United States v. Riley , 72 M.J. 115 ( 2013 )

UNITED STATES, Appellee
v.
Cassandra M. RILEY, Private
U.S. Army, Appellant
No. 11-0675
Crim. App. No. 20100084
United States Court of Appeals for the Armed Forces
Argued January 22, 2013
Decided April 16, 2013
ERDMANN, J., delivered the opinion of the court, in which BAKER,
C.J., and EFFRON, S.J., joined. STUCKY, J., filed a separate
dissenting opinion, in which RYAN, J., joined.
Counsel
For Appellant: Captain Brandon H. Iriye (argued); Colonel
Patricia A. Ham, Lieutenant Colonel Imogene M. Jamison, Major
Richard E. Gorini, and Captain Richard M. Gallagher (on brief).
For Appellee: Captain Daniel D. Maurer (argued); Major
Katherine S. Gowel, Major Robert A. Rodrigues, and Captain
Samuel Gabremariam (on brief); Captain Kenneth W. Borgnino.
Military Judge: Gregory A. Gross
This opinion is subject to revision before final publication.
United States v. Riley, No. 11-0675/AR
Judge ERDMANN delivered the opinion of the Court.
A military judge sitting as a general court-martial
convicted Private Cassandra M. Riley, pursuant to her plea, of
kidnapping a minor in violation of Article 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 934 (2006). A panel of
officers sentenced Riley to confinement for five years,
forfeiture of all pay and allowances, and a dishonorable
discharge. The convening authority approved the sentence as
adjudged. The United States Army Court of Criminal Appeals
(CCA) summarily affirmed the findings and sentence. United
States v. Riley, No. ARMY 20100084 (A. Ct. Crim. App. July 7,
2011). This court granted review, set aside the CCA’s decision,
and remanded for further appellate inquiry and consideration of
the granted issues. United States v. Riley, 70 M.J. 415(C.A.A.F. 2011) (summary disposition). On remand, the CCA again
affirmed the findings and sentence. United States v. Riley, No.
ARMY 20100084, 2012 CCA LEXIS 175, at *10, 2012 WL 1816206, at
*4 (A. Ct. Crim. App. May 11, 2012).
We granted review of two issues in this case: whether
Riley’s trial defense counsel were ineffective; and, whether
there is a substantial basis to question the providence of
Riley’s guilty plea.1 As we conclude that the military judge
1
We granted review of the following issues:
2
United States v. Riley, No. 11-0675/AR
abused his discretion when he accepted Riley’s guilty plea
without ensuring that Riley was aware of the sex offender
registration consequences of her plea, we need not reach Issue
I. The findings and sentence are set aside and the record of
trial returned to the Army Judge Advocate General.
Facts
a. Background
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
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.
United States v. Riley, 71 M.J. 443 (C.A.A.F. 2012) (order
granting review).
3
United States v. Riley, No. 11-0675/AR
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.
b. Riley’s Pretrial Agreement and the Sex Offender
Registration Consequences of the Plea
Riley entered into a pretrial agreement that capped
possible confinement at eleven years in exchange for her guilty
plea. She was ultimately sentenced to five years confinement.
Because she was convicted of kidnapping a minor, Riley was
required to register as a sex offender. According to her post-
trial affidavit, Riley did not learn of the sex offender
registration requirement until several months after her court-
martial was complete. In her post-trial affidavit, Riley wrote:
Had I known that after pleading guilty I would have to
take my place among the ranks of sex offenders, I
would not have entered the pre-trial agreement as
written. I would have asked [my attorney] to do
whatever she could during negotiations with the
government to ensure that any guilty plea would not
require sex offender registration. I would have been
open to pleading guilty to another offense or an
amended Specification of the Charge, provided I would
not have to register as a sex offender. Unless a deal
removed the prospect of sex offender registration, I
would have made clear to the government that I was not
going to plead guilty, as charged, and I would have
insisted on going to trial.
