This post examines a recent opinion from the U.S. Army Court of Criminal Appeals: U.S. v. Entzminger,
76 M.J. 518 (2017). The court begins the opinion by explaining that
[i]n this case, we
find appellant was improvident when he pleaded guilty to violating Article
120c, UCMJ, for indecent exposure when the
underlying offense was based on appellant electronically transmitting a
photograph of his penis to a victim. The staff judge advocate (SJA) provided
incorrect legal advice to the convening authority in the addendum to the staff
judge advocate's post-trial recommendation (SJAR) when he advised the convening
authority that no legal error occurred regarding appellant's conviction for
indecent exposure under Article
120c Uniform Code of Military Justice, 10 U.S.C. § 920c (2012) [hereinafter UCMJ] in light of United States v. Williams, 75 M.J.
663, 669 (Army Ct. Crim. App. 2016).
U.S. v. Entzminger,
supra.
The Court goes on to explain that
[a] military judge sitting as a general
court-martial convicted appellant,
pursuant to his pleas, of one specification of indecent exposure, one
specification of indecent language to a child under sixteen years of age, one
specification of indecent language, and two specifications of communicating a
threat, in violation of Articles 120c and 134, UCMJ. The
military judge sentenced appellant to a bad-conduct discharge and sixteen
months confinement. In accordance with the pretrial agreement, the convening
authority approved only so much of the sentence as provided for a bad-conduct
discharge and confinement for thirteen months.
We have reviewed this case pursuant
to Article 66, UCMJ. Appellant asserts two assignments of error, one of
which merits discussion and relief.
U.S. v. Entzminger,
supra.
The court goes on to explain how, and why, the prosecution
arose:
Appellant met
thirteen-year-old KT when they were both dependents at Camp Zama, Japan. At
that time, appellant was about twenty years old. Appellant became smitten with
KT and after they both left Japan, he sought a dating relationship with her. He
regularly called her, texted her, and communicated with her via various
computer messaging applications.
After leaving
Japan, appellant joined the Army and was stationed in Korea. He continued to
reach out to KT until she decided she no longer wished to continue their
association and `blocked' his various computer accounts. KT's attempts to stop all communication with appellant
were continuously foiled when he would simply open another account and reach
out to her again.
At some point,
appellant became aware KT had another boyfriend and became enraged. Appellant
then began a series of both indecent and intimidating messages to KT,
threatening to publically distribute nude photographs of KT that he somehow
came to possess. The string of threats and indecent remarks began the night
before KT's sixteenth birthday and continued into the next morning. Appellant
culminated his indecent and threatening barrage of messages by sending KT an
unsolicited picture of his penis through a computer messaging system, followed by the indecent message, `You can
suck my dick now.’
U.S. v. Entzminger,
supra.
The court went on to note that
Appellant pleaded
guilty, inter alia, to violating Article 120c, UCMJ, indecent
exposure, for transmitting a photograph of his penis via computer to KT.
U.S. v. Entzminger,
supra.
The court then began its analysis of the legal and factual
issues in the case, explaniing, initially, that
[w]e review a military judge's decision
to accept a guilty plea for an abuse of discretion. United States v. Schell,
72 M.J. 339, 345 (C.A.A.F. 20130 (citing United States v. Inabinette,
66 M.J. 320, 322 (C.A.A.F. 2008)). Although the standard for this case is `abuse
of discretion,’ when the law changes due to a case decided while an appellant's
case is on direct appeal, appellant is entitled to avail himself of the new
rule, even though the military judge did not err at the time. United
States v. Harcrow, 66 M.J. 154, 160 (C.A.A.F. 2008) (Ryan, J.
concurring). A guilty plea will only be set aside if we find a substantial
basis in law or fact to question the plea. Id. (citing (citing Inabinette,
66 M.J. at 322). The court applies this `substantial basis’ test by determining
whether the record raises a substantial question about the factual basis of
appellant's guilty plea or the law underpinning the plea. Inabinette,
66 M.J. at 322.
U.S. v. Entzminger,
supra.
The court went on to point out that
[w]hether Article 120c(c), UCMJ,
proscribes the appellant's electronic transmission of a photograph of his penis
is a de novo question of statutory interpretation.
After appellant's
court-martial but before the convening authority took action,
this court decided Williams, and considered whether Article
120c(c), UCMJ, applied to an appellant sending a still `digital image’ of his
penis via text message to a victim. We determined
it did not. We held the term `exposed’ under Article 120c(c), UCMJ, did
not encompass showing a person a photograph or digital image of one's genitalia
because there was no live display of actual genitalia. Finally, we
concluded Congress did not intend to criminalize an `exposure’ through
communication technology under Article 120c(c), UCMJ. In other words,
after trial this court definitively determined appellant's actions did not
constitute the offense of indecent exposure.
