                    UNITED STATES, Appellee

                                 v.

           William J. ST. BLANC Jr., Senior Airman
                  U.S. Air Force, Appellant

                           No. 10-0178

                      Crim. App. No. 37206

    United States Court of Appeals for the Armed Forces

                    Argued October 25, 2011

                    Decided January 20, 2012

RYAN, J., delivered the opinion of the Court, in which
ERDMANN and STUCKY, JJ., and COX, S.J., joined. BAKER,
C.J., filed a separate opinion concurring in part and
dissenting in part.

                              Counsel


For Appellant: Captain Ja Rai A. Williams (argued);
Lieutenant Colonel Gail E. Crawford, Major Matthew C.
Hoyer, Major Michael S. Kerr, and Captain Nicholas W. McCue
(on brief); Major Shannon A. Bennett.

For Appellee: Major Deanna Daly (argued); Colonel Don M.
Christensen, Lieutenant Colonel Linell A. Letendre, Major
Jamie L. Mendelson, and Gerald R. Bruce, Esq. (on brief);
Lieutenant Colonel Jeremy S. Weber.

Military Judge:   Nancy J. Paul

    THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. St. Blanc, 10-0178/AF


             Judge RYAN delivered the opinion of the Court.

             Contrary to his pleas, Appellant was found guilty by a

military judge sitting as a general court-martial of one

specification of attempting to communicate indecent

language to a person believed to be under age sixteen, and

one specification of wrongful and knowing possession of

four videos and fifteen visual depictions of “what appears

to be” minors engaging in sexually explicit conduct, in

violation of Articles 80 and 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 880, 934 (2006).                                    Appellant

was sentenced to a bad-conduct discharge, confinement for

two years, forfeiture of all pay and allowances, and

reduction to E-1.                                   The convening authority approved the

sentence but deferred the adjudged forfeitures and waived

the mandatory forfeitures for a period of one month.

             The United States Air Force Court of Criminal Appeals

(AFCCA) affirmed.1                                    St. Blanc, 2009 CCA LEXIS 433, at *8,


                                                        
1
  In its initial review, the AFCCA affirmed the findings but
did not affirm the sentence because the Action did not
reflect the convening authority’s deferral of the adjudged
forfeitures and waiver of the mandatory forfeitures for a
period of one month. United States v. St. Blanc, No. ACM
37206, 2009 CCA LEXIS 433, at *7-*8, 2009 WL 4110805, at *3
(A.F. Ct. Crim. App. Oct. 21, 2009) (unpublished). The
AFCCA remanded the case for the convening authority to
withdraw the erroneous Action and substitute a corrected
Action. Id. at *8, 2009 WL 4110805, at *3. Upon a second
review, the AFCCA recognized that the corrected Action

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United States v. St. Blanc, 10-0178/AF


2009 WL 4110805, at *3.                                             We granted Appellant’s petition

for review to consider whether Appellant’s decision to seek

trial by military judge alone was knowing and voluntary

when his counsel “misadvised” him of the maximum punishment

that he faced.2                              We conclude that Appellant’s decision to

choose trial by military judge alone complied with Rule for

Courts-Martial (R.C.M.) 903, and was knowing and voluntary.

We remand, however, for resentencing in light of United

States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011).


                                                   I.         FACTUAL BACKGROUND

             Starting in May 2006, Appellant engaged in sexually

explicit online conversations with an undercover agent

posing as a thirteen-year-old girl with the screen name


                                                                                                                                                                     
complied with its directions and affirmed the sentence.
United States v. St. Blanc, No. ACM 37206, 2010 CCA LEXIS
147, at *1, 2010 WL 4117554, at *1 (A.F. Ct. Crim. App.
Mar. 19, 2010) (unpublished) (per curiam).
2
  On August 12, 2010, we granted the petition for review on
the following issue:
             I.            WHETHER APPELLANT’S FORUM                                              SELECTION WAS NOT MADE
                           KNOWINGLY AND VOLUNTARILY                                              BECAUSE HE WAS
                           MISADVISED BY ALL PARTIES                                              REGARDING THE MAXIMUM
                           PUNISHMENT FOR POSSESSION                                              OF WHAT “APPEARS TO BE”
                           CHILD PORNOGRAPHY.

