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).