UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201600171

_________________________

UNITED STATES OF AMERICA

Appellee

v.

JOSEPH F. VANKEMSEKE

Staff Sergeant (E-6), U.S. Marine Corps

Appellant

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel Eugene H. Robinson, Jr., USMC.

Convening Authority: Commanding General, 3d Marine Logistics 

Group, Okinawa, Japan.

Staff Judge Advocate’s Recommendation: Major Michael C. Evans, 

USMC.

For Appellant: Lieutenant Jacqueline M. Leonard, JAGC, USN.

For Appellee: Major Kelli A. O’Neil, USMC; Lieutenant James M. 

Belforti, JAGC, USN.

________________________

Decided 22 August 2017

_________________________

Before MARKS, RUGH, AND BELSKY, Appellate Military Judges

 _________________________

This opinion does not serve as binding precedent, but may be cited 

as persuasive authority under NMCCA Rule of Practice and 

Procedure 18.2.

_________________________

BELSKY, Judge:

A military judge sitting as a general court-martial convicted the 

appellant, pursuant to his pleas, of attempted indecent exposure, 

communicating indecent language, and disorderly conduct, in violation of 

Articles 80, 120c, and 134, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. §§ 880, 920c, and 924 (2012). The military judge sentenced the 

appellant to six months’ confinement, reduction to pay grade E-1, a 
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2

reprimand, and a bad-conduct discharge. The convening authority (CA) 

disapproved the reprimand,1 approved the remaining sentence as adjudged, 

and with the exception of the punitive discharge, ordered the sentence 

executed. 

On appeal, the appellant alleges that trial defense counsel (TDC) was 

constitutionally deficient during the post-trial stage2 and that a sentence 

which included six months’ confinement and a bad-conduct discharge was 

inappropriately severe. Additionally, we ordered briefing on whether, in light 

of United States v. Uriostegui, 75 M.J. 857 (N-M. Ct. Crim. App. 2016), the 

military judge abused his discretion in accepting the appellant’s plea to 

attempted indecent exposure. After considering the pleadings from the 

parties, and carefully considering the record of trial, we find that the 

appellant’s plea to attempted indecent exposure was improvident. We take 

corrective action in our decretal paragraph. Finding no other error materially 

prejudicial to the substantial rights of the appellant, we affirm the remaining 

findings and, after reassessment, the sentence. Arts. 59(a) and 66(c), UCMJ. 

I. BACKGROUND

Between August 2014 and February 2015, the appellant exchanged text 

messages and emails with “Savannah,” an individual he met online, and 

whom he believed was a 15-year-old girl.3 In reality, Savannah was an 

undercover agent for the Naval Criminal Investigative Service.4 On several 

occasions, and in an effort to sexually arouse her, the appellant sent 

Savannah unsolicited photographs of his naked, erect penis via text 

message.5 The appellant also tried unsuccessfully on several occasions to 

entice Savannah to send him naked pictures of herself.6

After trial, the TDC submitted a request for clemency on the appellant’s 

behalf, requesting that the CA disapprove all adjudged and automatic 

reductions below the pay grade E-5.7 The CA denied this request.8

 

1 After initially approving the entire adjudged sentence, the CA then disapproved 

the reprimand in accordance with the terms of a PTA.

2 Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

3 Record at 28, 35; Prosecution Exhibit (PE) 1 at 2.

4 Record at 29, 35.

5 Id. at 27, 36; PE 1 at 2.

6 PE 1 at 2.

7 Clemency Request of 29 Apr 2016.

8 Convening Authority’s Action of 2 May 2016 at 5.
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Now, through a sworn declaration, the appellant claims that his TDC 

submitted the clemency request without first contacting him and without 

including any mitigation evidence the appellant intended to submit to the CA 

with his clemency request.9 The appellant states that if his TDC had 

consulted him, he would have instructed counsel to submit to the CA a letter 

from his pastor, as well as his own written clemency statement.10 Both 

documents essentially asked the CA to disapprove the appellant’s punitive 

discharge, and to instead administratively separate him from the Marine 

Corps.11 The appellant also states that he would have instructed his TDC to 

“request at the very least a slight reduction in my sentence in order to return 

to my family....”12

In response to the allegations the appellant raised in his declaration, we 

ordered a sworn declaration from the TDC. In his declaration, the TDC stated 

that he had multiple conversations with the appellant before submitting 

clemency.13 He also stated that while he was unable to contact the appellant 

after receiving the staff judge advocate’s recommendation, he requested relief 

he “believed was in accordance with [the appellant’s] previously stated desire 

to place his family in the best possible financial position . . . .”

