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

                            UNITED STATES, Appellee
                                         v.
                          Sergeant RODRIQUEZ J. COBB
                           United States Army, Appellant

                                   ARMY 20140631

                             Headquarters, Fort Bliss
                         Michael J. Hargis, Military Judge
                  Colonel Karen H. Carlisle, Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Andres Vazquez,
Jr., JA; Major Daniel E. Goldman, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Daniel D. Derner, JA; Captain Samuel E. Landes, JA (on brief).


                                      27 May 2016

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of four specifications of sexual harassment, one specification
of assault consummated by a battery, one specification of adultery, and one
specification of possessing sexually oriented pictures of junior enlisted soldiers, in
violation of Articles 92, 128, and 134, Uniform Code of Military Justice, 10 U.S.C.
§§ 892, 928, and 934 (2012) [hereinafter UCMJ]. The military judge sentenced
appellant to a bad-conduct discharge, confinement for eleven months, and reduction
to the grade of E-1. The convening authority approved the sentence as adjudged.

      Appellant’s case is before this court for review under Article 66, UCMJ.
Appellate counsel assigned one error to this court warranting discussion and relief.

       In his assigned error, appellant alleges the military judge abused his
discretion by accepting a guilty plea to Specification 2 of Charge III when the
COBB—ARMY 20140631

military judge failed to distinguish between constitutionally protected and prohibited
conduct, and failed to resolve the 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)).

       We agree with appellant’s assertion that the military judge failed to
adequately distinguish between constitutionally protected and prohibited conduct.
“[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.

       Although the military judge discussed appellant’s conduct in possessing
sexually oriented pictures of a junior enlisted soldier, which included a video of
appellant committing adultery with a junior enlisted soldier, and gleaned from
appellant that possession of these items on his cell phone were prejudicial to good
order and discipline and service discrediting, the military judge did not clearly
articulate the critical distinction between permissible and prohibited behavior from
the constitutional standpoint. The record reflects that the military judge had
reservations about the criminality of appellant’s mere possession of the pictures.
The military judge discussed the criminality of the specification with appellant’s
defense counsel at length, but mainly discussed with appellant how possession of the
pictures were prejudicial to good order and discipline and service discrediting.
After that discussion the military judge moved on to discuss another specification in
the case. The military judge did not clearly discuss with appellant the constitutional
protections afforded by the First Amendment and how those constitutional
protections could potentially apply to the pictures in Specification 2 of Charge III.

       In light of the above, and our superior court’s decision in Moon, we set aside
the finding of guilty for Specification 2 of Charge III and dismiss that specification.

      Given the error noted above, and applying the factors in United States v.
Winckelmann, we are confident, considering the remaining specifications, we can
reassess appellant’s sentence. 73 M.J. 11, 15-16 (C.A.A.F. 2013). Appellant
remains convicted of one specification of assault consummated by a battery, one
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COBB—ARMY 20140631

specification of adultery, and four specifications of sexual harassment.
Specification 2 of Charge III carries a maximum period of confinement of four
months, while the maximum confinement in this case was nine years and ten months.
Thus, neither the penalty landscape nor the admissible aggravation evidence has
significantly changed. Id.

       Appellant also elected trial by judge alone, and we “are more likely to be
certain of what a military judge would have done as opposed to members.”
Wincklemann, 73 M.J. at 16. Finally, this court reviews the records of a substantial
number of courts-martial involving offenses similar to those in this case and we have
extensive experience and familiarity with the level of sentences imposed for such
offenses under various circumstances. Id. We are confident the military judge
would have adjudged the same sentence absent the error noted.

                                   CONCLUSION

       The finding of guilty of Specification 2 of Charge III is 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, we AFFIRM the sentence. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of his
findings set aside by this decision, are ordered restored.

                                        FOR THE COURT:
                                        FOR THE COURT:



                                        JOHN P. TAITT
                                        JOHN   P. TAITT
                                        Chief Deputy Clerk of Court
                                        Chief Deputy Clerk of Court




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