UNITED STATES, Appellant
v.
Wilson MEDINA, Gunner’s Mate First Class
U.S. Coast Guard, Appellee
No. 13-5002
Crim. App. No. 1325
United States Court of Appeals for the Armed Forces
Argued March 12, 2013
Decided May 2, 2013
RYAN, J., delivered the opinion of the Court, in which BAKER,
C.J., ERDMANN and STUCKY, JJ., and COX, S.J., joined.
Counsel
For Appellant: Lieutenant Commander Vasilios Tasikas (argued).
For Appellee: Lieutenant Commander Paul R. Casey (argued).
Military Judge: Gary E. Felicetti
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Medina, 13-5002/CG
Judge RYAN delivered the opinion of the Court.
Consistent with his pleas, a military judge sitting as a
general court-martial convicted Appellee of one specification of
sodomy, in violation of Article 125, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 925 (2006), and one specification of
assault consummated by a battery, in violation of Article 128,
UCMJ, 10 U.S.C. § 928. The adjudged sentence provided for
confinement for a period of thirteen months, reduction to E-1,
and a bad-conduct discharge. The convening authority approved
the adjudged sentence and ordered all but the bad-conduct
discharge to be executed.
Thereafter, Appellee sought relief before the United States
Coast Guard Court of Criminal Appeals (CGCCA), asking the lower
court to determine whether he had suffered unreasonable and
unexplained post-trial delay, and, if so, to consider the delay
in determining the sentence to be approved under Article 66(c),
UCMJ, 10 U.S.C. § 866(c). On September 24, 2010, the CGCCA
affirmed the findings of guilty, but affirmed only so much of
the sentence as provided for confinement for eleven months,
reduction to E–2, and a bad-conduct discharge. United States v.
Medina, 69 M.J. 637, 641 (C.G. Ct. Crim. App. 2010). On May 23,
2011, this Court vacated the CGCCA’s decision and remanded
Appellee’s case for reconsideration in light of United States v.
Hartman, 69 M.J. 467 (C.A.A.F. 2011). United States v. Medina,
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United States v. Medina, 13-5002/CG
70 M.J. 137 (C.A.A.F. 2011) (order vacating the CGCCA’s decision
and remanding).
On remand, the CGCCA set aside Appellee’s Article 125,
UCMJ, conviction and authorized the convening authority to
select one of the following options: (1) order a rehearing on
findings for the sodomy charge and on sentence; (2) if option
(1) is “impracticable under the circumstances,” order a
rehearing on sentence for the Article 128, UCMJ conviction; or
(3) if both option (1) and option (2) are impracticable, approve
a sentence of no punishment. United States v. Medina, 71 M.J.
652, 655 (C.G. Ct. Crim. App. 2012).
The CGCCA recognized that by “add[ing] an element requiring
the [act of sodomy] to be ‘prejudicial to good order and
discipline,’” the military judge was “clearly attempting to
elicit from [Appellee] facts supporting a conclusion that his
conduct fell outside of a constitutionally protected liberty
interest and the [United States v. Marcum, 60 M.J. 198 (C.A.A.F.
2004),] factors.” Medina, 71 M.J. at 653-54. However, because
the military judge did not explain to or discuss with Appellee,
during the providence inquiry, how these facts placed his
consensual sexual act with an adult outside the liberty interest
identified in Lawrence v. Texas, 539 U.S. 558 (2003), see
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United States v. Medina, 13-5002/CG
Marcum, 60 M.J. at 206-07, the CGCCA held that Appellee’s guilty
plea was improvident.1 Id.
We agree with the CGCCA’s reasoning and affirm its
decision, which correctly applied United States v. Hartman in
setting aside Appellee’s conviction. Like the case before us,
Hartman involved a providence inquiry conducted pursuant to the
accused’s guilty plea to the offense of consensual sodomy with
an adult, in violation of Article 125, UCMJ.