On June 1, 2011, this Court ordered the parties to file
additional briefs “addressing Beaty and whether Appellant
waived his right to a trial by court members based on the
misapprehension of the maximum punishment.” United States
v. St. Blanc, 70 M.J. 208 (C.A.A.F. 2011) (order).

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United States v. St. Blanc, 10-0178/AF


“swtmandygal13.”    As a result of these conversations, the

Air Force Office of Special Investigations interviewed

Appellant and conducted a search of his residence, during

which it seized several computers and compact discs.     In

the seized media, Defense Computer Forensics Lab discovered

photographs and videos containing suspected child

pornography.    Based on this evidence, the Government

charged Appellant with, inter alia, two specifications of

possession of (1) four videos and (2) eighteen visual

depictions of “what appears to be” minors engaging in

sexually explicit conduct, in violation of Article 134,

UCMJ.

        Prior to trial, Appellant discussed the potential

maximum punishment for the offenses as charged with his

counsel.    Appellant’s counsel noted that, in this case,

“there was some unpredictability in the maximum punishment”

because of the two specifications charged under Article

134, UCMJ.    Counsel explained, however, that the

“comparable federal statute” -- the Child Pornography

Prevention Act of 1996 (CPPA), 18 U.S.C. § 2252A (2006) --

would serve “as a ceiling for confinement.”    Looking to the

CPPA, counsel informed Appellant, erroneously, that he




                                4
United States v. St. Blanc, 10-0178/AF


faced a possible maximum punishment of forty-nine years if

convicted of all charges.3

             As to forum selection, counsel “told [Appellant] that

neither a judge nor a panel would be likely to sentence him

to anywhere near the maximum punishment.”                                     Nonetheless,

counsel recommended that Appellant choose a trial by

military judge alone.                                      This recommendation was based on

counsel’s previous experience with the military judge

assigned to preside over Appellant’s court-martial

proceedings and on the nature of the charges and evidence

in his case.                          Prior to trial, Appellant submitted a written

request for trial by military judge alone.

             Before accepting Appellant’s request, the military

judge conducted a forum rights advisement, in accordance

with R.C.M. 903.                                 She began the advisement by providing

                                                        
3
  Trial defense counsel reached this figure by adding two
years for attempted indecent communication with a minor,
seven years for attempted indecent liberties, and twenty
years each for possession of child pornography (1) videos
and (2) visual depictions. In so doing, it appears that
trial defense counsel mistakenly relied upon 18 U.S.C. §
2252A(b)(1) which punishes a number of child pornography
offenses under the law instead of § 2252A(b)(2) which
punishes only simple possession -- the charge that
Appellant faced. Compare 18 U.S.C. § 2252A(b)(1) (imposing
a maximum punishment of twenty years), with 18 U.S.C. §
2252A(b)(2) (imposing a maximum punishment of ten years).
Appellant does not argue that he would have elected trial
by members if he was informed that the maximum punishment
he faced was twenty-nine years rather than forty-nine
years.

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United States v. St. Blanc, 10-0178/AF


Appellant with a detailed description of his right to trial

by members or by military judge alone.   The military judge

then ensured, and Appellant verbally acknowledged, that he

understood the difference between the forums and his rights

with respect to election.

     After ensuring that Appellant knew his rights, the

military judge then considered Appellant’s written request.

She first verified Appellant’s signature on his written

request and then verified that, prior to making his

request, Appellant was aware that she would be the military

judge in his case and that he was giving up his right to

trial by members.   After Appellant confirmed these facts,

the military judge approved his request to be tried by

military judge alone.

     Shortly after forum selection, the military judge

merged the two specifications for possession of child

pornography under Charge II, dismissing Specification 2 and

amending Specification 1 to read, “possess[ed] four videos

and eighteen visual depictions.”

