                         UNITED STATES, Appellee

                                         v.

                    Justin A. INABINETTE, Sergeant
                     U.S. Marine Corps, Appellant

                                  No. 07-0787

                        Crim. App. No. 200602228

       United States Court of Appeals for the Armed Forces

                         Argued February 4, 2008

                           Decided May 22, 2008

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


                                     Counsel


For Appellant: Lieutenant Commander Matthew T. Schelp, JAGC,
USNR (argued); Lieutenant Commander Thomas P. Belsky, JAGC, USNR
(on brief); Lieutenant Kathleen L. Kadlec, JAGC, USN.


For Appellee: Lieutenant Justin E. Dunlap, JAGC, USN (argued);
Major Brian K. Keller, USMC (on brief).



Military Judge:    J. G. Meeks



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Inabinette, No. 07-0787/MC


     Judge BAKER delivered the opinion of the Court.

     Appellant was tried by a military judge sitting as a

special court-martial.   Appellant pleaded guilty to disobeying a

general order and larceny, in violation of Articles 92 and 121,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 921

(2000).   The military judge found Appellant guilty of the orders

offense, and with respect to the charged larceny, found

Appellant guilty of the lesser included offense of wrongful

appropriation.   Appellant was sentenced to confinement for one

year, reduction to the lowest enlisted grade, and a bad-conduct

discharge.   The findings and sentence were approved by the

convening authority, and affirmed by the United States Navy-

Marine Corps Court of Criminal Appeals.   United States v.

Inabinette, No. NMCCA 200602228, 2007 CCA LEXIS 184, at *16,

2007 WL 1724913, at *6 (N-M. Ct. Crim. App. June 12, 2007).

Appellant challenges the standard used by the lower court in

reviewing his plea.1

     The lower court’s opinion raises several questions

regarding the standard of review of a military judge’s decision

to accept an accused’s plea of guilty.    The questions arise, in

1
  On Appellant’s petition we granted the following issue for
review:

     WHETHER THE COURT OF CRIMINAL APPEALS ERRED WHEN IT
     REVIEWED FOR AN ABUSE OF DISCRETION, RATHER THAN DE NOVO,
     THE MILITARY JUDGE’S LEGAL CONCLUSION THAT APPELLANT’S
     PLEAS WERE PROVIDENT.

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United States v. Inabinette, No. 07-0787/MC


part, because of the varied but related standards employed by

this Court in reviewing discrete factual and legal aspects of a

guilty plea.   For the reasons stated below, we reiterate that

the standard for reviewing a military judge’s decision to accept

a plea of guilty is an abuse of discretion.   A military judge

abuses his discretion if he accepts a guilty plea without an

adequate factual basis to support the plea.   In contrast, the

military judge’s determinations of questions of law arising

during or after the plea inquiry are reviewed de novo.    In this

case, the military judge obtained an adequate factual basis to

support the plea and correctly applied the law.   As a result, we

affirm.

                                I.

     During the period of the alleged offenses, Appellant served

under combat conditions at Camp Mahmudiyah, Iraq, where he

worked in the armory.   According to Dr. Clark E. Smith, a board-

certified forensic psychiatrist who testified during sentencing

on behalf of the defense, Appellant experienced several stress-

related symptoms, including nightmares, depression, and

emotional withdrawal.   On or about January 20, 2005, Appellant

attempted to mail a fragmentation grenade and a confiscated

pistol to his parents’ home.   During the plea inquiry he claimed

to have no memory of committing the offense; however, Appellant




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United States v. Inabinette, No. 07-0787/MC


remembered planning it, and hoping he would be caught and sent

home.

        Dr. Smith stated that at the time of the offense, Appellant

suffered from Bipolar I Disorder with psychotic features.    Upon

hearing this testimony, the military judge commented that Dr.

Smith’s testimony was at odds with Appellant’s guilty plea.

After being recalled to the stand, Dr. Smith testified that he

had no indication that Appellant did not appreciate the

wrongfulness of his actions at the time of the offense.

Following Dr. Smith’s testimony, the military judge determined

that Appellant’s pleas remained provident.

