## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA, HERRING, and PENLAND Appellate Military Judges

UNITED STATES, Appellee

v. Private E1 MARQUES D. ENTZMINGER United States Army, Appellant

ARMY 20150672

Headquarters, 8th Army Tiernan P. Dolan, Military Judge Colonel Craig A. Meredi th, Staff Judge Advocate

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Major Andres Vazquez, Jr., JA; Captain Scot t A. Martin, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major Melissa Dasg upta Smith, JA; Captain Vincen t S. Scalfani, JA (on brief).

11 January 2017

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OPINION OF THE COURT

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CAMPANELLA, Senior Judge:

In this case, we find appellant was improvident when he pleaded guilty to violating Article 120c, UCMJ, for indecen t exposure when th e underlying offense was based on appellant electronically tran smitting a photograph of his penis to a victim. The staff judge advocate (SJA) provided incorrect le gal advice to the convening authority in th e addendum to the staff ju dge advocate’s post-trial recommendation (SJAR) when he advised the convening authority that no legal error occurred regarding appellant’ s conviction for indecent ex posure under Article 120c Uniform Code of Military Ju stice, 10 U.S.C. § 920c (2012) [herei nafter UCMJ] in light of United States v. Williams, 75 M.J. 663, 669 (Army Ct . Crim. App. 2016).

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of one specificat ion of indecent exposure, one specification of indecent language to a child under sixteen year s of age, one specifi cation 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-conductENTZMINGER–ARMY 20150672

2 discharge and sixteen months confinement. In accord ance with the pretrial agreement, the convening authority approve d only so much of the sentence as provided for a bad-conduct discharge and confinement for thirteen months.

We have reviewed this ca se pursuant to Article 66, UCMJ. Appellant asserts two assignments of error, one of which merits discussion and relief. 1

BACKGROUND

Appellant met thirteen -year-old KT when they were both de pendents at Camp Zama, Japan. At th at time, appellant was about twen ty 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 communi cated 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 continuousl y foiled when he would simply open another account a nd reach out to her again.

At some point, ap pellant became aware KT had another boyfriend and became enraged. Appellant then be gan a series of both indecent and intimida ting messages to KT, threatening to publica lly distribute nude photograph s of KT that he somehow

came to possess. 2 The string of thre ats and indecent remarks began the ni ght before KT’s sixteenth birthday and continued into the next morni ng. Appellant culminated

his indecent and threatenin g barrage of messages by se nding KT an unsolicited picture of his penis through a computer messaging system , followed by the indecent message, “You can suck my dick now .”

Appellant pleaded guilty, inter alia , to violating Ar ticle 120c, UCMJ, indecent exposure, for transmitting a pho tograph of his penis vi a computer to KT.

1 Appellant also alleged as an assigned error an un reasonable multiplication of charges (UMC). It is clea r from the military judge’s inquiry on the record that appellant affirmatively waived UMC in exchange for his pretrial agreement. We, therefore, find the issu e to be meritless.

2 The nude photographs were extracted from a vi deo found on appellan t’s cell phone, surreptitiously taken by some one outside KT’s bedroom window through a crack in

the blinds after KT had showered and was getting dressed.ENTZMINGER–ARMY 20150672

3 LAW AND ANALYSIS

Acceptance of Plea to Indecent Exposure.

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 “substantial 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.

After appellant’s co urt-martial but before the convening auth ority took action,

this court decided Williams , and considered whether Artic le 120c(c), UCMJ, applied to an appellant sendin g a still “digital im age” of his penis via text message to a

victim. We determined it did not. We held the te rm “exposed” under Article 120c(c), UCMJ, did no t 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 no t intend to criminalize an “exposure” through communication technology under Article 120c(c), UCMJ. In other words, after trial this court definitively determined appellan t’s actions did not c onstitute the offense of indecent exposure.

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

there is a substantial basis in law to ques tion the providence of appellant’s plea. The government concedes the point.

Addendum to the Staff Judge Advocate’s Recommendation.

Commendably, appellant’s trial defense counsel outlined the then week-old holding in Williams in accurate and persua sive detail in appell ant’s Rule for CourtsMartial [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 exposu re conviction legally insuffici ent. Indeed, the bindingENTZMINGER–ARMY 20150672

4 precedent established by that case eliminated any argument to the contrary. Appellant requested di sapproval of the indecent exposure conviction and a reduction

in his court-mar tial sentence.

In the ad dendum to his recommendation, th e SJA provided the following advice to the convening authority:

I have considered the defens e allegation of legal error regarding PVT Entz minger’s conviction of indecent exposure under 120c, based on US v. Williams (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 th e SJA arrived at his conclu sion, 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.

Nonetheless, we note that recent changes to a conv ening 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 auth ority may now be powerless to remedy the error.

As an initial matt er, when applicable, the SJA should advise the convening authority of the amendments to Article 60, UCMJ, implemen ted by the National

Defense Authorizatio n Act of 2014, rem oving the convening au thority’s power to disapprove the findings or the sentence in cases wher ein the non-qual ifying 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.

3 The convening authorit y’s power to modify (approve a lesser included offense) or set aside a finding is limited to qualifyi ng offenses. UCMJ art. 60. “Qualifying offenses” include: (1) offe nses under the UCMJ for which the maximum sentence to confinement that may be adju dged does not exceed two years; and (2) the adjudged

sentence does not include a punitive discharge (d ismissal, dishonorable discharge or bad-conduct discharge) or confinem ent of more than six months. Id . Excluded from the definition of “qualifying offenses” are: 1) offenses under Articles 920(a) and 920(b), UCMJ; 2) of fenses under Articles 920b an d 925, UCMJ; and 3) offenses specified by the Secretary of Defense. Id

.ENTZMINGER–ARMY 20150672

5 In this case, appellant implored the convening authority to disapprove the

Article 120c offense and re duce 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 auth ority, 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 milit ary judge alone case. 4 This action would have allowed the military judge to consider the issue raised by appellant in his po st-trial R.C.M. 1105

submission and consider taking corrective action.

A second, less time ly, method of correction wo uld have been to recommend that the convening auth ority approve the findi ngs and sentence as adjudged and note the error for the convening authority–allowi ng this court to pr ovide a remedy for error when one is requ ired. This option, wh ich prevents correcting the error at the trial level, at least provides accurate le gal advice to the c onvening authority and highlights the issue for appeal.

Which option the SJA recommends to th e convening authority will turn on many factors to include whether the court-ma rtial 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 remaini ng findings of guilty are AFFIRMED.

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 conclude that we can confidently re assess appellan t’s sentence without returning th is case for a sentence rehearing.

In evaluating the Winckelmann factors, our decision does not result in a dramatic change in the pe nalty landscape as appella nt’s maximum exposure to

confinement is reduce d by only one year. Id . at 15-16. Because appellant was sentenced by a military judge as opposed to members, we are more li kely to be certain of how the military judge would have se ntenced appellant had he acquitted him of indecent exposure. Id. at 16. While the gravamen of the criminal conduct is reduced without the specification dismisse d by our decision t oday, we have the

4 See United States v. Chandler , 74 M.J. 674 (Army Ct. Cr im. App. 2015) regarding a court-martial with a panel.ENTZMINGER–ARMY 20150672

6 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 mont hs. Based on the entire r ecord and appellant’s course of conduct, we can c onclude the military j udge 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 senten ce. All rights, pr ivileges, and property, of which appellant has been deprived by virtue of th at portion of the findings set aside by this

decision are orde red restored.

Judge HERRING and Judg e PENLAND and concur.

FOR THE COURT:

MALCOLM H. SQUIRES JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: