United States v. Riddle

UNITED STATES, Appellee

v.

Carrie N. RIDDLE, Private
U.S. Army, Appellant

No. 08-0739
Crim. App. No. 20070756

United States Court of Appeals for the Armed Forces

Argued February 10, 2009

Decided May 12, 2009

STUCKY, J., delivered the opinion of the Court, in which BAKER
and RYAN, JJ., joined. EFFRON, C.J., filed a separate
dissenting opinion, in which ERDMANN, J., joined.

Counsel

For Appellant: William M. Fischbach III, Esq. (argued);
Lieutenant Colonel Matthew M. Miller, Lieutenant Colonel Mark
Tellitocci, and Captain Pamela Perillo (on brief); Major Grace
M. Gallagher.

For Appellee: Captain James M. Hudson (argued); Colonel Denise
R. Lind, Lieutenant Colonel Mark H. Sydenham, and Major
Christopher B. Burgess (on brief).

Military Judge: Richard Gordon

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Riddle, No. 08-0739/AR

Judge STUCKY delivered the opinion of the Court.

Appellant asserts that her guilty pleas were improvident

because the military judge did not explain or discuss the

defense of lack of mental responsibility during the plea

inquiry. We hold that Appellant’s pleas were provident and that

under the facts of this case the military judge was not

obligated to explicitly explain or discuss that defense with

Appellant.

I. Background

Appellant, Private (PVT) Carrie N. Riddle, pled guilty

before a general court-martial to four specifications of use of

marijuana and one specification of being absent without leave

(AWOL). Articles 112a and 86, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. §§ 912a, 886 (2000). The military judge,

sitting alone, sentenced Appellant to a bad-conduct discharge

and ten days of confinement. As Appellant had ten days of

pretrial confinement credit, she served no confinement following

her court-martial. The United States Army Court of Criminal

Appeals summarily affirmed the findings and sentence on May 28,

2008. United States v. Riddle, No. ARMY 20070756 (A. Ct. Crim.

App. May 28, 2008).

Appellant entered active duty on May 31, 2006, and at the

time of these offenses was assigned to Fort Benning, Georgia.

According to the stipulation of fact admitted at trial,

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Appellant used marijuana on several occasions throughout her

period of active duty. On March 1, 2007, Appellant left her

unit for over a month and traveled to South Carolina with

another soldier, PVT Renee Kunsman, remaining there until her

April 16, 2007, voluntary return to her unit. During this trip

Appellant used marijuana with PVT Kunsman. Appellant advised

the pregnant PVT Kunsman that marijuana could be good for her

nerves and appetite. In a stipulation of fact, the parties

agreed that Appellant had chronic alcohol and marijuana

dependence as well as bipolar and borderline personality

disorder, conditions which pre-dated her enlistment.

The military judge was aware of Appellant’s mental

condition. He knew that before her unauthorized absence she was

scheduled to be administratively discharged for her mental

condition, and that she was then receiving treatment at an “off-

post installation that specializes in mental issues, mental and

behavioral issues.” The military judge was also aware that

Appellant arrived at trial directly from the mental health

facility and would return there at the conclusion of trial. In

addition, the military judge’s questions indicate that

Appellant’s mental state was of concern to him, inquiring “Are

you feeling okay?” when Appellant nonchalantly referred to

throwing the butt of a marijuana cigarette into a lake as

“getting the fishes high.”

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At trial, the military judge asked Appellant a series of

questions regarding her mental health and her competency to

stand trial:

MJ: Now, I understand you are currently receiving
treatment at the Bradley Center in Columbus, Georgia.
Is that true?

ACC: Yes, sir.

MJ: How long have you been down at the Bradley
Center?

ACC: Since the 12th of June, this time, sir.

MJ: Okay. And what are you being treated for?

ACC: Bipolar and borderline personality disorder with
severe depression, sir.

MJ: Okay. I understand that at the conclusion of
this trial today you are going to return to the
Bradley Center for continued treatment?

ACC: Yes, sir.

MJ: All right. . . . The question is whether or not
you are -- you believe that you are competent to stand
trial.

Do you think you are?