     Thereafter, the case proceeded to trial on the

remaining charges, at the end of which the military judge

found Appellant not guilty of attempt to take indecent

liberties with a person believed to be under age sixteen,

in violation of Article 80, UCMJ, and guilty of attempting

                              6
United States v. St. Blanc, 10-0178/AF


to communicate indecent language to a minor and possession

of fifteen -- not eighteen -- visual depictions of “what

appears to be” child pornography, in violation of Articles

80 and 134, UCMJ.4                                    Prior to sentencing, the following

exchange took place regarding the maximum sentence that

could be adjudged:

             TC: Ma’am, in the quick 802, we needed a max
             sentence, too.

             MJ: You mean just the inquiry into the maximum
             sentence that could be imposed?

             TC: Just bringing it to your attention, not a
             big deal.

             MJ: As far as I was concerned, the maximum
             sentence was confinement for 12 years --

             TC:           Yes, ma’am.

             MJ: Forfeiture of all pay and allowances,
             reduction to the grade of E-1 and a dishonorable
             discharge.

             TC:           Yes, ma’am.

             MJ:           Okay.

While not explicit, given the finding of not guilty for the

specification of attempting to take indecent liberties with

a minor and the merger of two specifications of wrongful


                                                        
4
  It appears that the military judge found Appellant guilty
of possessing only fifteen of the eighteen charged visual
depictions because the defense’s expert testimony called
into question whether three of the images were of persons
under the age of eighteen years.

                                                               7
United States v. St. Blanc, 10-0178/AF


and knowing possession of “what appears to be” child

pornography, it appears that the military judge reached the

maximum punishment by adding ten years -- the CPPA maximum

for a single specification of possession of child

pornography, see 18 U.S.C. § 2252A(b)(2), -- to the two-

year maximum for attempting to communicate indecent

language to a minor, see Manual for Courts-Martial, United

States pt. IV, paras. 4.e., 89.e.(1) (2008 ed.) (MCM).

Defense counsel did not object to this calculation.    The

military judge then sentenced Appellant to two years

confinement, a bad-conduct discharge, reduction to E-1, and

forfeiture of all pay and allowances.

     The AFCCA issued its decision prior to our decision in

Beaty, 70 M.J. 39 (setting aside the appellant’s sentence

because the military judge relied upon the CPPA to

calculate the sentence maximum for possession of “what

appears to be” child pornography).   St. Blanc, 2009 CCA

LEXIS 433, 2009 WL 4110805.   The AFCCA therefore held that

the military judge did not err in adopting the CPPA’s ten-

year maximum sentence for possession of child pornography

even though the specification alleged possession of “what

appears to be” child pornography.    Id. at *7-*8, 2009 WL

4110805, at *2-*3.   As a result, the court found the issue




                              8
United States v. St. Blanc, 10-0178/AF


regarding Appellant’s forum selection to be moot, so it

approved the findings.    Id.

                         II.    DISCUSSION

                                 A.

     The interpretation of UCMJ and R.C.M. provisions and

the military judge’s compliance with them are questions of

law, which we review de novo.         See, e.g., United States v.

Hunter, 65 M.J. 399, 401 (C.A.A.F. 2008); United States v.

Roberts, 59 M.J. 323, 326 (C.A.A.F. 2004); United States v.

Rendon, 58 M.J. 221, 224 (C.A.A.F. 2003).        Within the

military justice system, an accused has a right to trial

before a panel of military members.        United States v.

Turner, 47 M.J. 348, 350 (C.A.A.F. 1997) (“Article 16

guarantees the right to a trial by court members.”); United

States v. Parkes, 5 M.J. 489, 489 (C.M.A. 1978)

(recognizing that an accused has a “statutory right to

trial by a court with members”).        An accused also has a

choice:   prior to trial, an accused has the right to elect

to be tried by members or by a military judge alone.

Article 16(1)(B), UCMJ, 10 U.S.C. § 816(1)(B) (2006).

     In the military context, R.C.M. 903 protects the forum

selection right codified in Article 16, UCMJ, by ensuring

that an accused’s waiver of the right to trial by members

is knowing and voluntary.      To this end, the request for

                                  9
United States v. St. Blanc, 10-0178/AF

trial by military judge alone must be made in a signed

writing by the accused or made orally on the record.

