CAAF decided United States v. Rose, 71 M.J. 138 (C.A.A.F. 2012), in a manner that didn’t require resolving Padilla v. Kentucky‘s applicability to failure to advise a client about sex offender registration requirements resulting from a guilty plea. CAAF may reach that issue in a case it granted today, United States v. Riley, __ M.J. __, No. 11-0675/AR (C.A.A.F. Oct. 15, 2012). Here are the granted issues:
I. WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HER DEFENSE COUNSEL FAILED TO INFORM HER THAT SHE WOULD HAVE TO REGISTER AS A SEX OFFENDER AFTER PLEADING GUILTY.
II. WHETHER, IN LIGHT OF UNITED STATES v. MILLER, 63 M.J. 452 (C.A.A.F. 2006), THERE IS A SUBSTANTIAL BASIS TO QUESTION APPELLANT’S GUILTY PLEA DUE TO THE MILITARY JUDGE’S FAILURE TO INQUIRE IF TRIAL DEFENSE COUNSEL INFORMED APPELLANT THAT THE OFFENSE TO WHICH SHE PLEADED GUILTY WOULD REQUIRE APPELLANT TO REGISTER AS A SEX OFFENDER.
Following a previous CAAF grant and remand requiring ACCA to obtain affidavits from the trial defense counsel before ruling on the IAC claim, ACCA concluded that “it is clear from the affidavits of defense counsel that they failed to comply with our superior court’s rule from Miller by not informing appellant that her plea of guilty could trigger a requirement for sex offender registration.” United States v. Riley, No. ARMY 20100084, slip op. at 3 (A. Ct. Crim. App. May 11, 2012) (per curiam). ACCA didn’t decide whether this constituted deficient representation for purposes of the first Strickland IAC prong, deciding the case on prejudice instead. ACCA opined, “Appellant claims in an affidavit that had she known about the requirement to register as a sex offender, she would not have pled guilty. This claim, however, is not objectively supported by the circumstances of her case. In addition to a confession, the government had eye-witness and video surveillance evidence of appellant’s commission of the offense, along with physical evidence seized from appellant’s vehicle linking her to the crime.” Id. ACCA also noted that while appellant’s offense carried the possibility of LWOP, her deal capped confinement at 11 years. (The members sentenced her to 5 years plus a DD and total forfeitures.) ACCA concluded, “Both the strength of the government’s case, including the overwhelming weight of evidence against appellant, and the favorable sentence limitation in the pretrial agreement belie appellant’s assertion that she would not have pled guilty had she been informed of the requirement to register as a sex offender.”