          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                          _________________________

                              No. 201600251
                          _________________________

                  UNITED STATES OF AMERICA
                                   Appellee
                                       v.

                    CHUKWUMA F. ONYEJIAKA
                 Staff Sergeant (E-6), U.S. Marine Corps
                                Appellant
                         _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

 Military Judge: Lieutenant Colonel Elizabeth A. Harvey, USMC.
   Convening Authority: Commanding Officer, 8th Marine Corps
 District, Western recruiting Region, Marine Corps Recruit depot,
                           San Diego, CA.
 Staff Judge Advocate’s Recommendation: Lieutenant Colonel J.V.
                           Munoz, USMC.
         For Appellant: Captain James S. Kresge, USMCR.
 For Appellee: Major Cory A. Carver, USMC; Lieutenant Megan P.
                       Marinos, JAGC, USN.
                      _________________________

                          Decided 21 March 2017
                          _________________________

  Before CAMPBELL, HUTCHISON, AND GROHARING, Appellate Military
                             Judges
                      _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                       _________________________

   GROHARING, Judge:
   A military judge sitting as a special court-martial convicted the appellant,
consistent with his pleas, of one specification of failing to obey a lawful order,
four specifications of violating a lawful general order, one specification of
                       United States v. Onyejiaka, No. 201600251


larceny, two specifications of adultery, and two specifications of wrongfully
impeding an investigation, in violation of Articles 90, 92, 121, and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 890, 892, 921, and
934 (2012). The military judge sentenced the appellant to reduction to pay
grade E-1, 60 days’ confinement, and a bad-conduct discharge. The convening
authority (CA) approved the sentence as adjudged, but suspended
confinement in excess of 30 days pursuant to a pretrial agreement.
    In his sole assignment of error, the appellant contends the military judge
erred when she failed to explain the defense of lack of mental responsibility
after the appellant referenced an instance of “insanity” in explaining his
misconduct. After carefully considering the pleadings and the record of trial,
we find no error materially prejudicial to the appellant’s substantial rights
and affirm the findings and sentence. Arts. 59(a) and 66(c), UCMJ.
                                 I. BACKGROUND
    The appellant became a recruiter and began his Recruiting Station
Houston, Texas assignment on 2 June 2014. Over the course of the next 12
months, as a married man, he had multiple inappropriate relationships with
prospective recruit applicants, which included engaging in oral and vaginal
intercourse on multiple occasions. On 29 June 2015, the appellant drove a
government vehicle to a local, civilian pharmacy, stole a Plan B oral
contraceptive, and provided it to a prospective applicant who had told him
she was pregnant. Upon learning that he was under investigation, the
appellant then attempted to impede the investigation by asking two women
to provide false information to the investigating officer.
   On 25 March 2016, the appellant pled guilty to all of the pending charges.
During the plea colloquy, when the military judge asked why he stole the
Plan B oral contraceptive, the appellant replied, “I wasn’t really thinking
ma’am. It was just an instant [sic] of insanity.”1 The appellant now claims the
military judge erred by failing to explain the defense of lack of mental
responsibility after that response.
                                  II. DISCUSSION
A. Assignment of error
    A military judge’s decision to accept a guilty plea is reviewed for an abuse
of discretion. United States v. Shaw, 64 M.J. 460, 462 (C.A.A.F. 2007). A
guilty plea is set aside where the record as a whole shows a substantial basis
in law or fact for questioning the guilty plea. United States v. Inabinette, 66
M.J. 320, 322 (C.A.A.F. 2008). A substantial basis for questioning a guilty


