                        UNITED STATES, Appellee

                                   v.

                      Michael D. GLENN, Private
                         U.S. Army, Appellant

                              No. 07-0407

                       Crim. App. No. 20051482

       United States Court of Appeals for the Armed Forces

                       Argued December 4, 2007

                      Decided February 26, 2008

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



                                Counsel

For Appellant: Captain Patrick B. Grant (argued); Colonel
Christopher J. O’Brien, Lieutenant Colonel Steven C. Henricks,
and Major Fansu Ku (on brief).

For Appellee: Captain Adam S. Kazin (argued); Colonel John W.
Miller II, Major Tami L. Dillahunt, and Major Elizabeth G.
Marotta (on brief).



Military Judge:   Debra L. Boudreau



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States v. Glenn, No. 07-0407/AR


     Judge BAKER delivered the opinion of the Court.

     In accordance with his pleas, Appellant was convicted of

unauthorized absence and wrongful use and distribution of MDMA1

in violation of Articles 86 and 112a, Uniform Code of Military

Justice (UCMJ), 10 U.S.C §§ 886, 912a (2000).   Members sentenced

Appellant to confinement for two years, forfeiture of all pay

and allowances, a bad-conduct discharge and reduction to pay

grade E-1.   The convening authority approved twenty-two months

of confinement and approved the remainder of the sentence as

adjudged.    The findings of guilty and the sentence were affirmed

by the United States Army Court of Criminal Appeals.    United

States v. Glenn, No. ARMY 20051482 (A. Ct. Crim. App. Mar. 6,

2007).   We granted review of the following issue:

     WHETHER APPELLANT’S PLEAS TO ALL CHARGES AND
     SPECIFICATIONS ARE NOT PROVIDENT BECAUSE THE MILITARY
     JUDGE DID NOT EXPLAIN THE DEFENSE OF LACK OF MENTAL
     RESPONSIBILITY TO APPELLANT, DID NOT SATISFY HERSELF
     THAT COUNSEL HAD EVALUATED THE VIABILITY OF THE
     DEFENSE, AND DID NOT ELICIT FACTS FROM APPELLANT THAT
     NEGATED THE DEFENSE.

We hold that the military judge did not err and affirm.

                             BACKGROUND

     During the plea inquiry, Appellant discussed the

circumstances surrounding his conduct that formed the basis of

1
  3, 4-methylenedioxymethamphetamine, a Schedule I controlled
substance commonly referred to as “ecstasy.” Dep’t of Justice,
Drug Enforcement Administration, Office of Diversion Control,
http//www.deadiversion.usdoj.gov/drugs_concern/mdma/mdma.htm
(last visited Feb. 26, 2008).

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United States v. Glenn, No. 07-0407/AR


the charged offenses.   The pleas were accepted and the case

moved to the sentencing phase.     During voir dire, defense

counsel informed the members that they would hear evidence that

Appellant had been diagnosed with “a mental illness.”    He also

elicited from the members an affirmative response that such

evidence “could be considered a mitigating circumstance in

determining an appropriate sentence[.]”    After the Government’s

case on sentencing, the defense opened its case by calling

Appellant to the stand for sworn testimony.    Among other things,

Appellant testified that at some point in June prior to his

unauthorized absence in July, he had been admitted to Madigan

Army Medical Center and was kept for observation for a few days

after an evening of fairly extensive drug use and an argument

with his wife.   According to Appellant, medical authorities were

concerned about the “extremely high amount of [e]cstasy” in his

system.   Appellant also stated:   “I’ve always had the bipolar

disorder.   I’ve always noticed the effects of bipolar disorder.

I’ve always fought depression.     I’ve always fought extreme mood

swings from extreme positives to extreme negatives.”    He went on

to describe how he had told the medical authorities at Madigan

about his family history of bipolar disorder.    He stated further

that upon discharge from Madigan, he was diagnosed with

“borderline personality disorder,” not bipolar disorder and was




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United States v. Glenn, No. 07-0407/AR


prescribed the drug Zoloft.   Appellant acknowledged that he had

never been medically diagnosed with bipolar disorder.

     The defense also called Ms. Lindsey Schutter, a social

worker and forensic counselor in the mental health branch of the

Fort Lewis Regional Corrections Facility.   Upon Appellant’s

entry into pretrial confinement, Ms. Schutter had completed an

“initial bio-psycho-social assessment” of Appellant that

included an interview with him about his family history,

education, and his military history.   She determined through

this initial screening that Appellant had a “mood-disorder, not

otherwise specified” and that “he was dealing with some ups and

downs in his mood.”    Although Ms. Schutter could not give a

medical diagnosis, she stated that a psychiatrist, Dr. Russell

Hicks, had subsequently diagnosed Appellant with cyclothymic

disorder,2 a mood disorder marked by “rapid cycling moods that do

interrupt his life.”   Finally, Appellant’s sister, Ms. Jennifer

Spacek, testified to a family history of bipolar disorder.

