Sentencing Considerations

bestmilitarydefenseucmjdefenselawyer236Extenuation and Mitigation. Evidence of the accused’s mentalcondition can be used on sentencing but with caution. See United States v. Bono , 26 M.J. 240 (C.M.A. 1988). I. Guilty Pleas and Sanity Issues.

  1. United States v. Harris , 61 M.J. 391 (C.A.A.F. 2005). After acceptance of the accused’s pleas and announcement of sentence, but before the convening authority took action, the accused was diagnosed with bipolar disorder. At a post-trial Article 39(a) session, the military judge listened to expert testimony from mental health experts who disagreed as to whether the accused suffered from any mental illness. The accused did not testify at this hearing. In his findings of fact and conclusions of law, the military judge stated that the accused “suffered from a bipolar disorder that would equate to a severe mental disease or defect,” but that he appreciated the wrongfulness of his actions and was subsequently competent to stand trial. The CAAF disagreed, the majority saying that they did not see how an accused can make an informed plea without knowledge that he suffers from a severe mental disease or defect at the time of the offense. The court also stated that it was not possible for a military judge to conduct the necessary Care inquiry without exploring with the accused the impact of any mental health issues on those pleas.
  2. United States v. Shaw , 64 M.J. 460 (C.A.A.F. 2007). The accused pled guilty tooffenses during a guilty plea and findings were entered. During the accused’s unsworn statement, he said that prior to the charged offenses he was assaulted by a man wielding a lead pipe and suffered severe injuries to his head and brain. The accused also said that he spent almost a month in the hospital and that he was diagnosed with bipolar syndrome. The CAAF determined that the military judge did not err when he failed to inquire into the accused mental condition because his statements were unsupported by other evidence entered into the record or his behavior during his providence inquiry or unsworn statement. A military judge is only required to inquire into circumstances or statements that raise a possible defense, not circumstances or statements that raise the “mere possibility” of defense. NOTE: the majority opinion recommend that a prudent military judge conduct an inquiry when a significant mental health condition is raised during the plea inquiry; s ee also United States v. Falcon , 65 M.J. 386 (C.A.A.F. 2008) (noting that “[the accused] has provided no authority that a diagnosis of pathological gambling can constitute a defense of lack of mental responsibility.”); United States v. Glenn , 66 M.J. 64 (C.A.A.F. 2008) (stating that the accused’s expert mitigation evidence that he suffered from a mood disorder and his unsworn and unsubstantiated statements that he suffered from bipolar disorder did not raise a substantial basis in law for questioning his guilty plea).
  3. bestmilitarydefenseucmjdefenselawyer235United States v. Handy , 48 M.J. 590, 593 (A.F. Ct. Crim. App. 1998). During aguilty plea, “[w]hen evidence of an accused’s mental health rears its head, the judge should question defense counsel on whether he or she has explored the mental responsibility angle of the case, including whether evidence exists to negate an intent or knowledge element of the offense. The judge should ask the accused if defense counsel has discussed that issue and how it may apply to the particular case. The judge should accept the guilty plea only if the mental issues are resolved for the record and the accused disclaims any potential mental ‘defense,’ full or partial.”
  4. United States v. Estes , 62 M.J. 544 (A. Ct. Crim. App. 2005). Appellant argued thatremarks made during his unsworn, indicating a hyper-religiosity, should have triggered further inquiry from the Military Judge regarding his lack of mental responsibility and competency. Appellant further argued that the inquiry, together with evidence of appellant’s cannabis addiction, would have demonstrated significant issues of lack of mental responsibility. The Army court, in a carefully reasoned opinion, held appellant failed to show that a different verdict might reasonably have resulted if the trier of fact had evidence of a lack of mental responsibility that was not available for consideration at trial.
  5. United States v. McGuire , 63 M.J. 678 (A. Ct. Crim. App. 2006). Appellant’sprovidence inquiry referenced psychiatric treatment and he otherwise acting strangely during his colloquy with the military judge. A previous mental evaluation pursuant to RCM 706 determined that the accused possessed the requisite mental capacity to stand trial and that he did not lack the necessary mental responsibility at the time of the offense. The Army court determined that the military judge was not required sua sponte to order further evaluation of the appellant. With regard to the providence of the appellant’s plea, the court, citing to Estes , reaffirmed that not every reference to psychiatric treatment or problems, no matter how vague or oblique, is sufficient to create a substantial basis for questioning a guilty plea.
  6. United States v. Riddle , 67 M.J. 335 (C.A.A.F. 2009). In a stipulation of fact, theparties agreed that the appellant had a chronic alcohol and marijuana dependence, as well as a bipolar and borderline personality disorder. The military judge was aware of these conditions. The judge knew that before her absence, she was receiving mental health treatment at an “off-post installation that specializes in mental issues, mental and behavioral issues.” The judge also knew that she arrived at the trial from the facility and would return there after trial. During the trial, the military judge asked the appellant if she was feeling OK when she referred to “getting the fishes high” by throwing a marijuana cigarette into a lake. The military judge also asked the appellant a series of questions regarding her mental health and competency at trial. A report of mental health status evaluation was admitted into evidence on sentencing, stating that appellant had attempted suicide twice, but was mentally responsible. Finally, the military judge noted before sentencing that he observed the appellant at trial, and that she was alert, articulate, and cognizant. The CAAF held that her guilty plea was not improvident. A military judge can presume, in the absence of contrary circumstances, that the accused is sane. See United States v. Shaw , 64 M.J. 460 (C.A.A.F. 2007). If the appellant’s statement or facts in the record indicate a mental disease or defect, the military judge must determine if that information raises a conflict with the plea or merely a possibility of conflict with the plea. The former requires further inquiry, the latter does not. The CAAF finds that the facts of this case merely raised the possibility of conflict with the plea and the military judge was not required to inquire further. Moreover, the military judge appropriately inquired into her status, and captured his observations in the record. Like other affirmative defenses, lack of mental responsibility is subject to the rule of waiver. United States v. Boasmond , 48 M.J. 912 (N-M. Ct. Crim. App. 1998).

United States v. Estes,

United States v. Riddle,