Riley’s court-martial took place in the fall of 2009, three
years after we issued our decision in United States v. Miller,
in which we held “[f]or all cases tried later than ninety days
4
United States v. Riley, No. 11-0675/AR
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.”2 63 M.J. 452, 459 (C.A.A.F. 2006).
Riley’s lead defense counsel submitted a post-trial affidavit
addressing the issue of sex offender registration. Riley’s
attorney wrote that she did not advise Riley that a conviction
for kidnapping a minor was an offense requiring sex offender
registration because she “was not aware of the requirement or
consequence for such a kidnapping conviction.”
Defense counsel’s affidavit reveals, however, that
throughout the fall of 2009 when she was handling Riley’s case,
her superiors repeatedly reminded defense counsel to notify
clients about potential sex offender registration consequences
of convictions:
On or about 15 September 2009, I received an email
forwarded to me from my Regional Defense Counsel
concerning an updated Post Trial & Appellate Rights
form and Advice Concerning Possible Requirements to
Register as a Sex Offender . . . .
During the Fiscal Year 2010 Fall TDS CONUS
Conference held at Naval Station Newport in Rhode
Island from 28 through 30 October 2009, Mr. Keith
Hodges, one of the TDS Highly Qualified Experts, asked
all attendees if we had received the email from 15
2
The list of offenses requiring sex offender registration
contained in Dep’t of Defense, Instr. 1325.07, Administration of
Military Correctional Facilities and Clemency and Parole
Authority Enclosure 27, at 101 (July 17, 2001), includes the
Article 134, UCMJ, offense of Kidnapping of a Minor (by a person
not parent).
5
United States v. Riley, No. 11-0675/AR
September 2009. Once he verified that we had received
the email, he mentioned that it should be self-
explanatory, but that if anyone had any questions
about its use to contact him . . . .
On or about 4 December 2009, I received another email
forwarded to me from my Regional Defense Counsel which
was entitled “DCAP Sends 3-31 – Sex Offender
Registration Advice (1 Dec 09)” which contained a word
document entitled, “DCAP SENDS 3-31 Sex Offender
Registration Advice (1 December 2009).”
Riley’s defense counsel went on to state that, “[o]ther than the
two email forwards and the one reference at the . . . conference
to the first email, I did not receive any formal training or
instruction about providing clients with advice on collateral
consequences stemming from convictions, in particular,
requirements for sex offender registration.” She did, however,
have experience advising clients about sex offender registration
consequences.
The standard post-trial and appellate rights form used at
the time of Riley’s court-martial did not address sex offender
registration, but the instructions to defense counsel using the
form advised counsel of the additional steps that needed to be
taken if the accused was charged with any sex offense or an
offense involving a minor. In her affidavit, defense counsel
stated:
Between the issuance of the email containing this form
on 15 September 2009 and my explanation to appellant
of her post-trial and appellate rights on 2 February
2010, I had not used the updated Post Trial and
Appellate Rights form that was issued on 15 September
2009. When I advised appellant of her post-trial and
6
United States v. Riley, No. 11-0675/AR
appellate rights using the 15 September 2009 form, I
had not read the instruction sheet; I printed the form
and advised appellant of her rights using the form
itself.
Emphasis added. The instructions for the post trial and
appellate rights form, which defense counsel did not read,
provides in part: “If the accused has been charged with any sex
offense or offense involving a minor (see table below), also
have the accused execute the ‘Advice Concerning Requirements to
Register as a Sex Offender form.’” The table included on the
instruction sheet listed the various UCMJ, state, territorial
and federal laws, the violation of which would trigger
registration as a sex offender. The Article 134 offense of
kidnapping of a minor by other than a parent or guardian is
specifically listed as an offense requiring sex offender
registration.
c. The Providence Inquiry
The military judge questioned Riley about her plea during
the providence inquiry. The military judge explained the rights
she was giving up by pleading guilty, reviewed the stipulation
of fact with her, reviewed the elements of the offense, and
asked Riley to tell him, in her own words, why she was guilty of
kidnapping. The military judge reviewed the maximum punishment
with Riley and the attorneys. The military judge asked Riley
whether she entered into the pretrial agreement of her own free
will, and whether she understood the pretrial agreement and how
7
United States v. Riley, No. 11-0675/AR
it would affect her case. The military judge also asked Riley
if she was satisfied with her defense counsel and their advice.
