This opinion is subject to administrative correction before final disposition.




                                Before
                 TANG, LAWRENCE, and J. STEPHENS,
                       Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                     Michael A. QUINLAN
               Lance Corporal (E-3), U.S. Marine Corps
                             Appellant

                             No. 201900142

                         Decided: 30 October 2019.

 Appeal from the United States Navy-Marine Corps Trial Judiciary
 Military Judge: Terrance J. Reese, USMC. Sentence adjudged 28 Feb-
 ruary 2019 by a general court-martial convened at Marine Corps Base
 Camp Lejeune, North Carolina, consisting of a military judge sitting
 alone. Sentence in the Entry of Judgment: reduction to E-1, confine-
 ment for 6 months, and a dishonorable discharge.

 For Appellant: Commander C. Eric Roper, JAGC, USN.

 For Appellee: Mr. Brian Keller, Esq.

                        _________________________

       This opinion does not serve as binding precedent but
            may be cited as persuasive authority under
             NMCCA Rule of Appellate Procedure 30.2.

                        _________________________
                       United States v. Quinlan, No. 201900142


PER CURIAM:
    Appellant was found guilty, pursuant to his pleas, of three specifications
alleging violations of Article 80, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 880. The specifications alleged that Appellant attempted to sexually
abuse a child by indecent exposure, attempted to receive child pornography,
and attempted to sexually abuse a child by communicating indecent lan-
guage, which offenses, if completed, would constitute violations of Articles
120b and 134, UCMJ.
    This record was submitted without assignment of error. However, in con-
ducting our review under Articles 59 and 66, UCMJ, we noted the following
deficiency.
    The charges arose from Appellant’s actions in engaging in a social media
conversation with an undercover law enforcement agent who represented
himself online as a 13-year-old girl. Appellant engaged in a single conversa-
tion with the agent on a single day in October 2017. During this conversation,
Appellant sent the agent two pictures of his exposed penis. He sent both
photos after the agent revealed the online persona’s age as 13 years old.
Appellant also engaged in a sexually explicit conversation with the “girl,”
using indecent language to ask the “girl” about her prior sexual experience.
Finally, Appellant asked the “girl” whether she wanted to “trade some pics,”
which he explained to mean he wanted the “girl” to send pictures of herself
clothed, wearing a bathing suit, or “nude.” 1 He only asked for nude photo-
graphs once.
   The trial counsel told the military judge that the Government could not
pinpoint the exact date of Appellant’s conversation with the undercover
agent, but that the conversation took place during the month of October 2017.
Specifications 1 and 3 allege that Appellant committed the offenses “between
on or about 1 October 2017 and on or about 31 October 2017.” 2 However,
Specification 2 reads as follows:
             In that Lance Corporal Michael A. QUINLAN, U.S. Marine
         Corps, did, at or near Camp Lejeune, North Carolina on or
         about 1 October 2017 and on or about 31 October 2017, attempt
         to knowingly and wrongfully receive child pornography, to wit:
         digital images of a minor engaging in sexually explicit conduct,



   1   Prosecution Exhibit (PE) 3 at 13.
   2   Charge Sheet.




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                       United States v. Quinlan, No. 201900142