ACC: Yes, sir.

MJ: Do you believe that you fully understand not only
the ramifications of this court-martial but what is
going to happen today?

ACC: Yes, sir.

MJ: Okay. Are you currently taking any drugs or
medications?

ACC: Yes, sir.

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MJ: What drugs or medications are you taking?

ACC: My medications are, Zoloft, 100 milligrams, with
Topamax three times a day; Ibuprofen, 800 milligrams
three times a day; Zyrtec; Atarox [sic], Sereoquel;
and --

MJ: Are most of those anti-depressants?

ACC: Sleep aids, mood suppressants, and a couple of
anti-depressants.

MJ: Okay. But Major Grills [defense counsel] assures
me that, in her opinion, she believes you are
competent to understand the nature of these
proceedings. Do you agree with that?

ACC: Yes, sir.

The military judge also questioned Appellant as to her

mental capacity and responsibility at the time of the offenses:

MJ: Okay. Did you understand what you were doing
when you went AWOL?

ACC: Yes, Sir.

MJ: Okay. Now I realize that you have had some
psychiatric issues, I guess apparently in AIT and that
continued apparently to now, although, I have to say
for the record, you appear to be extremely articulate
and very alert today. But my question to you is, as a
Soldier, did you understand that when you went AWOL .
. . that what you were doing was wrong, that you were
not authorized to do that?

ACC: Yes, Sir.

. . . .

MJ: And you knew that smoking marijuana during all of
these four specifications was wrongful, correct?

ACC: Yes, sir.

. . . .

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MJ: And do you agree and do you admit that during
this period of time from early December through April
2007, that your use of marijuana was wrongful?

ACC: Yes, Sir.

Trial defense counsel expanded upon this line of

questioning during Appellant’s unsworn sentencing statement in

an apparent effort to display Appellant’s understanding and

remorse for her crimes:

DC: And we have already talked about the different
conditions that you suffer from, but -- and the
military judge has already asked you this, but the
offenses that you plead guilty to, you understand what
you were doing at those times?

ACC: Yes, ma’am.

DC: And you understood right from wrong?

ACC: Yes, ma’am.

During the sentencing proceeding the military judge

accepted into evidence a mental health evaluation of Appellant

detailing her condition. The “Report of Mental Status

Evaluation” was created on May 14, 2007, and updated on May 17,

2007, by Major Long P. Huynh, the Chief of Inpatient Psychiatry

at Martin Army Community Hospital. The report stated that

Appellant “has the mental capacity to understand and participate

in the proceedings” and that she “was mentally responsible.”

Major Huynh notes Appellant’s two suicide attempts and states

that Appellant would remain an inpatient for the next week. He

further states that Appellant is “medically and psychologically

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stable enough for 1-2 weeks of confinement”; periods longer than

that “may cause her clinical conditions to deteriorate and

possibly lead to readmission to psychiatry.” It is unclear why

the report was created; however Major Huynh states in the

comments section that Appellant was “unsuited for further

military service. Her company commander has agreed to pursue to

[sic] the most rapid separation possible.” Although this form

references “proceedings” for which Appellant was determined to

be “mentally responsible,” the form was completed nine days

prior to the preferral of charges.

After handing down the sentence knowing that Appellant was

going to be returned directly to the Bradley Center, the

military judge made one final statement regarding Appellant’s

mental state:

I just want to say one more time for the record, my
personal observations in this courtroom today are
that, although Private Riddle indicated she was taking
a number of drugs at the Bradley Center . . . she
appeared to the court to be fully cognizant of
everything that happened today. She was alert. She
was articulate, and she appeared to the court to
completely understand the nature and quality of these
proceedings.
II. Discussion

Appellant now argues that the military judge abused his

discretion when he accepted her guilty pleas. Appellant asserts

that, given her mental health history, the military judge was

required to explain or discuss the defense of lack of mental

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responsibility, and furthermore the military judge was required

to ensure that trial defense counsel had evaluated the viability

of the defense and/or elicit facts from her that would

negate the defense. Appellant contends that, as none of these

things occurred, her pleas were improvident.