The military judge, however, did not address the sex
offender registration consequences of Riley’s plea before
finding the plea provident and issuing his findings. As a
result, there was no mention or discussion of the sex offender
registration consequences of Riley’s guilty plea by anyone,
either prior to, or during the court-martial proceedings. The
military judge found Riley guilty and the panel sentenced her to
forfeiture of all pay and allowances, confinement for five
years, and a dishonorable discharge.
d. Review by the Army Court of Criminal Appeals
The Army Court of Criminal Appeals initially summarily
affirmed Riley’s conviction. On appeal to this court, we
remanded the case to the CCA for further appellate inquiry and
consideration of the granted issues including the sex offender
registration issue. The CCA again affirmed the findings and
sentence, concluding that Riley suffered no prejudice and the
military judge did not err in accepting Riley’s guilty plea,
because “nothing in the record [showed] any misunderstanding of
a collateral consequence [by Riley] [that] was made readily
apparent to the judge.” Riley, 2012 CCA LEXIS 175, at *7-*9,
2012 WL 1816206, at *2-*3.
8
United States v. Riley, No. 11-0675/AR
Discussion
On appeal to this court Riley argues that sex offender
registration is a major consequence of her plea because: she
will have to endure the societal stigma of being a sex offender
for the rest of her life; she would not have pled guilty and
would have insisted on going to trial unless the Government
removed the prospect of sex offender registration; Miller
implicitly elevated sex offender registration as a “major”
collateral consequence of a plea; and, the Government’s case
against Riley was worth “nowhere near her cap of eleven years of
confinement.” According to Riley, this court’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, UCMJ,
10 U.S.C. § 845 (2006). She goes on to argue that the military
judge had an affirmative duty to ask if she had been informed of
the sex offender registration requirements, in accordance with
the Military Judges’ Benchbook. Riley maintains that the
military judge’s failure to do so provides a substantial basis
in law to question the plea.
9
United States v. Riley, No. 11-0675/AR
In response, the Government contends that military judges
have no affirmative obligation to inquire into whether an
accused is aware of sex offender registration consequences of a
plea. The Government reads our decision in Miller as placing
the burden to inform the accused of sex offender registration
requirements on defense counsel rather than the military judge.
In addition, the Government argues 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.
“‘A military judge’s decision to accept a guilty plea is
reviewed for an abuse of discretion.’” United States v.
Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008) (citations
omitted). An abuse of discretion occurs when there is
“something in the record of trial, with regard to the factual
basis or the law, that would raise a substantial question
regarding the appellant’s guilty plea.”
Article 45(a), UCMJ provides:
If an accused after arraignment makes an irregular
pleading, or after a plea of guilty sets up matter
inconsistent with the plea, or if it appears that he
has entered the plea of guilty improvidently or
through lack of understanding of its meaning and
effect, or if he fails or refuses to plead, a plea of
not guilty shall be entered in the record, and the
court shall proceed as though he had pleaded not
guilty.
10
United States v. Riley, No. 11-0675/AR
This article “includes procedural requirements to ensure
that military judges make sufficient inquiry to determine that
an accused’s 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.” United States
v. Hayes, 70 M.J. 454, 457 (C.A.A.F. 2012). In order to
determine whether Riley’s plea was knowing and voluntary, we
look to the record of trial and the documents considered by the
court below. United States v. Garlick, 61 M.J. 346, 350
(C.A.A.F. 2005).
