Judge Ryan writes for a unanimous court, ruling against the government in this certified case, setting aside the sentence, and authorizing a rehearing. Opinion here.

Under Article 67(a)(2), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(a)(2) (2006), the Judge Advocate General of the Air Force (TJAG) certified the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING INEFFECTIVE ASSISTANCE OF COUNSEL IN THIS CASE.

We answer the question in the negative, albeit under different reasoning than the United States Air Force Court of Criminal Appeals (AFCCA). Where, as here, a defendant’s reasonable request for information regarding sex offender registration was “a key concern” identified to defense counsel that “went unanswered,” and if it had been correctly answered he would not have pleaded guilty, we hold that he received ineffective assistance of counsel.

Moreover, in light of our decision in United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012), we hold that it was obvious error to omit the terminal element of Article 134, UCMJ, 10 U.S.C. § 934 (2006), from Specification 4 under Charge V, but that there was no prejudice to Appellee’s substantial rights. Therefore, we affirm the decision and order of the AFCCA setting aside the findings of guilty to Specifications 1, 2, and 3 under Charge V and the sentence, affirming the remaining findings of guilty, and authorizing a rehearing.

Analysis to follow.

6 Responses to “CAAF grants relief in Rose”

  1. anonymous air force senior defense counsel with the initials NM says:

    So tell me if I’ve got this right:  The AFCCA set aside some findings and reassesed the sentence, but the DD still stood… the govt then files a motion for reconsideration.  The govt’s motion is granted, the AFCCA reconsiders, and the DD goes away?

  2. Ama Goste says:

    The pig must have been flying at JAJA.

  3. SomeDC says:

    Another JAG gets slapped down by CAAF because the GAD smarted at a loss?  I thought certification was for important issues not a gov’t appeal.

  4. Dew_Process says:

    “Appellee’s court-martial was in 2005.” [Slip opn. 15]  After Padilla, this case was a foregone conclusion, yet as SomeDC suggests, the lack of adult supervision at AFGAD kept this case in play for no apparent reason other than trying to preserve a conviction.  Perhaps the accused can keep the appellate proceedings going by seeking a writ of prohibition precluding the government from retrying him on the indecent assault charges because there was no “manifest necessity” for the government to prolong the direct appeal!!

    And for Ama’s astute observation, check this out:
    http://www.amazon.com/When-Pigs-Fly-Various-Artists/dp/B000067FTM 

  5. RY says:

    DP,
    I would have thought the same but CAAF did not discuss the relationship of Padilla to sex offender cases. Padilla was only mentioned once in the opinion, and that was for the proposition that IAC can occur in a GP case.  When I listened to oral argument, it sounded like there was some question whether Padilla applies to sex offender consequences and this opinion seems to strategically walk around that.  I think some judges do believe it applies but at least 1 or 2 don’t.  In any event, while they dodge the collateral consequence question, they nonetheless get there by requiring counsel to answer on a collateral matter when asked about it. 

  6. Dew_Process says:

    RY – thanks, I haven’t had a chance to listen to the arguments yet.  But, if you recall in United States v. Miller, 63 M.J. 452, 459 (CAAF 2006) [a pre-Padilla case], the Court held:

    “we conclude that a prospective rule is appropriate to address the importance of trial defense counsel explaining the sex offender registration requirement to an accused. For all cases tried later than ninety days after the date of this opinion, trial defense counsel should inform an accused prior to trial as to any charged offense listed on the DoD Instr. 1325.7 Enclosure 27: Listing Of Offenses Requiring Sex Offender Processing.”

    Thus, after Padilla, it’s somewhat perplexing that the government pursued this.  Yes, Rose was tried prior to Miller’s prophylactic pronouncement, but it surely should have impacted some decision making in the years of appellate litigation that followed.