“[W]e review a military judge’s decision to accept a guilty

plea for an abuse of discretion and questions of law arising

from the guilty plea de novo.” United States v. Inabinette,

66 M.J. 320, 322 (C.A.A.F. 2008); United States v. Shaw,

64 M.J. 460, 462 (C.A.A.F. 2007). If, during the proceedings,

the accused sets up matter inconsistent with the plea, it is the

responsibility of the military judge to either resolve the

inconsistency or reject the plea. Article 45(a), UCMJ, 10

U.S.C. § 845(a) (2000); Shaw, 64 M.J. at 462. Once the military

judge has accepted the pleas and entered findings based upon

them, this Court will not set them aside unless we find a

substantial conflict between the pleas and the accused’s

statements or other evidence of record. Shaw, 64 M.J. at 462.

More than a “mere possibility” of conflict is required. Id.

(citations and quotation marks omitted). Instead, this Court

must find “something in the record of trial, with regard to the

factual basis or the law, that would raise a substantial

question regarding the appellant’s guilty plea.” Inabinette, 66

M.J. at 322.

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In military law, lack of mental responsibility is an

affirmative defense that an accused must establish by clear and

convincing evidence. Article 50a(a), UCMJ, 10 U.S.C. § 850a(a)

(2000); Rules for Courts-Martial (R.C.M.) 916(b)(2). If “there

is reason to believe that the accused lacked mental

responsibility for any offense charged or lacks capacity to

stand trial” the military judge and other officers of the court

each has the independent responsibility to inquire into the

accused’s mental condition. R.C.M. 706(a). An accused cannot

“make an informed plea without knowledge that he suffered a

severe mental disease or defect at the time of the offense.”

United States v. Harris, 61 M.J. 391, 398 (C.A.A.F. 2005).

Similarly, the military judge cannot conduct the necessary

providence inquiry into the accused’s pleas “without exploring

the impact of any potential mental health issues on those

pleas.” Id.

We have addressed the question of an accused’s mental

disease or defect and the providence of a guilty plea in the

recent cases of Inabinette, United States v. Glenn, 66 M.J. 64

(C.A.A.F. 2008), Shaw, and Harris. A military judge can

presume, in the absence of contrary circumstances, that the

accused is sane and, furthermore, that counsel is competent.

Shaw, 64 M.J. at 463. Should the accused’s statements or

material in the record indicate a history of mental disease or

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defect on the part of the accused, the military judge must

determine whether that information raises either a conflict with

the plea and thus the possibility of a defense or only the “mere

possibility” of conflict. Id. at 462 (citation and quotation

marks omitted). The former requires further inquiry on the part

of the military judge, the latter does not. Id. This is a

contextual determination by the military judge. Id. at 464.

However, we have additionally indicated that it is prudent, but

we emphasize not always required, to conduct further inquiry

when a significant mental health issue is raised, regardless of

whether a conflict has actually arisen. Id.

The question in Shaw was whether sufficient evidence of a

mental disease or disorder was before the military judge so as

to raise an inconsistency with Shaw’s plea and thus require the

military judge to inquire further into Shaw’s mental state and

advise him of the defense of lack of mental responsibility.

Shaw provided an unsworn statement during sentencing stating

that he had previously been diagnosed with bipolar disorder

following a head injury. Id. at 461. Aside from responding to

defense counsel’s questions on the issue, Shaw provided no

further evidence that his condition affected his mental

responsibility for his actions. Id. We determined that Shaw’s

reference to his history of bipolar disorder “at most raised

only the ‘mere possibility’ of a conflict with the plea,” and

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that therefore it was not an abuse of discretion for the

military judge to accept Shaw’s plea without conducting further

inquiry into his mental health. Id. at 464. In reaching that

decision we considered Shaw’s history of bipolar disorder, his

conduct during the plea inquiry and whether that reflected on

his capacity to plead guilty, and if Shaw’s statements indicated

an inability to appreciate the nature and wrongfulness of his

acts as a result of his mental health issues. Id. at 462-63;

see also Glenn, 66 M.J. at 66.

