UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before JOHNSON, BAIME, and BURTON Appellate Military Judges
UNITED STATES, Appellee v. Private E1 DAVID ANTAR United States Army, Appellant
ARMY 20080836
For Appellant: Major Daniel E. Goldman, JA (argued); Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M. Jamison, JA; Lieutenant Colonel Jonathan F. Potter, JA; Major Laura A. Kesler, JA; Captain Brent A. Goodwin, JA; Major Daniel E. Goldman, JA (on brief).
For Appellee: Major Adam S. Kazin, JA (argued); Colonel Michael E. Mulligan, JA; Major Amber J. Williams, JA; Major Adam S. Kazin, JA (on brief).
15 April 2011
---------------------------------------------------- SUMMARY DISPOSITION ON REMAND ----------------------------------------------------
BURTON, Judge:
On 18 September 2008, a military judge sitting as a special court- martial convicted appellant, pursuant to his pleas, of absence without leave (AWOL), wrongful use of a controlled substance (two specifications), wrongful possession of a controlled substance, and possession of drug paraphernalia, in violation of Articles 86, 112a, and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 886, 912a, and 834 (2008). The convening authority approved the adjudged sentence to confinement for 120 days and a bad-conduct discharge. The convening authority credited appellant with 87 days of confinement.
On 22 January 2010, following our initial review pursuant to Article 66, UCMJ, this court affirmed the findings and sentence.
On 8 June 2010, the United States Court of Appeals for the Armed Forces granted appellant’s petition on the following issue:
WHETHER THE MILITARY JUDGE ERRED BY ACCEPTING APPELLANT’S PLEA OF GUILTY AND NOT REOPENING THE PROVIDENCE INQUIRY WITHOUT QUESTIONING BOTH APPELLANT AND HIS TRIAL DEFENSE COUNSEL REGARDING APPELLANT’S BIPOLAR DISORDER, HIS EXTENSIVE HISTORY OF PSYCHIATRIC DISORDERS, AND POSSIBLE MENTAL RESPONSIBILTY DEFENSE.
On 8 June 2010, the United States Court of Appeals for the Armed Forces set aside our 22 January 2010 decision and returned the record of trial to the Judge Advocate General of the United States Army for remand to our court for reconsideration of the aforementioned issue in light of United States v. Harris, 61 M.J. 391 (C.A.A.F. 2005).
On 9 July 2010, this court ordered an inquiry pursuant to Rule for Courts-Martial (R.C.M.) 706 to assess appellant’s mental state beginning with his misconduct through the present appellate process. On 16 November 2010, this court granted the government’s motion to attach Government Appellate Exhibit (GAE) 1, a memorandum containing the board’s findings and conclusions. The board concluded that appellant, at the time of his criminal conduct, did suffer from a severe mental disease or defect.
Following the government’s submission of GAE 1 to this court, both parties submitted additional pleadings and we heard oral argument on the above granted issue.[1]
While the R.C.M. 706 board report concluded that appellant’s condition did not preclude appellant from appreciating the nature and quality or wrongfulness of his conduct or understanding the nature of the proceedings against him and cooperating in his defense at trial, those conclusions by themselves do not permit us to simply affirm the findings and sentence. As our superior court noted in Harris:
We do not see how an accused can make an informed plea without knowledge that he suffered a mental disease or defect at the time of the offense. Nor is it possible for a military judge to conduct the necessary Care inquiry into an accused’s pleas without exploring the impact of any potential mental health issues on those pleas.
Id.
Based on the unique facts of this case, and in light of our superior court’s directive to reconsider our review of appellant’s assignment of error under United States v. Harris, we conclude that there is a substantial basis in law and fact to question appellant’s guilty plea.
CONCLUSION
The findings of guilty and the sentence are set aside. A rehearing may be ordered by the same or a different convening authority. All rights, privileges, and property, of which appellant has been deprived by virtue of his sentence being set aside by this decision, are ordered restored. See UCMJ, arts. 58b(c) and 75(a).
Senior Judge JOHNSON concurs.
BAIME, Judge, dissenting:
I cannot share my fellow judges’ myopic view of this case. To do so fails to acknowledge the plethora of other military jurisprudence, including cases CAAF decided after United States v. Harris[2] in 2005 that are more relevant to the facts of the current case than Harris. Thus, I respectfully dissent.
