United States v. Private First Class NICHOLAS DOHERTY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CELTNIEKS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class NICHOLAS DOHERTY
United States Army, Appellant
ARMY 20160390
Headquarters, 2d Infantry Division/ROK-US Combined Division
Tiernan P. Dolan, Military Judge
Colonel Timothy P. Hayes, Jr., Staff Judge Advocate
For Appellant: Major Andres Vazquez, Jr., JA; Captain Katherine L. DePaul, JA (on
brief).
For Appellee: Lieutenant Colonel A.G. Courie III, JA (on brief).
2 December 2016
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SUMMARY DISPOSITION
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Per Curium:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of sexual abuse of a child, one
specification of indecent exposure, and one specification of possessing child
pornography in violation of Articles 120b, 120c, and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 920b, 920c, and 934 (2012 & Supp. II 2015; 2012 & Supp. III
2016) [hereinafter UCMJ]. The military judge sentenced appellant to a dishonorable
discharge, confinement for eight years, and reduction to the grade of E-1. The
convening authority approved the findings and only so much of the sentence as
provided for a dishonorable discharge, confinement for sixty months, and reduction
to the grade of E-1.
Appellant’s case is before this court for review under Article 66, UCMJ.
Appellant personally raises one matter pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982), that is without merit.
DOHERTY— ARMY 20160390
BACKGROUND
Appellant was charged with and pleaded guilty to the Specification of
Additional Charge IV, in violation of Article 134, UCMJ, as follows:
[Appellant], U.S. Army, did, at or near Camp Humphreys,
Republic of Korea, on or about 4 January 2016, knowingly
and wrongfully possess child pornography, to wit: more
than 10 digital images of minors, or what appears to be
minors, engaging in sexually explicit conduct, and that
said conduct was to the prejudice of good order and
discipline in the armed forces and of a nature to bring
discredit upon the armed forces.
During the elements portion of the providence inquiry, the military judge only
described Clause 2 of the terminal element of Article 134, UCMJ; he did not
mention or define Clause 1, despite the fact both clauses were charged in the
conjunctive. In the colloquy that followed, appellant discussed how his possession
of child pornography was service discrediting without mentioning whether that
conduct was prejudicial to good order and discipline, and there was no additional
substantive inquiry between the military judge and appellant regarding Clause 1
throughout the remainder of the trial. Moreover, the parties did not include any
language pertaining to Clause 1 in the stipulation of fact supporting their pretrial
agreement.
LAW AND DISCUSSION
“During a guilty plea inquiry the military judge is charged with determining
whether there is an adequate basis in law and fact to support the plea before
accepting it.” United States v. Inabinette, 66 M.J. 320, 321–22 (C.A.A.F. 2008)
(citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). We review a
military judge's decision to accept a plea for an abuse of discretion by determining
whether the record as a whole shows a substantial basis in law or fact to question the
plea. Inabinette, 66 M.J. at 322.
The providence inquiry does not adequately show how appellant’s conduct
caused a “direct and palpable effect on good order and discipline.” United States v.
Erickson, 61 M.J. 230, 232 (C.A.A.F. 2005). After the military judge omitted the
definition of Clause 1, appellant’s dialogue with the military judge did not develop
any context relative to his possession of child pornography and its impact on good
order and discipline. Further, the stipulation does not act as a safety net in this case,
as it does not provide an additional factual basis upon which to satisfy this
requirement. See United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969).
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DOHERTY— ARMY 20160390
Without additional evidence, there is not a sufficient basis for accepting the plea
under Clause 1 of Article 134, UCMJ because the record before us does not clearly
establish the charged offense was prejudicial to good order and discipline. See
Manual for Courts-Martial, United States (2012 ed.), Part IV, 60.c.(1), (2), (3).
There is, however, a factual basis that supports appellant’s conduct was
service discrediting. See United States v. Phillips, 70 M.J. 161, 166 (C.A.A.F.
2011). Consequently, we will dismiss the language “to the prejudice of good order
and discipline in the armed forces and” from the Specification of Additional Charge
IV.
CONCLUSION
The court affirms only so much of the finding of guilty of the Specification of
Additional Charge IV as finds that:
[Appellant], U.S. Army, did, at or near Camp Humphreys,
Republic of Korea, on or about 4 January 2016, knowingly
and wrongfully possess child pornography, to wit: more
than 10 digital images of minors, engaging in sexually
explicit conduct, and that said conduct was of a nature to
bring discredit upon the armed forces.
Additionally, to properly reflect the military judge’s clear intent to merge
Specifications 1 and 2 of Charge I for both findings and sentencing, we consolidate
Specification 1 and 2 of Charge I into a single specification, denominated the
Specification of Charge I, to read as follows:
[Appellant], U.S. Army, did, at or near Camp Humphreys,
Republic of Korea, on or about 30 December 2015,
commit a lewd act upon Miss H.D. and Miss R.D.,
children who had not attained the age of 12 years, to wit:
masturbating in the presence of said children.
The finding of guilty to Specification 2 of Charge I is set aside and that
Specification is DISMISSED. The finding of guilty to the Specification of Charge I,
as so amended, is AFFIRMED.
The remaining finding of guilty is AFFIRMED.
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DOHERTY— ARMY 20160390
Reassessing the sentence on the basis of the error noted, the entire record, and
in accordance with the principles of United States v. Winckelmann, 73 M.J. 11, 15-
16 (C.A.A.F. 2013), the sentence as approved by the convening authority is
AFFIRMED. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings set aside by this decision, are
ordered restored.
FOR THE
FOR THE COURT:
COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
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