14 According to 

his declaration, the TDC did not request that the CA disapprove the 

appellant’s discharge because he believed the CA lacked the authority to 

grant such relief. He also did not request early relief from confinement 

because he believed the CA intended the appellant “to serve every day of his 

sentence to confinement” to balance out other terms of the pretrial agreement 

(PTA), which allowed the appellant to avoid the sex offender notification 

provisions of DoD Instruction 1325.07.15 

II. DISCUSSION

A. Ineffective assistance of counsel

“By virtue of Article 27, UCMJ, 10 U.S.C. § 827. . . as well as the Sixth 

Amendment of the Constitution, a military accused is guaranteed the 

 

9 Appellant’s Motion to Attach of 14 Oct 2016, Appendix 3, Appellant’s 

Declaration of 5 Oct 2016 at 2.

10 Id., Appendix 1-2, Gary Craft letter undated and Appellant’s letter undated.

11 Id., Appendix 3 at 2.

12 Id.

13 Government’s Response to Court Order of 11 Jan 2017, Trial Defense Counsel’s 

Declaration of 11 Jan 2017 at 1.

14 Id. at 2.

15 Id.
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4

effective assistance of counsel.” United States v. Scott, 24 M.J. 186, 187-88 

(C.M.A. 1987) (citations omitted). This guarantee includes the right to 

effective counsel during the post-trial process. United States v. Cornett, 47 

M.J. 128, 133 (C.A.A.F. 1997). To establish a claim of ineffective assistance of 

counsel, an appellant must demonstrate: (1) that his counsel’s performance 

was deficient to the point that he “was not functioning as the ‘counsel’ 

guaranteed . . . by the Sixth Amendment;” and (2) that the deficient 

performance prejudiced the appellant. United States v. Tippit, 65 M.J. 69, 76 

(C.A.A.F. 2007) (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)).

When evaluating claims of post-trial ineffective assistance of counsel, “there 

is material prejudice to the substantial rights of an appellant if there is an 

error and the appellant ‘makes some colorable showing of possible prejudice.’” 

United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998) (quoting United 

States v. Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 1997)). While the “colorable 

showing” threshold is low, “the prejudice must bear a reasonable relationship 

to the error, and it must involve a reasonably available remedy.” United 

States v. Capers, 62 M.J. 268, 270 (C.A.A.F. 2005) (citation omitted). 

Additionally, we need not determine whether counsel’s performance was 

deficient in a given case “[i]f it is easier to dispose of an ineffectiveness claim 

on the ground of lack of sufficient prejudice,” which will often be the case. 

United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012). We review de novo

whether an appellant was deprived of the effective assistance of counsel at 

the post-trial stage. Id.

In the appellant’s case, even if we assume without deciding that the 

TDC’s post-trial performance was constitutionally deficient, we find that the 

appellant has not made the colorable showing of possible prejudice necessary 

to justify setting aside the CA’s action. First, as the TDC correctly notes in 

his declaration, the CA did not have the authority, under Article 60, UCMJ, 

to disapprove the appellant’s bad-conduct discharge, since the appellant 

pleaded guilty to offenses all of which occurred after 24 June 2014. United 

States v. Kruse, 75 M.J. 971, 973 (N-M. Ct. Crim. App. 2016). Thus,

submitting the appellant’s clemency letter, and the letter from his pastor, 

which only requested relief from the punitive discharge, could not have 

changed the CA’s decision to approve the discharge. 

Second, there is nothing in the record or the appellant’s post-trial 

submissions to reasonably suggest that a different clemency submission 

might have inspired the CA to reduce the appellant’s adjudged sentence of 

confinement. Neither the letter from the appellant’s pastor nor the 

appellant’s own clemency letter requested or provided any reasonable basis 

for reducing the appellant’s confinement. This would have left the appellant 

with basically a bare-bones plea for a reduction in confinement, and there is 

nothing to suggest the CA might have granted this request given that the 
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5

appellant already enjoyed the benefit of a favorable PTA, which “was 

negotiated to avoid any conviction that would trigger the sex offender 

notification provisions of DoD Instruction 1325.07,” and given that the 

adjudged confinement was already roughly one-quarter the amount of time 

the CA could have approved under Part II of the PTA.16 In light of these 

facts, we are convinced that the appellant’s claim is without merit. 

B. Providence of the appellant’s attempted indecent exposure plea 

We review a military judge’s acceptance of a guilty plea for an abuse of 

discretion, reversing only if the “record shows a substantial basis in law or 

fact for questioning the plea.” United States v. Moon, 73 M.J. 382, 386 

(C.A.A.F. 2014) (citation omitted). In Uriostegui, which included facts 

identical to the appellant’s case, we held that the crime of indecent exposure 

in Article 120c, UCMJ, did not encompass the electronic transmission of a 

photograph or digital image of one’s genitalia to another person, even if the 

perpetrator believed the recipient to be an underage girl. Uriostegui, 75 M.J. 

at 865-66. Consistent with that holding, which was decided after the military

judge accepted this appellant’s plea, we find a substantial basis in law to 

question the appellant’s plea to attempted indecent exposure and set aside 

the guilty finding. Next, we “consider the need for sentence reassessment.” 