LAW
“A guilty plea will be rejected only where the record of trial shows a substantial basis in law and fact for questioning the plea.” Harris, 61 M.J. at 398 (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). A guilty plea waives a number of an accused’s constitutional rights. Id. (citing United States v. Care, 18 C.M.A. 535, 541-42 (1969). As a result, any waiver of such rights must be informed. Id. (citing United States v. Hansen, 59 M.J. 410, 413 (C.A.A.F. 2004).
“[T]he military judge may reasonably rely on both a presumption that the accused is sane and the long-standing principle that counsel is presumed to be competent.” United States v. Shaw, 64 M.J. 460, 463 (C.A.A.F. 2007) (citing United States v. Cronic, 466 U.S. 648, 658 (1984)).
Additionally, United States v. Riddle, 67 M.J. 335 (C.A.A.F. 2009), is particularly informative. Citing Harris, 61 M.J. 338-39, the CAAF emphasized the outcome in Harris turned on the fact that the Harris appellant did not make an informed plea because his “mental disease or defect was diagnosed only after the trial,” and “the trial court could not have performed the necessary providency inquiry.” Riddle, 67 M.J. at 339.
ANALYSIS
I am convinced beyond any shadow of a doubt appellant, at the time of his trial, knew he suffered from a mental disease or defect. This is demonstrated numerous times in the record. First, prior to the command taking any action against appellant, on 13 May 2008, a licensed psychologist at the Community Mental Health Services completed a Department of the Army (DA) Form 3822-R, Report of Mental Status Evaluation, concerning appellant. In this document, which was included as an attachment to the stipulation of fact entered into between appellant and the government at trial, the Health Service Psychologist specifically found “The Service Member does have a severe mental disorder.”[3] The psychologist concluded appellant met the “psychiatric criteria for ROUTINE administrative separation” and was “psychiatrically cleared for any action deemed appropriate by Command.” (sic). Second, during his unsworn statement, appellant stated he was diagnosed as being bi-polar. Third, as part of his presentencing case, appellant submitted Defense Exhibits (DE) A and B, voluminous documentation from his parents about his previous mental illnesses, including chemical dependency and his multiple attempts at rehabilitation. In DE B, his father wrote appellant “was diagnosed with Bipolar Disorder” in 1994.
During oral argument,[4] appellate defense counsel made it extremely clear appellant was not alleging his trial defense counsel were ineffective or did anything inappropriate. I see no reason to disagree with this conclusion.
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UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before JOHNSON, BAIME, and BURTON Appellate Military Judges
UNITED STATES, Appellee v. Private E1 DAVID ANTAR United States Army, Appellant
ARMY 20080836
For Appellant: Major Daniel E. Goldman, JA (argued); Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M. Jamison, JA; Lieutenant Colonel Jonathan F. Potter, JA; Major Laura A. Kesler, JA; Captain Brent A. Goodwin, JA; Major Daniel E. Goldman, JA (on brief).
For Appellee: Major Adam S. Kazin, JA (argued); Colonel Michael E. Mulligan, JA; Major Amber J. Williams, JA; Major Adam S. Kazin, JA (on brief).
15 April 2011
---------------------------------------------------- SUMMARY DISPOSITION ON REMAND ----------------------------------------------------
BURTON, Judge:
On 18 September 2008, a military judge sitting as a special court- martial convicted appellant, pursuant to his pleas, of absence without leave (AWOL), wrongful use of a controlled substance (two specifications), wrongful possession of a controlled substance, and possession of drug paraphernalia, in violation of Articles 86, 112a, and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 886, 912a, and 834 (2008). The convening authority approved the adjudged sentence to confinement for 120 days and a bad-conduct discharge. The convening authority credited appellant with 87 days of confinement.
On 22 January 2010, following our initial review pursuant to Article 66, UCMJ, this court affirmed the findings and sentence.
On 8 June 2010, the United States Court of Appeals for the Armed Forces granted appellant’s petition on the following issue:
WHETHER THE MILITARY JUDGE ERRED BY ACCEPTING APPELLANT’S PLEA OF GUILTY AND NOT REOPENING THE PROVIDENCE INQUIRY WITHOUT QUESTIONING BOTH APPELLANT AND HIS TRIAL DEFENSE COUNSEL REGARDING APPELLANT’S BIPOLAR DISORDER, HIS EXTENSIVE HISTORY OF PSYCHIATRIC DISORDERS, AND POSSIBLE MENTAL RESPONSIBILTY DEFENSE.
