              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.
                                Before
               R.Q. WARD, J.R. MCFARLANE, T.J. STINSON
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                       VIDAL E. SANCHEZ III
              LANCE CORPORAL (E-3), U.S. MARINE CORPS

                            NMCCA 201400053
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 24 October 2013.
Military Judge: Col James Carberry, USMC.
Convening Authority: Commanding Officer, Headquarters
Battalion, Marine Corps Base Hawaii, Kaneohe Bay, HI.
Staff Judge Advocate's Recommendation: LtCol T.G. McCann,
USMC.
For Appellant: Maj Jeffrey Stephens, USMCR.
For Appellee: Maj Paul Ervasti, USMC.

                              30 June 2014

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge sitting as a special court-martial
convicted the appellant, in accordance with his pleas, of
failure to obey a lawful order, wrongful possession of cocaine,
and wrongful use of cocaine, in violation of Articles 92 and
112a, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and
912a. The military judge sentenced him to 120 day’s
confinement, reduction to pay grade E-1, and a bad-conduct
discharge. The convening authority approved the sentence and,
except for the punitive discharge, ordered it executed.

     The appellant raises two assignments of error. First, he
argues that the military judge erred in accepting his guilty
pleas because the providence inquiry and expert testimony left
issues of the appellant’s mental responsibility unresolved.
Second, he contends that the military judge erred by failing to
inquire into the possible defense of duress. We disagree with
both contentions. Having examined the record of trial, the
assignments of error, and the pleadings of the parties, we
conclude that the findings and the sentence are correct in law
and fact and that no error materially prejudicial to the
substantial rights of the appellant was committed. Arts. 59(a)
and 66(c), UCMJ.

                                        Background

     On 5 August 2013, the appellant received 45 days
restriction following imposition of nonjudicial punishment for
wrongful use of cocaine. During his restriction period, the
appellant left base to purchase cocaine, which he subsequently
used in his barracks room.

      At trial, the parties discussed the appellant’s mental
health with the military judge. During an 802 conference1, the
military judge instructed detailed defense counsel to discuss
any potential issue of a lack of mental responsibility (LMR)
defense with the appellant. Following the conference, defense
counsel confirmed that he discussed the matter with the
appellant. Throughout the providence inquiry, the appellant
confirmed that on each charged occasion he was fully aware of
his actions and knew them to be wrong. Record at 18, 24, 30.
For each offense, the military judge inquired of both the
appellant and detailed defense counsel whether they had
discussed any potential defense involving LMR and if any viable
defense existed. Both explained that they had and both believed
no such defense existed. Similarly, the military judge inquired
as to the need for any RULE FOR COURTS-MARTIAL 706, MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.) examination. Both the appellant
and his counsel confirmed that they discussed the matter and
neither believed an examination was warranted.

     During presentencing, the defense called Dr. Dennis DePry,
a psychiatrist treating the appellant at the time of trial. Dr.

1
    RULE FOR COURTS-MARTIAL 802, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).

                                              2
DePry testified at length concerning the appellant’s mental
health diagnoses for Post-Traumatic Stress Disorder and Bipolar
Disorder, and his treatment and prognosis for the future.
Although he initially answered that he believed that the
appellant could understand right from wrong if he was “clean and
sober,” Record at 55, he later clarified that he misunderstood
the question. On the subject of mental competency, he
elaborated stating that the appellant “does not need [an R.C.M.
706] board,2 because I don’t think there’s any type of
incapacitation. I think he does understand right from wrong.
And I think he can adhere to the right if he chooses.” Id. at
56. Dr. Depry then confirmed that, despite his mental illness,
the appellant’s use of cocaine was more “a coping mechanism” and
that the appellant understood what he was doing was wrong. Id.
at 57.

     During the appellant’s unsworn statement, he testified
about how his life entered a “downward spiral” after he returned
from deployment having survived an IED attack; his wife left him
and he was feeling alone and depressed. He testified that the
drugs seemed to make the pain go away. Id. at 60.

