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.”

10 Responses to “CAAF grants review of SORNA IAC issue”

  1. Phil Cave says:

    I don’t know about anyone else, but I have had clients who have “confessed” and against whom there is “overwhelming” evidence who plead not guilty.  Their reasons for this may seem perverse  but it is their constitutional right.  These days it’s rare for any client to plead G to a SOR liable charge – isn’t it?  Most clients’ goal is to avoid the SOR, and after proper advice want to take their chances on greater brig time.  And if you do a litigate to mitigate case it sometimes works out.  So I think ACCA isn’t dealing with the reality of what the client would do if she’d been properly advised.

  2. anon says:

    Post-Padilla cases are an interesting animal, if I recall most courts have assessed prejudice by considering the strength of the governments case-in-chief (usually in the context of the veracity of an appellant’s assertion that they wouldn’t have accepted a deal) and not just the appellant’s willingness or unwillingness to plea if they had been properly informed.  Lots of movement in the federal circuits for both criminal and immigration law so has the makings of interesting briefs.

  3. stewie says:

    Were I defense counsel I think pleading guilty to a SOR liable charge would indeed be rare. It would require a really good deal, for a really clear-cut conviction where the only possible result was guilt.

    Otherwise, you take your chances because SOR is basically for life nowadays in many states, or long enough to might as well be life, and your life is basically carp (misspelling intentional) so risking jail time is almost preferable if there’s a tiny chance at an acquittal.

  4. Phil Cave says:

    Anon, I agree with your thought.  But that’s why I agree with Stewie that in the SOR “world” the significant collateral effects drive the train more than perhaps in the immigration “world.”
    I’d be interested in any statistics trying to compare the rate of GP before SOR compared to post-SOR.  I’m not sure you can come up with discreet numbers, but I wonder if there’s a way to see if there is a real trend to NG pleas in “SOR cases,” or at least negotiating for non-SOR eligible pleas. 
    The collateral effects are so huge that a client is much more willing to buck the odds.  “I’ll do anything, but I don’t want to have to register,” must seem a common refrain these days? 

  5. k fischer says:

    I’m just amazed that a female plead guilty to a sexual offense that requires registration.  Anybody know the facts of this case?

  6. Cheap Seats says:

    “While on involuntary excess leave following a previous court-martial conviction for failing to report, false official statement, and malingering, appellant dressed in medical scrubs and entered the baby ward of Darnall Army Medical Center on Fort Hood, Texas. Appellant then entered the maternity room of a new mother and baby, and pretended to be an attending nurse. When the mother left to use the bathroom, appellant took the baby out of the room and into the hallway. After the mother returned and noticed her baby missing, she also went out of her room into the hallway. At this time appellant was placing the baby in a backpack and when the mother saw her, she  [*3] told appellant to stop. Appellant responded that the baby needed to be fed and gave the baby back to the mother and left the area. Five days later, appellant was apprehended by law enforcement agents and admitted to kidnapping the baby from the hospital room.”United States v. Riley, 2012 CCA LEXIS 175 (ACCA, May 11, 2012)

    (Un)fortunately, kidnapping a child is on the SORNA list.

  7. Ex TC says:

    SORNA train wrecks a lot of things in the mil jus world but I think it works well in the civilian world, where there are plenty of repeat offenders to worry about. Nobody in Congress has the guts to opt out the military or even say pleas at SPCM, which I think should not be SORNA. You shouldn’t be a sex offender for getting drunk and grabbing some on the butt. Sorry true believers, but it’s not fair.

      Undoubtedly the govt has lost trials where the defense threw a hail mary and won out of nowhere, done solely to avoid SORNA.  Plenty of times I’ve heard DC say that the client doesn’t mind the time in jail, it’s the registration, so off to trial, facts be damned. I suspect that when it was all about time in prison, many more sex cases pled, that was my experience. 

    I do think that people plead out SORNA cases that deal with sex against children, since members can often punish very very harshly and when they know that SORNA is coming anyway, they seek a cap.

    But adults + alcohol + sex/touching =  trial to avoid SORNA at all cost. The Govt created its own problems.

  8. Phil Cave says:

    Ex-TC, yes there are repeat offenders.

    The ongoing research on SOR laws and effects is quite interesting.  I’ve condensed a little of it here but there’s plenty out there.  Lot’s of fodder for any side in the debate.

     

  9. Ex TC says:

    Phil

     I agree that there are repeat offenders, but I don’t believe nearly as many as the true believers claim. Otherwise mil jus would be drowning in cases, which we are not.

    What I’d like to see is SORNA opt out SPCM’s.  That would resolve a lot of the low level litigation that is done solely to avoid SORNA.  I think it would also see an increase in bareback SPCM’s to resolve those 1-2 year worth cases with both sides getting a chance at a fair resolution. I can accept SORNA if you violently rape someone, but that is not the majority of mil jus cases.  It’s an ok idea that has turned into an 800 pound gorilla in a system that it is not designed for.

  10. Phil Cave says:

    Ex-TC, roger that.  Agree, as with much of the statistics, politics overcome.  There is some very good legitimate research coming debunking the true believer statistics.