UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                         CAMPANELLA, HERRING, and PENLAND
                               Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                           Specialist DAKOTA A. BRAGAN
                            United States Army, Appellant

                                      ARMY 20160124

                       Headquarters, 82nd Airborne Division
                         Richard J. Henry, Military Judge
           Lieutenant Colonel Susan K. McConnell, Staff Judge Advocate


For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Major Andres
Vazquez, Jr., JA; Lieutenant Colonel Christopher Daniel Carrier, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie, III,
JA; Captain Tara O’Brien Goble, JA; Captain Jonathan S. Reiner, JA (on brief).


                                       15 March 2017

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                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of indecent exposure, possessing child pornography, receiving
child pornography, viewing child pornography, and communicating indecent
language, in violation of Articles 120c and 134, Uniform Code of Military Justice,
10 U.S.C. §§ 920c, 934 (2012) [hereinafter UCMJ]. The convening authority
approved the adjudged sentence of a bad-conduct discharge, confinement for ninety
days, and reduction to the grade of E-1.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises two assignments of error. Both warrant discussion and one merits relief. We
also find the matters raised by appellant pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982) to be meritless.
BRAGAN—ARMY 20160124

                                  BACKGROUND

       Appellant pleaded guilty to indecent exposure by taking photographs of his
erect penis and sending them to a pair of sixteen-year-old high school cheerleaders.

      During the plea inquiry, the military judge went through each element of the
offense of indecent exposure and reviewed the basis for the charge–namely, that
appellant had intentionally exposed his genitalia in an indecent manner between 1
January 2014 and 30 November 2014.

        Appellant admitted he took photographs of his penis and sent them to others,
knowing the pictures were indecent. He further expounded upon the indecency
element of the charge in that he photographed his penis next to a water bottle to
illustrate its size–and then sent the photographs via social media to persons under
the age of 18.

       Although appellant did not mention it during the providence inquiry, appellant
also sent videos of himself unclothed, masturbating, and ejaculating to the same two
underage girls on different occasions during the same timeframe as the charged
indecent exposure. The two girls reciprocated by sending appellant similar videos of
themselves unclothed and masturbating. Appellant admits this information to be
true through the stipulation of fact.

                             LAW AND DISCUSSION

      Appellant now argues the military judge abused his discretion by accepting
appellant’s guilty plea for indecent exposure in light of United States v. Williams, 75
M.J. 663 (Army Ct. Crim. App. 2016).

        The government urges this court to distinguish this case from Williams and
affirm the indecent exposure charge arguing that because appellant sent videos, not
just still photographs, this case falls outside the holding in Williams.

                                 Standard of Review

       We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Schell, 72 M.J. 339, 345 (C.A.A.F. 2013) (citing United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)). Although the standard for
this case is “abuse of discretion,” when the law changes due to a case decided while
an appellant’s case is on direct appeal, appellant is entitled to avail himself of the
new rule, even though the military judge did not err at the time. United States v.
Harcrow, 66 M.J. 154, 160 (C.A.A.F. 2008) (Ryan, J. concurring). A guilty plea
will only be set aside if we find a substantial basis in law or fact to question the
plea. Id. (citing Inabinette, 66 M.J. at 322). The court applies this “substantial

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BRAGAN—ARMY 20160124

basis” test by determining whether the record raises a substantial question about the
factual basis of appellant’s guilty plea or the law underpinning the plea. Inabinette,
66 M.J. at 322.

       Whether Article 120c(c), UCMJ, proscribes the appellant’s electronic
transmission of a photograph of his penis is a de novo question of statutory
interpretation. United States v. Entzminger, __ M.J. __, 2017 CCA LEXIS 20, at *4
(Army Ct. Crim. App. 11 Jan. 2017); Williams, 75 M.J. at 665.

                      Acceptance of Plea to Indecent Exposure

       After appellant’s court-martial, but before the convening authority took
action, this court decided United States v. Williams, 75 M.J. 663 (Army Ct. Crim.
App. 2016) and considered whether Article 120c(c), UCMJ, applied to an appellant
sending a still “digital image” of his penis via text message to a victim. We
determined it did not. We held the term “exposed” under Article 120c(c), UCMJ,
did not encompass showing a person a photograph or digital image of one’s genitalia
because there was no live display of actual genitalia. Id. at 667. Finally, we
concluded Congress did not intend to criminalize an “exposure” through
communication technology under Article 120c(c), UCMJ. Id. at 669.

      In other words, after appellant’s trial, this court definitively determined
appellant’s actions of digitally sending a photograph of his exposed erect penis to
another person did not constitute the offense of indecent exposure. We find
appellant’s plea and the providence inquiry to be on all fours with this conclusion.

