## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA, HERRING, and PENLAND Appellate Military Judges

UNITED STATES, Appellee

v. Specialist DAKOTA A. BRAGAN

United States Army, Appellant

ARMY 20160124

Headquarters, 82nd Airborne Division Richard J. Henry, Military Judge

Lieutenant Colonel Susan K. Mc Connell, Staff Judge Advocate

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA ; Major Andres Vazquez, Jr., JA; Lieutenant Colonel Christopher Daniel Carrier, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie, III, JA; Captain Tara O’Brien Goble, JA; Capt ain Jonathan S. Rein er, JA (on brief).

15 March 2017

---------------------------------- MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

CAMPANELLA, Senior Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of indecent ex posure, possessing child pornography, receiving child pornography, viewin g child porn ography, and communi cating indecent language, in violation of Ar ticles 120c and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920c, 934 (201 2) [hereinafter UCMJ]. The convening authority approved the adjudged sentence of a bad- conduct discharge, co nfinement for ninety days, and reduction to the grade of E-1.

This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant raises two assignments of erro r. Both warrant di scussion and one me rits relief. We

also find the matte rs raised by appe llant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982) to be meritless.BRAGAN—ARMY 20160124

2 BACKGROUND

Appellant pleaded guilty to indecent exposure by ta king photographs of his erect penis and sending them to a pair of sixteen-year-old high school cheerleaders.

During the plea inquiry, the military ju dge went through each element of the

offense of indecent e xposure and reviewed the basis for the charge–namely, that appellant had intentionally exposed his genitalia in an indecent manner between 1 January 2014 and 30 November 2014.

Appellant admitted he took photographs of his penis and sent them to others, knowing the pictures were indecent. He further ex pounded upon the indecency element of the charge in th at he photographed his penis next to a wa ter bottle to

illustrate its size–and then sent the photographs via soci al media to persons under the age of 18.

Although appellant did not mention it during the providence inquiry, appellant also sent videos of himself unclothed, masturbating, and ejaculating to the same two underage girls on different occasions during the same timeframe as the charged indecent exposure. The two girls reciprocat ed by sending appellant similar videos of

themselves unclothed and masturbating. Ap pellant admits this information to be true through the stipulation of fact.

LAW AND DISCUSSION

Appellant now argues the mi litary judge abused his discretion by accepting appellant’s guilty plea for indecent exposure in light of United States v. Williams , 75 M.J. 663 (Army Ct. Crim. App. 2016).

The government urges th is court to distinguish this case from Williams and affirm the indecent exposure charge argui ng that because appella nt sent videos, not just still photographs, this case falls ou tside the holding in Williams

.

Standard of Review

We 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. 2013) (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 chan ges 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 substan tial basis in la w or fact to question the plea. Id . (citing Inabinette , 66 M.J. at 322). The cour t applies this “substantialBRAGAN—ARMY 20160124

3 basis” test by determining wh ether the record raises a su bstantial questi on about the factual basis of ap pellant’s guilty plea or the law underpinning the plea. Inabinette

, 66 M.J. at 322.

Whether Article 120c(c), UCMJ, pros cribes the appellant’s electronic transmission of a photograph of his penis is a de novo question of statutory interpretation. United States v. Entzminger , __ M.J. __, 2017 CC A LEXIS 20, at *4 (Army Ct. Crim. App. 11 Jan. 2017); Williams , 75 M.J. at 665.

Acceptance of Plea to Indecent Exposure

After appellant’s cour t-martial, but before the convening authority took action, this court decided United States v. Williams , 75 M.J. 663 (Army Ct. Crim. App. 2016) and considered wh ether Article 120c(c), UCMJ, applied to an appellant sending a still “digital image” of his pe nis via text message to a victim. We

determined it did not. We held the term “exposed” under Article 120c(c), UCMJ, did not encompass show ing a person a photograp h or digital image of one’s genitalia

because there was no live display of actual genitalia

. Id . at 667. Finally, we concluded Congress did no t intend to criminalize an “exposure” through communication technology under Article 120c(c), UCMJ. Id . at 669.

In other words, after appellant’s trial, this court definitively determined appellant’s actions of dig itally sending a photograph of his exposed erect penis to another person did not constitute the o ffense of indecent ex posure. We find appellant’s plea and the provid ence inquiry to be on all four s with this conclusion.