     Neither Appellant, Ms. Schutter, nor Ms. Spacek asserted

that Appellant did not understand the criminality or

wrongfulness of the offenses that were the subject of his pleas.


2
  The term used in the record of trial is “psychothymic
disorder.” However, the parties have agreed for the purpose of
argument that the actual reference is to a condition called
“cyclothymic disorder.” American Psychiatric Ass’n, Diagnostic
Statistical Manual of Mental Disorders 398-400 (4th ed. text
rev. 2000).

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United States v. Glenn, No. 07-0407/AR


Nor did any of them otherwise allude to any lack of mental

responsibility on Appellant’s part.   When trial counsel asked

Ms. Schutter whether Appellant could act “consciously, with

intent,” she responded, “That’s a question for a sanity board.”

On follow-up, the military judge interrupted trial counsel,

stating:   “This has not been raised by the defense, so it’s not

an area that I feel comfortable with the government going into.”

                            DISCUSSION

     Appellant asserts that he reasonably raised a defense of

lack of mental responsibility when he testified about his mental

health issues and presented witnesses on sentencing who spoke to

these problems.   As a result, he argues, the military judge had

a duty to inquire further regarding the possibility of a mental

health defense.   Without such further inquiry his plea is

improvident.   In support of his position, Appellant cites to

United States v. Harris, 61 M.J. 391 (C.A.A.F. 2005).    In the

context of mixed pleas, Harris involved, among other things,

newly discovered evidence after trial regarding the appellant’s

mental illness as well as competing medical views as to its

impact on his responsibility.    Id. at 393-94, 397.   In that

context, this Court concluded:

     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



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United States v. Glenn, No. 07-0407/AR


       into an accused’s pleas without exploring the impact of any
       mental health issues on those pleas.

Id. at 398.

       In response, the Government argues that Appellant’s case is

analogous to that presented in United States v. Shaw, 64 M.J.

460 (C.A.A.F. 2007).   In Shaw, we concluded that “Appellant’s

reference to his diagnosis of bipolar disorder, without more, at

most raised only the ‘mere possibility’ of a conflict with the

plea.”   Id. at 464.   In reaching this conclusion, we noted first

that “there was no factual record developed during or after the

trial substantiating Appellant’s statement or indicating whether

and how bipolar disorder may have influenced his plea.”      Id. at

462.   Second, the appellant’s conduct during the plea inquiry

did not “raise concerns that might have suggested to the

military judge that Appellant lacked the capacity to plead.”

Id. at 462-63.   And, third, the appellant had not asserted, nor

had his statement reflected, “that he was unable to appreciate

the nature and quality or wrongfulness of his acts as a result

of a mental disease or defect.”    Id. at 463.

       We review the military judge’s decision to accept a guilty

plea for an abuse of discretion.       United States v. Gallegos, 41

M.J. 446, 446 (C.A.A.F. 1995).    We will not set aside a plea of

guilty on appeal unless there is “a ‘substantial basis’ in law




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United States v. Glenn, No. 07-0407/AR


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

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

     Having considered the record and the parties’ arguments, we

conclude that Appellant’s case is analogous to that presented in

Shaw.   In Shaw, we emphasized two important and longstanding

principles, namely, that an accused is presumed to be sane and

that counsel is presumed to be competent.    64 M.J. at 463.

Here, defense counsel chose to put on a fairly substantial case

in mitigation that highlighted Appellant’s mental health

problems.   There was no medical testimony supporting Appellant’s

statement at trial that he was bipolar.   He acknowledged that he

had not been diagnosed as bipolar.   In fact, the medical

testimony that was offered through Ms. Schutter appeared to

refute this assertion.

     Appellant was diagnosed with cyclothymic disorder; however,

there was no testimony indicating that this mood disorder,

without more, would be a defense to Appellant’s offenses.      In

fact Ms. Schutter described one with this condition as

“[s]omeone who’s [sic] ups and downs don’t necessarily last as

long as someone with bipolar disorder would last.   But it’s in

the same family.”   Furthermore, there was no testimony during

sentencing suggesting that this mood disorder affected

Appellant’s mental responsibility at the time of the offenses.




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United States v. Glenn, No. 07-0407/AR


Appellant does not now claim that he lacked mental

responsibility for the offenses to which he pleaded guilty.

     Finally, although Ms. Schutter was not a psychiatrist, she

was a licensed forensic counselor with a master’s degree in

social work and had worked exclusively in the mental health

field for the previous six years.   Her testimony regarding

cyclothymic disorder was relatively detailed.   Therefore, this

is not a case where lay testimony hinted at a problem that

medical testimony might have disgorged, or for which there was

competing medical testimony as in Harris.   Based on the

foregoing, Appellant’s mitigation evidence that he suffered from

mental health problems did not raise a substantial basis in law

and fact for questioning his guilty plea.   Thus, the military

judge did not abuse her discretion in accepting Appellant’s

guilty pleas without further inquiry.

                            DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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