In Harris, which sits at the other end of the spectrum from

Shaw, we found that there was sufficient basis in law and fact

to question Harris’s guilty plea. 61 M.J. at 398. Harris had

been convicted for passing bad checks, unauthorized absence, and

larceny. Id. at 392. At trial, the military judge found that

Harris understood the nature and quality and/or wrongfulness of

his actions. Id. at 393. However, this Court found that, as

Harris’s mental disease or defect was diagnosed only after the

trial, his plea was not informed and the trial court could not

have performed the necessary providence inquiry. Id. at 398-99.

While there is more here than a mere unsworn assertion, the

facts of this case are still closer to Shaw than to Harris. The

record of trial makes clear that neither Appellant’s conduct nor

her mental health history created more than the mere possibility

of conflict with her pleas. Admittedly, this case differs from

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Shaw in that the record reflects a diagnosis of bipolar disorder

for which Appellant was being treated at the time of trial. In

addition, Appellant arrived at the court-martial from the mental

health facility and would return there at its conclusion.

However, the record does not reflect that her bipolar disorder

affected the providence of her plea. See Shaw, 64 M.J. at 462.

In the instant case, the military judge was aware of

Appellant’s mental health history and made sure, as set out

above, that Appellant’s mental condition, current treatment, and

competency to stand trial did not put the providence of her plea

at issue. He specifically asked her about her mental

responsibility at the time the offenses were committed, ensuring

that at the time of her offenses she understood both what she

was doing and the difference between right and wrong. In

addition, during Appellant’s unsworn statement trial defense

counsel repeated the inquiry into Appellant’s mental

responsibility for her acts. The military judge placed his

impressions of Appellant’s behavior at trial on the record and

repeated those observations as to Appellant’s mental acuity

following sentencing. He found that she was “fully cognizant of

everything that happened today,” as well as “alert,”

“articulate,” and that she appeared to “completely understand

the nature and quality of these proceedings.” Finally, the

“Report of Mental Status Evaluation” found Appellant “mentally

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responsible.” Unlike Harris, or United States v. Martin, 56

M.J. 97 (C.A.A.F. 2001), this is not a case in which there were

conflicting evaluations of Appellant’s mental responsibility.

There was no evidence of record that Appellant lacked mental

responsibility at the time the offenses were committed.

Given these facts, we cannot say that the military judge

was required to explain or discuss the defense of lack of mental

responsibility with Appellant. Appellant appeared competent and

responsible before the military judge, she claimed she was

competent and responsible at the time of the offenses, her

counsel agreed that she was competent and responsible at that

time, and the mental status evaluation stated that she “was

responsible.” Moreover, no evidence exists to suggest that

Appellant did not understand the nature and quality or the

wrongfulness of her actions when committing the offenses. 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.

III. Conclusion

For the reasons set forth above, the decision of United

States Army Court of Criminal Appeals is affirmed.

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EFFRON, Chief Judge, with whom ERDMANN, Judge, joins

(dissenting):

The plea colloquy in this case between Appellant and the

military judge raised a possible defense of lack of mental

responsibility under Rule for Courts-Martial (R.C.M.) 916(k).

These circumstances required the military judge to engage in a

further inquiry to resolve the apparent inconsistency raised by

the plea colloquy. See United States v. Phillippe, 63 M.J. 307,

309 (C.A.A.F. 2006). The military judge did not do so.

Accordingly, I respectfully dissent from the conclusion of the

majority opinion that the military judge did not err in the

conduct of the plea inquiry.

I. RESPONSIBILIITIES OF THE MILITARY JUDGE
DURING THE PLEA COLLOQUY

When a military accused offers to plead guilty, the

military judge must engage in a detailed colloquy to ensure

protection of the rights of the accused under applicable law.

See United States v. Care, 18 C.M.A. 535, 541-42, 40 C.M.R. 247,

253-54 (1969). The military judge must personally address the

accused, explain the elements of each charged offense, and ask

questions about the accused’s actions and intentions to ensure

that the accused’s conduct meets all elements of the charges to

which the accused is pleading guilty. Id. at 541, 40 C.M.R. at

253. The military judge must personally advise the accused of
United States v. Riddle, 08-0739/AR

the rights forfeited by pleading guilty and make appropriate

inquiries to ensure that the accused’s waiver of these rights is

voluntary. Id. The military judge must make findings on the

record that there is “a knowing, intelligent, and conscious

waiver” of rights before a guilty plea may be accepted. Id. at

542, 40 C.M.R. at 254.