The government argues that “although appellant did not mention it during the providence inquiry, he also sent videos of himself unclothed, masturbating, and ejaculating to both of those young girls on different occasions during the same time frame.” Accordingly, the government asse rts that appellant’s actions went beyond the appellant’s actions in Williams , citing United States v. Ferguson , 68 M.J. 431 (C.A.A.F. 2013), a pre- Williams case.

This argument falls flat. There was no indication during the plea inquiry that the basis for the indecent exposure charge was connected to appellant transmitting

videos of himself masturbating and ejaculating. The government inv ites this court to flout the providence inquiry and inappropri ately incorporate by reference the videorelated information from the stipulation of fact. The law does not pe rmit us to do

so.

Even if we were to ignor e the providence inquiry and assume incorp oration by reference of the information in the stipul ation of fact, the go vernment’s argument still comes to naught . The upshot of Williams was that there was no live display of actual genitalia in the electroni c transmission. Also see

, United States v.BRAGAN—ARMY 20160124

4 Uriostegui , 75 M.J. 857, 864-65 (N .M. Ct. Crim. App. 2016) (“We agree with the holding in Williams that this conduct is not indecent exposure under Article 120c(c), UCMJ, because indecent exposure has ‘a te mporal and physical pr esence aspect . . . [and] violations occur when a victim [may be] present to view the actual body parts listed in the statutes, not images or likeness es of the listed parts.’”). While transmitting a previo usly recorded video is factuall y different, as the government asserts, it is without legal distinction under these facts.

As in Williams , here the record establishes no legally sufficient theory of how appellant committed indecent exposure under Ar ticle 120c(c), UCMJ. As such, we

hold there is a subs tantial basis in law to question the providence of appellant’s plea and will take appropriate ac tion in our decret al paragraph and se t aside and dismiss Charge I.

Post-Trial Delay

It took 106 days after action for the government to get appellant’s record of

trial to our court. The government explains this dela y as a mailroom issue related to the record being “returned to sender withou t notice to the local office.” We do not find this explanation reasonable. It is incumbent up on the government to track and

account for mailed records of trial. That said, here, a ppellant has not demonstrated prejudice or a due process violation. See United States v. Moreno , 63 M.J. 129 (C.A.A.F. 2006). Add itionally, considering the facts and circumst ances of this case, the approved sentence, and post-trial dela y, we find the approved sentence not inappropriately severe. As such, we award no relief. UCMJ, art. 66(c). While we grant appellant no re lief on this issue, we, nonetheless, invi te the government’s attention to Army Reg. 27-26, Legal Serv ices: Rule for Profes sional Conduct for Lawyers, Appx. B, R.1.1 (C ompetence), R.1.3 (D iligence) (1 May 1992) (“A lawyer

shall act with reasonable d iligence and promptness in representing a client and in every case.”).

Reassessment

In determining whether we can reassess the sentence, we apply several nonexhaustive factors from United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013). First, appellant faced a maximum punishment of a dish onorable discharge, thirty-one years and six months confinement, total forfeiture of pay and allowances, and reduction to E-1 prior to the reversal of his conviction for indecent exposure. Appellant still faces a maxi mum punishment of a dishono rable discharge, thirty years and six months confinement, total forfeiture of pay and allowances, and

reduction to E-1. This does not constitute a dr amatic change in the penalty landscape. Second, appellant was sentenced by a mi litary judge and we are more likely to be certain of what a military judge would have done. Third, appellant’s criminal conduct remains sign ificant: he is convicted of three child pornographyBRAGAN—ARMY 20160124

5 offenses and one specificatio n of indecent language. Fo urth, we have familiarity and experience with the re maining offenses to reliabl y determine what sentence would have been imposed at trial. After we ighing these factors, we are confident we

can reassess the sent ence in this case.

CONCLUSION

On consideration of the entire reco rd, the findings of guilty of the Specification of Charge I an d Charge I are set aside and dismissed. The remaining findings of guilty are AFFIRMED.

Reassessing the sentence on the basis of the errors note d, the entire record, and in accordance with the principles of Winckelmann , 73 M.J. at 15-16, we affirm the sentence as adjudged. All rights, pr ivileges, and propert y, of which appellant has been deprived by virtue of that portion of his sentence set aside by this decision,

are ordered restored. See UCMJ arts. 58b(c) and 75(a).

Judge HERRING and Ju dge PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: