CAAF decided United States v. Riley, No. 11-0675/AR, (opinion) (CAAFlog case page) 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.

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CAAF has issued an opinion in United States v. Riley.

Private Cassandra Riley plead guilty to kidnapping of a minor, she had a PTA for 11 years, and the MJ sentenced her to five.

Problem – Private Riley was never advised of the need to register as a sex offender by her defense counsel and there was no discussion on the record by the MJ.  Private Riley found out about the need to register several months after trial.

The CAAF set aside the conviction finding based on an improvident plea.  The CAAF did not reach the issue of IAC which was also litigated.

CAAF’s tech team is getting faster and faster. Here are links to the audio of today’s oral arguments in United States v. Holsey, No. 12-0597/AR, and United States v. Riley, No. 11-0675/AR.

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)).

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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.”