On 8 June 2010, the United States Court of Appeals for the Armed Forces set aside our 22 January 2010 decision and returned the record of trial to the Judge Advocate General of the United States Army for remand to our court for reconsideration of the aforementioned issue in light of United States v. Harris, 61 M.J. 391 (C.A.A.F. 2005).
On 9 July 2010, this court ordered an inquiry pursuant to Rule for Courts-Martial (R.C.M.) 706 to assess appellant’s mental state beginning with his misconduct through the present appellate process. On 16 November 2010, this court granted the government’s motion to attach Government Appellate Exhibit (GAE) 1, a memorandum containing the board’s findings and conclusions. The board concluded that appellant, at the time of his criminal conduct, did suffer from a severe mental disease or defect.
Following the government’s submission of GAE 1 to this court, both parties submitted additional pleadings and we heard oral argument on the above granted issue.[1]
While the R.C.M. 706 board report concluded that appellant’s condition did not preclude appellant from appreciating the nature and quality or wrongfulness of his conduct or understanding the nature of the proceedings against him and cooperating in his defense at trial, those conclusions by themselves do not permit us to simply affirm the findings and sentence. As our superior court noted in Harris:
We do not see how an accused can make an informed plea without knowledge that he suffered a mental disease or defect at the time of the offense. Nor is it possible for a military judge to conduct the necessary Care inquiry into an accused’s pleas without exploring the impact of any potential mental health issues on those pleas.
Id.
Based on the unique facts of this case, and in light of our superior court’s directive to reconsider our review of appellant’s assignment of error under United States v. Harris, we conclude that there is a substantial basis in law and fact to question appellant’s guilty plea.
CONCLUSION
The findings of guilty and the sentence are set aside. A rehearing may be ordered by the same or a different convening authority. All rights, privileges, and property, of which appellant has been deprived by virtue of his sentence being set aside by this decision, are ordered restored. See UCMJ, arts. 58b(c) and 75(a).
Senior Judge JOHNSON concurs.
BAIME, Judge, dissenting:
I cannot share my fellow judges’ myopic view of this case. To do so fails to acknowledge the plethora of other military jurisprudence, including cases CAAF decided after United States v. Harris[2] in 2005 that are more relevant to the facts of the current case than Harris. Thus, I respectfully dissent.
LAW
“A guilty plea will be rejected only where the record of trial shows a substantial basis in law and fact for questioning the plea.” Harris, 61 M.J. at 398 (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). A guilty plea waives a number of an accused’s constitutional rights. Id. (citing United States v. Care, 18 C.M.A. 535, 541-42 (1969). As a result, any waiver of such rights must be informed. Id. (citing United States v. Hansen, 59 M.J. 410, 413 (C.A.A.F. 2004).
“[T]he military judge may reasonably rely on both a presumption that the accused is sane and the long-standing principle that counsel is presumed to be competent.” United States v. Shaw, 64 M.J. 460, 463 (C.A.A.F. 2007) (citing United States v. Cronic, 466 U.S. 648, 658 (1984)).
Additionally, United States v. Riddle, 67 M.J. 335 (C.A.A.F. 2009), is particularly informative. Citing Harris, 61 M.J. 338-39, the CAAF emphasized the outcome in Harris turned on the fact that the Harris appellant did not make an informed plea because his “mental disease or defect was diagnosed only after the trial,” and “the trial court could not have performed the necessary providency inquiry.” Riddle, 67 M.J. at 339.
ANALYSIS
I am convinced beyond any shadow of a doubt appellant, at the time of his trial, knew he suffered from a mental disease or defect. This is demonstrated numerous times in the record. First, prior to the command taking any action against appellant, on 13 May 2008, a licensed psychologist at the Community Mental Health Services completed a Department of the Army (DA) Form 3822-R, Report of Mental Status Evaluation, concerning appellant. In this document, which was included as an attachment to the stipulation of fact entered into between appellant and the government at trial, the Health Service Psychologist specifically found “The Service Member does have a severe mental disorder.”[3] The psychologist concluded appellant met the “psychiatric criteria for ROUTINE administrative separation” and was “psychiatrically cleared for any action deemed appropriate by Command.” (sic). Second, during his unsworn statement, appellant stated he was diagnosed as being bi-polar. Third, as part of his presentencing case, appellant submitted Defense Exhibits (DE) A and B, voluminous documentation from his parents about his previous mental illnesses, including chemical dependency and his multiple attempts at rehabilitation. In DE B, his father wrote appellant “was diagnosed with Bipolar Disorder” in 1994.
