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

                           UNITED STATES, Appellee
                                        v.
                            Sergeant GARY S. KING
                          United States Army, Appellant

                                   ARMY 20130808

                               Headquarters, I Corps
                    Stefan Wolfe, Military Judge (arraignment)
                  David L. Conn, Military Judge (motions & trial)
                  Colonel William R. Martin, Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Aaron R.
Inkenbrandt, JA; Captain Ryan T. Yoder, JA (on brief); Colonel Jonathan F. Potter,
JA; Major Christopher D. Coleman, JA; Captain Ryan T. Yoder, JA (reply brief).

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


                                      31 July 2015

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of possessing digital images of child
pornography, and two specifications of wrongfully possessing digital images of a
sexual nature depicting a minor or minors (child erotica), 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
twelve months, and reduction to the grade of E-1. The convening authority reduced
the sentence to confinement by four months, approving eight months of confinement,
but otherwise approved the adjudged sentence. Appellant was credited with eight
days of confinement credit against the sentence.

      Appellant’s case is before this court for review under Article 66, UCMJ.
Appellate counsel assigned one error to this court, and appellant personally raised
KING—ARMY 201300808

matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). The
assigned error warrants discussion and relief. The matters raised pursuant to
Grostefon are without merit.

       In his assigned error, appellant alleges the military judge abused his
discretion in accepting a guilty plea to Specifications 3 and 4 of The Charge when
the 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)).

       While this is a close case, 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 the difference between child pornography and child erotica
with appellant, and gleaned from appellant the images in Specifications 3 and 4 were
not sexually explicit and that he downloaded the images for his own sexual
gratification, the military judge did not clearly articulate the critical distinction
between permissible and prohibited behavior from the constitutional standpoint.
Although the military judge did define “digital images of a sexual nature” used in
Specifications 3 and 4 to include “any sexual image of a minor with no serious
literary, artistic, political, or scientific or educational value,” he did not clearly
discuss the constitutional protections afforded by the First Amendment and how
those constitutional protections could apply to the images in Specifications 3 and 4
of The Charge.

      In light of the above, and our superior court’s recent decision in Moon
regarding child erotica, we set aside the findings of guilty for Specifications 3 and 4
of The Charge and dismiss those specifications.




                                           2
KING—ARMY 201300808

       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 two specifications of possession of child pornography in
violation of Article 134 UCMJ. Specifications 3 and 4 carry a maximum period of
confinement of four months each, while the maximum confinement in this case was
twenty years and eight 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 child pornography 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. However, because the convening
authority approved four months less confinement than the military judge adjudged,
we affirm that lesser sentence. See UCMJ art. 66(c) (“[A] Court of Criminal
Appeals may act only with respect to the findings and sentence as approved by the
convening authority”).

                                   CONCLUSION

       The findings of guilty for Specifications 3 and 4 of The Charge 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, we affirm the approved sentence.

                                      FOR
                                       FORTHE
                                           THECOURT:
                                               COURT:




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




                                          3
