UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                         TOZZI, CAMPANELLA, and CELTNIEKS
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                          Specialist MATTHEW H. FUEYO
                           United States Army, Appellant

                                   ARMY 20140316

                          Headquarters, 7th Infantry Division
                           Jeffery D. Lippert, Military Judge
              Lieutenant Colonel Michael S. Devine, Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Yolanda McCray
Jones, JA; Lieutenant Colonel Jason J. Elmore, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major A.G. Courie III, JA; Major
Steven J. Collins, JA; Captain Robyn M. Chatwood, JA (on brief).


                                    15 October 2015

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of communicating indecent language and
one specification of exchanging inappropriate digital images under such
circumstances as to bring discredit to the armed forces, in violation of Article 134
Uniform Code of Military Justice, 10 U.S.C. § 934 (2006) [hereinafter UCMJ]. The
military judge sentenced appellant to a bad-conduct discharge, confinement for one
hundred and forty days, and reduction to the grade of E-1. The convening authority
approved the adjudged sentence.

      Appellant’s case is before this court for review under Article 66, UCMJ.
Appellate counsel assigned two errors to this court. One of the assigned errors
warrants discussion and relief.
FUEYO—ARMY 20140316

       Appellant alleges the military judge abused his discretion in accepting his
guilty plea to The Specification of The Additional Charge that alleges appellant
“exchange[d] inappropriate digital images with Ms. J.H., such conduct being of a
nature to bring discredit upon the armed forces.” We agree with appellant’s
assertion because the military judge failed to distinguish between constitutionally
protected and prohibited conduct, and failed to resolve inconsistencies in the
providence inquiry.

       “A military judge’s acceptance of an accused’s guilty plea is reviewed for an
abuse of discretion. The test for an abuse of discretion is whether the record shows
a substantial basis in law or fact for questioning the plea.” 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)).

        “[W]here an Article 134 charge implicates constitutionally protected conduct,
the heightened plea inquiry requirements of Hartman apply: the colloquy ‘must
contain an appropriate discussion and acknowledgement on the part of the accused of
the critical distinction between permissible and prohibited behavior.’” United States
v. Moon, 73 M.J. 382, 388 (C.A.A.F. 2014) (citing United States v. Hartman, 69
M.J. 467, 468 (C.A.A.F. 2011). “Without a proper explanation and understanding of
the constitutional implications of the charge, [a]ppellant's admissions in his
stipulation and during the colloquy regarding why he personally believed his
conduct was service discrediting and prejudicial to good order and discipline do not
satisfy Hartman.” Moon, 73 M.J. at 389.

       During the providence inquiry, the military judge provided the elements and
definitions for the indecent language specification and the exchange of inappropriate
digital images specification. The military judge had appellant discuss the
specifications at the same time because the conduct took place contemporaneously.
The inappropriate digital images from appellant’s phone, that were the basis for The
Specification of the Additional Charge, showed Ms. J.H., a fifteen year-old girl, in a
bikini or low-cut top. * While the military judge mentioned there could be legitimate
reasons for accepting these images, such as if appellant was a modeling agent, and
gleaned from appellant there was no legitimate reason for him to exchange or
possess the images, the military judge did not clearly articulate the critical
distinction between permissible and prohibited behavior from the constitutional
standpoint. The military judge failed to define “inappropriate digital images” or
clearly discuss the constitutional protections afforded by the First Amendment and
how those constitutional protections could apply to the images in The Specification
of The Additional Charge.

*
 Although appellant admitted in the stipulation of fact that he sent a photo of his
exposed penis to Ms. J.H. and she sent him pictures exposing her breasts and vagina,
both parties agreed this misconduct was not included in the “exchange [of]
inappropriate digital images.”

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FUEYO—ARMY 20140316

                                   CONCLUSION

       In light of the above, and our superior court’s recent decision in Moon, the
findings of guilty of The Additional Charge and its Specification are set aside and
DISMISSED. The remaining findings of guilty are AFFIRMED. Reassessing the
sentence on the basis of the error noted, the entire record, and in accordance with the
principles of Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013), we AFFIRM the
approved sentence.


                                        FOR THE COURT:




                                        MALCOLM H. SQUIRES, JR.
                                        MALCOLM H. SQUIRES, JR.
                                        Clerk of Court
                                        Clerk of Court




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