UNITED STATES ARMY COURT 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. Meredith, Staff Judge Advocate

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

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Melissa Dasgupta Smith, JA; Captain Vincent 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 indecent exposure when the underlying offense
was based on appellant electronically transmitting a photograph of his penis to a
victim. The staff judge advocate (SJA) provided incorrect legal advice to the
convening authority in the addendum to the staff judge advocate’s post-trial
recommendation (SJAR) when he advised the convening authority that no legal error
occurred regarding appellant’s conviction for indecent exposure under Article 120c
Uniform Code of Military Justice, 10 U.S.C. § 920c (2012) [hereinafter 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 specification of indecent exposure, one specification of
indecent language to a child under sixteen years of age, one specification 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-conduct
ENTZMINGER–ARMY 20150672

discharge and sixteen months confinement. In accordance with the pretrial
agreement, the convening authority approved only so much of the sentence as
provided for a bad-conduct discharge and confinement for thirteen months.

      We have reviewed this case 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 dependents at Camp
Zama, Japan. At that time, appellant was about twenty 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 communicated 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 continuously foiled when he would
simply open another account and reach out to her again.

       At some point, appellant became aware KT had another boyfriend and became
enraged. Appellant then began a series of both indecent and intimidating messages
to KT, threatening to publically distribute nude photographs of KT that he somehow
came to possess. 2 The string of threats and indecent remarks began the night before
KT’s sixteenth birthday and continued into the next morning. Appellant culminated
his indecent and threatening barrage of messages by sending 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 Article 120c, UCMJ,
indecent exposure, for transmitting a photograph of his penis via computer to KT.




1
  Appellant also alleged as an assigned error an unreasonable multiplication of
charges (UMC). It is clear from the military judge’s inquiry on the record that
appellant affirmatively waived UMC in exchange for his pretrial agreement. We,
therefore, find the issue to be meritless.
2
  The nude photographs were extracted from a video found on appellant’s cell phone,
surreptitiously taken by someone outside KT’s bedroom window through a crack in
the blinds after KT had showered and was getting dressed.


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ENTZMINGER–ARMY 20150672

                               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 changes 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 substantial basis in law or fact to question the
plea. Id. (citing Inabinette, 66 M.J. at 322). The court applies this “substantial
basis” test by determining whether the record raises a substantial question about the
factual basis of appellant’s guilty plea or the law underpinning the plea. Inabinette,
66 M.J. at 322.

       Whether Article 120c(c), UCMJ, proscribes the appellant’s electronic
transmission of a photograph of his penis is a de novo question of statutory
interpretation.

       After appellant’s court-martial but before the convening authority took action,
this court decided Williams, and considered whether Article 120c(c), UCMJ, applied
to an appellant sending a still “digital image” of his penis via text message to a
victim. We determined it did not. We held the term “exposed” under Article
120c(c), UCMJ, did not 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 not intend to criminalize an “exposure” through
communication technology under Article 120c(c), UCMJ. In other words, after trial
this court definitively determined appellant’s actions did not constitute the offense
of indecent exposure.

       As in Williams, here the record establishes no legally sufficient theory of how
appellant committed indecent exposure under Article 120c(c), UCMJ. Accordingly,
there is a substantial basis in law to question 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 persuasive detail in appellant’s Rule for Courts-
Martial [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 exposure conviction legally insufficient. Indeed, the binding



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ENTZMINGER–ARMY 20150672

precedent established by that case eliminated any argument to the contrary.
Appellant requested disapproval of the indecent exposure conviction and a reduction
in his court-martial sentence.

       In the addendum to his recommendation, the SJA provided the following
advice to the convening authority:

             I have considered the defense allegation of legal error
             regarding PVT Entzminger’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 the SJA arrived at his conclusion, 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 convening 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 authority may now be powerless to remedy the error.

      As an initial matter, when applicable, the SJA should advise the convening
authority of the amendments to Article 60, UCMJ, implemented by the National
Defense Authorization Act of 2014, removing the convening authority’s power to
disapprove the findings or the sentence in cases wherein the non-qualifying 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 authority’s power to modify (approve a lesser included offense) or
set aside a finding is limited to qualifying offenses. UCMJ art. 60. “Qualifying
offenses” include: (1) offenses under the UCMJ for which the maximum sentence to
confinement that may be adjudged does not exceed two years; and (2) the adjudged
sentence does not include a punitive discharge (dismissal, dishonorable discharge or
bad-conduct discharge) or confinement 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) offenses under Articles 920b and 925, UCMJ; and 3) offenses
specified by the Secretary of Defense. Id.




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ENTZMINGER–ARMY 20150672

       In this case, appellant implored the convening authority to disapprove the
Article 120c offense and reduce 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 authority, 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 military judge alone case. 4 This action would have allowed the
military judge to consider the issue raised by appellant in his post-trial R.C.M. 1105
submission and consider taking corrective action.

        A second, less timely, method of correction would have been to recommend
that the convening authority approve the findings and sentence as adjudged and note
the error for the convening authority–allowing this court to provide a remedy for
error when one is required. This option, which prevents correcting the error at the
trial level, at least provides accurate legal advice to the convening authority and
highlights the issue for appeal.

      Which option the SJA recommends to the convening authority will turn on
many factors to include whether the court-martial 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 remaining findings of guilty are AFFIRMED.

      Applying the principles of United States v. Sales, 22 M.J. 305, 308 (C.M.A.
1986) and the factors set forth in United States v. Winckelmann, 73 M.J. 11, 15-16
(C.A.A.F. 2013), we conclude that we can confidently reassess appellant’s sentence
without returning this case for a sentence rehearing.

       In evaluating the Winckelmann factors, our decision does not result in a
dramatic change in the penalty landscape as appellant’s maximum exposure to
confinement is reduced by only one year. Id. at 15-16. Because appellant was
sentenced by a military judge as opposed to members, we are more likely to be
certain of how the military judge would have sentenced appellant had he acquitted
him of indecent exposure. Id. at 16. While the gravamen of the criminal conduct is
reduced without the specification dismissed by our decision today, we have the


4
  See United States v. Chandler, 74 M.J. 674 (Army Ct. Crim. App. 2015) regarding
a court-martial with a panel.


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ENTZMINGER–ARMY 20150672

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 months. Based on the entire record and appellant’s course
of conduct, we can conclude the military judge 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 sentence. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of the findings set aside by this
decision are ordered restored.

      Judge HERRING and Judge PENLAND and concur.

                                        FOR THE COURT:
                                        FOR THE COURT:



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




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