              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                               Before
          J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                  CHRISTOPHER J. SCHALEGER
           ELECTRONICS TECHNICIAN SECOND CLASS (E-5),

                           NMCCA 201300247
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 16 December 2013.
Military Judge: CDR Lewis T. Booker, Jr., JAGC, USN.
Convening Authority: Commander, Navy Region Northwest,
Silverdale, WA.
Staff Judge Advocate's Recommendation: LCDR D.E. Reike,
JAGC, USN.
For Appellant: LT Jennifer L. Myers, JAGC, USN.
For Appellee: LT Ian D. MacLean, JAGC, USN.

                           19 February 2015

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge, sitting as a general court-martial,
convicted the appellant, pursuant to his pleas, of one
specification of sexual assault, in violation of Article 120,
Uniform Code of Military Justice, 10 U.S.C. § 920. The military
judge sentenced the appellant to reduction to pay grade E-1,
three years of confinement, and a bad-conduct discharge.
Pursuant to a pretrial agreement, the convening authority (CA)
approved the sentence as adjudged, but suspended all confinement
in excess of 13 months.

     The appellant raises one assignment of error: that the
Navy-Marine Corps Court of Criminal Appeals unlawfully punished
the appellant by publishing his name and the facts of his case
as the result of an interlocutory appeal in such a manner that
presumed his guilt and constituted unlawful pretrial punishment. 1

     After careful consideration of the record of trial, the
parties’ pleadings, and the appellant’s assignment of error, we
conclude that this court’s action did not violate the
appellant’s presumption of innocence or constitute unlawful
punishment, and that no error materially prejudicial to the
substantial rights of the appellant was committed. Arts. 59(a)
and 66(c), UCMJ.

                                 Background

     In December 2012, the appellant had dinner and alcoholic
beverages with a woman married to a fellow active duty Navy
member. After consuming several drinks, the woman chose to stay
the night at the appellant’s residence and fell asleep in his
bed. While she was asleep, the appellant inserted his penis
into the woman’s vagina.

     The appellant was charged with violating Article 120, UCMJ,
as amended by the National Defense Authorization Act for Fiscal
Year 2012, which applied to offenses committed on or after 28
June 2012. The amendments to Article 120 did not specify
maximum punishments for the offenses, but authorized punishment
“as a court-martial may direct.” Arts. 120(b)(2) and
120(b)(3)(A), UCMJ. Therefore, at the time the appellant was
charged with sexual assault, there was no specific maximum
punishment set by the President for that crime. That situation
changed on 15 May 2013, when the President amended Paragraph 45
of Part IV of the MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.),
establishing the maximum punishment authorized for sexual
assault as including a dishonorable discharge and confinement
for 30 years. Executive Order 13643 of 15 May 2013. Upon
publication of the executive order, the Government filed a
motion in limine to determine the maximum authorized punishment
for the appellant’s alleged offense. The military judge ruled
the maximum punishment for a violation of Article 120 was that

1
   This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1992).
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available at a summary court-martial. Since the ruling could
not be appealed under Article 62, UCMJ, the Government appealed
the decision to this court seeking a writ of mandamus.
Appellate Exhibit V. We granted the writ in a published opinion
finding the authorized maximum punishments included confinement
for thirty years and a dishonorable discharge. United States v.
Booker, 72 M.J. 787 (N.M.Ct.Crim.App. 2013). The opinion
referenced the appellant’s name and rank, and has been posted on
the court’s website since 20 September 2013. Three months after
the opinion’s publication, the appellant pled guilty to one
specification of sexual assault in violation of Article 120,
UCMJ.

     The appellant argues that online publication of our
interlocutory opinion breached his expectation of privacy,
damaged his reputation, impeded his presumption of innocence,
and constituted unlawful pretrial punishment. Because the
appellant focuses on the impact of this court’s actions on his
court-martial trial and does not allege any post-trial damages,
we limit our examination to pretrial and trial proceedings.

                    Presumption of Innocence

     “‘The principle that there is a presumption of innocence in
favor of the accused is the undoubted law . . . .’” Taylor v.
Kentucky, 436 U.S. 478, 483 (1978) (quoting Coffin v. United
States, 156 U.S. 432, 453 (1895)). However, “[o]nce a defendant
has been afforded a fair trial and convicted of the offense for
which he was charged, the presumption of innocence disappears.”
Herrera v. Collins, 506 U.S. 390, 399 (1993) (citation omitted).
A guilty plea has the same effect as a conviction on the merits,
for in pleading guilty to a charged offense, an appellant admits
guilt to that offense and relinquishes the right to force the
Government to prove his guilt beyond a reasonable doubt. Our
military justice system has instituted “certain safeguards to
insure the providence of the plea, including a delineation of
the elements of the offense charged and an admission of factual
guilt on the record.” United States v. Care, 40 C.M.R. 247, 250
(C.M.A. 1969). So long as a plea is voluntary and provident, to
include notice to the appellant that entering a guilty plea
relinquishes the right to presumption of innocence, an appellant
has no standing to appeal a violation of that presumption. See
Iowa v. Tovar, 541 U.S. 77, 83 (2004).

