CAAF will hear oral argument in United States v. Riley, No. 11-0675/AR, on Tuesday, January 22, 2013. CAAF granted review of the following 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.
Last term, in United States v. Rose, CAAF avoided the specific question of whether it is deficient performance, meeting the first prong under Strickland v. Washington, 466 U.U. 668 (1984), for ineffective assistance of counsel, for a defense counsel to fail to advise his client about the collateral consequence of sex offender registration in the context of a guilty plea. Now CAAF appears ready to take another bite of this apple with Riley, a case with somewhat unusual facts that make it a good candidate for the question presented in the first issue.
The Appellant in Riley was convicted, in accordance with her plea pursuant to a pretrial agreement, of kidnapping in violation of Article 134. A panel of officers sentenced her to a dishonorable discharge, confinement for five years, and total forfeitures. The sentence was approved as adjudged (the PTA protected against confinement in excess of 11 years). In July, 2011, the ACCA summarily affirmed the sentence. But in November, 2011, CAAF remanded the case for consideration of new issues raised by the Appellant, and ordered the ACCA to obtain affidavits from the trial defense counsel regarding allegations of ineffective assistance of counsel. In May, 2012, the ACCA again affirmed, this time in a memorandum opinion. Then, in October, CAAF granted review.
The facts are neatly summarized in the ACCA’s memorandum opinion:
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 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.
While serving confinement after pleading guilty at her court-martial for kidnapping, appellant claims that she was informed for the first time that she would have to register as a sex offender for the kidnapping offense. Affidavits provided by appellant’s two defense counsel confirm that they did not inform appellant she would have to register as a sex offender for the kidnapping offense. Moreover, the record of trial confirms that the issue of sex offender registration was not addressed during appellant’s court-martial.
United States v. Riley, No. 20100084, slip op. at 2 (A.Ct.Crim.App. May 11, 2012). The ACCA explained that the sex offender registration was a consequences of Department of Defense Instruction 1325.7, Encl. 27, which lists offenses that require federal sex offender notification to state and local authorities, kidnapping being among them. Of the two Strickland prongs for IAC (deficient performance and prejudice; both must be shown for the Appellant to prevail), the ACCA did not address the question of deficiency because it found that there was no prejudice, due to “the strength of the government’s case, including the overwhelming weight of evidence against appellant, and the favorable sentence limitation in the pretrial agreement.” Riley, slip op. at 3. The court also considered whether it was error for the military judge to accept the Appellant’s plea without asking about sex offender registration, but found that the misunderstanding was not made readily apparent to the judge, noting that “chief reliance must be placed on defense counsel to inform an accused about the collateral consequences.” Riley, slip op. at 4 (quoting United States v. Bedania, 12 M.J. 373, 376 (C.M.A. 1982)).
In her brief to CAAF, the Appellant begins by highlighting the prospective rule established in United States v. Miller, 63 M.J. 452, 459 (C.A.A.F. 2006):
In light of the federal statute, DoD Instr. 1325.7, and state statutes requiring sex offender registration, 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. Trial defense counsel should also state on the record of the court-martial that counsel has complied with this advice requirement. While failure to so advise an accused is not per se ineffective assistance of counsel, it will be one circumstance this Court will carefully consider in evaluating allegations of ineffective assistance of counsel.
(emphasis added). The Appellant’s brief doesn’t specifically ask CAAF to revisit the per se language of Miller, but it does indirectly argue that failure to advise is per se deficient performance, meeting the first Strickland prong. On the question of prejudice, the Appellant’s brief argues that the sex offender registration requirement in this case comes from the additional element of a minor to the kidnapping offense. In the Appellant’s view, this is an aggravating factor that didn’t affect the maximum sentence and would have been negotiable at trial, particularly in the context of sex offender registration. In support of this argument, the Appellant’s brief states that “[a]t the time the parties signed the pretrial agreement, the government did not view sex offender registration as a viable bargaining tool.” App. Br. at 15. Unfortunately, there is no citation to the record to support this assertion. Moreover, the Government’s use of a state-law collateral consequences as a bargaining tool is – in my view – a dubious practice that raises serious ethical concerns (and I felt the same way as a prosecutor).