                                  II.

        During a guilty plea inquiry the military judge is charged

with determining whether there is an adequate basis in law and

fact to support the plea before accepting it.    United States v.

Prater, 32 M.J. 433, 436 (C.M.A. 1991).     “A military judge’s

decision to accept a guilty plea is reviewed for an abuse of

discretion.”    United States v. Eberle, 44 M.J. 374, 375

(C.A.A.F. 1996); see also United States v. Shaw, 64 M.J. 460,

462 (C.A.A.F. 2007); United States v. Tippit, 65 M.J. 69, 81

(C.A.A.F. 2007); United States v. Thomas, 65 M.J. 132, 134

(C.A.A.F. 2007); United States v. Simmons, 63 M.J. 89, 92

(C.A.A.F. 2006); United States v. Phillippe, 63 M.J. 307, 309

(C.A.A.F. 2006); United States v. Erickson, 61 M.J. 230, 232


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United States v. Inabinette, No. 07-0787/MC


(C.A.A.F. 2005).   A military judge abuses this discretion if he

fails to obtain from the accused an adequate factual basis to

support the plea -- an area in which we afford significant

deference.   United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F.

2002).   Additionally, any ruling based on an erroneous view of

the law also constitutes an abuse of discretion.    United States

v. Griggs, 61 M.J. 402, 406 (C.A.A.F. 2005); United States v.

Wardle, 58 M.J. 156, 157 (C.A.A.F. 2003); United States v.

Sullivan, 42 M.J. 360, 363 (C.A.A.F. 1995).

     There exist strong arguments in favor of giving broad

discretion to military judges in accepting pleas, not least

because facts are by definition undeveloped in such cases.       See

Jordan, 57 M.J. at 238.   Indeed, as stated in Jordan, an accused

might make a conscious choice to plead guilty in order to “limit

the nature of the information that would otherwise be disclosed

in an adversarial contest.”   Id. at 238-39.    As a result, in

reviewing a military judge’s acceptance of a plea for an abuse

of discretion appellate courts apply a substantial basis test:

Does the record as a whole show “‘a substantial basis’ in law

and fact for questioning the guilty plea.”     United States v.

Prater, 32 M.J. 433, 436 (C.M.A. 1991).

     Traditionally, this test is presented in the conjunctive

(i.e., law and fact) as in Prater; however, the test is better

considered in the disjunctive (i.e., law or fact).     That is


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United States v. Inabinette, No. 07-0787/MC


because it is possible to have a factually supportable plea yet

still have a substantial basis in law for questioning it.    This

might occur where an accused knowingly admits facts that meet

all the elements of an offense, but nonetheless is not advised

of an available defense or states matters inconsistent with the

plea that are not resolved by the military judge.   At the same

time, where the factual predicate for a plea falls short, a

reviewing court would have no reason to inquire de novo into any

legal questions surrounding the plea.

     Within this general framework, distinct questions may arise

for which an appellate court will review a plea using a de novo

standard of review, such as in those cases where the providence

of a plea raises pure questions of law.   The court below

recognized this exception, noting our opinion in United States

v. Pena, 64 M.J. 259 (C.A.A.F. 2007), a case involving the

question of whether a military judge had an affirmative duty to

inquire into an accused’s understanding of the collateral

consequences of participation in an early release program.

United States v. Inabinette, 2007 CCA LEXIS 184, at *2, 2007 WL

1724913, at *1 (N-M. Ct. Crim. App., June 12, 2007)

(unpublished).   Because that case dealt with the legal aspects

of the military judge’s duties during the plea inquiry, and not

with the adequacy of the factual inquiry, it was appropriate to

apply a de novo standard.   Pena, 64 M.J. at 267.   In United


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United States v. Inabinette, No. 07-0787/MC


States v. Harris, 61 M.J. 391 (C.A.A.F. 2005), this Court

reviewed de novo the military judge’s legal conclusion that the

facts presented did not give rise to a defense of mental

responsibility.    Id. at 398.   As our review considered a mixed

question of law and fact, determined by the military judge after

a factfinding hearing, the standard was de novo.     Id.

