United States v. Glenn

UNITED STATES, Appellee
v.
Michael D. GLENN, Private
U.S. Army, Appellant
No. 07-0407
Crim. App. No. 20051482
United States Court of Appeals for the Armed Forces
Argued December 4, 2007
Decided February 26, 2008
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Captain Patrick B. Grant (argued); Colonel
Christopher J. O’Brien, Lieutenant Colonel Steven C. Henricks,
and Major Fansu Ku (on brief).
For Appellee: Captain Adam S. Kazin (argued); Colonel John W.
Miller II, Major Tami L. Dillahunt, and Major Elizabeth G.
Marotta (on brief).
Military Judge: Debra L. Boudreau
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States v. Glenn, No. 07-0407/AR
Judge BAKER delivered the opinion of the Court.
In accordance with his pleas, Appellant was convicted of
unauthorized absence and wrongful use and distribution of MDMA1
in violation of Articles 86 and 112a, Uniform Code of Military
Justice (UCMJ), 10 U.S.C §§ 886, 912a (2000). Members sentenced
Appellant to confinement for two years, forfeiture of all pay
and allowances, a bad-conduct discharge and reduction to pay
grade E-1. The convening authority approved twenty-two months
of confinement and approved the remainder of the sentence as
adjudged. The findings of guilty and the sentence were affirmed
by the United States Army Court of Criminal Appeals. United
States v. Glenn, No. ARMY 20051482 (A. Ct. Crim. App. Mar. 6,
2007). We granted review of the following issue:
WHETHER APPELLANT’S PLEAS TO ALL CHARGES AND
SPECIFICATIONS ARE NOT PROVIDENT BECAUSE THE MILITARY
JUDGE DID NOT EXPLAIN THE DEFENSE OF LACK OF MENTAL
RESPONSIBILITY TO APPELLANT, DID NOT SATISFY HERSELF
THAT COUNSEL HAD EVALUATED THE VIABILITY OF THE
DEFENSE, AND DID NOT ELICIT FACTS FROM APPELLANT THAT
NEGATED THE DEFENSE.
We hold that the military judge did not err and affirm.
BACKGROUND
During the plea inquiry, Appellant discussed the
circumstances surrounding his conduct that formed the basis of
1
3, 4-methylenedioxymethamphetamine, a Schedule I controlled
substance commonly referred to as “ecstasy.” Dep’t of Justice,
Drug Enforcement Administration, Office of Diversion Control,
http//www.deadiversion.usdoj.gov/drugs_concern/mdma/mdma.htm
(last visited Feb. 26, 2008).
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United States v. Glenn, No. 07-0407/AR
the charged offenses. The pleas were accepted and the case
moved to the sentencing phase. During voir dire, defense
counsel informed the members that they would hear evidence that
Appellant had been diagnosed with “a mental illness.” He also
elicited from the members an affirmative response that such
evidence “could be considered a mitigating circumstance in
determining an appropriate sentence[.]” After the Government’s
case on sentencing, the defense opened its case by calling
Appellant to the stand for sworn testimony. Among other things,
Appellant testified that at some point in June prior to his
unauthorized absence in July, he had been admitted to Madigan
Army Medical Center and was kept for observation for a few days
after an evening of fairly extensive drug use and an argument
with his wife. According to Appellant, medical authorities were
concerned about the “extremely high amount of [e]cstasy” in his
system. Appellant also stated: “I’ve always had the bipolar
disorder. I’ve always noticed the effects of bipolar disorder.
I’ve always fought depression. I’ve always fought extreme mood
swings from extreme positives to extreme negatives.” He went on
to describe how he had told the medical authorities at Madigan
about his family history of bipolar disorder. He stated further
that upon discharge from Madigan, he was diagnosed with
“borderline personality disorder,” not bipolar disorder and was
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United States v. Glenn, No. 07-0407/AR
prescribed the drug Zoloft. Appellant acknowledged that he had
never been medically diagnosed with bipolar disorder.
The defense also called Ms. Lindsey Schutter, a social
worker and forensic counselor in the mental health branch of the
Fort Lewis Regional Corrections Facility. Upon Appellant’s
entry into pretrial confinement, Ms. Schutter had completed an
“initial bio-psycho-social assessment” of Appellant that
included an interview with him about his family history,
education, and his military history. She determined through
this initial screening that Appellant had a “mood-disorder, not
otherwise specified” and that “he was dealing with some ups and
downs in his mood.” Although Ms. Schutter could not give a
medical diagnosis, she stated that a psychiatrist, Dr. Russell
Hicks, had subsequently diagnosed Appellant with cyclothymic
disorder,2 a mood disorder marked by “rapid cycling moods that do
interrupt his life.” Finally, Appellant’s sister, Ms. Jennifer
Spacek, testified to a family history of bipolar disorder.
Neither Appellant, Ms. Schutter, nor Ms. Spacek asserted
that Appellant did not understand the criminality or
wrongfulness of the offenses that were the subject of his pleas.
