         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201600171
                         _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                    v.
                    JOSEPH F. VANKEMSEKE
             Staff Sergeant (E-6), U.S. Marine Corps
                            Appellant
                     _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel Eugene H. Robinson, Jr., USMC.
 Convening Authority: Commanding General, 3d Marine Logistics
                      Group, Okinawa, Japan.
 Staff Judge Advocate’s Recommendatio n: Major Michael C. Evans,
                               USMC.
  For Appellant: Lieutenant Jacqueline M. Leonard, JAGC, USN.
 For Appellee: Major Kelli A. O’Neil, USMC; Lieutenant James M.
                        Belforti, JAGC, USN.
                       ________________________
                        Decided 22 August 2017
                         _________________________
    Before M ARKS , R UGH , AND B ELSKY , Appellate Military Judges
                         _________________________
This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                          _________________________
   BELSKY, Judge:
   A military judge sitting as a general court-martial convicted the
appellant, pursuant to his pleas, of attempted indecent exposure,
communicating indecent language, and disorderly conduct, in violation of
Articles 80, 120c, and 134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 880, 920c, and 924 (2012). The military judge sentenced the
appellant to six months’ confinement, reduction to pay grade E-1, a
                      United States v. Vankemseke, No. 201600171


reprimand, and a bad-conduct discharge. The convening authority (CA)
disapproved the reprimand,1 approved the remaining sentence as adjudged,
and with the exception of the punitive discharge, ordered the sentence
executed.
    On appeal, the appellant alleges that trial defense counsel (TDC) was
constitutionally deficient during the post-trial stage2 and that a sentence
which included six months’ confinement and a bad-conduct discharge was
inappropriately severe. Additionally, we ordered briefing on whether, in light
of United States v. Uriostegui, 75 M.J. 857 (N-M. Ct. Crim. App. 2016), the
military judge abused his discretion in accepting the appellant’s plea to
attempted indecent exposure. After considering the pleadings from the
parties, and carefully considering the record of trial, we find that the
appellant’s plea to attempted indecent exposure was improvident. We take
corrective action in our decretal paragraph. Finding no other error materially
prejudicial to the substantial rights of the appellant, we affirm the remaining
findings and, after reassessment, the sentence. Arts. 59(a) and 66(c), UCMJ.
                                   I. BACKGROUND
   Between August 2014 and February 2015, the appellant exchanged text
messages and emails with “Savannah,” an individual he met online, and
whom he believed was a 15-year-old girl.3 In reality, Savannah was an
undercover agent for the Naval Criminal Investigative Service.4 On several
occasions, and in an effort to sexually arouse her, the appellant sent
Savannah unsolicited photographs of his naked, erect penis via text
message.5 The appellant also tried unsuccessfully on several occasions to
entice Savannah to send him naked pictures of herself.6
   After trial, the TDC submitted a request for clemency on the appellant’s
behalf, requesting that the CA disapprove all adjudged and automatic
reductions below the pay grade E-5.7 The CA denied this request.8



   1 After initially approving the entire adjudged sentence, the CA then disapproved
the reprimand in accordance with the terms of a PTA.
   2   Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
   3   Record at 28, 35; Prosecution Exhibit (PE) 1 at 2.
   4   Record at 29, 35.
   5   Id. at 27, 36; PE 1 at 2.
   6   PE 1 at 2.
   7   Clemency Request of 29 Apr 2016.
   8   Convening Authority’s Action of 2 May 2016 at 5.


                                            2
                     United States v. Vankemseke, No. 201600171


    Now, through a sworn declaration, the appellant claims that his TDC
submitted the clemency request without first contacting him and without
including any mitigation evidence the appellant intended to submit to the CA
with his clemency request.9 The appellant states that if his TDC had
consulted him, he would have instructed counsel to submit to the CA a letter
from his pastor, as well as his own written clemency statement.10 Both
documents essentially asked the CA to disapprove the appellant’s punitive
discharge, and to instead administratively separate him from the Marine
Corps.11 The appellant also states that he would have instructed his TDC to
“request at the very least a slight reduction in my sentence in order to return
to my family….”12
    In response to the allegations the appellant raised in his declaration, we
ordered a sworn declaration from the TDC. In his declaration, the TDC stated
that he had multiple conversations with the appellant before submitting
clemency.13 He also stated that while he was unable to contact the appellant
after receiving the staff judge advocate’s recommendation, he requested relief
he “believed was in accordance with [the appellant’s] previously stated desire
to place his family in the best possible financial position . . . .”14 According to
his declaration, the TDC did not request that the CA disapprove the
appellant’s discharge because he believed the CA lacked the authority to
grant such relief. He also did not request early relief from confinement
because he believed the CA intended the appellant “to serve every day of his
sentence to confinement” to balance out other terms of the pretrial agreement
(PTA), which allowed the appellant to avoid the sex offender notification
provisions of DoD Instruction 1325.07.15
                                    II. DISCUSSION
A. Ineffective assistance of counsel
  “By virtue of Article 27, UCMJ, 10 U.S.C. § 827. . . as well as the Sixth
Amendment of the Constitution, a military accused is guaranteed the


