                         UNITED STATES, Appellee

                                         v.

                      Benjamin H. HARTMAN,
           Sonar Technician (Submarines) Second Class
                      U.S. Navy, Appellant


                                  No. 10-0291

                        Crim. App. No. 200900389

       United States Court of Appeals for the Armed Forces

                         Argued February 7, 2011

                          Decided March 15, 2011

EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.


                                     Counsel


For Appellant:    Major Kirk Sripinyo, USMC (argued).


For Appellee: Major Elizabeth A. Harvey, USMC (argued); Brian
K. Keller, Esq., and Colonel Louis J. Puleo, USMC (on brief).



Military Judge:    William F. Martin



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Hartman, No. 10-2091/NA


     Chief Judge EFFRON delivered the opinion of the Court.

     A general court-martial composed of a military judge

sitting alone, convicted Appellant, pursuant to his pleas, of

one count of sodomy in violation of Article 125, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 925 (2006).   The sentence

adjudged by the court-martial and approved by the convening

authority included a bad-conduct discharge, confinement for one

month, and reduction to pay grade E-1.   The United States Navy-

Marine Corps Court of Criminal Appeals affirmed.   United States

v. Hartman, No. NMCCA 200900389, 2009 CCA LEXIS 462, at *7, 2009

WL 5126122, at *3 (N-M. Ct. Crim. App. Dec. 29, 2009).    Our

Court set aside the decision and remanded the case to the Court

of Criminal Appeals.   United States v. Hartman, 69 M.J. 170

(C.A.A.F. 2010).    Upon further review, the Court of Criminal

Appeals affirmed.   United States v. Hartman, No. NMCCA

200900389, slip op. at 3 (N-M. Ct. Crim. App. Jun. 22, 2010).

     On Appellant’s petition, we granted review of the following

issue:

          WHETHER APPELLANT’S CONVICTION UNDER ARTICLE
          125, UCMJ, FOR CONSENSUAL SODOMY IN THE
          PRESENCE OF A THIRD PERSON VIOLATES THE DUE
          PROCESS CLAUSE OF THE FIFTH AMENDMENT.

     For the reasons set forth below, we reverse the decision of

the Court of Criminal Appeals.




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United States v. Hartman, No. 10-2091/NA


                                  I

     In United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), we

addressed the constitutionality of prosecutions under Article

125, UCMJ (proscribing sodomy) in light of the decision by the

Supreme Court in Lawrence v. Texas, 539 U.S. 558, 562, 578

(2003) (striking down a state statute “making it a crime for two

persons of the same sex to engage in certain intimate sexual

conduct” as violating the constitutional “right to liberty under

the Due Process Clause”).   See also Marcum, 60 M.J. at 203-05

(discussing the scope of Lawrence and the limitations set forth

therein).

     In Marcum, we considered the general applicability of

constitutional safeguards in military proceedings, as well as

the well-established principle that “these constitutional rights

may apply differently to members of the armed forces than they

do to civilians.”   60 M.J. at 205.   As we subsequently noted in

United States v. Stirewalt, 60 M.J. 297, 304 (C.A.A.F. 2004),

Marcum “identified a tripartite framework for addressing

Lawrence challenges within the military context . . . .”    Under

the tripartite framework, we ask:

            First, was the conduct . . . of a nature to
            bring it within the liberty identified by
            the Supreme Court [in Lawrence]? Second,
            did the conduct encompass any behavior or
            factors identified by the Supreme Court as
            outside the analysis in Lawrence? Third,
            are there additional factors relevant solely


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United States v. Hartman, No. 10-2091/NA


          in the military environment that affect the
          nature and reach of the Lawrence liberty
          interest?

Marcum, 60 M.J. at 206-07 (citation omitted).    In the present

case, the parties agree that Marcum provides the appropriate

framework for distinguishing between conduct constitutionally

protected under Lawrence and conduct that may be prosecuted

criminally under Article 125.



                                II

     When a charge against a servicemember may implicate both

criminal and constitutionally protected conduct, the distinction

between what is permitted and what is prohibited constitutes a

matter of “critical significance.”   United States v. O’Connor,

58 M.J. 450, 453 (C.A.A.F. 2003).    With respect to the requisite

inquiry into the providence of a guilty plea, see United States

v. Care, 40 C.M.R. 247, 253 (C.M.A. 1969), and Rule for Courts-

Martial (R.C.M.) 910, the colloquy between the military judge

and an accused must contain an appropriate discussion and

acknowledgment on the part of the accused of the critical

distinction between permissible and prohibited behavior.

Compare O’Connor, 58 M.J. at 453 (setting aside the plea in the

absence of such an inquiry), with United States v. Mason, 60

M.J. 15, 19 (C.A.A.F. 2004) (noting that the plea colloquy

demonstrated that the accused understood and acknowledged the


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United States v. Hartman, No. 10-2091/NA


circumstances establishing the criminal nature of the conduct at

issue).



                                 III

       During the plea inquiry in the present case, the military

judge described the offense of sodomy solely in terms of the

definition of the offense set forth in the Manual for Courts-

Martial (MCM), which describes various forms of sexual conduct

between two people.   See MCM pt. IV, para. 51.c. (2008 ed.).

Consistent with Care, the military judge asked Appellant to

explain in his own words why he believed he was guilty of the

offense.   Appellant responded by describing the nature of the

sexual conduct between himself and the other party to the sexual

act.   The inquiry did not reflect consideration of the Marcum

framework.

       At the conclusion of the military judge’s colloquy with

Appellant, he asked counsel if either desired any further

inquiry.   The trial counsel then engaged in a discussion with

the military judge about Lawrence and Marcum.    Trial counsel

asked the military judge to pose questions to the accused about

the location of the act of sodomy, the presence of any other

person in the room, and the military relationship between

Appellant and the other person involved in the sexual act.    In

response to the questions from the military judge, Appellant


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United States v. Hartman, No. 10-2091/NA


stated that the incident took place at the Transient Visitors

Quarters on a U.S. Navy facility; that the other participant in

the sexual activity was a member of the Navy assigned to the

same ship as Appellant; and that a third shipmate “was present

and asleep in the room” at the time of the charged act of

sodomy.    The military judge did not explain to Appellant the

significance of the questions, nor did the military judge ask

Appellant whether he understood the relationship of the

questions and answers to the distinction drawn in Lawrence and

Marcum between constitutionally protected behavior and criminal

conduct.



                                 IV

     The fundamental requirement of plea inquiry under Care and

R.C.M. 910 involves a dialogue in which the military judge poses

questions about the nature of the offense and the accused

provides answers that describe his personal understanding of the

criminality of his or her conduct.    A discussion between the

trial counsel and the military judge about legal theory and

practice, at which the accused is a mere bystander, provides no

substitute for the requisite interchange between the military

judge and the accused.   In the absence of a dialogue employing

lay terminology to establish an understanding by the accused as

to the relationship between the supplemental questions and the


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United States v. Hartman, No. 10-2091/NA


issue of criminality, we cannot view Appellant’s plea as

provident.   See O’Connor, 58 M.J. at 454.



                                 V

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed and the findings and sentence

are set aside.   The record is returned to the Judge Advocate

General of the Navy, and a rehearing is authorized.




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