         such conduct being of a nature to bring discredit upon the
         armed forces.
    As written, in leaving out the word “between” at the beginning of the al-
leged time frame, Specification 2 alleges Appellant attempted to receive child
pornography twice—on or about 1 October 2017 and again on or about 31
October 2017.
    Prior to accepting a guilty plea, a military judge must ensure the plea is
supported by a factual basis. Article 45(a), UCMJ; United States v. Care, 40
C.M.R. 247 (C.M.A. 1969); RULE FOR COURTS-MARTIAL 910(e), MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2019 ed.). The military judge must elicit
sufficient facts to satisfy every element of the offense in question, and a mili-
tary judge’s decision to accept a plea of guilty is reviewed for an abuse of
discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).
Questions of law arising from the guilty plea are reviewed de novo. Id. (citing
United States v. Pena, 64 M.J. 259 (C.A.A.F. 2007)). A reviewing appellate
court may only reject a guilty plea if there is a substantial basis in law or fact
to question the plea. Id. (citing United States v. Prater, 32 M.J. 433 (C.M.A.
1991)). The military judge must reopen the providence inquiry if the evidence
is inconsistent with the guilty plea. See United States v. Lloyd, 46 M.J. 19, 23
(C.A.A.F. 1997).
    The parties entered into a stipulation of fact, which was admitted into ev-
idence as Prosecution Exhibit (PE) 1. In PE 1, the parties agreed that all
three of the offenses occurred “[b]etween on or about 1 October 2017 and on
or about 31 October 2017.” 3 During the providence inquiry for Specification 2,
the parties and the military judge treated Specification 2 as though it alleged
a single offense that took place between the two alleged dates. The military
judge defined the first element as follows: “That between on or about 1 Octo-
ber 2017 and on or about 31 October 2017 . . . [Appellant] did certain acts,
that is, attempt to knowingly and wrongfully receive child pornography . . . .” 4
He defined the underlying attempted Article 134, UCMJ, offense in terms of
the same timeframe. Appellant told the military judge he committed this
offense in the “[s]ame conversation all in one day.” 5 He specifically referenced
the portion of the conversation in which he asked the “girl” to send pictures of
herself either wearing clothes, a swimsuit, or in the nude, referencing a sin-


   3   PE 1 at 2-4.
   4   Record at 28.
   5   Id. at 33.




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                    United States v. Quinlan, No. 201900142


gle message. He admitted that by asking for “nude” pictures, he specifically
intended to receive images from the “girl” that met the definition of “lascivi-
ous exhibition of genitals or pubic area” as the military judge properly de-
fined the term. 6
    The stipulation of fact does not reference multiple attempts to receive
child pornography, merely stating that Appellant “attempted to receive child
pornography by requesting that the person . . . send [him] nude images of
herself.” 7 The trial counsel offered PE 3 and PE 5 during its case in aggrava-
tion. PE 3 contains eighteen pages of screenshots of Appellant’s social media
conversation with the undercover agent. PE 5 contains electronic versions of
the screenshot images of Appellant’s exposed penis that are contained in
PE 3 in printed form.
    Our review of PE 3 and PE 5, consistent with Appellant’s statements dur-
ing providency, indicates that Appellant only asked for nude images of the
“girl” one time. As such, there is a “substantial basis in . . . fact” to question
Appellant’s plea of guilty to Specification 2 which, as drafted, alleges at-
tempted misconduct on two specific occasions. Inabinette, 66 M.J. at 322. The
military judge abused his discretion by accepting Appellant’s guilty plea to
Specification 2 without exception. However, we find there is no substantial
basis to question the providence of Appellant’s guilty plea to Specification 2 if
the words and figures “1” and “and on or about 31 October 2017” are except-
ed, such that the specification reads:
             In that Lance Corporal Michael A. QUINLAN, U.S. Marine
         Corps, did, at or near Camp Lejeune, North Carolina on or
         about October 2017, attempt to knowingly and wrongfully re-
         ceive child pornography, to wit: digital images of a minor en-
         gaging in sexually explicit conduct, such conduct being of a na-
         ture to bring discredit upon the armed forces.
    With Specification 2 so excepted, we find no substantial basis in law or
fact to question Appellant’s plea.
   Having disapproved language in Specification 2, we must now consider
whether we can reassess the sentence. United States v. Winckelmann, 73 M.J.
11, 15-16 (C.A.A.F. 2013); United States v. Moffeit, 63 M.J. 40, 41-42
(C.A.A.F. 2006); United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986).



   6   Id. at 34.
   7   PE 1 at 3.




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                  United States v. Quinlan, No. 201900142


After analyzing the four factors laid out by our superior court in Winckel-
mann, we can confidently and reliably determine that Appellant’s sentence
would still include a dishonorable discharge, reduction to paygrade E-1, and
confinement for six months.
   Consistent with this opinion, pursuant to this Court’s authority under
Rule for Courts-Martial 1111(c)(2), Specification 2 in the Entry of Judgment
shall be modified to read as follows:
      Specification 2: Attempted Receipt of Child Pornography
      Plea: Guilty. Finding: Guilty, except the words and figures “1”
      and “and on or about 31 October 2017”.
  The findings as modified by this Court and sentence as reassessed are
AFFIRMED.


                               FOR THE COURT:




                               RODGER A. DREW, JR.
                               Clerk of Court




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