A “guilty plea is a grave and solemn act” which should be
accepted “only with care and discernment.” Brady v. United
States, 397 U.S. 742, 748 (1970). “[T]he plea is more than an
admission of past conduct; it is the defendant’s consent that
judgment of conviction may be entered without a trial -- a
waiver of his right to trial before a jury and judge.” Id.“Waivers of constitutional rights not only must be voluntary but
must be knowing, intelligent acts done with sufficient awareness
of the relevant circumstances and likely consequences.” Id.“It is axiomatic that ‘[t]he military justice system
imposes even stricter standards on military judges with respect
to guilty pleas than those imposed on federal civilian judges.’”
United States v. Soto, 69 M.J. 304, 306 (C.A.A.F. 2011)
(alteration in original) (quoting United States v. Perron, 58
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United States v. Riley, No. 11-0675/AR
M.J. 78, 81 (C.A.A.F. 2003)). “[I]t is the military judge’s
‘responsibility to police the terms of pretrial agreements to
insure compliance with statutory and decisional law as well as
adherence to basic notions of fundamental fairness.’” Id. at
307 (quoting United States v. Partin, 7 M.J. 409, 412 (C.M.A.
1979)).
a. Sex Offender Registration as a Collateral Consequence of
the Plea
The Government, quoting United States v. Delgado-Ramos, 635
F.3d 1237, 1239 (9th Cir. 2011) (internal quotations omitted),
argues that the military judge had no affirmative obligation to
inquire into whether Riley was aware of sex offender
registration consequences of her plea because “a court
conducting a plea colloquy must [only] advise the defendant of
the direct consequences of his plea, [and] need not advise him
of all the possible collateral consequences.” Indeed, in
Miller, 63 M.J. at 457-58, 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.”
Our analysis in Miller was informed, in part, by the reasoning
of other federal courts related to collateral consequences and
ineffective assistance of counsel claims. We noted that the
United States Court of Appeals for the Tenth Circuit held that
12
United States v. Riley, No. 11-0675/AR
“‘deportation is a collateral consequence of the criminal
proceeding and therefore the failure to advise does not amount
to ineffective assistance of counsel.’” Id. at 458 (quoting
Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir. 1992)).
However, following our decision in Miller, the Supreme Court
issued its decision in Padilla, 130 S. Ct. at 1482, holding that
“[d]eportation as a consequence of a criminal conviction is,
because of its close connection to the criminal process,
uniquely difficult to classify as either a direct or collateral
consequence. The collateral versus direct distinction is ill-
suited to evaluating a Strickland claim concerning the specific
risk of deportation.”3
State courts have grappled with the import of Padilla with
respect to sex offender registration consequences. For example,
in People v. Fonville, 804 N.W.2d 878, 894 (Mich. Ct. App.
2011), the Court of Appeals of Michigan analogized Padilla as
follows:
Like the consequence of deportation, sex offender
registration is not a criminal sanction, but it is a
particularly severe penalty. In addition to the
typical stigma that convicted criminals are subject to
upon release from imprisonment, sexual offenders are
subject to unique ramifications, including, for
example, residency-reporting requirements and place of
domicile restrictions. Moreover, sex offender
registration is “intimately related to the criminal
process.” The “automatic result” of sex offender
registration for certain defendants makes it difficult
to “divorce the penalty from the conviction . . . .”
3
Strickland v. Washington, 466 U.S. 668 (1984).
13
United States v. Riley, No. 11-0675/AR
Id. (alteration in original) (footnotes omitted) (quoting
Padilla, 130 S. Ct. at 1481).4 We agree with this reasoning.
Indeed, when we set forth the prospective rule in Miller, we
emphasized the specific need for knowledge of sex offender
registration consequences in the court-marital setting:
[T]he importance of this rule springs from the unique
circumstances of the military justice system. More
often than not, an accused will be undergoing court-
martial away from his or her state of domicile. Also,
the court-martial and the plea may occur without the
assistance of counsel from the accused’s domicile
state. Finally, every state has its own version of
Megan’s Law. These circumstances can contribute to an
accused being uninitiated to the collateral
consequence of mandatory registration requirement as a
result of his court-martial conviction.