       The government argues that “although appellant did not mention it during the
providence inquiry, he also sent videos of himself unclothed, masturbating, and
ejaculating to both of those young girls on different occasions during the same time
frame.” Accordingly, the government asserts that appellant’s actions went beyond
the appellant’s actions in Williams, citing United States v. Ferguson, 68 M.J. 431
(C.A.A.F. 2013), a pre-Williams case.

       This argument falls flat. There was no indication during the plea inquiry that
the basis for the indecent exposure charge was connected to appellant transmitting
videos of himself masturbating and ejaculating. The government invites this court to
flout the providence inquiry and inappropriately incorporate by reference the video-
related information from the stipulation of fact. The law does not permit us to do
so.

        Even if we were to ignore the providence inquiry and assume incorporation by
reference of the information in the stipulation of fact, the government’s argument
still comes to naught. The upshot of Williams was that there was no live display of
actual genitalia in the electronic transmission. Also see, United States v.

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BRAGAN—ARMY 20160124

Uriostegui, 75 M.J. 857, 864-65 (N.M. Ct. Crim. App. 2016) (“We agree with the
holding in Williams that this conduct is not indecent exposure under Article 120c(c),
UCMJ, because indecent exposure has ‘a temporal and physical presence aspect . . .
[and] violations occur when a victim [may be] present to view the actual body parts
listed in the statutes, not images or likenesses of the listed parts.’”). While
transmitting a previously recorded video is factually different, as the government
asserts, it is without legal distinction under these facts.

       As in Williams, here the record establishes no legally sufficient theory of how
appellant committed indecent exposure under Article 120c(c), UCMJ. As such, we
hold there is a substantial basis in law to question the providence of appellant’s plea
and will take appropriate action in our decretal paragraph and set aside and dismiss
Charge I.

                                   Post-Trial Delay

        It took 106 days after action for the government to get appellant’s record of
trial to our court. The government explains this delay as a mailroom issue related to
the record being “returned to sender without notice to the local office.” We do not
find this explanation reasonable. It is incumbent upon the government to track and
account for mailed records of trial. That said, here, appellant has not demonstrated
prejudice or a due process violation. See United States v. Moreno, 63 M.J. 129
(C.A.A.F. 2006). Additionally, considering the facts and circumstances of this case,
the approved sentence, and post-trial delay, we find the approved sentence not
inappropriately severe. As such, we award no relief. UCMJ, art. 66(c). While we
grant appellant no relief on this issue, we, nonetheless, invite the government’s
attention to Army Reg. 27-26, Legal Services: Rule for Professional Conduct for
Lawyers, Appx. B, R.1.1 (Competence), R.1.3 (Diligence) (1 May 1992) (“A lawyer
shall act with reasonable diligence and promptness in representing a client and in
every case.”).

                                    Reassessment

       In determining whether we can reassess the sentence, we apply several non-
exhaustive factors from United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
2013). First, appellant faced a maximum punishment of a dishonorable discharge,
thirty-one years and six months confinement, total forfeiture of pay and allowances,
and reduction to E-1 prior to the reversal of his conviction for indecent exposure.
Appellant still faces a maximum punishment of a dishonorable discharge, thirty
years and six months confinement, total forfeiture of pay and allowances, and
reduction to E-1. This does not constitute a dramatic change in the penalty
landscape. Second, appellant was sentenced by a military judge and we are more
likely to be certain of what a military judge would have done. Third, appellant’s
criminal conduct remains significant: he is convicted of three child pornography

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offenses and one specification of indecent language. Fourth, we have familiarity
and experience with the remaining offenses to reliably determine what sentence
would have been imposed at trial. After weighing these factors, we are confident we
can reassess the sentence in this case.

                                   CONCLUSION

      On consideration of the entire record, the findings of guilty of the
Specification of Charge I and Charge I are set aside and dismissed. The remaining
findings of guilty are AFFIRMED.

       Reassessing the sentence on the basis of the errors noted, the entire record,
and in accordance with the principles of Winckelmann, 73 M.J. at 15-16, we affirm
the sentence as adjudged. All rights, privileges, and property, of which appellant
has been deprived by virtue of that portion of his sentence set aside by this decision,
are ordered restored. See UCMJ arts. 58b(c) and 75(a).

      Judge HERRING and Judge PENLAND concur.

                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




                                        MALCOLM
                                        MALCOLM H.  H. SQUIRES,
                                                       SQUIRES, JR.
                                                                JR.
                                        Clerk of Court
                                        Clerk of Court




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