United States v. Sergeant GILBERT L. PARKER

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before CONN, HOFFMAN, and GIFFORD Appellate Military Judges UNITED STATES, Appellee v. Sergeant GILBERT L. PARKER United States Army, Appellant ARMY 20090825 Headquarters, Multi-National Corps-Iraq Stephen R. Henley, Military Judge Colonel Jeffrey C. McKitrick, Staff Judge Advocate

For Appellant: Captain Shay Stanford, JA; Captain Brent A. Goodwin, JA (on brief).

For Appellee: Lieutenant Colonel Martha L. Foss, JA (on brief).

12 January 2010 --------------------------------- SUMMARY DISPOSITION --------------------------------- Per Curiam: A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of conspiracy to commit an indecent act, violation of a lawful general order, indecent act, obstruction of justice, and wrongful distribution of naked images of fellow soldiers, in violation of Articles 81, 92, 120, and 134 Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 881, 892, 920, and 934. The military judge sentenced appellant to a bad-conduct discharge and confinement for twelve months. The convening authority approved the adjudged sentence.

The case has been submitted to this court for review on the merits pursuant to Article 66, UCMJ.

FACTS Appellant pled guilty to wrongful distribution of naked images of fellow soldiers by exceptions and substitutions. After appellant’s exceptions, the specification alleged that appellant distributed the sexual images to one person on one date, but the specification still listed that the distribution occurred at two places: Fort Dix, New Jersey and COB Basra, Iraq. Both the military judge’s recitation of the elements and appellant’s responses pursuant to the providence inquiry reflect that the distribution occurred only at COB Basra, Iraq.

LAW We review a military judge's acceptance of a guilty plea for an abuse of discretion. United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996) (citing United States v. Gallegos, 41 M.J. 446 (C.A.A.F. 1995)). We will not overturn a military judge's acceptance of a guilty plea unless the record of trial shows "a 'substantial basis' in law and fact for questioning [it]." Id. (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). A providence inquiry into a guilty plea must establish that the accused believes and admits that he is guilty of the offense and that the factual circumstances admitted by the accused objectively support the guilty plea. United States v. Garcia, 44 M.J. 496, 497-98 (C.A.A.F.

1996) (citing United States v. Higgins, 40 M.J. 67, 68 (C.M.A. 1994); United States v. Davenport, 9 M.J. 364, 367 (C.M.A. 1980)).

The factual circumstances admitted by appellant do not support his plea of guilty to the words “at or near Fort Dix, New Jersey, and” for the offense of wrongful distribution of naked images of fellow soldiers.

Appellant’s plea to these words is, thus, improvident.

CONCLUSION We have considered those matters personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit. Appellant remains convicted of wrongful distribution of naked images of fellow soldiers on one day to one person.

As the fundamental nature of the offense is unaltered by our modification, a sentence reassessment is not required. See United States v. Augustine, 53 M.J. 95 (C.A.A.F. 2000).

We amend Specification 2 of Charge IV by excepting the words “at or near Fort Dix, New Jersey, and” and affirm the specification as modified.

The remaining findings of guilty and the sentence are affirmed.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court