     In summary, we 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.     In doing so, we apply the

substantial basis test, looking at whether there is 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.

                                 III.

     This Court addressed the issue of evidence of bipolar

disorder raised during sentencing and post-trial procedures in

Harris and Shaw.    In Harris, a pretrial examination conducted

pursuant to Rule for Courts-Martial (R.C.M.) 706 determined that

the accused had been mentally responsible at the time of the

alleged offenses.   61 M.J. at 393.     The accused was subsequently

convicted in accordance with his pleas.     Id. at 392.    After the

court-martial, a mental health official determined that Harris

suffered from a severe case of bipolar disorder, and was

unlikely to have appreciated the wrongfulness of his actions at


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United States v. Inabinette, No. 07-0787/MC


the time of the offenses.    Id. at 393.   The military judge

conducted a post-trial Article 39(a), UCMJ, 10 U.S.C. § 839(a)

(2000), session, and considered the contradicting pretrial and

post-trial medical testimony, ultimately finding that the

accused’s guilty plea remained provident.    Id.   Following the

Article 39(a), UCMJ, session, the convening authority ordered

another R.C.M. 706 examination, which determined that -- while

the accused suffered from a severe mental disease -- he had

understood the wrongfulness of his actions at the time of the

offenses.   Id. at 394.    This Court reviewed de novo the military

judge’s legal conclusion that Appellant’s pleas were provident

and reversed.   Id. at 398-99.    In doing so, we stated, “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 into an accused’s

pleas without exploring the impact of any potential mental

health issues on those pleas.”    Id. at 398.

     In Shaw, the accused made an unsworn statement following

findings of guilty, stating that he had been diagnosed with a

bipolar disorder after suffering a severe brain injury.    64 M.J.

at 461.   Beyond this unsworn statement and responses made to

defense counsel’s question, Shaw did not offer any further

evidence of his bipolar condition, nor did he assert that his


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United States v. Inabinette, No. 07-0787/MC


condition implicated his mental responsibility for his offense.

Id. at 461, 464.   In contrast to Harris, this Court held that

the military judge was not required to inquire further about the

effect of Shaw’s mental condition on his responsibility for his

actions because Shaw’s statement, without more, did not put his

mental responsibility at issue, but raised only the possibility

of a defense.   Id. at 464.   By extension, the military judge did

not abuse his discretion in accepting Shaw’s pleas of guilty.

Id.

      In this case, the military judge heard potentially

contradictory testimony from Dr. Smith.    Dr. Smith testified

that Appellant had Bipolar I Disorder with psychotic features.

Among other things, when asked whether Appellant could

understand the nature and quality of his actions, Dr. Smith

stated “there exists that question, yes.”   However, in response

to the military judge’s further inquiry, Dr. Smith also

testified that Appellant told him he was aware of the

wrongfulness of his acts at the time, and that he, Dr. Smith,

did not “have evidence to the contrary.”    In addition, the

military judge questioned Appellant, and had the results of two

R.C.M. 706 boards that found the likelihood that Appellant was

unable to appreciate the nature and wrongfulness of his behavior

“[s]tatistically improbable.”   Thus, in contrast to Shaw, the

tension in Appellant’s plea rests on more than the unsworn


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United States v. Inabinette, No. 07-0787/MC

testimony of the accused.    Nonetheless, this case is more akin

to Shaw than to Harris.     Here, the military judge inquired into

Appellant’s mental condition following Dr. Smith’s testimony,

and addressed the potential inconsistency in that testimony

regarding Appellant’s mental responsibility at the time of the

offenses.   He did so by questioning Dr. Smith and Appellant

against a backdrop of consistent R.C.M. 706 board findings.

     As a result, we conclude that the military judge correctly

applied the law by inquiring into Appellant’s mental

responsibility in light of the potentially contradictory

testimony offered after the acceptance of Appellant’s plea and

concluding that this new evidence did not undermine the adequacy

of the plea.   The military judge, therefore, properly accepted

Appellant’s provident plea, and the Court of Criminal Appeals

properly reviewed the military judge’s decision for an abuse of

discretion.

                               DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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