CAAF’s opinion in United States v. Rose, No. 09-5003/AF, 71 M.J. 138 (C.A.A.F. May 24, 2012) (CAAFlog case page) (link to slip op.), comes at the end of an appellate history worthy of a law school final exam. The AFCCA found ineffective assistance of counsel in this case a total of four times, and CAAF remanded the case twice for further consideration, before Judge Ryan wrote for a unanimous court on May 24, 2012, that “counsel’s failure to comply with a reasonable request for information about sex offender registration amounted to deficient performance where counsel knew that this was a ‘key concern,’ and where, had the request been investigated and answered, even counsel acknowledges that his advice would have been different.” Rose, slip op. at 13-14.
The case involves an Airman who was convicted, pursuant to his pleas and in accordance with a pretrial agreement, of multiple offenses including three specifications of indecent assault in violation of Article 134 (in 2005 – two years before the “new” Article 120 in 2007). He subsequently complained of his civilian defense counsel’s “erroneous advice that pleading guilty to indecent assault did not require [him] to register as a sex offender,” pursuant to United States v. Grostefon. On brief, the government argued that:
Not receiving an answer to a question about collateral consequences is fundamentally different from being given incorrect advice. This Court has already held that the complete failure to provide any advice on the need to register as a sex offender if convicted does not constitute deficient performance under the first prong of Strickland and so does not rise to the level of ineffective assistance of counsel. In the same vein, one would expect a counsel who did not know or was unsure of the answer to a question about a collateral matter to tell the client he did not know or was unsure. Mr. NC told Appellee he was unsure of the answer each time he addressed the issue. That does not amount to a constitutionally deficient performance within the meaning of Strickland.
Gov’t br. at 22-23 (internal citation omitted). But CAAF finds the opposite: “counsel’s failure to answer a specific request for information violates the duty to ‘promptly comply with reasonable requests for information’ under the ABA Model Rules of Prof’l Conduct R. 1.4 and the AF Rule of Prof’l Conduct 1.4.” Slip op. at 13.
Rose was argued at Gonzaga Law School as part of Project Outreach, and two 3Ls wrote an amicus brief arguing, in part, that the Supreme Court’s rationale in Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (“counsel must inform her client whether his plea carries a risk of deportation”) should extend to “a consequence so integral to a criminal penalty as sex offender registration.” Amicus br. at 12. This would create an affirmative duty to advise on sex offender registration. But Padilla gets only a single mention in CAAF’s opinion in Rose, and the argument of the amicus, that sex offender registration requires the same pretrial advice as immigration consequences, gets no mention at all.
In the end, CAAF’s opinion in Rose is grounded in the ABA’s Model Rules of Professional Conduct and the Air Force Rules of Professional Conduct, and the court avoids the kind of sweeping change incumbent in creating a blanket requirement to advise on the possibility of the requirement for sex offender registration. It’s a relatively simple resolution to a relatively complex case.
Case Links (see the argument preview for case links for Rose I & II):
• Rose III: AFCCA opinion (en banc) (Mar 9, 2011)
• Rose III: AFCCA opinion on reconsideration (en banc) (Aug 15, 2011)
• Rose III: Blog post: AFJAG recertifies Rose
• Rose III: Appellant’s (government) CAAF brief
• Rose III: Appellee’s CAAF brief
• Rose III: Amicus CAAF bref
• Rose III: Blog post: Argument preview
• Rose III: Oral argument audio
• Rose III: CAAF opinion
• Rose III: Blog post: Opinion analysis