                                  Analysis

     We review a military judge’s decision to accept a guilty
plea for an abuse of discretion. United States v. Inabinette,
66 M.J. 320, 322 (C.A.A.F. 2008). An abuse of discretion occurs
when there is a substantial basis in law or fact for questioning
the guilty plea. Id. 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, the
circumstances raise a possible defense, then the military judge
is obligated to make further inquiry to resolve any apparent
ambiguity or inconsistency. United States v. Phillipe, 63 M.J.
307, 310 (C.A.A.F. 2006). A failure to do so constitutes a
substantial basis in law or fact for questioning the guilty
plea. Id. at 311. Once the military judge has accepted the
pleas and entered findings, an appellate court will not reverse
those findings and reject the plea unless it finds a substantial
conflict between the pleas and the accused’s statements or other
evidence of record. United States v. Shaw, 64 M.J. 460, 462
(C.A.A.F. 2007).
     In accordance with R.C.M. 916(k)(1), “[i]t is an
affirmative defense to any offense that, at the time of the
2
  As a former chief of Navy psychiatry, Dr. Depry testified that he
participated in or conducted “hundreds” of R.C.M. 706 examinations.   Id. at
57.

                                      3
commission of the acts constituting the offense, the accused, as
a result of a severe mental disease or defect, was unable to
appreciate the nature and quality or the wrongfulness of his or
her acts.” In the absence of contrary circumstances, the
military judge may properly presume that the accused is sane.
Shaw, 64 M.J. at 463.

     In this case, the military judge inquired extensively as to
a potential LMR defense. Both the appellant and his counsel
confirmed that the defense did not apply and that an R.C.M. 706
examination was unnecessary to determine the appellant’s mental
responsibility. The only evidence the appellant relies on is
the testimony of his psychiatrist, Dr. DePry. While Dr. Depry
initially addressed the appellant’s mental condition at the time
of his offenses, he later clarified his testimony to disavow any
concern over his mental competency. Furthermore, he reiterated
his opinion that the appellant understood the wrongfulness of
his actions at the time of his offenses and his crimes were of
his own choosing. Last, Dr. Depry’s ample experience in
conducting R.C.M. 706 examinations adds considerable weight to
his testimony that he saw no need for any such examination in
the appellant’s case.

     Taken together with both the appellant’s and his counsel’s
disavowal of any defense of lack of mental responsibility, we
find no substantial conflict with the appellant’s plea. See
United States v. Hayes, 70 M.J. 454, 458 (C.A.A.F. 2012)
(holding that while the distinction between a potential defense
and the “mere possibility” of a defense is amorphous, it is
accepted that not every mitigating statement requires further
inquiry by the military judge).

     We now turn to the appellant’s argument that the military
judge had a sua sponte duty to inquire into a potential duress
defense. The defense of duress applies only when the accused
has “a reasonable apprehension that the accused or another
innocent person would be immediately killed or would immediately
suffer serious bodily injury if the accused did not commit the
act.” R.C.M. 916(h). In its duress instruction, the Military
Judge’s Benchbook defines duress as “causing another person to
do something against his will by the use of either physical
force or psychological coercion.” Military Judge s’ Benchbook,
Dept. of the Army Pamphlet Instruction 27-9 at 5-5, DURESS
(COMPULSION OR COERCION) (1 Jan 2010). If the accused has a
reasonable opportunity to avoid committing the offense without
subjecting himself or another to the harm threatened, the
defense of duress does not exist. R.C.M. 916(h).

                                4
     On appeal, the appellant argues that the issue of duress
was raised by Dr. DePry’s testimony that the appellant may
suffer withdrawal if he were to cease cocaine use, and the
appellant’s unsworn statement that he abused cocaine to “ease
his pain.” Appellant’s Reply of 14 May 2014 at 5. However,
nowhere does the record offer any specific symptoms of
withdrawal that could rise to the level of compulsion within the
meaning of R.C.M. 916(h). We find that these limited references
in the record did not require the military judge to explain or
discuss the defense of duress with the appellant.

     In summary, we find that the matters now submitted by the
appellant do not raise a substantial conflict with his
statements and guilty pleas at trial. Consequently, we find no
substantial basis in either law or fact to question his pleas.
Inabinette, 66 M.J. at 322.

                           Conclusion

     The findings and sentence as approved by the convening
authority are affirmed.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




                                5
