 3 and 4 of The Charge when
    the military judge failed to distinguish between constitutionally protected and
    prohibited conduct, and failed to resolve the inconsistencies in the providence
           “A military judge’s acceptance of an accused’s guilty plea is reviewed for an
    abuse of discretion. The test for an abuse of discretion is whether the record shows
    a substantial basis in law or fact for questioning the plea.” United States v. Schell,
    72 M.J. 339
    , 345 (C.A.A.F. 2013)(citing United States v. Inabinette, 
    66 M.J. 320
    322 (C.A.A.F. 2008)).
           While this is a close case, we agree with appellant’s assertion that the military
    judge failed to adequately distinguish between constitutionally protected and
    prohibited conduct. “[W]here an Article 134 charge implicates constitutionally
    protected conduct, the heightened plea inquiry requirements of Hartman apply: the
    colloquy ‘must contain an appropriate discussion and acknowledgement on the part
    of the accused of the critical distinction between permissible and prohibited
    behavior.’” United States v. Moon, 
    73 M.J. 382
    , 388 (C.A.A.F. 2014)(citing United
    States v. Hartman, 
    69 M.J. 467
    , 468 (C.A.A.F. 2011). “Without a proper
    explanation and understanding of the constitutional implications of the charge,
    [a]ppellant's admissions in his stipulation and during the colloquy regarding why he
    personally believed his conduct was service discrediting and prejudicial to good
    order and discipline do not satisfy Hartman.” Moon, 73 M.J. at 389. Although the
    military judge discussed the difference between child pornography and child erotica
    with appellant, and gleaned from appellant the images in Specifications 3 and 4 were
    not sexually explicit and that he downloaded the images for his own sexual
    gratification, the military judge did not clearly articulate the critical distinction
    between permissible and prohibited behavior from the constitutional standpoint.
    Although the military judge did define “digital images of a sexual nature” used in
    Specifications 3 and 4 to include “any sexual image of a minor with no serious
    literary, artistic, political, or scientific or educational value,” he did not clearly
    discuss the constitutional protections afforded by the First Amendment and how
    those constitutional protections could apply to the images in Specifications 3 and 4
    of The Charge.
          In light of the above, and our superior court’s recent decision in Moon
    regarding child erotica, we set aside the findings of guilty for Specifications 3 and 4
    of The Charge and dismiss those specifications.
    KING—ARMY 201300808
           Given the error noted above, and applying the factors in United States v.
    Winckelmann, we are confident, considering the remaining specifications, we can
    reassess appellant’s sentence. 
    73 M.J. 11
    , 15-16 (C.A.A.F. 2013). Appellant
    remains convicted of two specifications of possession of child pornography in
    violation of Article 134 UCMJ. Specifications 3 and 4 carry a maximum period of
    confinement of four months each, while the maximum confinement in this case was
    twenty years and eight months. Thus, neither the penalty landscape nor the
    admissible aggravation evidence has significantly changed. Id.
           Appellant also elected trial by judge alone, and we “are more likely to be
    certain of what a military judge would have done as opposed to members.”
    Wincklemann, 73 M.J. at 16. Finally, this court reviews the records of a substantial
    number of courts-martial involving child pornography and we have extensive
    experience and familiarity with the level of sentences imposed for such offenses
    under various circumstances. Id. We are confident the military judge would have
    adjudged the same sentence absent the error noted. However, because the convening
    authority approved four months less confinement than the military judge adjudged,
    we affirm that lesser sentence. See UCMJ art. 66(c) (“[A] Court of Criminal
    Appeals may act only with respect to the findings and sentence as approved by the
    convening authority”).
           The findings of guilty for Specifications 3 and 4 of The Charge are set aside
    and dismissed. The remaining findings of guilty are AFFIRMED. Reassessing the
    sentence on the basis of the error noted, the entire record, and in accordance with the
    principles of Winckelmann, we affirm the approved sentence.
                                          MALCOLM H. SQUIRES, JR.
                                           MALCOLM H. SQUIRES, JR.
                                          Clerk of Court
                                           Clerk of Court

Document Info

DocketNumber: ARMY 20130808

Filed Date: 7/31/2015

Precedential Status: Non-Precedential

Modified Date: 8/11/2015