                       UNITED STATES, Appellant

                                    v.

             Wilson MEDINA, Gunner’s Mate First Class
                    U.S. Coast Guard, Appellee

                              No. 13-5002

                          Crim. App. No. 1325

       United States Court of Appeals for the Armed Forces

                        Argued March 12, 2013

                          Decided May 2, 2013


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

                                 Counsel

For Appellant:    Lieutenant Commander Vasilios Tasikas (argued).

For Appellee:    Lieutenant Commander Paul R. Casey (argued).


Military Judge:   Gary E. Felicetti




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Medina, 13-5002/CG


     Judge RYAN delivered the opinion of the Court.

     Consistent with his pleas, a military judge sitting as a

general court-martial convicted Appellee of one specification of

sodomy, in violation of Article 125, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 925 (2006), and one specification of

assault consummated by a battery, in violation of Article 128,

UCMJ, 10 U.S.C. § 928.   The adjudged sentence provided for

confinement for a period of thirteen months, reduction to E-1,

and a bad-conduct discharge.   The convening authority approved

the adjudged sentence and ordered all but the bad-conduct

discharge to be executed.

     Thereafter, Appellee sought relief before the United States

Coast Guard Court of Criminal Appeals (CGCCA), asking the lower

court to determine whether he had suffered unreasonable and

unexplained post-trial delay, and, if so, to consider the delay

in determining the sentence to be approved under Article 66(c),

UCMJ, 10 U.S.C. § 866(c).   On September 24, 2010, the CGCCA

affirmed the findings of guilty, but affirmed only so much of

the sentence as provided for confinement for eleven months,

reduction to E–2, and a bad-conduct discharge.   United States v.

Medina, 69 M.J. 637, 641 (C.G. Ct. Crim. App. 2010).   On May 23,

2011, this Court vacated the CGCCA’s decision and remanded

Appellee’s case for reconsideration in light of United States v.

Hartman, 69 M.J. 467 (C.A.A.F. 2011).   United States v. Medina,

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United States v. Medina, 13-5002/CG


70 M.J. 137 (C.A.A.F. 2011) (order vacating the CGCCA’s decision

and remanding).

     On remand, the CGCCA set aside Appellee’s Article 125,

UCMJ, conviction and authorized the convening authority to

select one of the following options:   (1) order a rehearing on

findings for the sodomy charge and on sentence; (2) if option

(1) is “impracticable under the circumstances,” order a

rehearing on sentence for the Article 128, UCMJ conviction; or

(3) if both option (1) and option (2) are impracticable, approve

a sentence of no punishment.   United States v. Medina, 71 M.J.

652, 655 (C.G. Ct. Crim. App. 2012).

     The CGCCA recognized that by “add[ing] an element requiring

the [act of sodomy] to be ‘prejudicial to good order and

discipline,’” the military judge was “clearly attempting to

elicit from [Appellee] facts supporting a conclusion that his

conduct fell outside of a constitutionally protected liberty

interest and the [United States v. Marcum, 60 M.J. 198 (C.A.A.F.

2004),] factors.”   Medina, 71 M.J. at 653-54.   However, because

the military judge did not explain to or discuss with Appellee,

during the providence inquiry, how these facts placed his

consensual sexual act with an adult outside the liberty interest

identified in Lawrence v. Texas, 539 U.S. 558 (2003), see




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United States v. Medina, 13-5002/CG


Marcum, 60 M.J. at 206-07, the CGCCA held that Appellee’s guilty

plea was improvident. 1   Id.

     We agree with the CGCCA’s reasoning and affirm its

decision, which correctly applied United States v. Hartman in

setting aside Appellee’s conviction.      Like the case before us,

Hartman involved a providence inquiry conducted pursuant to the

accused’s guilty plea to the offense of consensual sodomy with

an adult, in violation of Article 125, UCMJ.