A guilty plea may not be accepted unless the military judge

is fully satisfied as to the providence of the plea. “If an

accused ‘sets up matter inconsistent with the plea’ at any time

during the proceeding, the military judge must either resolve

the apparent inconsistency or reject the plea.” United States

v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996) (quoting Article

45(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 845

(2000)). A potential defense to the charged crime constitutes

“matter inconsistent with the plea” under Article 45(a), UCMJ.

If, at any time during the proceeding, “circumstances raise a

possible defense,” the military judge must consider whether the

defense applies before accepting the plea as provident.

Phillippe, 63 M.J. at 310-11. Although the “mere possibility”

of a defense is not enough to create an inconsistency with the

plea, United States v. Shaw, 64 M.J. 460, 462 (C.A.A.F. 2007)

(quoting Garcia, 44 M.J. at 498) (quotation marks omitted), the

circumstances need not constitute a complete defense in order to

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United States v. Riddle, 08-0739/AR

trigger the military judge’s duty to make a further inquiry into

a possible defense. Phillippe, 63 M.J. at 310.

If evidence raises a possible defense, the military judge

must explore that defense by inquiring further into the evidence

that supports it before accepting the plea as provident. Id. at

310-11. When these inquiries establish that the defense does

not apply, the military judge may accept the plea without

explaining the defense. See id.; United States v. Inabinette,

66 M.J. 320, 322-23 (C.A.A.F. 2008). If, however, the military

judge’s inquiries do not bring forth evidence demonstrating that

the defense is inapplicable, the military judge must explain the

defense to the accused. See United States v. Harris, 61 M.J.

391, 398 n.13 (C.A.A.F. 2005). The requirement for an

explanation ensures that the accused’s waiver of the right to

present the defense is knowing and voluntary. See Phillippe, 63

M.J. at 310. When the military judge fails to address the issue

of a possible defense through further inquiry or explanation of

the defense to the accused, an appellate court will reverse for

an abuse of discretion. See Phillippe, 63 M.J. at 309-10.

II. THE PLEA COLLOQUY AND MENTAL RESPONSIBILITY

Under R.C.M. 916(k), “[i]t is an affirmative defense to any

offense that, at the time of the commission of the acts

constituting the offense, the accused, as a result of a severe

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mental disease or defect, was unable to appreciate the nature

and quality or the wrongfulness of his or her acts.” A military

judge’s duty to inquire into an accused’s mental condition

before accepting the accused’s guilty plea depends on whether

the “circumstances raise a possible defense” of lack of mental

responsibility. See Phillippe, 63 M.J. at 310-11.

In a line of cases involving bipolar disorder, we have

distinguished between cases that suggested a possible defense of

lack of mental responsibility and cases that raised the “mere

possibility” of a defense. Compare Harris, 61 M.J. at 398, with

Shaw, 64 M.J. at 464; United States v. Glenn, 66 M.J. 64, 66

(C.A.A.F. 2008). An accused’s unsupported claim of bipolar

disorder does not raise a possible defense. See Shaw, 64 M.J.

at 462-64; Glenn, 66 M.J. at 65-66. In Glenn and Shaw, each

accused’s claim of bipolar disorder was unsupported by any

“factual record developed during or after the trial

substantiating Appellant’s statement or indicating whether and

how bipolar disorder may have influenced his plea,” the

accused’s conduct during the inquiry did not raise concerns of

lack of capacity, and there was no assertion or other evidence

suggesting that the accused was “unable to appreciate the nature

and quality or wrongfulness of his acts as a result of a mental

disease or defect.” Shaw, 64 M.J. at 462-63; Glenn, 66 M.J. at

66. In each of these cases, the claims were insufficient to

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create an inconsistency with the plea that required further

inquiry from the military judge. See Shaw, 64 M.J. at 462-64;

Glenn, 66 M.J. at 65-66.

