In United States v. Riley, 72  M.J. 115 (C.A.A.F. 2013) (CAAFlog case page), CAAF reversed the appellant’s plea of guilty to kidnapping of a minor in violation of Article 134 – an offense that triggers a sex offender registration requirement – after it concluded that “the military judge’s failure to ensure that [the appellant] understood the sex offender registration requirements of her guilty plea to kidnapping a minor results in a substantial basis to question the providence of [the appellant’s] plea.” 72 M.J. at 122, slip op. at 18.

A recent published decision, a three-judge panel of the Army CCA rejects retroactive application of CAAF’s decision in Riley, denying a petition for extraordinary relief in the nature of a writ of coram nobis. Washington v. United States, No. 20140826, __ M.J. __ (A. Ct. Crim. App. Nov. 25, 2014) (link to slip op.).

In 1999 the petitioner was convicted in accordance with his pleas of guilty, by a general court-martial composed of a military judge alone, of three specifications of uttering a worthless check without sufficient funds, one specification of sodomy with a child under the age of 16, one specification of non-forcible sodomy, two specifications of wrongfully soliciting another to commit non-forcible sodomy, and three specifications of impersonating a commissioned officer in violation of Articles 123a, 125, and 134. He was sentenced to confinement for six years, total forfeitures, and a dishonorable discharge. The Army CCA summarily affirmed the convictions in 2001, and CAAF subsequently denied review.

The petitioner was not advised that his pleas would require him to register as a sex offender when he pleaded guilty in 1999. He argues that this renders his pleas improvident because “the Court of Appeals for the Armed Forces did not limit the retroactive application of Riley.” Slip op. at 2. However, the Army CCA rejects this argument:

The military judge did not advise petitioner that as a consequence of his pleas of guilty to certain offenses, petitioner would be required to register as a sex offender. However, it matters not. Precedent requiring a military judge to ensure an accused understood that he is subject to sex offender registration requirements prior to the judge accepting a plea of guilty did not exist until 2013. Riley, 72 M.J. 115. In addition, the expectation that defense counsel advise an accused that a guilty plea will subject him to sex offender registration requirements did not exist until 2006 and was established in a decision that declared this expectation would come into enforceable effect 90 days from the date of that opinion. United States v. Miller, 63 M.J. 452, 459 (C.A.A.F. 2006). The military judge fulfilled the requirements of Article 45(a), UCMJ, and United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969), in effect at the time of petitioner’s trial, therefore, it cannot be said that the military judge either abused his discretion or committed plain error by accepting petitioner’s pleas despite the lack of such advice. See Gonzales v. Hickey, 949 F. Supp. 2d 688, 697 (E.D. Ky. 2013); see also United States v. Warner, 73 M.J. 1, 4 (C.A.A.F. 2013) (“[A]n error is ‘plain’ when it is ‘obvious’ or ‘clear under current law.’” (quoting United States v. Olano, 507 U.S. 725, 734 (1993))). Finally, applying the principles of Chaidez v. United States, 133 S. Ct. 1103, 1105-13, 1118 n.5 (2013), we hold that the rule in Riley requiring a judge to advise an accused of sex offender registration requirements prior to accepting a guilty plea is not retroactively applicable. See also Casa-Garcia v. United States, 71 M.J. 586 (Army Ct. Crim. App. 2012).

Slip op. at 2 (emphasis added).

6 Responses to “The Army CCA rejects retroactive application of Riley”

  1. anon says:

    I presume ACCA published the decision with deliberate contemplation of possible further review by CAAF. . . otherwise, they would have simply applied the high burden on a petitioner filing a writ of coram nobis in denial.  Interesting to see if Army DAD gets involved (dollar says some lucky CPT is going get intimately familiar with Teague soon) but retroactive application of criminal procedural rights is an issue that even the Supreme Court has difficulty grappling with. I’m not convinced that Miller or Riley did anything other than clarify the existing requirements under Art 45(a) or Strickland.  Factually, not sure if Washington is necessarily the vehicle that CAAF wants to consider Teague retroactivity . . . but you also have a CCA precedential decision that at least controls Army cases.  From my perspective, this has slightly broader implications to issues such as Denedo and the Supreme Court in Chaidez was not considering the enhanced (no reference to EIT) rights afforded under Care and Art 45.

  2. Dew_Process says:

    But, Denedo was limited to whether or not the CCA had jurisdiction to entertain the Writ.
     
    Here, it seems to me, that the real issue is much more nuanced, i.e., if at the time counsel “advised” the defendant about the plea, if SO registration was in effect in the Accused’s “home of record,” did “effective assistance” require DC to at least look into the issue or seek guidance from a competent lawyer from that jurisdiction, prior to entering into a plea deal?
     