     In Hartman, we recognized that the presence of a “Marcum

factor” -- a fact separate and apart from the act of sodomy

itself -- distinguishes that conduct which may be subject to

criminal sanction, and that conduct which is constitutionally

protected under Lawrence.       Hartman, 69 M.J. at 468; see also

United States v. Wilson, 66 M.J. 39, 41 (C.A.A.F. 2008) (“[A]n


1
  On December 20, 2012, the Judge Advocate General of the Coast
Guard (TJAG) asked this Court to consider the following issues:

     I.    WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS
           ERRED BY APPLYING THE PROVIDENCE INQUIRY
           REQUIREMENTS OF HARTMAN IN A CASE WHERE THE FACTS
           ELICITED DURING THE PROVIDENCE INQUIRY REVEALED
           THAT THE SEXUAL ACTIVITY FELL OUTSIDE OF THE
           CONSTITUTIONAL PROTECTIONS BOUNDED BY LAWRENCE v.
           TEXAS BECAUSE IT INVOLVED A RECENT, PRIOR
           TRAINER-TRAINEE RELATIONSHIP.

     II.   ASSUMING A HARTMAN INQUIRY IS REQUIRED, WHAT
           CONSTITUTES A SUFFICIENT COLLOQUY BETWEEN THE
           MILITARY JUDGE AND AN ACCUSED TO SUPPORT A PLEA
           OF GUILTY TO THE SPECIFICATION OF SODOMY UNDER
           THE STANDARD SET FORTH IN HARTMAN?


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United States v. Medina, 13-5002/CG


act of sodomy in private between consenting adults may not be

[criminal], absent some other fact.”) (citing Lawrence, 539 U.S.

at 578).   We characterized that “additional fact” as “a matter

of ‘critical significance’” because it “distin[guishes] between

what is permitted and what is prohibited.”   Hartman, 69 M.J at

468 (quoting United States v. O’Connor, 58 M.J. 450, 453

(C.A.A.F. 2003)).

     Next, we emphasized that:   “The fundamental requirement of

[a] plea inquiry under [United States v. Care, 18 C.M.A. 535, 40

C.M.R. 247 (1969),] and [Rule for Courts-Martial (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.”   Id. at 469.   Because the inquiry did not

establish the accused’s personal understanding of the

relationship between the facts he was admitting and why his plea

to voluntary sexual activity with an adult could nonetheless be

subject to criminal sanction, we held that the plea was

improvident.   Id.

     Here, pursuant to Appellee’s guilty plea to consensual

sodomy, the military judge and Appellee engaged in a dialogue

during which the military judge elicited facts in an attempt to

demonstrate that Appellee’s sexual activity was subject to




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United States v. Medina, 13-5002/CG


criminal sanction. 2   However, the dialogue did not meet the

requirements of Hartman or Care, which are different from the

standard for legal sufficiency, because the military judge

failed to ensure Appellee’s personal understanding of matters

critical to his guilt; namely, why these additional facts

removed his sexual activity from the protection recognized in

Lawrence and Marcum and subjected that activity to criminal

sanction.   We therefore affirm the CGCCA’s decision that

Appellee’s plea was improvident.

                              DECISION

     The decision of the United States Coast Guard Court of

Criminal Appeals is affirmed.




2
  The providence inquiry before us comes much closer to
satisfying Care and R.C.M. 910 than that which was conducted in
Hartman because the discussion between the military judge and
the accused in this case went well beyond simply discussing the
“nature of the sexual conduct.” Hartman, 69 M.J. at 469 (plea
was improvident where (1) in the initial part of the inquiry,
the appellant merely “describ[ed] the nature of the sexual
conduct,” (2) the military judge then asked the appellant a
series of follow-up questions after discussing Lawrence and
Marcum with trial counsel, but (3) the military judge failed to
explain the significance of these questions to the appellant).
Nevertheless, the military judge failed to elicit what Hartman
requires where the Article 125, UCMJ, offense to which the
accused pleaded guilty is consensual sodomy with an adult --
Appellee’s personal understanding that the additional facts
elicited are necessary for his conduct, which might otherwise
fall within the liberty interest defined in Lawrence, to be
subject to criminal sanction.

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