R.C.M. 903(b)(2).   If the accused requests trial by

military judge alone, the military judge must further

ensure that the accused has:   (1) “consulted with defense

counsel” about the choice; (2) “been informed of the

identity of the military judge;” and (3) been informed “of

the right to trial by members.”     R.C.M. 903(c)(2)(A).   In

this way, R.C.M. 903 ensures that an accused understands

the nature of the choice before waiving the right to trial

by members.   Cf. Turner, 47 M.J. at 350 (recognizing the

need for a knowing waiver); Parkes, 5 M.J. at 489-90

(reviewing the adequacy of a military judge’s forum

selection inquiry to assure that the forum selection was

“understandingly made”).

                               B.

     In this case, Appellant does not contest that the

military judge complied with R.C.M. 903.    Instead,

Appellant claims that his waiver to trial by members was

not knowing and voluntary because he received inaccurate

information from his defense counsel regarding the maximum




                               10
United States v. St. Blanc, 10-0178/AF

punishment that he faced.5                                  Importantly, the “inaccuracy”

Appellant relies on is not counsel’s initial mistake in

relying on 18 U.S.C. § 2252A(b)(1), see supra note 3, but

rather an inaccuracy based on a retroactive application of

Beaty, 70 M.J. 39.

             “The maximum punishment authorized for an offense is a

question of law, which we review de novo.”                                   Beaty, 70 M.J.

at 41 (citing United States v. Ronghi, 60 M.J. 83, 84-85

(C.A.A.F. 2004)).                                   Here, as in Beaty, Appellant was charged

with possession of “what appears to be” child pornography,

yet his maximum sentence was determined by reference to the

CPPA.              Beaty held that the maximum sentence for a

specification of possessing “what appears to be” child

pornography cannot be determined by reference to the CPPA.

Id. at 44 (explaining that because the CPPA does not punish

possession of “what appears to be” child pornography, it

was error “to utilize the punishment authorized for a

violation of the CPPA when setting the maximum

punishment”).                            As a result, and in the absence of the

President setting a sentence maximum for such an offense,


                                                        
5
  Appellant also claims that the military judge misled him
as to the maximum punishment. But Appellant could not have
based his forum selection on this as Appellant made his
forum selection before the military judge discussed the
maximum sentence.

                                                              11
United States v. St. Blanc, 10-0178/AF

id. at 42 & n.6, the maximum sentence for the offense today

is that of a general or simple disorder under Article 134,

UCMJ -- four months of confinement and forfeiture of two-

thirds pay per month for four months.    Id. at 45.

     According to Appellant, if he had known that the

maximum punishment he faced for the original charges and

specifications was only nine years and eight months, he

would have elected trial by members, and, therefore, his

decision was not knowing and voluntary because it was based

on inaccurate information.

                             C.

     We agree with Appellant that he should be correctly

informed by his defense counsel of the maximum punishment

he faces before making fundamental decisions in his case.

See Strickland v. Washington, 466 U.S. 668, 688 (1984);

United States v. Larson, 66 M.J. 212, 218 (C.A.A.F. 2008);

cf. United States v. Straight, 42 M.J. 244, 251 (C.A.A.F.

1995) (holding that defense counsel’s erroneous advice that

a post-trial session posed a risk of an increase in the

appellant’s sentence and his decision based on this belief

constituted “deficient performance within the meaning of

Strickland” but finding no prejudice).    We also recognize

that, where the accused has been grossly misled by a

miscalculation or erroneous sentence estimation by defense

                             12
United States v. St. Blanc, 10-0178/AF

counsel, such conduct may constitute ineffective assistance

of counsel.   See United States v. Herrera, 412 F.3d 577,

580 (5th Cir. 2005); United States v. Martinez, 169 F.3d

1049, 1053 (7th Cir. 1999); see also United States v.

Benson, 127 F. App’x 808, 810-11 (6th Cir. 2005); United

States v. Rodriguez Rodriguez, 929 F.2d 747, 753 (1st Cir.