    Some years ago, an enterprising DC was representing a JAGC client who was offered what appeared to be a decent plea deal at first blush, but he filed a request for “expert assistance” on the issue that he wasn’t qualified to advise his client about the Bar implications, i.e., the duty to “self-report” and whether or not the plea would constitute an admission to a crime of moral turpitude, and thus automatically subject the Accused to disbarment proceedings.  The MAJCOM/JA detailed me – a Reserve JAG at the time – to be the defense “expert” as I was the only non-conflicted JAG in the Command licensed in the relevant jurisdiction.  If I recall, this was in 1998, so it’s not a novel concept.
     
    For the curious, the answers were “yes” and “yes.”  While the TC and DC went back to the drawing board, the Secretary approved the pending RILO.  Client is a successful attorney today.
     
    The “Moral” here – at least to me – is that whether or not the MJ had a duty to advise the accused, his/her DC certainly did, and if the DC didn’t advise as to the collateral consequences, e.g., Padilla, was this IAC at the time or not?

  3. stewie says:

    What were the SO registration requirements back then? I know I was defending cases a few years after, and the idea of sex offender registration wasn’t much talked about those first couple of years then quickly mushroomed. A quick look shows the first federal mandates for state registration didn’t come until 1994, and then it wasn’t until 1996 that we had the whole public notification mandate.  I assume sex offender registration was still fairly scattered, hard to find, and subject to a lot of fluidity in 1999.  A good attorney would have said something about it no doubt, but not sure it rises to IAC since as we all know that’s a really hard standard to meet, and in 1999, I don’t think failure to advise on SOR gets there.  It obviously does now.

  4. Zachary D Spilman says:

    It’s worth putting this issue into historical context.

    Eight years ago, in United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006) (link to slip op.), CAAF held that the failure to advise an accused of a sex offender registration requirement in connection with a plea of guilty is neither deficient performance under the Strickland standard, nor did it render the plea improvident. However, the court announced a prospective rule:

    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.

    63 M.J. at 459.

    Six years later, in United States v. Rose, 71 M.J. 138 (C.A.A.F. May 24, 2012) (CAAFlog case page), CAAF took the next step, finding 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, 71 M.J. at __, slip op. at 13-14.

    Then, in United States v. Riley, 72  M.J. 115 (C.A.A.F. Apr. 16, 2013) (CAAFlog case page), CAAF went the rest of the way and held that because of “the lifelong consequences of sex offender registration, which is a ‘particularly severe penalty,’ the military judge’s failure to ensure that [the appellant] understood the sex offender registration requirements of her guilty plea to kidnapping a minor results in a substantial basis to question the providence of [the] plea.” 72 M.J. at __, slip op. at 18. But CAAF’s decision in Riley was 3-2, with Judges Stucky and Ryan finding that the appellant would have pleaded guilty anyway:

    With the overwhelming evidence of Appellant’s guilt, her unwavering desire to accept a cap on her sentence despite the advice of her counsel to the contrary, and her willingness to give up her right to have the Government fund her mother’s travel and her right to have a panel of members decide her sentence, I am convinced Appellant still would have pled guilty under the terms of the pretrial agreement, even had she known of the sex offender processing requirement. 

    72 M.J. at __, diss. op. at 5. 

    With this history we can see that the writ petition in Washington faces three hurdles:

    First, there’s the question of retroactivity (on which the CCA bases its decision). The petitioner pleaded guilty seven years before even CAAF’s explicitly-prospective rule in Miller.

    Second, there’s the factual question of whether the petitioner was required to register at the time of his plea (though the answer is likely yes, based on the Wetterling Act. See also United States v. Kebodeaux, 133 S. Ct. 2496, (2013) (link to op.)). 

    Third, there’s the issue of whether the petitioner would have pleaded guilty anyway, even if the judge had advised him of the registration requirement.

  5. DCGoneGalt says:

    Mr. Spilman:  I apologize for calling you Mr. in the past, didn’t know you were active Marine Corps (up until very recently) when I read your Lexis Emerging Issues piece.  However, while a counsel certainly should have advised a client prior to Miller, I concur with Stewie on the IAC issue of advising military clients prior to Miller + 90 days.  What I have a problem with is the third issue you detail in your post.  The sex offender registration requirement is so debilitating, I would argue even more so than a punitive discharge, that I cannot see how a judge could determine whether an accused would have pled guilty anyway, absent some sweetheart PTA deal or the judge being a mind-reading wizard. 

  6. stewie says:

    I agree somewhat, but I think there are paths there based on the evidence against the accused, the type of sexual offense, and the probability of a large sentence to confinement.  You also have to consider that back in 1999 it wasn’t just about whether or not the petitioner was required to register, but how onerous/long would that have been.  The states have been steadily refining and increasing registration requirements over the years.  At the time of the plea, for all we know, the state he was planning to return to had a mild registration requirement (comparatively).  It’s all a big mess to try to figure out which is why we tend to not make these kind of rules retroactive (so long as we are going to engage in the somewhat legal fiction that SOR is a “collateral” issue).