In Hartman, we recognized that the presence of a “Marcum
factor” -- a fact separate and apart from the act of sodomy
itself -- distinguishes that conduct which may be subject to
criminal sanction, and that conduct which is constitutionally
protected under Lawrence. Hartman, 69 M.J. at 468; see also
United States v. Wilson, 66 M.J. 39, 41 (C.A.A.F. 2008) (“[A]n
1
On December 20, 2012, the Judge Advocate General of the Coast
Guard (TJAG) asked this Court to consider the following issues:
I. WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS
ERRED BY APPLYING THE PROVIDENCE INQUIRY
REQUIREMENTS OF HARTMAN IN A CASE WHERE THE FACTS
ELICITED DURING THE PROVIDENCE INQUIRY REVEALED
THAT THE SEXUAL ACTIVITY FELL OUTSIDE OF THE
CONSTITUTIONAL PROTECTIONS BOUNDED BY LAWRENCE v.
TEXAS BECAUSE IT INVOLVED A RECENT, PRIOR
TRAINER-TRAINEE RELATIONSHIP.
II. ASSUMING A HARTMAN INQUIRY IS REQUIRED, WHAT
CONSTITUTES A SUFFICIENT COLLOQUY BETWEEN THE
MILITARY JUDGE AND AN ACCUSED TO SUPPORT A PLEA
OF GUILTY TO THE SPECIFICATION OF SODOMY UNDER
THE STANDARD SET FORTH IN HARTMAN?
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United States v. Medina, 13-5002/CG
act of sodomy in private between consenting adults may not be
[criminal], absent some other fact.”) (citing Lawrence, 539 U.S.
at 578). We characterized that “additional fact” as “a matter
of ‘critical significance’” because it “distin[guishes] between
what is permitted and what is prohibited.” Hartman, 69 M.J at
468 (quoting United States v. O’Connor, 58 M.J. 450, 453
(C.A.A.F. 2003)).
Next, we emphasized that: “The fundamental requirement of
[a] plea inquiry under [United States v. Care, 18 C.M.A. 535, 40
C.M.R. 247 (1969),] and [Rule for Courts-Martial (R.C.M.)] 910
involves a dialogue in which the military judge poses questions
about the nature of the offense and the accused provides answers
that describe his personal understanding of the criminality of
his or her conduct.” Id. at 469. Because the inquiry did not
establish the accused’s personal understanding of the
relationship between the facts he was admitting and why his plea
to voluntary sexual activity with an adult could nonetheless be
subject to criminal sanction, we held that the plea was
improvident. Id.
Here, pursuant to Appellee’s guilty plea to consensual
sodomy, the military judge and Appellee engaged in a dialogue
during which the military judge elicited facts in an attempt to
demonstrate that Appellee’s sexual activity was subject to
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United States v. Medina, 13-5002/CG
criminal sanction.2 However, the dialogue did not meet the
requirements of Hartman or Care, which are different from the
standard for legal sufficiency, because the military judge
failed to ensure Appellee’s personal understanding of matters
critical to his guilt; namely, why these additional facts
removed his sexual activity from the protection recognized in
Lawrence and Marcum and subjected that activity to criminal
sanction. We therefore affirm the CGCCA’s decision that
Appellee’s plea was improvident.
DECISION
The decision of the United States Coast Guard Court of
Criminal Appeals is affirmed.
2
The providence inquiry before us comes much closer to
satisfying Care and R.C.M. 910 than that which was conducted in
Hartman because the discussion between the military judge and
the accused in this case went well beyond simply discussing the
“nature of the sexual conduct.” Hartman, 69 M.J. at 469 (plea
was improvident where (1) in the initial part of the inquiry,
the appellant merely “describ[ed] the nature of the sexual
conduct,” (2) the military judge then asked the appellant a
series of follow-up questions after discussing Lawrence and
Marcum with trial counsel, but (3) the military judge failed to
explain the significance of these questions to the appellant).
Nevertheless, the military judge failed to elicit what Hartman
requires where the Article 125, UCMJ, offense to which the
accused pleaded guilty is consensual sodomy with an adult --
Appellee’s personal understanding that the additional facts
elicited are necessary for his conduct, which might otherwise
fall within the liberty interest defined in Lawrence, to be
subject to criminal sanction.
6