In United States v. Molina, __ M.J. ___, No. 1299 (C.G. Ct. Crim. App. Sept. 9, 2009), the Coast Guard Court set aside a finding of guilty to indecent exposure due to a mutual misunderstanding of the parties concerning whether a finding of guilty would require registration as a sex offender.

In Molina, both the defense and the government agreed that an important goal of the PTA negotiations was to avoid any requirement that Petty Officer Molina register as a sex offender.  (In fact, the Coast Guard Court commended the government for conceding that that was an important aspect of the negotiations.)  But Rose 2d of Aberlone was barren.  Unbeknownst to both parties, California law required registration on a non-public list for a conviction for indecent assault. 

Even though the PTA didn’t address the issue of registration, the Coast Guard Court found that non-registration “rose to the level of being a material term or condition of the pretrial agreement.”  Id., slip op. at 5.  The parties’ mutual belief that indecent exposure wouldn’t require Petty Officer Molina to register as a sex offender, held the Coast Guard Court, “constitutes a mutual misunderstanding regarding a material term of a pretrial agreement.”  Id.  “[B]ased on the mutual misunderstanding of the requirement to register as a sex offender under state law, Appellant’s pleas of guilty are improvident to the extent that the conviction under Charge IV and its specification [indecent exposure] triggered a requirement to register, requiring relief.”  Id

The court concluded that specific performance was possible.  If the indecent exposure conviction were to be set aside, then Molina would receive what he bargained for — a sentence that didn’t require registration.  The government and the defense joined in requesting that relief.  And the court provided it.  So the court managed to make Rose 2d fertile.

7 Responses to “Published CGCCA opinion dealing with collateral consequences of guilty plea”

  1. A. Nonny Mousse, Esq. says:

    Woah the government agreed with the defense that the conviction should be set aside? I thought this was MJ!

  2. Marcus Fulton says:

    I think Rose was fertile, sold as beef by mistake.

  3. Phil Cave says:

    For A,N.M, Esq.

    Question: In 200 words or less, compare and contrast Coast Guard and Army, using Molina and Behenna as examples.

  4. John O'Connor says:

    Any trial counsel who promises that a particular conviction will not require registration under the law of any of the 50 states either has done an amazing amount of research (and perhaps even has the ability to foresee future changes in the law) or is promising something he/she ought not be promising.

  5. dreadnaught says:

    To follow on JOC, how can a DC also take into consideration an later change in the law that increases the reach of registration law. This issue should not be addressed in a PTA. Collateral consequences are just that: collateral.

  6. Anonymous says:

    SORA issues, while complex, are a fact of life in the criminal / military justice world. The real problem here is the fact that counsel for neither of the parties was familiar with California law.

    The more basic ethical question would seem to be, were any of the lawyers involved, licensed in California? If not, did they seek “expert” guidance from someone both licensed in CA and familiar with the SORA rules/laws?

    A similar type of issue comes up now and then with Accused’s who require some State licensure to keep their “military credentials,” e.g., Docs, Nurses, Dentists, JAGs, Veterinarians, etc. A crime of “moral turpitude” may trigger a licensing revocation – assuming that a conviction by a court-martial alone wouldn’t do so.

  7. LTC Slade says:

    Question for expert in this area: Am I correct that SORNA has its own registration requirement, and that states can require more (not less, I guess) qualifying crimes for registration? Just not clear on how the whole process works now that we have SORNA.