By contrast, we have found that a possible defense was

raised, and an inconsistency with the plea created, in cases

where there was record evidence of a medical diagnosis of

bipolar disorder. In Harris, a psychiatrist diagnosed the

accused while he was in confinement with bipolar disorder and

found that he was unable to appreciate the nature of his actions

at the time of the offenses. 61 M.J. at 393. Although two

sanity boards had found the accused mentally responsible, we

found that the contrary diagnosis in confinement raised a

possible defense, and we granted a new trial. Id. at 398-99.

In Inabinette, a testifying psychiatrist’s statement that the

accused had bipolar disorder with psychotic features created an

inconsistency with the accused’s plea. 66 M.J. at 323. We held

in these cases that the military judge was required to either

elicit information to disprove the defense of lack of mental

responsibility, see id. at 322-23, or to explain the defense to

the accused, see Harris, 61 M.J. at 398 n.13, before accepting

the guilty plea as provident.

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III. THE PLEA INQUIRY AT APPELLANT’S COURT-MARTIAL

A. THE INFORMATION RAISING THE REQUIREMENT FOR AN INQUIRY

For the reasons set forth below, the plea inquiry at

Appellant’s trial developed information that presented more than

a “mere possibility” of a defense, see Shaw, 64 M.J. at 464,

raising “a possible defense” of lack of mental responsibility

requiring further inquiry by the military judge. See Phillippe,

63 M.J. at 310.

First, the parties stipulated that Appellant was medically

diagnosed with bipolar disorder and borderline personality

disorder that pre-existed her military service, and thus also

pre-existed her offenses.

Second, Appellant was confined in a private inpatient

mental health treatment facility, the Bradley Center, from June

12, 2007, until the time of her court-martial on July 2, 2007,

and was returned for further treatment at the conclusion of her

court-martial. The record indicates that after Appellant

terminated her unauthorized absence on April 16, 2007, by

surrendering to the psychiatric ward of Martin Army Community

Hospital, Appellant spent most of the time leading up to the

court-martial as an inpatient at either the Martin Army

Community Hospital or the Bradley Center, with the exception of

ten days of pretrial confinement. The fact that Appellant’s

mental condition was serious enough to warrant continued

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hospitalization underscored the possibility that her bipolar

disorder was a “severe mental disease or defect” that could have

influenced her ability to “appreciate the nature and quality or

the wrongfulness of . . . her acts.” See R.C.M. 916(k).

Third, Appellant testified to the military judge that she

was taking at least six types of medication, including mood

suppressants and anti-depressants, at the time of her trial.

Appellant’s extensive medication also suggested the potential

severity of her mental condition.

Fourth, the mental health report submitted in sentencing

noted that Appellant had attempted suicide twice. While the

mental health report also noted that her mood “ha[d] been

stabilized” through treatment and that her thought process

appeared normal at the time of the report, Appellant had not

been treated at the time of her offenses. Further, the report

stated that, although Appellant was stable enough for one to two

weeks of confinement, longer confinement could result in mental

deterioration. These segments of the report suggest that when

she was not receiving treatment -- at the time of the offenses

-- Appellant’s mental conditions were worse, and that Appellant

needed continued mental treatment.

Finally, the military judge, in light of comments by

defense counsel, appeared to tailor the sentence with a view

towards mental health treatment as the appropriate remedy for

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Appellant. At sentencing, after questioning Appellant about her

treatment, defense counsel asked the military judge to “[t]ake

into consideration . . . the strides she is willing to take now

to go forward with proper counseling, with proper medication”

and that “[t]he plan is for her to go back to the Bradley Center

until they are satisfied that she be released and she should be

discharged from the Army.” The military judge sentenced

Appellant to time served, with accompanying commentary that

Appellant would be returned to the mental health facility for

further treatment.

In combination, the foregoing circumstances should have

alerted the military judge that, at the time of her offenses,

Appellant may have suffered from “a severe mental disease or

defect” that left her “unable to appreciate the nature and

quality or wrongfulness of . . . her acts.” R.C.M. 916(k). The

military judge was required to inquire into this evidence, and

to either determine that a defense of lack of mental

responsibility would not apply or explain the defense to

Appellant, to ensure that her pleas were provident. See supra

Part I; Phillippe, 63 M.J. at 310.

