## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CAMPANELLA, and CELTNIEKS Appellate Military Judges

UNITED STATES, Appellee

v. Specialist BRAEDE N J. TORGENSEN United States Army, Appellant

ARMY 20150356

Headquarters, I Corps

Samuel A. Schube rt, Military Judge Colonel Randall J. Bagwel l, Staff Judge Advocate

For Appellant: Lieutenant Colonel Charle s D. Lozano, JA; Majo r Andres Vazquez, Jr., JA; Captain John L. Schriver, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major John K. Choike, JA; Major Matthew T. Grady, JA (on brief).

22 June 2016

---------------------------------- MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of one specification of po ssession of a controlled substance and one specification of assa ulting a military poli ce officer, in violation of Articles 112a and 128, Uniform Code of Military Jus tice, 10 U.S.C. §§ 91 2a and 928 (2012) [hereinafter UCMJ]. The military judge sentenced ap pellant to a bad-conduct discharge and six months conf inement and granted appellan t seven days of pretrial confinement credit. Pursuant to a pret rial agreement, the convening authority approved only so much of the sentence as provided for a bad- conduct discharge and ninety days confinem ent. He also credited him wi th seven days of confinement

credit.TORGENSEN —ARMY 20150356

2 This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant raises one assignment of erro r which requires discussion an d relief. Specifically, we find that the military judge abused his disc retion by not inquiring into the possibility the accused lacked mental responsibility fo llowing evidence that raised a potential defense, and by accepting appellant’s plea without the accused affirmatively negating the defense.

BACKGROUND

In December 2014, during a comma nd health and welf are inspection, appellant’s command found a smal l vial containing anabolic steroids in appellant’s barracks room among his belo ngings. Appellant was relie ved from his team leader position in his unit and an investigation ensued. Wh ile under investigation for possessing steroids, appellant went to an on-post recreation es tablishment and drank heavily into the morning hour s until he was extr emely intoxicated – so much so that appellant had no recollection of th e events that follow herein.

At around 0030, when appellant and his friend, Sp ecialist (SPC) W, left the drinking establishment, ap pellant became emotional and upset over his work situation. They retu rned to their barracks at the Ranger com pound and parted ways. Around 0330, inebriated, appellant telephoned SPC W and said “it all doesn’t matter now.” Appellant’s comments, combined with his earlier emotional state, led SPC W to think appellant was having suicidal ideati ons. After two more similar calls, due to his concern, SPC W appr oached the staff duty offi cer to report appellant’s behavior. Then, a gunshot rang out from the parking lot. They ran to the parking lot and saw appellant exiting his vehicle and pointing a gun to his head.

The military police (MP) responded to th e parking lot imme diately. Five patrol cars formed a perime ter around appellant. An MP approached appellant and tried to calm him. Appell ant put the gun to his own he ad and said “why am I too much of a pussy to pull th e trigger?” Appellant asked the MP if they would shoot him if he fired his gun towa rds the range. The MP said “no,” and a ppellant said

“let’s test that” and fired a shot towards the range.

The MP continued to talk to appe llant to calm him and offered him a cigarette. As appellant smoke d the cigarette, appellant surprised the MPs by firing another round towards the range. He then asked to speak with his father on a cell phone. While talk ing to his father, appellant fire d another round from his gun to prove to his father that he was not lying about being surrounded by police with a gun

to his head.

Appellant then asked the MP , “If I point my gun at you or the building will you shoot me?” The MP aske d appellant not to do that – but appell ant waved his gun in the direction of seve ral MPs anyway. Th e entire event la sted about fortyTORGENSEN —ARMY 20150356

3 minutes, culminating with appellant placing his gun on the ground and surrendering to the Special Weapons and Tactics (SWAT) team that responded to the scene.

At his court-martial, appellant described the afor ementioned events, not based on his own independent recollection, but ra ther based on the a ccount of others. Appellant did state that while he did not recall the events, he believed he was trying to harm himself. The military judge accepted appellant’s plea.

