Army Court of Criminal Appeals

United States v. Wilkinson. Appellant was convicted, by a military judge, in absentia of indecent viewing, attempted indecent viewing, two sexual abuses of a child, and indecent exposure. The MJ sentenced him to three years and a dismissal. ACCA had to decide whether the Appellant was voluntarily absent and burdens of proof. The court was satisfied trial could proceed in the Appellant's absence.

On a different note. It is not clear from the opinion when, if ever, the Appellant elected MJA. We know that forum is one of the four or five decisions only the accused can make. The R.C.M. 804 in effect says the accused "shall" be present and that the trial is his "place of duty." Once arraigned, trial may proceed if the accused's absence is voluntary. R.C.M. 903 regulates forum selection. The Discussion to Rule 903(a) says that "If an accused makes no forum selection, the accused will be tried by a court-martial composed of a military judge and members, as specified in the convening order." This is what we old folks called the default. But see, as did ACCA, United States v. Chandler, 80 M.J. 425, 429, n.2 (C.A.A.F. 2021) ("The provisions of a discussion section to the R.C.M. are not binding but instead serve as guidance."). R.C.M. 903(b) requires a written election or one made on the record. See also UCMJ art. 16(b)(3). R.C.M. 903(c)(2) requires affirmative action by the MJ to ensure an election for MJA is voluntary.
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United States v. Amos, 26 M.J. 806 (A.C.M.R. June 24, 1988); United States v. Jungbluth, 48 M.J. 953 (N-M. Ct. Crim. App. 1998) are of some help with my question.

I acknowledge it's entirely possible that the Appellant had elected forum on the record before he went UA to some other place. It would seem proper then, if that's the case for a MJA trial to proceed. Cf. United States v. Stiner, 30 M.J. 860, 861 (N.M.C.M.R. 1990).

Does anyone know when and how forum was selected in this case?

If no written request or oral request on the record, perhaps United States v. Turner, 45 M.J. 531 (N-M. Ct. Crim. App. 1996) might be helpful in finding that the trial could not proceed MJA. See also, United States v. Mozie, No. 20130065, 2016 CCA LEXIS 273 *1 n.1 (A. Ct. Crim. App. Apr. 28, 2016). In United States v. Sharp, 38 M.J. 33 (C.M.A. 1993), cited by ACCA, the accused was tried by members. 

The court concludes that,

In sum, the question before us is not whether we think it is more likely that appellant perished in the mountains or voluntarily absented himself from his trial. Rather, we can only provide relief if we find that the military judge's ruling constitutes an abuse of discretion. See Gore, 60 M.J. at 187 ("[T]he abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range.") (citation omitted). As such, based on our review of the entire record and for all of the reasons stated above, we conclude that the military judge did not abuse his discretion in: (1) finding that the government met its burden to prove by a 
preponderance of the evidence that appellant's failure to appear was voluntary; (2) finding that the defense failed to refute the inference that his absence was voluntary; and (3) proceeding with the trial in absentia. 

United States v. Kim. The Appellant pled guilty to four sexual abuses of a child, making an indecent recording, A&B, and indecent conduct. He was sentenced to 130 months, RiR, and a DD. The PTA reduced the confinement to six years.

Appellant asserts that his searching a pornographic website for videos depicting "rape sleep" and "drugged sleep" fail to constitute the offense of indecent conduct. We hold that appellant's unconditional guilty plea waived this claim and affirm.
. . . 
First, appellant argues that conducting an internet search for legal pornographic material does not constitute an indecent act "by any standard." Further, appellant goes on to assert that the terms "rape sleep" and "drugged sleep" do not transform an internet search into indecent conduct. Lastly, appellant asserts that the facts and circumstances of his searching for vulgar pornographic material was not service discrediting. In essence, what appellant argues is that his conduct fails to state an offense. 

The court maintains its position that an unconditional guilty plea waives a motion for failure to state an offense. See United States v. Sanchez, 81 M.J. 501,504 (Army Ct. Crim. App. 2021); United States v. Hardy, 77 M.J. 438, 442 (C.A.A.F. 2018).

United States v. Comingo. An "enlisted" panel convicted Appellant of three rapes, one sexual assault, one A&B on a child under 16, adultery, and communicating a threat. The members sentenced him to 22 years and 11 months, RiR, TF, and a DD. 

The court sets aside the "divers" language in the sexual assault allegation and finds the government proved only one event.

The court reassessed the sentence and affirmed it.