B. THE INQUIRY CONDUCTED BY THE MILITARY JUDGE

During the providence inquiry, the military judge addressed

Appellant’s mental state on the day of the court-martial. The

military judge asked Appellant whether she was competent to

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stand trial, whether she understood what was happening, and

whether she was feeling okay. The military judge commented that

defense counsel had assured the military judge that she believed

that Appellant was competent to stand trial and to understand

the proceedings -- statements with which Appellant agreed. The

military judge also remarked on the record that Appellant

appeared “extremely articulate and very alert” and that “she

appeared to the court to be fully cognizant of everything that

happened today.”

The military judge asked a few questions about Appellant’s

mental disorders. He asked Appellant how long she had been in

treatment at the Bradley Center, and he affirmed that she would

be returning to the Bradley Center after the court-martial. He

asked Appellant why she was receiving treatment and what drugs

she was taking.

In the most relevant inquiries, the military judge asked

Appellant about her understanding of her offenses at the time

they were committed. The military judge asked, “Did you

understand what you were doing when you went AWOL?” and “did you

understand when you went AWOL . . . that what you were doing was

wrong, that you were not authorized to do it?” The military

judge also asked whether Appellant “knew that smoking marijuana

during all of these four specifications was wrongful.” Defense

counsel asked at sentencing whether, despite Appellant’s mental

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conditions, she “understood what [she] was doing at those

times?” and “understood right from wrong?” Appellant replied

“Yes” to all of these questions.

Based on this record, the military judge’s questions about

Appellant’s mental condition did not elicit facts that disproved

the possible defense of lack of mental responsibility raised by

the evidence. See Inabinette, 66 M.J. at 322-23. Appellant’s

answers to the military judge’s few questions about why she was

being treated and what drugs she was taking supported, rather

than contradicted, the defense. Further, the military judge did

not inquire into the most detailed mental health information he

possessed -– the mental health report submitted at sentencing.

The report was prepared while Appellant was in treatment, and it

is unclear to what extent the report was intended to address her

mental state at the time of the offenses. The military judge

could have determined through questioning whether the report was

a psychiatric evaluation of Appellant’s mental responsibility at

the time of her offenses, and the issue of timing might have

disproved the defense, but the military judge did not ask any

questions about the report.

The military judge’s questions about Appellant’s competence

to stand trial and the military judge’s personal observations of

Appellant’s conduct at the court-martial did not negate the

defense. Appellant’s mental state and conduct at the court-

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martial, while she was in treatment and on numerous medications,

did not demonstrate that Appellant was mentally responsible at

the time of her offenses, which occurred before she received

mental health treatment.

Although the military judge touched upon the issue of

mental responsibility when inquiring about whether Appellant

understood her actions, the colloquy did not resolve the

applicability of the mental responsibility defense. If

Appellant had a severe mental disease or defect, her self-

assessment of her understanding might have been flawed. In any

case, Appellant’s personal answers did not represent a knowing

waiver of the defense in the absence of information provided by

the military judge about the defense. See Phillippe, 63 M.J. at

310-11.

The interchange between the military judge and defense

counsel did not lessen the military judge’s duty to explain the

defense to Appellant. Nothing in the record demonstrates that

defense counsel considered the defense of lack of mental

responsibility; and in any case, defense counsel’s obligation to

consider possible defenses did not satisfy the military judge’s

duty to conduct a proper providence inquiry directly with the

accused. See Care, 18 C.M.A. at 541, 40 C.M.R. at 253. The

providence inquiry centers on the special relationship between

the accused and the military judge, not between the accused and

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counsel. See id. This relationship requires the military judge

to ensure that an accused’s pleas are provident before they may

be accepted. See Phillippe, 63 M.J. at 309.

Under these circumstances, the military judge abused his

discretion by not completing the required plea inquiry in light

of the possible defense raised during the plea colloquy.

Accordingly, I would reverse the decision of the Court of

Criminal Appeals.

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