Miller, 63 M.J. at 459.
Last term in United States v. Rose, 71 M.J. 138, 143
(C.A.A.F. 2012), we referenced the Supreme Court’s decision in
Padilla in our analysis of an ineffective assistance of counsel
claim based on defense counsel’s failure to respond to the
defendant’s question about the sex offender registration
consequences of his plea. We held the failure to respond to his
client’s request for information about sex offender registration
requirements amounted to “deficient performance where counsel
4
See also Taylor v. State, 698 S.E.2d 384, 388-89 (Ga. Ct. App.
2010) (comparing sex offender registration requirements to the
deportation consequences discussed in Padilla and holding that
“registration as a sex offender, like deportation, is a ‘drastic
measure’ . . . with severe ramifications for a convicted
criminal” and “the failure to advise a client that pleading
guilty will require him to register as a sex offender is
constitutionally deficient performance”).
14
United States v. Riley, No. 11-0675/AR
knew that this was a ‘key concern,’ and where, had the request
been investigated and answered, even counsel acknowledge[d] that
his advice would have been different.” Id. at 144.
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.
b. The Role of the Military Judge
At the time of Riley’s court-martial, the Military Judges’
Benchbook set forth detailed instructions for the acceptance of
a guilty plea. Dep’t of the Army, Pam. 27-9, Legal Services,
Military Judges’ Benchbook ch. 2, § II, para. 2-2-8 (Jan. 1,
2010). Paragraph 2-2-8, included the following provision:
If the accused has pleaded guilty to an offense listed
in DoD Instruction 1325.7, Enclosure 27: Listing of
Offenses Requiring Sex Offender Processing, the MJ
must ask the following question:
MJ: Defense Counsel, did you advise the accused prior
to trial of the sex offender reporting and
registration requirements resulting from a finding of
guilty of (state Specification(s) and Charge(s))?
DC: (Responds.)
MJ: Take a moment now and consult again with your
defense counsel, then tell me whether you still want
to plead guilty? (Pause.) Do you still want to plead
guilty?
ACC: (Responds.)
15
United States v. Riley, No. 11-0675/AR
The military judge did not conduct this inquiry during Riley’s
providence inquiry. Riley challenges his failure to do so and
argues that there is a substantial basis in law or fact to
question the plea. The CCA dismissed this argument by holding,
“[a]lthough this inquiry of the defense counsel by the military
judge is stated as a requirement, we find that this is countered
by the objective of the Benchbook, which serves as a publication
intended only as a guide with suggestions for military judges.”
Riley, 2012 CCA LEXIS 175, at *9, 2012 WL 1816206, at *3. The
CCA reasoned that that military judge did not err because “chief
reliance must be placed on defense counsel to inform an accused
about the collateral consequences.” Id., 2012 WL 1816206, at *3
(citation and internal quotation marks omitted).
While we agree that the Benchbook is not binding as it is
not a primary source of law, the Benchbook is intended to ensure
compliance with existing law. In our view, the Benchbook
accurately reflects the Miller and Padilla line of cases
therefore “an individual military judge should not deviate
significantly from these instructions without explaining his or
her reasons on the record.” United States v. Rush, 54 M.J. 313,
315 (C.A.A.F. 2001) (citation and internal quotation marks
omitted). “[M]eaningful appellate review of the trial judge’s
decision on this important sentencing matter requires that he
articulate his reason for his decision.” Id. In this case,
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United States v. Riley, No. 11-0675/AR
there is no evidence on the record as to why the military judge
failed to ensure that Riley understood the sex offender
registration consequences of her plea. The record is completely
devoid of any reference to sex offender registration.
“In order to ensure that pleas of guilty are not only
knowing and voluntary but appear to be so, detailed procedural
rules govern the military judge’s duties with respect to the
plea inquiry.” Soto, 69 M.J. at 306 (citing United States v.