   9  Appellant’s Motion to Attach of 14 Oct 2016, Appendix 3, Appellant’s
Declaration of 5 Oct 2016 at 2.
   10   Id., Appendix 1-2, Gary Craft letter undated and Appellant’s letter undated.
   11   Id., Appendix 3 at 2.
   12   Id.
   13Government’s Response to Court Order of 11 Jan 2017, Trial Defense Counsel’s
Declaration of 11 Jan 2017 at 1.
   14   Id. at 2.
   15   Id.


                                            3
                  United States v. Vankemseke, No. 201600171


effective assistance of counsel.” United States v. Scott, 24 M.J. 186, 187-88
(C.M.A. 1987) (citations omitted). This guarantee includes the right to
effective counsel during the post-trial process. United States v. Cornett, 47
M.J. 128, 133 (C.A.A.F. 1997). To establish a claim of ineffective assistance of
counsel, an appellant must demonstrate: (1) that his counsel’s performance
was deficient to the point that he “was not functioning as the ‘counsel’
guaranteed . . . by the Sixth Amendment;” and (2) that the deficient
performance prejudiced the appellant. United States v. Tippit, 65 M.J. 69, 76
(C.A.A.F. 2007) (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)).
When evaluating claims of post-trial ineffective assistance of counsel, “there
is material prejudice to the substantial rights of an appellant if there is an
error and the appellant ‘makes some colorable showing of possible prejudice.’”
United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998) (quoting United
States v. Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 1997)). While the “colorable
showing” threshold is low, “the prejudice must bear a reasonable relationship
to the error, and it must involve a reasonably available remedy.” United
States v. Capers, 62 M.J. 268, 270 (C.A.A.F. 2005) (citation omitted).
Additionally, we need not determine whether counsel’s performance was
deficient in a given case “[i]f it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice,” which will often be the case.
United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012). We review de novo
whether an appellant was deprived of the effective assistance of counsel at
the post-trial stage. Id.
    In the appellant’s case, even if we assume without deciding that the
TDC’s post-trial performance was constitutionally deficient, we find that the
appellant has not made the colorable showing of possible prejudice necessary
to justify setting aside the CA’s action. First, as the TDC correctly notes in
his declaration, the CA did not have the authority, under Article 60, UCMJ,
to disapprove the appellant’s bad-conduct discharge, since the appellant
pleaded guilty to offenses all of which occurred after 24 June 2014. United
States v. Kruse, 75 M.J. 971, 973 (N-M. Ct. Crim. App. 2016). Thus,
submitting the appellant’s clemency letter, and the letter from his pastor,
which only requested relief from the punitive discharge, could not have
changed the CA’s decision to approve the discharge.
    Second, there is nothing in the record or the appellant’s post-trial
submissions to reasonably suggest that a different clemency submission
might have inspired the CA to reduce the appellant’s adjudged sentence of
confinement. Neither the letter from the appellant’s pastor nor the
appellant’s own clemency letter requested or provided any reasonable basis
for reducing the appellant’s confinement. This would have left the appellant
with basically a bare-bones plea for a reduction in confinement, and there is
nothing to suggest the CA might have granted this request given that the


                                        4
                   United States v. Vankemseke, No. 201600171


appellant already enjoyed the benefit of a favorable PTA, which “was
negotiated to avoid any conviction that would trigger the sex offender
notification provisions of DoD Instruction 1325.07,” and given that the
adjudged confinement was already roughly one-quarter the amount of time
the CA could have approved under Part II of the PTA.16 In light of these
facts, we are convinced that the appellant’s claim is without merit.
B. Providence of the appellant’s attempted indecent exposure plea
    We review a military judge’s acceptance of a guilty plea for an abuse of
discretion, reversing only if the “record shows a substantial basis in law or
fact for questioning the plea.” United States v. Moon, 73 M.J. 382, 386
(C.A.A.F. 2014) (citation omitted). In Uriostegui, which included facts
identical to the appellant’s case, we held that the crime of indecent exposure
in Article 120c, UCMJ, did not encompass the electronic transmission of a
photograph or digital image of one’s genitalia to another person, even if the
perpetrator believed the recipient to be an underage girl. Uriostegui, 75 M.J.
at 865-66. Consistent with that holding, which was decided after the military
judge accepted this appellant’s plea, we find a substantial basis in law to
question the appellant’s plea to attempted indecent exposure and set aside
the guilty finding. Next, we “consider the need for sentence reassessment.”
Id. at 866.
    This court possesses broad discretion to reassess an appellant’s sentence.
United States v. Winckelmann, 73 M.J. 11, 15 (C.A.A.F. 2013). Sentence
reassessment is only appropriate if we are able to reliably determine that,
absent the error, the sentence “would have been at least of a certain
magnitude.” United States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000) (citation
and internal quotation marks omitted). A reassessed sentence must not only
“be purged of prejudicial error [but] also must be ‘appropriate’ for the
offense[s] involved.” United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986).
   We base these determinations on the totality of the circumstances of each
case, guided by the following “illustrative, but not dispositive, points of
analysis:”