The Appellant’s brief on the second issue is short, and makes the simple argument that “[i]t’s hard to imagine a collateral consequence that qualifies as ‘major’ if sex offender registration for life does not.” App. Br. at 19. “Private Riley’s lack of understanding of sex offender registration requirements was or reasonably should have been readily apparent to the military judge. No lay person, including PVT Riley, could reasonably be expected to understand that a conviction for kidnapping, which is in no way sexual, triggers sex offender registration requirements.” App. Br. at 20. The real issue here is if the possibility of sex offender registration must be part of the guilty plea colloquy, particularly where the offense is listed in DODI 1325.7, Encl. 27 (of note, this list was revised in this memorandum dated Nov. 16, 2009). It’s not hard to imaging CAAF adopting a prospective rule on this point.
The Government’s response sticks to the no-prejudice argument accepted by the CCA. The brief makes two main points: First, the Appellant’s conviction was certain, based on the overwhelming evidence against her. Second, the Appellant strongly desired a plea agreement in order to limit her exposure to confinement (as reflected in the post-trial affidavits gathered after the Appellant raised her IAC claim). The brief then turns to the Appellant’s assertion that the Government would have been willing to remove the of a minor element from the charge of kidnapping, thereby (presumably) eliminating the registration requirement:
Appellant’s reasoning is critically flawed. It’s nonsensical to argue that as a result of the government’s superior position, it would be willing to surrender the gravamen of its case.
First, it is not even clear whether removing references to a “minor” is legally permissible, nor does appellant offer any alternative offenses that she could have pled to. [n.]66 The phrase “minor whose parent or legal guardian the accused was not” is part of the “wrongfulness” element of the charged offense. [n.]67 The victim is either “a minor” or “a person not a minor.” [n.]68 Failing to allege that the accused is not the parent of the minor would either: (1) create a charge that fails to state an offense; or (2) allege a simple disorder with a relatively negligible confinement period and possibly no discharge. It defies reason to believe that the government, which appellant concedes has the “superior bargaining position”, would even entertain such a plea offer.
[n.]66 For example, there is no lesser included offense for kidnapping described in the MCM except for Article 80, Attempts. But even that would still subject appellant to the same maximum punishment authorized for the charged offense to include mandatory sex offender registration pursuant to DODI 1325.7.
[n.]67 Manual for Courts-Martial, United States (2008 ed.) [hereinafter MCM] , pt. IV, para. 92 (c) (5)
Gov’t Br. at 14-15 (emphasis added). I reproduced the footnotes because you might be scratching your head and wondering why the Government’s brief appears to claim that kidnapping itself (not of a minor, but just kidnapping) is not an enumerated 134 offense, when the elements of “Kidnapping” listed in the 2008 (and 2012) Manual are:
(1) That the accused seized, confined, inveigled, decoyed, or carried away a certain person;
(2) That the accused then held such person against that person’s will;
(3) That the accused did so willfully and wrongfully; and
(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
No mention “of a minor” there… Oops? I’m sure the court will give the Government’s attorney an opportunity to clarify this point during the oral argument.
On the second issue, the Government urges CAAF to resist expanding the scope of the military judge’s role in the plea inquiry, arguing that the detailed defense counsel is in the best position to assist the accused in this regard, and that any expansion would “open the floodgates to a myriad of appeals on collateral grounds.” Gov’t Br. at 22. A footnote cites two possible bases for appeals based on collateral consequences: “the right to bear arms and the right to vote.” Gov’t Br. at 22 n.87. Reading this argument brings one particular case to mind: United States v. Denedo, 556 U.S. 904 (2009) (a case involving a claim of IAC due to inaccurate advice about the collateral consequence of deportation, in which the Supreme Court held that military appellate courts have the authority to issue writs of error coram nobis). Even though last year’s robust writ practice was #9 on our list of the Top 10 Military Justice Stories of 2012, it’s hard to say that the floodgates were open or, if they were, that it was a problem. In fact, we said the opposite:
CAAF’s extraordinary writ practice this year — while robust — occurred only reluctantly, usually after it had previously denied another request for extraordinary relief in the same case. The writs also shared another common feature — they had the apparent effect of making the military justice system function more smoothly while removing appellate issues that could have disturbed the cases’ outcome later.
CAAF’s action in this case could also have the apparent effect of making the military justice system function more smoothly, by clearly defining the role of defense counsel and military judge in advising an accused about the collateral consequence of sex offender registration (undeniably one of the more onerous and life-changing consequences – collateral or otherwise – of a criminal conviction). Despite my complaints about the court’s apparent dodges so far this term (see United States v. Altier and United States v. Datavs), I believe that CAAF will set some new requirements for both counsel and judge, even if it does not grant relief to this Appellant.