1991); cf. United States v. Marshall, 45 M.J. 268, 273

(C.A.A.F. 1996) (concluding that counsel’s advice did not

constitute deficient performance but leaving open whether

“an erroneous sentence estimation by defense counsel” could

be deficient performance for purposes of ineffective

assistance of counsel).   But see United States v. Gordon, 4

F.3d 1567, 1570 (10th Cir. 1993) (“A miscalculation or

erroneous sentence estimation by defense counsel is not a

constitutionally deficient performance rising to the level

of ineffective assistance of counsel.”).

     There are, nonetheless, at least two problems with

Appellant’s assertion that counsel’s sentence advice here

can be recast as an unknowing and involuntary waiver of his

right to trial by military members in this case.   First, as

a threshold matter, we do not think the retroactive

application of Beaty to cases on direct review stretches so

far as Appellant suggests.   It is not insignificant that

under the law as it existed when Appellant’s counsel

                              13
United States v. St. Blanc, 10-0178/AF

calculated the maximum sentence, it was not a gross

mischaracterization to state that the maximum sentence for

possession of “what appears to be” child pornography could

be calculated by reference to the CPPA.                         See United States

v. Leonard, 64 M.J. 381, 384 (C.A.A.F. 2007) (holding that

the military judge did not err by referencing 18 U.S.C.

§ 2252(a)(2) to identify the maximum punishment for

wrongful and knowing receipt of child pornography in

violation of clauses 1 and 2 of Article 134, UCMJ).                         Beaty

had not been decided at the time of Appellant’s court-

martial proceeding.

             While the rule from Griffith v. Kentucky, 479 U.S.

314, 328 (1987), see also United States v. Harcrow, 66 M.J.

154, 157 (C.A.A.F. 2008), provides the benefit of the

holding from a case decided while another case is on direct

appeal, it is at best unclear that the benefit stretches

beyond the actual holding of the case.6                         See Davis v. United

States, 131 S. Ct. 2419, 2430-34 (2011) (applying the

retroactive application rule, noting that this did “not,

however, determine what ‘appropriate remedy’ (if any) the

defendant should obtain,” and declining to extend

                                                        
6
  In Beaty, the remedy was to set aside the sentence and
authorize a sentence rehearing based on the revised maximum
sentence, which was required by the holding in the case.
70 M.J. at 45.

                                                           14
United States v. St. Blanc, 10-0178/AF

exclusionary rule protection to the fruit of a “search

conducted in objectively reasonable reliance” on then

existing law); United States v. Owens, No. 09-14932 (Non-

Argument Calendar), 2011 U.S. App. LEXIS 21787, at *5-*6,

2011 WL 5061634, at *2 (11th Cir. Oct. 26, 2011) (per

curiam) (same).

     It likewise follows that the Griffith rule does not

extend so far as to encompass, and undo or undermine, any

and all matters that might have been decided differently if

Appellant was aware at point in time A that the law at

point in time B would be different while his case was on

direct appeal.    Cf.   United States v. Jacobs, 79 F. App’x

557, 560-61 (4th Cir. 2003) (per curiam) (holding that

although Apprendi v. New Jersey, 530 U.S. 466 (2000),

applied retroactively under Griffith to the issue of the

appellant’s sentence, the record did not “conclusively

reveal[]” grounds for ineffective assistance of counsel

with regard to the Apprendi issue).

     Second, even if retroactivity swept as broadly as

Appellant desires, we do not agree that the right to be

properly informed of the sentence maximum is encompassed

within Article 16, UCMJ.    The right to elect the forum for

trial, Article 16, UCMJ, is protected and implemented by

R.C.M. 903, which requires that the election be knowing and

                                15
United States v. St. Blanc, 10-0178/AF

voluntary.   Nothing in the MCM or UCMJ suggests any reason

for this Court to part ways with the federal courts, which

treat erroneous advice as to sentence in a contested case

as potential ineffective assistance of counsel and do not

analyze it as potential involuntary waiver of a forum

selection right.   See supra p. 12-13 (citing cases); cf.

