              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                               Before
          J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        EDWARD T. ATULU
         ELECTRICIAN'S MATE SECOND CLASS (E -5), U.S. NAVY

                           NMCCA 201400195
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 26 February 2014.
Military Judge: CAPT Colleen M. Glaser-Allen, JAGC, USN.
Convening Authority: Commander, Navy Region Mid-Atlantic,
Norfolk, VA.
Staff Judge Advocate's Recommendation: CDR S.J. Gawronski,
JAGC, USN.
For Appellant: Maj Michael D. Berry, USMCR.
For Appellee: CDR James E. Carsten, JAGC, USN; LT Ian D.
Maclean, JAGC, USN.

                          16 September 2014

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                     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 general court-martial
convicted the appellant, consistent with his pleas, of one
specification of abusive sexual contact, in violation of Article
120, Uniform Code of Military Justice, 10 U.S.C. § 920. The
appellant was sentenced to confinement for 18 months and a
dishonorable discharge. The convening authority approved the
sentence but, pursuant to the pretrial agreement, suspended all
confinement in excess of 12 months for the period of confinement
served plus 12 months thereafter.

     In his sole assignment of error, the appellant asserts his
plea was improvident due to the military judge’s failure to
resolve inconsistent matters raised during the appellant’s
unsworn statement. We disagree.

     Having examined the record of trial, the appellant's
assignment 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

     During the providence inquiry and in a stipulation of fact,
the appellant admitted he used his hand to touch the penis of
then-Electrician’s Mate Second Class (EM2) RK, both over and
under his clothing, while the appellant knew EM2 RK was asleep
and had not consented to the touching. During the presentencing
hearing, the appellant made an unsworn statement, including the
following relevant portion: “This case has weighed, like
heavily on me. Like I feel a lot of burden. I have attempted
suicide, and kinds of stuff. But I felt like today has a
purpose.”1 He went on to explain that one of the purposes was
for him to apologize to his victim. There is no other evidence
in the record about this purported suicide attempt and the
military judge did not conduct further inquiry into it.

                            Analysis

     We review a military judge’s decision to accept a guilty
plea for an abuse of discretion. United States v. Eberle, 44
M.J. 374, 375 (C.A.A.F. 1996). “‘Once the military judge has
accepted a plea as provident and has entered findings based on
it, an appellate court will not reverse that finding and reject
the plea unless it finds a substantial conflict between the plea
and the accused’s statements or other evidence of record.’”
United States v. Shaw, 64 M.J. 460, 462 (C.A.A.F. 2007) (quoting
United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996)). A
“mere possibility” of such a conflict is not sufficient. Id.

1
    Record at 130.
                                2
      In Shaw, the Court of Appeals for the Armed Forces
similarly analyzed whether comments during an appellant’s
unsworn statement raised a substantial conflict with his pleas.
Id. The appellant there described a brutal attack prior to the
relevant misconduct, resulting in skull fractures, bruising and
bleeding of the brain, a coma, and a subsequent psychiatric
diagnosis of bipolar disorder. Id. at 461. The Court of
Appeals for the Armed Forces nonetheless found this did not
raise a substantial conflict with his pleas because there was
nothing else in the record substantiating the appellant’s
statement or indicating either a lack of mental responsibility
at the time of the offenses or mental capacity at the time of
trial. Id. at 462-64. As such, the uncorroborated statement
was insufficient to overcome two presumptions on which the
military judge could reasonably rely: that the appellant was
sane (see RULE FOR COURTS-MARTIAL 916(k)(3)(A), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2008 ed.)); and that his counsel was
competent. Shaw, 64 M.J. at 463 (citing United States v.
Cronic, 466 U.S. 648, 658 (1984), and United States v. Scott, 24
M.J. 186, 188 (C.M.A. 1987)).

     Likewise, we find the appellant’s passing reference to a
suicide attempt in his unsworn statement did not raise a
substantial conflict with his plea. First, the statement itself
speaks to the burden the appellant felt due to his impending
criminal case, not his mental state at the time of the offense.
Second, his statement, “But I felt like today has a purpose,”
indicates he moved on from this point and recognized the
importance of seeing the case through completion. Third,
nothing in the record substantiates this statement or indicates
he had a condition impacting his mental responsibility at the
time of the offense or competence to plead guilty.2 The
appellant was clear and consistent throughout his providence
inquiry as well as the Stipulation of Fact that his conduct was
willful and that he knew his conduct was wrongful.

      Accordingly, we find that the military judge did not abuse
her discretion by accepting the appellant’s guilty pleas.




2
  Out of thoroughness, we note that the trial defense counsel in closing
argument indicated the appellant had in the past “abuse[d] alcohol for the
treatment of depression.” Record at 138. It has not been alleged, nor do we
find, that this statement by counsel raised a substantial conflict with the
appellant’s plea.
                                     3
                           Conclusion

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


                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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