During his sentencing case, appellant de scribed spending th irty days in an inpatient facility after the aforementioned attempted suicide incident. He also described being diagnosed wi th post-traumatic stress disorder (PTSD), manic depressive disorder, a nd a chemical dependenc y. He stated that he attended alcohol

and substance abuse and beha vioral health counseling mu ltiple times per week. Appellant also described an extremely abusiv e childhood which in cluded physical, emotional, and sexual abus e. Lastly, appellant desc ribed undergoing a medical procedure for PTSD to block the Stellate Ga nglion nerves in an attempt to reduce appellant’s fight or flight response in the brain as well as redu cing his hyperarousal, anxiety, and aggression. A lette r from a behavioral health specialis t that confirmed appellant underwent this me dical procedure and outlined his ongoing mental health

care was entered into ev idence at sentencing.

On appeal, appellant calls into question the providen cy of his guilty plea. Appellant asserts the military judge erred by not resolving a matter inconsistent with his plea where the record and the providence inquiry reveal evid ence of a possible

lack of mental re sponsibility defense.

LAW AND DISCUSSION

This court reviews a military judge’s deci sion to accept a plea for an abuse of

discretion. United States v. Inabinette , 66 M.J. 320, 322 (C.A.A.F. 2008). A decision to accept a guilty plea will be set aside only where the re cord of trial shows

a substantial basis in law or fact for qu estioning the plea. Id . Should an appellant

establish facts that raise a possible defense, the military judge must inquire further

and resolve the matters inconsistent w ith the plea, or re ject the plea. United States v. Phillippe , 63 M.J. 307, 310-11 (C.A.A.F. 2006). When conducting this inquiry, “[a] military judge can presum e, in the absence of contrary circum stances, that the

accused is sane.” United States v. Riddle , 67 M.J. 335, 338 (C.A.A.F. 2009). However, if “the accused's statements or other material in the record indicate a history of mental disease or defect on the part of the accused, the military judge

must determine whether that information raises either a conflict with the plea and thus the possibility of a defense or only the ‘mere possibility’ of a conflict,” as “[t]he former requires furt her inquiry on the part of th e military judg e, the latter

does not.” Id (citations omitted). A failure to do so constitutes a substantial basis in law or fact for questioning the guilty plea. Id

.TORGENSEN —ARMY 20150356

4 In this case, the military judge reviewed in detail the defense of voluntary intoxication with appellant. He neglected, however, to inquire into a potential

defense of lack of mental responsibility de spite appellant ’s discussion of various troubling mental diagno ses, his personal behavioral he alth history, a nd the facts on the record regarding the incident forming the ba sis of the char ge in this case. This is of particular concern in th is case where appellant has no recollection of the events

that form the basis of the ch arged offense.

While the allied documents in the record of trial indicate appellant underwent

a Rule for Courts-Martial 7 06 sanity board prior to his court-martial, the courtmarital record and the coll oquy contain no reference to it. We also find no

indication in the court-mar tial record that the militar y judge was aw are appellant underwent a sanity board or it s results. We will neithe r impute such knowledge to the military judge, no r will we presume th e matter of mental responsibility was discussed thoroughly with de fense counsel and appellant.

The stipulation of fact in this case co ntains a general defense disclaimer but does not specifically include mental respon sibility. Additional ly, the military judge

did not cover the defe nse disclaimer paragr aph in any detail with appellant on the record. In short, th e defense of mental responsibilit y is not mentione d on the record.

These facts lead this court to conclude the military judge erred by not inquiring into the accused’s possible lack of mental responsibility defense which was reasonably raised by the evidence – an d by accepting appella nt’s plea without the accused affirmatively nega ting this potent ial defense.

CONCLUSION

On consideration of the entire record, the findings of guilty and the sentence

are set aside. A rehe aring is authorized. All rights , privileges, and property, of which the appellant has been deprived by virtue of the fi ndings and sentence hereby set aside by this decision, and are ordered restored. See UCMJ arts. 58b(c) and 75(a).

Senior Judge TOZZI and Ju dge CELTNIEKS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: