## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before HAIGHT, PENLAND, and ALMANZA 1 Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant GILBERTO A. RODRIGUEZ United States Army, Appellant

ARMY 20140380

Headquarters, United States Army South Patricia Lewis, Military Judge

Lieutenant Colonel Daniel P. Saumur, Staff Judge Advocate

For Appellant: Major Andres Vazquez, Jr., JA; Lieutenant Colo nel Charles C. Choi,

JA.

For Appellee: Major A. G. Courie III, JA.

28 September 2015

---------------------------------- SUMMARY DISPOSITION

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PENLAND, Judge:

A military judge sitting as a general court-martial convicted appellant, consistent with his pleas, of sexual assault of a child, sexual abus e of a child, assault consummated by a battery, and solicitation, in violation of Ar ticles 120b, 128, and

134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 920b, 928, and 934 (2012) [hereinafter UCMJ]. The milit ary judge sentenced appellant to a dishonorable discharge, ei ght years of confin ement, forfeiture of all pay and allowances, and reduction to th e grade of E-1. Pu rsuant to a pretrial agreement, the convening authority approved only so much of the se ntence as provided for a dishonorable discharge, five years of confinement, forfeitu re of all pay and allowances, and reductio n to the grade of E-1. 2

1 Judge ALMANZA took final action in this case while on active duty.

2 The action and promulgating or der do not reflect that ap pellant was awarded ninety days of confinement credit. Accordingly, to the extent appellant has not already received this credit, appell ant shall be credited with ninety days of confinement

credit.RODRIGUEZ – ARMY 20140380

2 Appellant’s case is now before this court pursuan t to Article 66, UCMJ. Appellant submitted a me rits pleading, personally raisi ng several matters pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982). Th ey lack merit. However, we have identified two issues warranting brief discussion and relief.

Solicitation – Prov idence Inquiry

Appellant entered a plea of guilty to Specification 3 of Additional Charge VI, in which he was charged with soliciting a civilia n police officer (D C) to wrongfully

receive stolen militar y property. The milita ry judge explained th e elements of the offense, including that “at the time [DC] received the property he knew that it was

stolen . . . .” This advice was correct, b ecause for a solicitation conviction to stand, the “solicitor’s request [must] be such that the solicitee know that the act requested of him is part of a criminal venture.” United States v. Higgins , 40 M.J. 67, 68 (C.M.A. 1994) (citing United States v. Oakley , 7 U.S.C.M.A. 733, 735, 23 C.M.R. 197, 199 (1957)).

Regarding this specification, appellant explained to the military judge that he responded to an advertisement for a motorc ycle by offering to trade night vision goggles. Appellant told the military judge he did not actu ally own any su ch goggles; instead, he inte nded to unlawfully pr ocure them from an Ar my source if DC was willing to exchange. The mi litary judge did not ask and appellant did not indicate whether he shared his criminal plan with DC, nor did appellan t otherwise tell the military judge that DC knew appellant sought his participation in a criminal scheme. We acknowledge that the evidence to wh ich appellant stipul ated included his

confirmation to DC that the goggles were “military grade” and his message, “let me

know wat u need i have alot of army stuff.” We also recognize the pr obative nature

of these communications. However, this evidence does not supplant the requirement—unmet here —that appellant’s pr ovidence inquiry in clude his admission to every element of the crime. United States v. Simmons , 63 M.J. 89, 92 (C.A.A.F. 2006).

We review a military judge’s decision to accept a guilty plea for an abuse of

discretion. United States v. Inabinette , 66 M.J. 320, 322 (C.A.A .F. 2008). A guilty plea will only be set aside if we find a subs tantial basis in law or fact to question the plea. Id. (citing United States v. Prater , 32 M.J. 433, 436 (C.M.A. 1991)). The court applies this “substantial basis” test by determining whether the record raises a substantial question about the factua l basis of appellant’s guilty plea or the law underpinning the plea. Id. ; see also UCMJ art. 45(a); Rule for Courts-Martial 910(e). Considering the deficiencies in the providen ce inquiry, a su bstantial basis

exists here.RODRIGUEZ – ARMY 20140380

3 Sexual Abuse of a Chil d – Providence Inquiry

Appellant entered a plea of guilty by exceptions and substitutions to Specification 1 of Additional Charge III, in which he was charged with sexually abusing a child by sending he r lewd text messages. Among the many lewd messages enumerated in the specificat ion, appellant was charged with asking “‘have u ever done it in the butt,’ or words to that effect . . . .” The military judge found appellant guilty of communicating all of the charged phrases. Howe ver, the military judge did not ask about and ap pellant did not address the sp ecific phrase mentioned above during the providence in quiry. Therefore, a substan tial basis in fa ct exists to question the providency of a ppellant’s plea of guilty to this repugnant phrase.

CONCLUSION

The finding of guilty of Specification 3 of Additional Charge VI is set aside and that specification is DISMISSED.

We affirm so much of the finding of guilty of Specification 1 of Additional Charge III as provides:

In that Sergeant Gilberto Ro driguez, U.S. Army, did, in Texas, between on or about 1 October 2012 and 1 December 2012, commit a lewd act upon Ms. E.E., a child who had not attained the age of 16 year s, to wit: as ked her by text message “have u ever got eaten out before by a guy” or words to that effect; “U want to fuck” or words to that effect, and “U want me to eat that pussy” or words to that effect, “I want to eat ur pussy so bad n then lay u on the bed n put my dick in ur mouth th en I’m gonna fuck that pussy so good then I’m gonna bend u over n put it in ur butt do us want to try” or words to that effect, “U won’t mind if I cum in ur mouth,” or words to that effect, “I want u to ride my dick wat position u like,” or words to that effect, “Have u ever got eaten out before by a gu y,” or words to that effect, “so did u like me being inside of u,” or words to that effect, “Did u swallow or did u spit it ou t,” or words to that effect.

The remaining findings of guilty are AFFIRMED.

Reassessing the sentence on the basis of the errors note d, the entire record, and applying the principles of United States v. Sales , 22 M.J. 305, 308 (C.M.A. 1986) and the factor s set forth in United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013), we are conf ident that absent these er rors appellan t would have

received a sentence at least as severe as the approved sentence of a dishonorableRODRIGUEZ – ARMY 20140380

4 discharge, five years of co nfinement, forfeiture of all pay and allowances, and reduction to the grade of E- 1. The approved sentence is AFFIRMED; ap pellant shall be credited with ninety days of confinement. All rights, privileges, and property of which appellant has been deprived by virtue of that portion of th e findings set aside by our decision are ordered restored.

Senior Judge HAIGHT and Judge ALMANZA concur.

FOR THE COURT:

MALCOLM H. SQUIRES JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: