mo-andersen, sa.doc - UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before TOZZI HAM 1 and SIMS Appellate Military Judges UNITED STATES Appellee v


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UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before TOZZI, HAM, 1 and SIMS Appellate Military Judges UNITED STATES, Appellee v. Warrant Officer One SHAWN A. ANDERSEN United States Army, Appellant ARMY 20080669 Headquarters, Fort Carson Deborah L. Boudreau, Military Judge Colonel Michael W. Meier, Staff Judge Advocate For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Grace M. Gallagher, JA; Lieutenant Colonel Jonathan F. Potter (on specified issues); Captain Pamela Perillo, JA (on brief and on brief on specified issues). For Appellee: Colonel Norman F.J. Allen, III, JA; Lieutenant Colonel Martha L. Foss, JA; Major Sara M. Root, JA; Captain Sarah J. Rykowski, JA (on brief and on brief on specified issues). 10 September 2010 --------------------------------- MEMORANDUM OPINION --------------------------------- This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. HAM, Judge: This case addresses whether appellant’s plea to possession of “child pornography . . . in violation of 18 U.S.C. §2252A” is provident. In short, the essence of the Care 2 inquiry—an “inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea,” in particular that the images appellant is charged with possessing depict “sexually explicit conduct”—is deficient with regard to a majority of the images charged. See Rule for Courts-Martial [hereinafter R.C.M.] 910(e). Additionally, we find evidence that patently sets up a 1 Judge HAM took final action in this case prior to her permanent change of duty station. 2 United States v. Care , 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969).
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ANDERSEN—ARMY 20080669 matter inconsistent with the plea that is not addressed and thus remains unresolved, and find further that there is a substantial basis in law or fact to question the plea. Upon our review of the entire record, including those issues personally specified by appellant under United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), we set aside appellant’s plea in part and we reassess his sentence. In reaching our decision, we address two issues in detail. The first issue concerns whether the record establishes a sufficient factual predicate for appellant’s plea. In our analysis of this issue, our appellate review of a guilty plea is focused on whether the plea is provident . We do not review the record in a guilty plea for legal or factual sufficiency, nor do we examine the evidence to determine what the government could prove if appellant contested the charges against him. In addition, in a plea to possession of child pornography that involves both charged images and uncharged images in aggravation, the record of the plea must establish as a matter of law and fact that the charged images are of minors engaged in sexually explicit conduct. In other words, the plea must clearly establish that the charged images actually are prohibited visual depictions of child pornography.
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