During oral argument,[4] appellate defense counsel made it extremely clear appellant was not alleging his trial defense counsel were ineffective or did anything inappropriate. I see no reason to disagree with this conclusion. Thus, I am faced with a situation where an appellant went to trial knowing he suffered from a severe mental disease or defect, as demonstrated in the prior paragraph. Also, appellant was represented by two attorneys presumed to have been competent and to have completed a thorough investigation of appellant’s case and all possible and probable defenses. Although appellant suffered from bi-polar disorder and other mental diseases, he is presumed to be sane and still able to participate in his defense. Nothing in the trial or appellate records suggests appellant made anything but a conscientious and fully informed decision to utilize his mental disease as extenuation and mitigation evidence. Also, in the stipulation of fact, appellant disclaimed any potential defenses, agreeing that he “had no legal justification, authorization or defense to the offenses to which he has entered a plea of guilty.” I believe appellant intended to show he was less culpable, but still responsible for his criminal misconduct.
When deciding this case, while I must consider Harris, I have a judicial obligation to also consider the other relevant military jurisprudence. Thus, in addition to considering Harris, we also need to evaluate appellant’s case in light of other relevant case law.
Harris concerned a petition for new trial based upon newly discovered evidence, after conclusion of appellant’s court-martial, that Harris suffered from a severe mental disease or defect. The seminal language from Harris as it relates to appellant’s case is, “We do not see how an accused can make an informed plea without knowledge that he suffered a severe mental disease or defect at the time of the offense.” Harris, 61 M.J. at 398.
The facts of Shaw much more closely resemble the case sub judice than the facts of Harris. In Shaw, which was decided after Harris, the accused made an unsworn statement stating he was diagnosed with “bi-polar syndrome.” Shaw, 64 M.J. at 461. Like the case at bar, the military judge failed to inquire into appellant’s statement regarding his bi-polar disorder.[5] In Shaw, the CAAF found this at most raised the “mere possibility” of a conflict with appellant’s plea and the military judge had not abused his discretion in not conducting a further inquiry. Shaw, 64 M.J. at 464. I conclude appellant’s unsworn statement and mental health history at most raised the mere possibility of a conflict with a plea, and further inquiry was not required.
After completing a thorough review of appellant’s case and all relevant military jurisprudence, I am convinced we were correct when we affirmed appellant’s findings and sentence on 22 January 2010. Appellant and his counsel were aware appellant had a severe mental disease or disorder and made “an informed plea” of guilty. They also made a strategic decision to use that evidence for extenuation and mitigation purposes. “The evidence before the military judge presented only the mere possibility of conflict with Appellant’s guilty plea and did not raise a substantial basis in law or fact for questioning the providence of that plea.” Riddle, 67 M.J. at 340. The military judge did not abuse his discretion by failing to inquire about appellant’s bi-polar disorder. See Shaw, 64 M.J. at 464.
For the above reasons, I respectfully dissent.
FOR THE COURT:
MALCOLM H. SQUIRES, JR. Clerk of Court
----------------------- [1] On 9 February 2011, this court granted the government’s motion to attach GAE 3, an additional memorandum, dated 7 February 2011, from the doctor who conducted the R.C.M. 706 board. The memorandum provided some clarifications to GAE 1. [2] 61 M.J. 391 (C.A.A.F. 2005) [3] The psychologist did not find appellant was bi-polar, but rather suffered from opioid dependence. Interestingly, appellant told the psychologist his father “has ‘bipolar’ and was ‘crazy’ growing up.”
[4] I commend both government and defense appellate counsel on their outstanding oral arguments, which were superlative. [5] The military judge should have asked appellant about his bi-polar disorder. All military judges should inquire of any accused as to their willingness and ability to plead guilty when an issue of mental responsibility is raised through any means in a guilty plea. See Riddle, 67 M.J. at 338-39. The issue for us to decide now, though, is whether the military judge’s failure to inquire about appellant’s bi-polar disorder requires reversal of appellant’s conviction. This is where I disagree with my brethren.