                                   CORRECTED COPY

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

                               UNITED STATES, Appellee
                                           v.
                         Staff Sergeant SHAWN D. WILLIAMS
                             United States Army, Appellant

                                       ARMY 20140691

                              Headquarters, Fort Bliss
                        Timothy P. Hayes, Jr., Military Judge
                   Colonel Karen H. Carlisle, Staff Judge Advocate


For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Major Amy E. Nieman,
JA; Captain Amanda R. McNeil, JA (on brief); Lieutenant Colonel Jonathan F.
Potter, JA; Major Christopher D. Coleman, JA; Captain Amanda R. McNeil
Williams, JA (on reply brief).

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


                                     25 February 2016

                                -----------------------------------
                                 MEMORANDUM OPINION
                                -----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

       A military judge sitting as a general court-martial convicted appellant,
consistent with his pleas, of eight specifications of aggravated assault, one
specification of disobeying a lawful order, and six specifications of adultery in
violation of Articles 128, 92, and 134, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. §§ 928, 892, and 934 (2012). The military judge
sentenced appellant to a dishonorable discharge, confinement for ten years, and
reduction to the grade of E-1. Consistent with a pre-trial agreement, the convening
WILLIAMS —ARMY 20140691

authority approved only so much of the sentence as provided for a dishonorable
discharge, confinement for eight years, and reduction to the grade of E-1. 1

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one assignment of error requiring discussion and relief. We find the matter
raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982) to be without merit.

      Appellant argues the military judge abused his discretion by accepting
appellant’s guilty plea to aggravated assault with a means likely to produce death or
grievous bodily harm. We agree.

                                   BACKGROUND

       Appellant pleaded guilty to eight specifications of aggravated assault with a
means likely to produce death or grievous bodily harm by wrongfully engaging in
vaginal intercourse with eight different women on various occasions without
notifying his sexual partners that he carried the Human Immunodeficiency Virus
(HIV).

       During the providence inquiry, the military judge discussed the elements of
aggravated assault with appellant, defining “unlawful” as well as “grievous bodily
harm.” The military judge stated that “[i]n evaluating the risk of the harm, the risk
of death or grievous bodily harm must be more than a fanciful, speculative, or
remote possibility.” He further stated:

             And this was described in your stipulation of fact, where
             you agreed that even though . . . the risk of harm was
             statistically low in that, with condom use or without
             condom use, there is not certainly by any means a
             guarantee that your partner would be infected by HIV, if
             your partner were to be infected by HIV, the magnitude of
             the harm is great in that it is, potentially, a life threatening
             disease or injury if not treated. And, of course, the
             allegations are that you did not notify them of the HIV
             status. Therefore, they would not be seeking treatment.
             So, that is how that explanation of risk and magnitude of
             harm is applied in your case.



1
 The convening authority waived the automatic forfeiture of all pay and allowances
for six months for the benefit of appellant’s wife and two children. The convening
authority also approved deferment of the adjudged reduction to E-1 until the date of
action.

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       Appellant conceded that by not informing a sexual partner of his positive HIV
status and not using condoms, his partner would not seek medical attention and the
potential exists for the sexual partner to contract Human Immunodeficiency Virus
(HIV) that can develop into Acquired Immune Deficiency Syndrome (AIDS).

                              LAW AND DISCUSSION

                                  Standard of Review

       We review a military judge's decision to accept a guilty plea for an abuse of
discretion and review questions of law arising from the guilty plea de novo. United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). A military judge can abuse
his discretion if he accepts appellant's guilty plea based upon “an erroneous view of
the law.” United States v. Weeks, 71 M.J. 44, 46 (C.A.A.F. 2012) (citing Inabinette,
66 M.J. at 322). A knowing and voluntary plea requires the military judge to
explain the elements of an offense to the accused and to elicit the factual basis of the
offense. United States v. Redlinski, 58 M.J. 117, 119 (C.A.A.F. 2003) (citations
omitted). Failure to do so constitutes “reversible error, unless ‘it is clear from the
entire record that the accused knew the elements, admitted them freely, and pleaded
guilty because he was guilty.’” Id. (quoting United States v. Jones, 34 M.J. 270, 272
(C.M.A. 1992)). Moreover, “[t]he providence of a plea is based not only on the
accused's understanding and recitation of the factual history of the crime, but also on
an understanding of how the law relates to those facts.” United States v. Medina, 66
M.J. 21, 26 (C.A.A.F. 2008) (citing United States v. Care, 18 U.S.C.M.A. 535, 538-
39, 40 C.M.R. 247, 250-51 (1969)). An accused must understand “the nature of the
charges brought against him . . . .” Id. “[A]n accused has a right to know to what
offense and under what legal theory he or she is pleading guilty.” Id.