Article 36(a), UCMJ, 10 U.S.C. § 836(a) (2006) (providing

the President with the authority to prescribe procedures

“by regulations which shall . . . apply the principles of

law and the rules of evidence generally recognized in the

trial of criminal cases in the United States district

courts”).

     Nor is there any textual or practical reason to do so.

While there are myriad reasons an accused may choose one

forum over another, R.C.M. 903 does not require that a

military judge inquire into any non-enumerated factors or

collateral matters that may have influenced the accused’s

election.    Moreover, as the facts of this case demonstrate,

the difference between an accused’s potential maximum

punishment prior to arraignment, when forum selection is

made, and the actual maximum sentence after findings --

impacted by dismissal of a charge or specification, merger

of specifications, findings of guilty only to a lesser

included offense, or findings of not guilty -- can be

                               16
United States v. St. Blanc, 10-0178/AF

significant.                          Thus, it would create an insoluble conundrum

if failure of pretrial sentencing advice in this regard in

a contested case were assessed under any standard other

than ineffective assistance of counsel.                                      See Herrera, 412

F.3d at 580; Martinez, 169 F.3d at 1053.

             Under the terms of R.C.M. 903, Appellant made a

knowing and voluntary election of trial by military judge

alone.

                                                                  D.

             Although the decision to waive trial by members was

valid, we must apply our holding in Beaty to the sentence,7

see United States v. Mullins, 69 M.J. 113, 116 (C.A.A.F.

2010), and Appellant is entitled to sentence relief.                                         Under

Beaty, 70 M.J. at 44, the military judge calculated an

incorrect maximum punishment, in reliance on the CPPA.

That error was plain and obvious.                                      See Harcrow, 66 M.J. at

158 (applying plain error analysis in the absence of an

objection by defense counsel when the law changed while the

case was on appeal).                                       Given the disparity between the

maximum sentence of twelve years calculated by the military

judge and the actual maximum sentence of two years and four

                                                        
7
  Senior Judge Cox did not participate in Beaty but agrees
that Appellant was materially prejudiced by the incorrect
calculation of the maximum sentence as required by the
Court’s decision in Beaty.

                                                                  17
United States v. St. Blanc, 10-0178/AF

months, we cannot say that this error did not substantially

influence the sentence and materially prejudice Appellant’s

substantial rights.   See Article 59(a), UCMJ, 10 U.S.C.

§ 859(a) (2006).   The sentence must be set aside.

                        III.   DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed as to the findings, but is

reversed as to the sentence.   Appellant’s sentence must be

set aside under United States v. Beaty, 70 M.J. 39

(C.A.A.F. 2011).   The record is returned to the Judge

Advocate General of the Air Force.   A rehearing on the

sentence may be ordered.




                               18
United States v. St. Blanc, No 10-0178/AF


       BAKER, Chief Judge (concurring in part and dissenting in

part):

       I agree with the majority that “[u]nder the terms of R.C.M.

903, Appellant made a knowing and voluntary election of trial by

military judge alone.”    United States v. St. Blanc, __ M.J. __

(17) (C.A.A.F. 2012).

       However, I respectfully dissent from Section II. D of the

majority opinion as well as the result based on my dissent in

United States v. Beaty, 70 M.J. 39, 45 (C.A.A.F. 2011) (Baker,

J., dissenting).    In my view, a military violation of Article

134(1)(2), Uniform Code of Military Justice (UCMJ),1 for

possession of what “appears to be minors” engaging in sexually

explicit conduct is directly analogous to the civilian offense

of possessing any visual depiction “that is, or is

indistinguishable from that of a minor engaging in sexually

explicit conduct.”    18 U.S.C. § 2256(8)(B), (11) (2006).

Therefore, the maximum punishment Appellant could face for

possession of “what appears to be child pornography” was ten

years with reference to the Child Pornography Prevention Act, 18

U.S.C. § 2252A (2006), rather than four months as a general

disorder.




1
    10 U.S.C. § 934 (2006).