   1   Record at 45.


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                       United States v. Onyejiaka, No. 201600251


plea exists where an accused “sets up matter inconsistent with the plea.” Art.
45(a), UCMJ. Where an inconsistency is raised, the military judge must
inquire further to “‘either resolve the apparent inconsistency or reject the
plea.’” Shaw, 64 M.J. at 462 (quoting United States v. Garcia, 44 M.J. 496,
498 (C.A.A.F. 1996) (quoting Art. 45(a), UCMJ)). “The existence of an
apparent and complete defense is necessarily inconsistent” with a plea of
guilty. Id.
    The threshold question in the present case is whether the appellant’s
statements that he “wasn’t really thinking” and had “an instan[ce] of
insanity”2 constitute a matter inconsistent with the plea, triggering a
requirement that the military judge resolve the apparent inconsistency or
reject the plea.3 We hold they do not.
    The record as a whole does not demonstrate a substantial basis in law or
fact for questioning the guilty plea. The only evidence to support a claim of
mental defect came from a statement of the appellant during the plea
colloquy. There was no other evidence presented either during trial or after
trial to indicate the appellant had a mental defect or suffered from a mental
defect at the time of the offense. Likewise, nothing else in the record suggests
that the appellant lacked the mental capacity to plead guilty. To the contrary,
the record reflects the appellant knowingly and intelligently participated
throughout the proceedings—including the plea colloquy and his lengthy
unsworn statement wherein he took responsibility for his actions by
explaining, in part, that he “lost [his] moral compass”4 and that he “did what
[he] did and [he] knew better.”5 The other evidence presented by the
appellant during presentencing similarly provides no basis to support a
mental defect.6 Furthermore, the appellant never asserted, directly or
indirectly, that he was unable to appreciate the nature and quality or
wrongfulness of his actions.
   The military judge was also able to observe the accused’s demeanor
throughout the proceedings. Having direct communication with and
observation of the appellant allowed the military judge to better appreciate
the significance of the providence inquiry responses in the full context of the
accused’s other statements, and all other matters presented at trial.



   2   Id. at 45.
   3   See Art. 45(a), UCMJ.
   4   Record at 70.
   5   Id. at 72.
   6   See Defense Exhibit B.


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                      United States v. Onyejiaka, No. 201600251


    Moreover, neither the trial counsel, detailed trial defense counsel, nor
civilian trial defense counsel raised any issue regarding the appellant’s
competency at any time. See RULE FOR COURTS-MARTIAL 706, MANUAL FOR
COURTS-MARTIAL UNITED STATES (2012 ed.). “[A]bsent evidence to the
contrary, the military judge may presume that counsel has conducted a
reasonable inquiry into the existence of defenses, including defenses related
to the mental health of the appellant.” United States v. Rojas, No. 201400292,
2015 CCA LEXIS 209, at *8 unpublished op. (N-M. Ct. Crim. App. 14 May
2015) (citing Shaw, 64 M.J. at 463).
   The military judge no doubt considered the appellant’s statements as
mere colloquialisms, given their context and the entirety of the record. Under
the circumstances, the military judge’s decision to not conduct further inquiry
or question the competence of the accused was reasonable. Therefore, the
military judge did not abuse her discretion by accepting the accused’s pleas.
Considering the record as a whole, we find no basis in law or fact for
questioning the appellant’s guilty plea.
B. Court-martial order (CMO) issue
    Although not raised by the parties, we note that the CMO erroneously
states, “[p]ursuant to the terms of the pretrial agreement[,] the [appellant’s]
service to confinement was deferred on 25 March 2016.”7 (emphasis added).
The parties actually agreed only that confinement adjudged in excess of 30
days would be deferred until the CA acted on the sentence. We test error in
CMOs under a harmless error standard, United States v. Crumpley, 49 M.J.
538, 539 (N-M. Ct. Crim. App. 1998), and find the error here did not
materially prejudice the appellant’s substantial rights. However, as the
appellant is entitled to accurate court-martial records, id., we will order
the necessary corrective action in the decretal paragraph.
                                 III. CONCLUSION
   The findings and sentence, as approved by the CA, are affirmed. The
supplemental CMO will reflect that the appellant’s service to confinement in
excess of 30 days was deferred from 25 March 2016 until 29 June 2016, when
that confinement was then suspended pursuant to the pretrial agreement.
   Senior Judge CAMPBELL and Judge HUTCHISON concur.
                                              For the Court


                                              R.H. TROIDL
                                              Clerk of Court

   7   Special Court-Martial Order No. 04-2016 of 29 Jun 2016.


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