       At the time of appellant’s court-martial, the government needed to prove the
risk of harm was “more than merely a fanciful, speculative, or remote possibility.”
United States v. Joseph, 37 M.J. 392, 396-97 (C.M.A. 1993) (quoting United States
v. Johnson, 30 M.J. 53, 57 (C.M.A. 1990)). While the concepts relating to risk of
harm and magnitude of harm were explained to appellant based on the law at the
time of appellant’s guilty plea, the law has since changed rendering appellant’s plea
improvident. See United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015).

       In Gutierrez, for purposes of HIV cases, the Court of Appeals for the Armed
Forces (C.A.A.F.) expressly rejected that “the risk must be more than ‘fanciful,
speculative, or remote.’” Id. at 66. Our superior court found this standard
inconsistent with the statutory language of Article 128, UCMJ. Id. Instead, “[t]he
ultimate standard, however, remains whether . . . the charged conduct was ‘likely’ to
bring about grievous bodily harm.” Id. at 66. The same language rejected by
C.A.A.F. in Gutierrez is the language used in this case. We, therefore, find a




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substantial basis in law and fact to question appellant's guilty plea to eight 2 of the
charged aggravated assaults.

        That said, our superior court in Gutierrez signaled that while an accused may
not be guilty of aggravated assault with a means likely to cause death or grievous
bodily harm when the risk is only more than fanciful or speculative, an accused who
has sex with a victim without telling them their HIV status is guilty of assault
consummated by battery. United States v. Gutierrez, 74 M.J. 61, 66-68 (C.A.A.F.
2015); See also United States v. Pinkela, 75 M.J. __ (C.A.A.F. 4 Nov. 2015) (summ.
disp.).

      In this case, while appellant’s pleas of guilty to aggravated assault may not
have been provident, he was provident to the lesser included offense of assault
consummated by battery. 3 Appellant both agreed and stipulated to the fact that the
sexual intercourse was an offensive touching of each victim’s body because each
did not know of his positive HIV status and thus, did not provide informed consent.
Appellant also stipulated that his victims, except his wife, would not have consented
to have sex with him if they had been informed of his HIV status. Thus, in
accordance with Gutierrez and Pinkela, appellant is guilty of the lesser included
offense of assault consummated by battery.

                                 Sentence Reassessment

       This court has “broad discretion” when reassessing sentences. United States
v. Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). Our superior court has repeatedly
held that if we “can determine to [our] satisfaction that, absent any error, the
sentence adjudged would have been of at least a certain severity, then a sentence of
that severity or less will be free of the prejudicial effects of error.” United States v.
Sales, 22 M.J. 305, 308 (C.A.A.F. 1986). This analysis is based on a totality of the
circumstances with the following as illustrative factors:

                (1) Dramatic changes in the penalty landscape and exposure.

                (2) Whether an appellant chose sentencing by members or a
                military judge alone. As a matter of logic, judges of the
                courts of criminal appeals are more likely to be certain of

2
    Corrected
3
  We note, the provision in appellant’s pretrial agreement providing that the
government may withdraw from the agreement “if findings are set aside because a
plea of guilty entered pursuant to this agreement is held improvident on appellate
review,” has no legal effect. We also find appellate government counsel’s attempted
“waiver” of withdrawal pursuant to this pretrial agreement provision is similarly
ineffectual.

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             what a military judge would have done as opposed to
             members. This factor could become more relevant where
             charges address service custom, service discrediting conduct
             or conduct unbecoming.

             (3) Whether the nature of the remaining offenses capture the
             gravamen of criminal conduct included within the original
             offenses and, in related manner, whether significant or
             aggravating circumstances addressed at the court-martial
             remain admissible and relevant to the remaining offenses.

             (4) Whether the remaining offenses are of the type that
             judges of the courts of criminal appeals should have the
             experience and familiarity with to reliably determine what
             sentence would have been imposed at trial.

United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) (internal citations
omitted).

