SMITH – ARMY 20091065

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

CONN, HOFFMAN, and GIFFORD

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Specialist BRANDON J. SMITH**

**United States Army, Appellant**

ARMY 20091065

Headquarters, XVIII Airborne Corps and Fort Bragg

Gary J. Brockington, Military Judge

Colonel Thomas E. Ayers Staff Judge Advocate

For Appellant:  Captain Shay Stanford, JA; Captain Sarah E. Wolf, JA (on brief).

For Appellee:  Major Christopher B. Burgess, JA (on brief).

1 September 2010

-----------------------------------------

SUMMARY DISPOSITION

-----------------------------------------

GIFFORD, Judge:

Upon review of the case before us under Article 66, Uniform Code of Military Justice [hereinafter UCMJ], we find appellant's guilty plea to the Specification of Charge II improvident.  In the Specification of Charge II, appellant was charged with violating a lawful general order, in violation of Article 92, UCMJ.  The military judge failed to elicit a sufficient factual basis to show that appellant wrongfully possessed adult pornography and, in turn, establish a sufficient factual basis to demonstrate he violated a lawful general regulation.  We take appropriate action in our decretal paragraph below.  The remaining findings of guilty and sentence are affirmed.  

Before this court rejects a guilty plea, the record of trial must show a "substantial basis" in law and fact for questioning the plea.  *United States v. Prater*, 32 M.J. 433, 436 (C.M.A. 1991).  A military judge may not accept a plea of guilty without accurately informing appellant of the nature of his offense and determining that there is a factual basis for the plea.  *United States v. Care*, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969); Rule for Courts-Martial [hereinafter R.C.M.] 910(e).  A providence inquiry must establish the factual circumstances admitted by the accused objectively support his guilty plea.  *United States v. Garcia*, 44 M.J. 496, 497-98 (C.A.A.F. 1996) (citations omitted); R.C.M. 910(e).

In the Specification of Charge II, appellant was charged with and pled guilty to violating Headquarters, Central Command General Order Number 1B [hereinafter CENTCOM GO 1B] by possessing adult pornography.  At trial, the military judge advised appellant of the elements of Article 92, UCMJ.  In relevant part, the military judge advised appellant that the third element of the offense was that "on or about 28 January 2008, at or near Forward Operating Base Farah, Afghanistan, APO AE 09354, you violated [CENTCOM GO 1B] by wrongfully possessing adult pornography."  The military judge did not define adult pornography.  

During the providence inquiry for the Specification of Charge II, appellant acknowledged he possessed "adult pornography."  Appellant did not, however, even minimally identify or otherwise elaborate on how the material he possessed depicted "adult pornography."  Similarly, the stipulation of fact appellant entered into pursuant to a pretrial agreement did not describe why the material which appellant possessed, which was described as "adult pornography," actually constituted "adult pornography."  Although appellant appeared satisfied he possessed "adult pornography,” no facts were elicited to establish why the material was, in fact, "adult pornography."  As a result, the facts were insufficient to establish appellant's guilt for violating CENTCOM GO 1B.  

We have reviewed the matters personally raised under *United States v. Grostefon*, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit. 

The findings of guilty of Charge II and its Specification are set aside.  The remaining findings of guilty are affirmed.  Reassessing the sentence on the basis of the error noted and the entire record, and applying the principles of *United States v. Sales*, 22 M.J. 305 (C.M.A. 1986) and *United States v. Moffeit*, 63 M.J. 40, 43 (C.A.A.F. 2006), including the factors identified in Judge Baker’s concurring opinion, the sentence is affirmed.

Senior Judge CONN and Judge HOFFMAN concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

� While the military judge inquired of appellant whether he was aware of the results of a forensic analysis of his computer which revealed thousands of "adult pornography" images—to which appellant responded in the affirmative—that report was not included as evidence.  Because the contents of that report are unknown, we will not speculate whether its inclusion at trial—in conjunction with all the other evidence—may have ultimately satisfied the requirement for a sufficient factual basis for appellant's guilty plea.  

PAGE  

3