King, 3 M.J. 458, 458-59 (C.M.A. 1977)). Here, the military
judge failed to adhere to the straightforward guidance set forth
in the Benchbook, which simply instructed the military judge to
ensure that defense counsel complied with this court’s decision
in Miller as to advice concerning sex offender registration
requirements. Such an instruction is clearly consistent with a
military judge’s responsibilities while conducting a plea
inquiry. As “[t]he trial judge must shoulder the primary
responsibility for assuring on the record that an accused
understands the meaning and effect of each condition as well as
the sentence limitations imposed by any existing pretrial
agreement,”5 it was incumbent upon the military judge to ensure
that Riley’s plea was a “knowing, intelligent act[] done with
sufficient awareness of the relevant circumstances and likely
consequences.” Brady, 397 U.S. at 748. “The failure to inform
5
King, 3 M.J. at 458 (citation and internal quotation marks
omitted).
17
United States v. Riley, No. 11-0675/AR
a pleading defendant that the plea will necessarily require
registration as a sex offender affects whether the plea was
knowingly made.” Fonville, 804 N.W.2d at 895.
Given the lifelong consequences of sex offender
registration, which is a “particularly severe penalty,”6 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. Inabinette, 66 M.J. at 322.
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. King, 3 M.J. at 458. Our
decisions as far back as United States v. Care, 18 C.M.A. 535,
541-42, 40 C.M.R. 247, 253-54 (1969), 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.
6
Fonville, 804 N.W.2d at 894.
18
United States v. Riley, No. 11-0675/AR
We therefore conclude that the military judge abused his
discretion when he accepted Riley’s guilty plea without
questioning defense counsel to ensure Riley’s knowledge of the
sex offender registration consequences of her guilty plea to
kidnapping a minor. The remedy for finding a plea improvident
is to set aside the finding based on the improvident plea and
authorize a rehearing. United States v. Negron, 60 M.J. 136,
143-44 (C.A.A.F. 2004); see also United States v. Williams, 53
M.J. 293 (C.A.A.F. 2000); United States v. Marsh, 15 M.J. 252(C.M.A. 1983).7 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.
Decision
The decision of the United States Army Court of Criminal
Appeals is reversed. The findings and sentence are set aside.
The record of trial is returned to the Judge Advocate General of
the Army. A rehearing may be ordered.
7
We are mindful of the requirements of Article 59(a), UCMJ, 10
U.S.C. § 859(a) (2006) and, as in all cases where the court sets
aside a finding of the court-martial, we find the error in this
case materially prejudiced the substantial rights of the
accused.
19
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STUCKY, Judge, with whom RYAN, Judge, joins (dissenting):
We granted review to consider two issues: (1) whether the
defense counsel provided ineffective assistance by failing to
advise Appellant that her guilty plea to kidnapping a minor
whose parent or guardian she was not would require her to be
processed as a sex offender; and (2) whether the military judge
abused his discretion in accepting her guilty plea to such an
offense by failing to inquire whether she had been advised of
the sex offender processing requirement. The majority does not
reach issue (1) and holds that the military judge abused his
discretion. I disagree.
“A finding or sentence of a court-martial may not be held
incorrect on the ground of an error of law unless the error
materially prejudices the substantial rights of the accused.”
Article 59(a), Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 859(a) (2006). When an appellant asserts that his
counsel provided ineffective assistance “[i]n the context of a
guilty plea, the prejudice question is whether ‘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.’” United States v. Rose, 71 M.J. 138, 144
(C.A.A.F. 2012) (quoting Hill v. Lockhart, 474 U.S. 52, 59
(1985)).
United States v. Riley, No. 11-0675/AR
“[W]e will reject the providency of a plea only where the
appellant demonstrates a ‘material prejudice to a substantial
right.’” United States v. Hunter, 65 M.J. 399, 403 (C.A.A.F.
2008) (quoting United States v. Felder, 59 M.J. 444, 446
(C.A.A.F. 2006)). Where, as here, an appellant seeks relief for
a military judge’s failure to inquire into the appellant’s
knowledge of a sex offender registration requirement, it makes
sense to employ the same prejudice standard in determining
whether an appellant was prejudiced by a military judge’s error
in accepting her guilty plea as we do for ineffectiveness of
counsel claims.