       Applying these factors to this case, we are confident that reassessment is
appropriate. First, we look to the penalty landscape. Appellant’s confinement
exposure is reduced from thirty years and six months to ten years and six months.
Second, appellant was sentenced by a military judge. We are confident we can
discern what punishment a military judge would adjudge in this case. Third, the
gravamen of the criminal conduct included within the original offenses remains the
same. He is convicted of eight specifications of assault consummated by a battery
by wrongfully engaging in vaginal intercourse with eight women without first
notifying them that he was infected with the Human Immunodeficiency Virus, one
specification of disobeying a lawful order, and six specifications of adultery.
Lastly, we have familiarity and experience with the remaining offenses to reliably
determine what sentence would have been imposed at trial.

       As acknowledged by the government, while the maximum confinement has
changed from thirty years and six months to ten years and six months, the remainder
of the factors “compellingly weigh in favor of reassessment.” Further, the
government urges this court to reassess. We agree and are confident we are able to
reassess the sentence in this case.

                                  CONCLUSION

      On consideration of the entire record, the court affirms only so much of
Specifications 1-8 of Charge I as follows:

             Specification 1: In that [appellant], U.S. Army, did, between on
             or about 6 February 2009 and on or about 7 August 2011, on

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         divers occasions, at or near Augusta, Georgia, commit an assault
         upon L.C.B., to wit: wrongfully engaging in vaginal intercourse
         with L.C.B. without first notifying her that he was infected with
         the Human Immunodeficiency Virus.

         Specification 2: In that [appellant], U.S. Army, did, between on
         or about 6 February 2009 and on or about 31 December 2009,
         at or near Sims, North Carolina, commit an assault upon J.S., to
         wit: wrongfully engaging in vaginal intercourse with J.S.
         without first notifying her that he was infected with the Human
         Immunodeficiency Virus .

         Specification 3: In that [appellant], U.S. Army, did,
         between on or about 3 September 2009 and on or about 1
         August 2012, on divers occasions, at or near Richmond,
         Virginia; Goldsboro, North Carolina; Melbourne, Florida;
         Norfolk, Virginia; and El Paso, Texas, commit an assault
         upon S.W., to wit: wrongfully engaging in vaginal
         intercourse with S.W. without first notifying her that he was
         infected with the Human Immunodeficiency Virus.

         Specification 4: In that [appellant], U.S. Army, did,
         between on or about 1 October 2009 and on or about 1
         October 2010, on divers occasions, at or near Monroe,
         Georgia, commit an assault upon K.C., to wit: wrongfully
         engaging in vaginal intercourse with K.C. without first
         notifying her that he was infected with the Human
         Immunodeficiency Virus.

         Specification 5: In that [appellant], U.S. Army, did,
         between on or about 1 January 2010 and on or about 31
         December 2012, on divers occasions, at or near Augusta,
         Georgia, commit an assault upon A.C., to wit: wrongfully
         engaging in vaginal intercourse with A.C. without first
         notifying her that he was infected with the Human
         Immunodeficiency Virus.

         Specification 6: In that [appellant], U.S. Army, did,
         between on or about 1 October 2011 and on or about 31
         October 2011, at or near Smithfield, North Carolina, commit
         an assault upon B.P., to wit: wrongfully engaging in vaginal
         intercourse with B.P. without first notifying her that he was
         infected with the Human Immunodeficiency Virus.




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             Specification 7: In that [appellant], U.S. Army, did,
             between on or about 1 April 2012 and on or about 30 April
             2012, at or near El Paso, Texas, commit an assault upon
             N.W., to wit: wrongfully engaging in vaginal intercourse
             with N.W. without first notifying her that he was infected
             with the Human Immunodeficiency Virus.

             Specification 8: In that [appellant], U.S. Army, did,
             between on or about 1 June 2012 and on or about 31 July
             2012, at or near El Paso, Texas, commit an assault upon
             P.D., to wit: wrongfully engaging in vaginal intercourse with
             P.D. without first notifying her that he was infected with the
             Human Immunodeficiency Virus.

      The remaining findings of guilty are AFFIRMED.

       Reassessing the sentence on the basis of the errors noted, the entire record,
and in accordance with the principles of Winckelmann, 73 M.J. at 15-16, we affirm
only so much of the sentence as provides for a bad-conduct discharge, confinement
for three years, and a reduction to the grade of E-1. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of his
sentence set aside by this decision, are ordered restored. See UCMJ arts. 58b(c) and
75(a).

      Senior Judge TOZZI and Judge CELTNIEKS concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




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




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