2
The term used in the record of trial is “psychothymic
disorder.” However, the parties have agreed for the purpose of
argument that the actual reference is to a condition called
“cyclothymic disorder.” American Psychiatric Ass’n, Diagnostic
Statistical Manual of Mental Disorders 398-400 (4th ed. text
rev. 2000).
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United States v. Glenn, No. 07-0407/AR
Nor did any of them otherwise allude to any lack of mental
responsibility on Appellant’s part. When trial counsel asked
Ms. Schutter whether Appellant could act “consciously, with
intent,” she responded, “That’s a question for a sanity board.”
On follow-up, the military judge interrupted trial counsel,
stating: “This has not been raised by the defense, so it’s not
an area that I feel comfortable with the government going into.”
DISCUSSION
Appellant asserts that he reasonably raised a defense of
lack of mental responsibility when he testified about his mental
health issues and presented witnesses on sentencing who spoke to
these problems. As a result, he argues, the military judge had
a duty to inquire further regarding the possibility of a mental
health defense. Without such further inquiry his plea is
improvident. In support of his position, Appellant cites to
United States v. Harris, 61 M.J. 391 (C.A.A.F. 2005). In the
context of mixed pleas, Harris involved, among other things,
newly discovered evidence after trial regarding the appellant’s
mental illness as well as competing medical views as to its
impact on his responsibility. Id. at 393-94, 397. In that
context, this Court concluded:
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. Nor is it possible
for a military judge to conduct the necessary Care inquiry
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United States v. Glenn, No. 07-0407/AR
into an accused’s pleas without exploring the impact of any
mental health issues on those pleas.
Id. at 398.
In response, the Government argues that Appellant’s case is
analogous to that presented in United States v. Shaw, 64 M.J.
460 (C.A.A.F. 2007). In Shaw, we concluded that “Appellant’s
reference to his diagnosis of bipolar disorder, without more, at
most raised only the ‘mere possibility’ of a conflict with the
plea.” Id. at 464. In reaching this conclusion, we noted first
that “there was no factual record developed during or after the
trial substantiating Appellant’s statement or indicating whether
and how bipolar disorder may have influenced his plea.” Id. at
462. Second, the appellant’s conduct during the plea inquiry
did not “raise concerns that might have suggested to the
military judge that Appellant lacked the capacity to plead.”
Id. at 462-63. And, third, the appellant had not asserted, nor
had his statement reflected, “that he was unable to appreciate
the nature and quality or wrongfulness of his acts as a result
of a mental disease or defect.” Id. at 463.
We review the military judge’s decision to accept a guilty
plea for an abuse of discretion. United States v. Gallegos, 41
M.J. 446, 446 (C.A.A.F. 1995). We will not set aside a plea of
guilty on appeal unless there is “a ‘substantial basis’ in law
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United States v. Glenn, No. 07-0407/AR
and fact for questioning the guilty plea.” United States v.
Prater, 32 M.J. 433, 436 (C.M.A. 1991).
Having considered the record and the parties’ arguments, we
conclude that Appellant’s case is analogous to that presented in
Shaw. In Shaw, we emphasized two important and longstanding
principles, namely, that an accused is presumed to be sane and
that counsel is presumed to be competent. 64 M.J. at 463.
Here, defense counsel chose to put on a fairly substantial case
in mitigation that highlighted Appellant’s mental health
problems. There was no medical testimony supporting Appellant’s
statement at trial that he was bipolar. He acknowledged that he
had not been diagnosed as bipolar. In fact, the medical
testimony that was offered through Ms. Schutter appeared to
refute this assertion.
Appellant was diagnosed with cyclothymic disorder; however,
there was no testimony indicating that this mood disorder,
without more, would be a defense to Appellant’s offenses. In
fact Ms. Schutter described one with this condition as
“[s]omeone who’s [sic] ups and downs don’t necessarily last as
long as someone with bipolar disorder would last. But it’s in
the same family.” Furthermore, there was no testimony during
sentencing suggesting that this mood disorder affected
Appellant’s mental responsibility at the time of the offenses.
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United States v. Glenn, No. 07-0407/AR
Appellant does not now claim that he lacked mental
responsibility for the offenses to which he pleaded guilty.
Finally, although Ms. Schutter was not a psychiatrist, she
was a licensed forensic counselor with a master’s degree in
social work and had worked exclusively in the mental health
field for the previous six years. Her testimony regarding
cyclothymic disorder was relatively detailed. Therefore, this
is not a case where lay testimony hinted at a problem that
medical testimony might have disgorged, or for which there was
competing medical testimony as in Harris. Based on the
foregoing, Appellant’s mitigation evidence that he suffered from
mental health problems did not raise a substantial basis in law
and fact for questioning his guilty plea. Thus, the military
judge did not abuse her discretion in accepting Appellant’s
guilty pleas without further inquiry.
DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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