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, see Hill, 474 U.S. at
59; Hunter, 65 M.J. at 403. A mere allegation post-trial is
insufficient. See United States v. Bradley, 71 M.J. 13, 17
(C.A.A.F. 2012) (affidavit alleging that the appellant would not
have pleaded guilty if the defense counsel had made the
2
United States v. Riley, No. 11-0675/AR
appellant aware that the plea waived a disqualification issue is
insufficient to demonstrate prejudice: “Appellant also must
satisfy a separate, objective inquiry -- he must show that if he
had been advised properly, then it would have been rational for
him not to plead guilty” (citing Padilla v. Kentucky, 130 S. Ct.
1473, 1485 (2010))).
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.
Appellant was charged with kidnapping a minor whose parent
or guardian she was not. Article 134, UCMJ, 10 U.S.C. § 934(2006). The maximum punishment for this offense includes a
dishonorable discharge and confinement for life without
eligibility for parole. Manual for Courts-Martial, United
States pt. IV, ¶ 92.e. (2012 ed.).
The evidence of record established that Appellant, while
dressed in medical scrubs
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
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United States v. Riley, No. 11-0675/AR
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.
United States v. Riley, No. 20100084, 2012 CCA 175, at *2–*3,
2012 WL 1816206, at *1 (A. Ct. Crim. App. May 11, 2012)
(unpublished) (footnote omitted). The mother identified
Appellant as the perpetrator and Appellant’s truck was captured
on video leaving Fort Hood at the relevant time. After
Appellant’s arrest, her car was seized and searched. It
contained “an infant car seat, mini diaper bag containing
bottles and formula, a box of Enfamil baby formula, a package of
baby swaddles, a black back pack, one knife with a 10 inch-long
blade, one 8 inch-long knife, one 6 inch-long knife, a pacifier,
blankets, onesies, baby hats, washcloths, bibs, towels and
medical scrubs.”
The affidavit of Appellant’s defense counsel, in response
to the allegation that her performance was deficient, is
telling:
The only concern that appellant expressed to me regarding
her guilty plea was that regardless of my evaluation of her
confinement risk, facing life without eligibility for
parole weighed heavily upon her and that if the best cap
she could get from the government was 11 years, then she
wanted to take it. She explained that even if the
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United States v. Riley, No. 11-0675/AR
government would not agree to permit her to be sentenced by
a panel, she still wanted the 11-year cap.1 She also
expressed that even if the government would not agree to
fund her mother’s travel to be a defense witness for her,
she still wanted the 11-year cap.2 Even understanding that
I was specifically advising her against offering to plead
guilty unless the government acquiesced to sentencing by
panel and agreed to a seven or eight year cap, she
expressed her fervent desire to receive some cap on
confinement, even if she was to be sentenced by military
judge alone.
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. She was faced with a
choice of pleading guilty and getting that cap on confinement or
litigating the case -- which with the state of the evidence
would almost certainly have resulted in her conviction -- and
taking her chances on the sentence. Sex offender processing was
a certainty in either case.3 Appellant has failed to demonstrate
1
The defense counsel secured trial by court members.
2
The defense counsel secured funded travel for Appellant’s
mother.
3
In light of the strength of the Government’s case, the notion
that the Government would have agreed to a pretrial agreement
that would not trigger such processing is fanciful. See
Missouri v. Frye, 132 S. Ct. 1399, 1409–11 (2012) (holding that
to show prejudice where a plea offer has lapsed or been rejected
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United States v. Riley, No. 11-0675/AR
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. Therefore, I respectfully dissent.
because of counsel’s deficient performance, an accused must
demonstrate not only a “reasonable probability that he would
have accepted the lapsed plea but also a reasonable probability
that the prosecution would have adhered to the agreement and
that it would have been accepted by the trial court”).
6