As in Williams, here the
record establishes no legally sufficient theory of how appellant committed
indecent exposure under Article 120c(c), UCMJ. Accordingly, there is a
substantial basis in law to question the providence of appellant's plea. The
government concedes the point.
U.S. v. Entzminger,
supra (emphases in the original).
The court went on to explain that
[c]ommendably, appellant's trial
defense counsel outlined the then week-old holding in Williams in
accurate and persuasive detail in appellant's Rule for Courts-Martial
[hereinafter R.C.M.] 1105 matters to the convening authority and
argued that the holding in Williams squarely applied to the
facts in appellant's case and thus rendered the indecent exposure conviction
legally insufficient. Indeed, the binding precedent established by that
case eliminated any argument to the contrary. Appellant requested disapproval
of the indecent exposure conviction and a reduction in his court-martial
sentence.
In the addendum to his recommendation,
the SJA provided the following advice to the convening authority:
`I have considered the defense
allegation of legal error regarding PVT Entzminger's conviction of indecent
exposure under 120c, based on US v. Williams, [75 M.J. 663] (ACCA,
30 March 2016). I disagree that this was legal error and, in my opinion, no
corrective action is necessary.’
While it is unclear why the SJA arrived
at his conclusion, it is certain his advice to the convening authority was
erroneous. The holding in Williams squarely establishes Article 120c, UCMJ, does not encompass showing a person a
photograph or digital image of one's genitalia.
U.S. v. Entzminger,
supra
The Court of Criminal Appeals went on to explain that,
[n]onetheless, we note that recent changes
to a convening authority's Article 60, UCMJ, power may place SJAs in an
unusual position. The SJA is required to opine on legal error in his or her
advice to the convening authority, see R.C.M. 1106, but the
convening authority may now be powerless to remedy the error.
As an initial matter, when applicable,
the SJA should advise the convening authority of the amendments to Article
60, UCMJ, implemented by the National Defense Authorization Act of 2014,
removing the convening authority's power to disapprove the findings or the
sentence in cases wherein the non-qualifying offense occurred after 24 June
2014 and explaining what power the convening authority does possess.3 Such
advice, either in writing in the SJAR or given verbally, reliably informs the
convening authority of her or his post-trial options.
In this case, appellant implored the
convening authority to disapprove the Article 120c offense and reduce his
sentence in his R.C.M. 1105 matters based on the noted legal error.
This remedy was outside the bounds of the CA's authority. If the SJA had
correctly noted the legal error to the convening authority, we see two possible
avenues he could have recommended at that point.
First, while the convening authority
had no power to disapprove a finding or reduce appellant's sentence, the SJA
could nonetheless recommend that the convening authority return the case to the
military judge pursuant to R.C.M. 1102(d) because this was a military
judge alone case. This action would have allowed the military judge to
consider the issue raised by appellant in his post-trial R.C.M. 1105 submission
and consider taking corrective action.
A second, less timely, method of
correction would have been to recommend that the convening authority approve
the findings and sentence as adjudged and note the error for the convening
authority—allowing this court to provide a remedy for error when one is
required. This option, which prevents correcting the error at the trial level,
at least provides accurate legal advice to the convening authority and
highlights the issue for appeal.
Which option the SJA recommends to the
convening authority will turn on many factors to include whether the
court-martial was judge alone or with a military panel and the gravity of the
error.
CONCLUSION
The findings of guilty of the
Specification of Charge II and Charge II are set aside and DISMISSED. The
remaining findings of guilty are AFFIRMED.
Applying the principles of United
States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986) and the factors set
forth in United States v. Winckelmann, 73 M.J. 11, 15–16 (C.A.A.F.
2013), we conclude that we can confidently reassess appellant's sentence
without returning this case for a sentence rehearing.
In evaluating the Winckelmann factors,
our decision does not result in a dramatic change in the penalty landscape as
appellant's maximum exposure to confinement is reduced by only one year. Id.
at 15-16. Because appellant was sentenced by a military judge as opposed to
members, we are more likely to be certain of how the military judge would have
sentenced appellant had he acquitted him of indecent exposure. Id. at
16. While the gravamen of the criminal conduct is reduced without the
specification dismissed by our decision today, we have the familiarity and
experience with the remaining offenses and can reliably determine what sentence
would have been imposed at trial. Id.
Furthermore, appellant received the benefit of his pretrial agreement, which
limited his possible confinement to thirteen months. Based on the entire record
and appellant's course of conduct, we can conclude the military judge
would have imposed a sentence of at least that which was adjudged.
Reassessing the sentence based on the
noted error and the entire record, we AFFIRM the approved sentence. All rights,
privileges, and property, of which appellant has been deprived by virtue of
that portion of the findings set aside by this decision are ordered restored.
Judge HERRING and Judge PENLAND concur.
U.S. v. Entzminger,
supra
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