Navy-Marine Corps Court of Criminal Appeals

Ali pled guilty to indecent visual recordings and possession of CP. He was sentenced to 48 months, RiR, and a DD.

This is a "straddle" case where his primary appellate issue was IAC " for failing to adequately explain Appellant’s options regarding sentencing procedures and for advising Appellant to elect sentencing procedures in accordance with rules implemented pursuant to the Military Justice Act of 2016 (MJA 16)[.]"

 Appellant claims that had he been better informed about the MJA 16 sentencing procedures election, he would not have agreed to an MJA 16 plea agreement even if it would have meant settling for a PTA with a higher possible sentence limitation. He asserts that the outcome would have been different had he elected pre-MJA 16 sentencing procedures because he could have fared better in sentencing. 

The court rejects the argument based partly on it being speculative and because of the declarations submitted to the court by the defense counsel explaining their advice and reasoning for their recommendation.

There is nothing in the record to indicate that but for his counsels’ alleged error, Appellant would not have pleaded guilty and would have insisted on going to trial.
​. . . 
​Finally, in focusing narrowly on his own desires in the plea negotiations, Appellant overlooks that there was another party involved in the negotiations—the convening authority. On the one hand, Appellant’s main concerns were to minimize confinement and to preserve his retirement eligibility. On the other hand, the convening authority desired a minimal term of confinement and no protection from a punitive discharge. Hired with the primary goal of successfully negotiating a plea agreement, and reminded that the former CDC had been fired for his inability to secure one, Appellant’s CDC sought the most favorable terms in the back-and-forth negotiations with the convening authority. Recognizing the futility of attempting to convince the convening authority to protect Appellant from a punitive discharge, CDC leveraged the dishonorable discharge term to reduce Appellant’s exposure to confinement. Negotiating the confinement cap became a key issue for the parties. Appellant’s initial proposed plea agreement offered 60 days of confinement with a confinement cap of 48 months, while the convening authority proposed a cap of 72 months. Ultimately the parties settled on 55 months. Seen in the light of the previous failed plea negotiations, the ultimately successful multi-week plea negotiations, and the convening authority’s own goals, we are convinced that Appellant’s TDC discussed the MJA 16 sentencing procedural framework with him, despite his statements to the contrary.

The court rejected Appellant's claim that the sentence was unreasonable.

​Appellant’s offenses were serious and had lasting impacts on the victims. He admitted to having secretly recorded his undressed fellow shipmates over a period of months while they were living in the very close confines of a deployed submarine. Appellant unlawfully made videos capturing at least 40 Sailors—13 of whom were identified by NCIS—which he filed away for personal viewing and maintained for nearly four years until their discovery by law enforcement. Multiple victims testified about the impacts of Appellant’s offenses, describing persistent physical reactions when considering the crime, loss of trust, and feeling “disgusted.”47 Additionally, Appellant admitted to having purchased thousands of images and videos of children engaged in sexual acts, in which over 350 victims were identified by the National Center for Missing and Exploited Children. Appellant sought out and paid for these images and videos, and then kept them for years on multiple electronic devices until they were seized by law enforcement. In mitigation, Appellant presented evidence of his long naval career, acceptance of responsibility, expressions of remorse, and efforts at rehabilitation. Nonetheless, . . .