     The appellant pled guilty to the sole specification of
sexual assault following this court’s interlocutory opinion.


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The appellant raises no evidence to prove, and the record of
trial contains no evidence to support, the notion that the plea
was involuntary or improvident. Further, the interlocutory
opinion utilizes unassuming words such as “allegations” and
“alleged offense,” refers to the appellant as “Petty Officer” or
“the Real Party,” and its primary focus is on statutory
interpretation and history, with very minimal discussion of the
facts of the appellant’s case.

     The appellant failed to prove any sort of violation against
his presumption of innocence. There is no evidence that as a
result of this court’s opinion, the appellant was compelled to
admit guilt, that this court’s opinion presumed the appellant’s
guilt to the charged offense, or that the military judge
presumed the appellant’s guilt as a result of reading this
court’s previous opinion. In pleading guilty to the offense,
the appellant admitted his guilt and forfeited the presumption
of his innocence. We find no reason to question the providence
of the appellant’s guilty plea, and therefore find no merit in
the appellant’s claim that his presumption of innocence was
violated.

                  Unlawful Pretrial Punishment

     Unlawful pretrial punishment is a mixed question of law and
fact that this court reviews de novo. Thompson v. Keohane, 516
U.S. 99, 113 (1995); United States v. McCarthy, 47 M.J. 162,
164-65 (C.A.A.F. 1997). Article 13, UCMJ, prohibits: (1) the
intentional imposition of punishment on an appellant before his
or her guilt is established at trial, and (2) arrest or pretrial
confinement conditions that are more rigorous than necessary to
ensure the accused’s presence at trial. See United States v.
Inong, 58 M.J. 460, 463 (C.A.A.F. 2003). The “punishment” prong
of Article 13, UCMJ, focuses on intent. United States v. Pryor,
57 M.J. 821, 825 (N.M.Ct.Crim.App. 2003) (citing United States
v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997)). “[A]bsent a
showing of an expressed intent to punish, a particular condition
reasonably related to a legitimate and non-punitive governmental
objective, does not, without more, amount to punishment.” Id.
(citing Bell v. Wolfish, 441 U.S. 520, 538-39 (1979)). Whether
there existed some purpose or intent to punish is a question of
fact we review for an abuse of discretion. McCarthy, 47 M.J. at
165. The ultimate question of whether the appellant is entitled
to sentence credit for an Article 13, UCMJ, violation is
reviewed de novo. United States v. Mosby, 56 M.J. 309, 310
(C.A.A.F. 2002).


                                4
     The appellant’s claim of unlawful pretrial punishment is
vague in its discussion of what actions or effects constituted
punishment, leaving this court to assume that the appellant’s
assertions of an expectation of privacy violation and reputation
damage are what constituted unlawful pretrial punishment. For
the reasons discussed below, we find no merit in the appellant’s
argument.

     We first examine whether there was some purpose or intent
to punish the appellant. The Government had the ability to seek
a writ of mandamus from this court in order to appeal the trial
judge’s determination of the authorized maximum punishment.
Utilizing its authority under the All Writs Act, 28 U.S.C. §
1651(a), this court reviewed the interlocutory appeal and made a
ruling based on the law. As discussed above, this court’s
opinion used neutral language making no assumption as to the
appellant’s guilt to the charged offense, it limited discussion
of the facts to only those necessary, and the court focused
almost entirely on statutory history and interpretation in
reaching its decision. The appellant failed to raise any
evidence of prosecutorial intent to punish or penalize him in
appealing the military judge’s decision, and our review of the
record of trial reveals no such intent. Additionally, we find
no evidence that this court had the intent to punish or penalize
the appellant.

      We also find that the appellant failed to meet his burden
to show that he had a reasonable expectation of privacy, that
such an expectation was violated by this court’s opinion, or
that this court’s opinion unfairly damaged his reputation.
Absent extenuating circumstances, our courts-martial are open to
the public. E.g. ABC, Inc. v. Powell, 47 M.J. 363, 365
(C.A.A.F. 1997). RULE FOR COURTS-MARTIAL 806(a), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.). Trial proceedings involve
discussion of facts on the merits, which inevitably leads to
eliciting details about an accused’s life. To avoid that
reality would make the criminal justice system unworkable.

       The facts of this case fail to illustrate any grounds for
relief or credit due to unlawful pretrial punishment.
Accordingly, the appellant’s assignment of error is without
merit.




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                            Conclusion

      We affirm the findings and the sentence as approved by the
CA.

                                 For the Court



                                 R.H. TROIDL
                                 Clerk of Court




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