CAAF decided United States v. Riley, No. 11-0675/AR, 72  M.J. 115 (CAAFlog case page) (link to slip op.), on April 16, 2013, reversing the ACCA and setting aside the findings and sentence, with a rehearing authorized. The granted issues were:

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.

Judge Erdmann writes for the majority, with Judge Stucky joined by Judge Ryan dissenting. The majority answers Issue II in the affirmative, finding that the military judge abused his discretion by accepting the Appellant’s guilty plea without ensuring that she was aware of the consequence that she would have to register as a sex offender. The majority does not reach Issue I.

The Appellant 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.

Judge Erdmann summarizes the relevant facts:

The incident giving rise to the charges took place in the Mother/Baby Unit at Darnall Army Medical Center on Fort Hood, Texas, on July 27, 2009. Dressed in scrubs, apparently pretending to be a nurse, Riley entered the room of MB and her newborn son. Believing Riley to be the charge nurse, MB asked her for a few items from the front desk. Riley began to exit the room and MB went into the bathroom. When MB came out of the bathroom her baby was not in the bassinet where he had been sleeping. MB went out in the hallway and found Riley putting the baby in a backpack. MB took the baby and Riley left the Mother/Baby Unit of the hospital. Riley was apprehended five days later and during a subsequent interview with Army investigators, admitted taking the baby.

Slip op. at 3-4. According to a post-trial affidavit, the Appellant did not learn that her conviction required sex offender registration until several months after her court-martial trial was complete in 2009. But three years earlier CAAF had ruled that “[f]or 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 [Instruction] Listing Of Offenses Requiring Sex Offender Processing.” United States v. Miller, 63 M.J. 452, 459 (C.A.A.F. 2006). Unfortunately, Riley’s defense counsel “was not aware of the [sex offender registration] requirement or consequence for such a kidnapping conviction.” Slip op. at 5. Additionally, the military judge did not address sex offender registration during the plea inquiry.

A military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion, which occurs when there is something in the record that raises a substantial question in fact or law regarding the guilty plea. Slip op. at 10. Particularly, Art. 45 includes procedural requirements that a military judge ensure a guilty plea is “knowing and voluntary, satisfies the elements of charged offense(s), and more generally that there is not a basis in law or fact to reject the plea.” Slip op. at 11 (quoting United States v. Hayes, 70 M.J. 454, 457 (C.A.A.F. 2012)). Judge Erdmann dedicates a significant portion of his opinion to a helpful discussion of what it takes to satisfy these requirements for a guilty plea. See slip op. at 10-12.

Here the Appellant claimed that “she would not have ple[a]d[ed] guilty and would have insisted on going to trial unless the Government removed the prospect of sex offender registration,” and that CAAF’s “decision in Miller, and the Supreme Court’s ruling in Padilla v. Kentucky, 130 S. Ct. 1473, 1487 (2010) (finding defense counsel’s performance “constitutionally deficient” based on his failure to advise defendant that his plea of guilty made him subject to automatic deportation), compel the conclusion that the accused must be aware of sex offender registration requirements in order for the plea to be knowing and voluntary under Article 45.” Slip op at 9 (parenthetical in original). Further, the Appellant argued that “the military judge had an affirmative duty to ask if she had been informed of the sex offender registration requirements,” and “that the military judge’s failure to do so provides a substantial basis in law to question the plea.” Id. The Government’s response was that CAAF’s opinion in Miller places the burden of informing an accused of sex offender registration requirements on the defense counsel rather than the military judge, and that “nothing in Riley’s guilty plea evidenced any misunderstanding about collateral consequences readily apparent to the military judge and there is no substantial basis to question Riley’s guilty plea.” Slip op. at 10.

The Government’s argument relied on the distinction between “direct consequences” and “collateral consequences” of a plea, and Judge Erdmann’s majority opinion notes the difference between the two and the fact that “in Miller we addressed sex offender registration as a collateral consequence which was ‘separate and distinct from the court-martial process,’ when we held that the military judge ‘did not err in his responsibility to ensure that Appellant understood all the consequences of his guilty plea.'” Slip op. at 12 (citation omitted). That conclusion was informed by the conclusion that deportation is also a collateral rather than direct consequence, but the Supreme Court subsequently found otherwise in Padilla. Judge Erdmann also considers CAAF’s decision last term in United States v. Rose, 71 M.J. 138, 143 (C.A.A.F. 2012) (finding that it is deficient performance for a defense counsel to fail to respond to a request for information about the sex offender consequences of a plea). He then concludes, at page 15:

Thus, in light of the concerns we expressed about sex offender registration consequences in Miller and Rose, and following the Supreme Court’s guidance in Padilla, we hold that in the context of a guilty plea inquiry, sex offender registration consequences can no longer be deemed a collateral consequence of the plea.