Id. at 866.

This court possesses broad discretion to reassess an appellant’s sentence. 

United States v. Winckelmann, 73 M.J. 11, 15 (C.A.A.F. 2013). Sentence 

reassessment is only appropriate if we are able to reliably determine that, 

absent the error, the sentence “would have been at least of a certain 

magnitude.” United States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000) (citation

and internal quotation marks omitted). A reassessed sentence must not only 

“be purged of prejudicial error [but] also must be ‘appropriate’ for the 

offense[s] involved.” United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986).

We base these determinations on the totality of the circumstances of each 

case, guided by the following “illustrative, but not dispositive, points of 

analysis:”

 

16 On this point, we note that the PTA provided no protection on the amount of 

confinement the CA could approve. This lends credence to TDC’s statements that the 

CA was seeking “significant confinement exposure,” and “was going to require the 

appellant to serve every day of his sentence of confinement.” Government’s Response 

to Court Order of 11 Jan 2017, Trial Defense Counsel’s Declaration of 11 Jan 2017 at 

1.
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6

(1) Whether there has been a dramatic change in the penalty landscape or 

exposure;

(2) Whether sentencing was by members or a military judge alone;

(3) Whether the nature of the remaining offenses captures the gravamen 

of criminal conduct included within the original offenses and whether 

significant or aggravating circumstances addressed at the court-martial 

remain admissible and relevant to the remaining offenses; and

(4) Whether the remaining offenses are of the type with which appellate 

judges should have the experience and familiarity to reliably determine what 

sentence would have been imposed at trial.

Winckelmann, 73 M.J. at 15-16. Considering all the circumstances of the 

appellant’s case, we find that we can reassess the sentence and that it is

appropriate for us to do so. 

First, the appellant elected to be sentenced by a military judge, and we 

are more likely to be certain of what sentence the military judge, as opposed 

to members, would have imposed. Second, we have extensive experience and 

familiarity with the remaining offenses and are confident we can reliably 

determine what sentence would have been imposed at trial. Finally, and most 

important to our analysis, after setting aside the facts relevant to the 

appellant’s conviction for attempted indecent exposure, we are still left with a 

scenario in which the appellant engaged in multiple indecent conversations 

with a person he believed was a 15-year old girl. The appellant repeatedly 

expressed in explicit detail his desire to engage in various sex acts with this 

person and, on more than one occasion, tried to entice the person to send the 

appellant naked photos of herself. In light of these facts, we find that setting 

aside the appellant’s conviction for attempted indecent exposure has not 

changed the gravamen of the appellant’s conduct; there is not a dramatic 

change in the penalty landscape. Accordingly, we are firmly convinced that 

absent the error in accepting the appellant’s plea to attempted indecent 

exposure, the military judge would have imposed the same sentence.

C. Sentence appropriateness

Finally, the appellant also alleges that a sentence which includes a badconduct discharge and six months’ confinement is inappropriately severe. We 

disagree.

This court reviews de novo questions concerning the severity of an 

appellant’s sentence. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). 

“Sentence appropriateness involves the judicial function of assuring that 

justice is done and that the accused gets the punishment he deserves.” United 

States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). This requires “‘individualized 
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consideration’ of the particular accused ‘on the basis of the nature and 

seriousness of the offense and character of the offender.’” United States v. 

Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy, 

27 C.M.R. 176, 180-81 (C.M.A. 1959)). However, despite our significant 

discretion in reviewing the appropriateness of a sentence, we may not engage 

in acts of clemency. United States v. Nerad, 69 M.J. 138, 145-47 (C.A.A.F. 

2010).

In this case, the appellant benefited from a favorable PTA, and he enjoyed 

a generous adjudged sentence in light of his admitted behavior. While we 

acknowledge the possible impact the appellant’s three deployments—namely 

serving with a truck company detailed with removing casualties and the 

deceased from the streets of Baghdad—may have had on his mental health, 

we note that these were not uncommon experiences for countless service men 

and women on deployment who did not engage in subsequent criminal 

behavior. And, while we also acknowledge the appellant’s mitigating efforts 

regarding his conduct—terminating contact with Savannah on his own 

volition and starting counseling—we find that this evidence contributed to 

the comparatively light sentence he received. For all these reasons, we 

conclude that the appellant’s sentence was not inappropriately severe.

III. CONCLUSION

The guilty findings to Charge II and its sole specification are set aside. 

The remaining guilty findings and the sentence, as approved by the CA, are 

affirmed.

Senior Judge MARKS and Judge RUGH concur.

For the Court

R. H. TROIDL

Clerk of Court