   16 On this point, we note that the PTA provided no protection on the amount of
confinement the CA could approve. This lends credence to TDC’s statements that the
CA was seeking “significant confinement exposure,” and “was going to require the
appellant to serve every day of his sentence of confinement.” Government’s Response
to Court Order of 11 Jan 2017, Trial Defense Counsel’s Declaration of 11 Jan 2017 at
1.




                                         5
                  United States v. Vankemseke, No. 201600171


   (1) Whether there has been a dramatic change in the penalty landscape or
exposure;
   (2) Whether sentencing was by members or a military judge alone;
    (3) Whether the nature of the remaining offenses captures the gravamen
of criminal conduct included within the original offenses and whether
significant or aggravating circumstances addressed at the court-martial
remain admissible and relevant to the remaining offenses; and
   (4) Whether the remaining offenses are of the type with which appellate
judges should have the experience and familiarity to reliably determine what
sentence would have been imposed at trial.
Winckelmann, 73 M.J. at 15-16. Considering all the circumstances of the
appellant’s case, we find that we can reassess the sentence and that it is
appropriate for us to do so.
    First, the appellant elected to be sentenced by a military judge, and we
are more likely to be certain of what sentence the military judge, as opposed
to members, would have imposed. Second, we have extensive experience and
familiarity with the remaining offenses and are confident we can reliably
determine what sentence would have been imposed at trial. Finally, and most
important to our analysis, after setting aside the facts relevant to the
appellant’s conviction for attempted indecent exposure, we are still left with a
scenario in which the appellant engaged in multiple indecent conversations
with a person he believed was a 15-year old girl. The appellant repeatedly
expressed in explicit detail his desire to engage in various sex acts with this
person and, on more than one occasion, tried to entice the person to send the
appellant naked photos of herself. In light of these facts, we find that setting
aside the appellant’s conviction for attempted indecent exposure has not
changed the gravamen of the appellant’s conduct; there is not a dramatic
change in the penalty landscape. Accordingly, we are firmly convinced that
absent the error in accepting the appellant’s plea to attempted indecent
exposure, the military judge would have imposed the same sentence.
C. Sentence appropriateness
   Finally, the appellant also alleges that a sentence which includes a bad-
conduct discharge and six months’ confinement is inappropriately severe. We
disagree.
    This court reviews de novo questions concerning the severity of an
appellant’s sentence. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006).
“Sentence appropriateness involves the judicial function of assuring that
justice is done and that the accused gets the punishment he deserves.” United
States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). This requires “‘individualized


                                       6
                  United States v. Vankemseke, No. 201600171


consideration’ of the particular accused ‘on the basis of the nature and
seriousness of the offense and character of the offender.’” United States v.
Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy,
27 C.M.R. 176, 180-81 (C.M.A. 1959)). However, despite our significant
discretion in reviewing the appropriateness of a sentence, we may not engage
in acts of clemency. United States v. Nerad, 69 M.J. 138, 145-47 (C.A.A.F.
2010).
    In this case, the appellant benefited from a favorable PTA, and he enjoyed
a generous adjudged sentence in light of his admitted behavior. While we
acknowledge the possible impact the appellant’s three deployments—namely
serving with a truck company detailed with removing casualties and the
deceased from the streets of Baghdad—may have had on his mental health,
we note that these were not uncommon experiences for countless service men
and women on deployment who did not engage in subsequent criminal
behavior. And, while we also acknowledge the appellant’s mitigating efforts
regarding his conduct—terminating contact with Savannah on his own
volition and starting counseling—we find that this evidence contributed to
the comparatively light sentence he received. For all these reasons, we
conclude that the appellant’s sentence was not inappropriately severe.
                              III. CONCLUSION
    The guilty findings to Charge II and its sole specification are set aside.
The remaining guilty findings and the sentence, as approved by the CA, are
affirmed.
   Senior Judge MARKS and Judge RUGH concur.


                                        For the Court




                                        R. H. TROIDL
                                        Clerk of Court




                                       7