Having decided that sex offender registration is a direct vice a collateral consequence of a guilty plea (implicitly overruling Miller on this point), Judge Erdmann turns to the military judge’s plea inquiry:

Given the lifelong consequences of sex offender registration, which is a ‘particularly severe penalty,’ the military judge’s failure to ensure that Riley understood the sex offender registration requirements of her guilty plea to kidnapping a minor results in a substantial basis to question the providence of Riley’s plea.

We note that the Government argues, and the CCA held, that the burden is only on the defense counsel to notify clients about sex offender registration consequences. However, the military judge “shoulder[s] the primary responsibility” for the acceptance of a knowing plea. Our decisions as far back as United States v. Care indicate that while the defense counsel plays an important role in securing a provident plea, it is the duty of the military judge to ensure “that there is a knowing, intelligent, conscious waiver in order to accept the plea.” To be sure, as we explained in Miller, defense counsel must inform the accused of these consequences, but it is the military judge who bears the ultimate burden of ensuring that the accused’s guilty plea is knowing and voluntary.

Slip op. at 18 (citations omitted). He therefore concludes that the plea is improvident, and that “[a] rehearing will provide Riley with the opportunity to enter a guilty plea, or plead not guilty, with full knowledge of the consequences of her decision.” Slip op. at 19.

Judge Stucky, joined by Judge Ryan, dissents because he finds that the “Appellant has failed to demonstrate a material prejudice in this case – she failed to show that if she had known she would be required to undergo sex offender processing, it would have been rational for her not to plead guilty.” Diss. op. at 5-6. He notes the prejudice requirement for a claim of ineffective assistance of counsel (Issue I), which is that “there is a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial.” Diss. op. at 1 (citations and marks omitted). He then finds that “it makes sense to employ the same prejudice standard” in this case to determine if the Appellant was prejudiced by any error by the military judge. Diss. op. at 2.

Then he concludes that the Appellant failed to meet this burden:

Whether one frames the question before us as an ineffective assistance of counsel claim for failing to advise Appellant of the requirement to register as a sex offender, or as a claim that the military judge abused his discretion by failing to ensure that defense counsel had so advised Appellant prior to accepting Appellant’s plea, as a matter of logic, the touchstone for granting relief has to be the same: Appellant must demonstrate a reasonable probability that, absent the alleged error, she would not have pleaded guilty. A mere allegation post-trial is insufficient.

Even if we were to assume that it was deficient performance for the defense counsel and error for the military judge to fail to advise Appellant that sex offender processing was one of the consequences of pleading guilty to the offense charged, Appellant has not demonstrated material prejudice under the circumstances of this case. She has not shown that, if she had been properly advised of the consequences of pleading guilty, it would have been rational for her not to do so.

Diss. op. at 2-3. Unsurprisingly (considering that Rose was a unanimous opinion authored by Judge Ryan), the dissenters do not argue with the majority’s conclusion that registration is a direct vice a collateral consequence.

Sex offender registration is one of the most severe and onerous consequences of a conviction, and it can result in lifelong consequences that exceed the burden of the punishment itself. As a defense counsel, I’ve provided advice about sex offender registration consequences on numerous occasions, and it’s a difficult conversation. But that difficulty only highlights the importance of ensuring that an accused understands this severe consequence, particularly before he waives his right to a trial on the merits. CAAF’s 2006 decision in Miller that announced the requirement for defense counsel to give this advice, and its decision last term in Rose expanding that requirement, were important first steps. Now the court takes the logical next step, placing a similar burden to inform the accused onto the military judge who conducts the plea inquiry. However, had CAAF not done this, I don’t see how it could have avoided finding IAC leading to the same ultimate result.

An anonymous commenter to this post, who purports to be the trial counsel from this case, sees the majority’s decision as “an unfortunate, wretched oversight for justice, the victim and public safety.” The facts of this case certainly indicate a carefully premeditated baby-snatching that could have had terrible consequences. But the timeline in this case implies that the Appellant is still serving the approved 5-year sentence, and this should be a simple case for the Government to prove at a rehearing (if they have to). Making sure the Appellant’s decision to waive her right to a trial is well-informed and intentional seems like a small price for society to pay, considering the lifelong consequences of the conviction.

Case Links:
AFCCA opinion
Blog post: CAAF grants review of SORNA IAC issue
Appellant’s Brief
Appellee’s (Government) Brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: In the CAAF
Blog post: Opinion analysis

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