United States v. Miller , 63 M.J. 452 ( 2006 )

UNITED STATES, Appellee
v.
Timothy E. MILLER, Interior Communications Electrician
Third Class
U.S. Navy, Appellant
No. 04-0799
Crim. App. No. 200400762
United States Court of Appeals for the Armed Forces
Argued January 11, 2006
Decided August 29, 2006
GIERKE, C.J., delivered the opinion of the Court, in which
EFFRON, BAKER, and ERDMANN, JJ., joined. CRAWFORD, J., filed a
separate opinion concurring in the result.
Counsel
For Appellant: James W. Volberding, Esq. (argued); Captain
Peter H. Griesch, USMC.
For Appellee: Major Wilbur Lee, USMC (argued); Captain Glen R.
Hines, USMC, and Commander Charles N. Purnell II, JAGC, USN (on
brief).
Military Judge: David A. Wagner
This opinion is subject to revision before final publication.
United States v. Miller, No. 04-0799/NA
Chief Judge GIERKE delivered the opinion of the Court.
This Court has granted review of three issues.1 The first
issue addresses the duties of an appellate defense counsel to
communicate with Appellant prior to submitting a case on the
merits to the United States Navy-Marine Corps Court of Criminal
Appeals. The second and third issues address the responsibility
of trial defense counsel to inform a client of a collateral
consequence of a court-martial conviction -- that his guilty
plea to possession of child pornography requires him to register
as a sex offender. These two issues focus on whether trial
defense counsel’s failure to inform Appellant of a sex offender
registration requirement is either ineffective assistance of
trial defense counsel or created in the record of trial a
“‘substantial basis’” in law and fact for questioning the guilty
plea thereby rendering Appellant’s plea improvident.2
We hold that there is no ineffective assistance of
appellate counsel. Appellate defense counsel communicated by
1
I. WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT
TO THE U.S. CONSTITUTION AND R.C.M. 1202.
II. WHETHER APPELLANT’S PLEA WAS INVOLUNTARY AND
THEREFORE FAILED TO MEET THE REQUIREMENTS OF R.C.M.
910(d).
III. WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
DEFENSE COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO
THE U.S. CONSTITUTION.
United States v. Miller, 61 M.J. 466 (C.A.A.F. 2005).
2
United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991).
2
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letter to Appellant soliciting Appellant’s input as to the
issues Appellant would like to present to the lower court.
Appellant never responded to this letter. Appellate defense
counsel completed an examination of the record and submitted the
case to the Court of Criminal Appeals on its merits. We also
hold that trial defense counsel’s failure to inform Appellant of
the requirement to register as a sex offender did not rise to
the level of ineffective assistance of counsel nor did it result
in a substantial basis to render Appellant’s plea improvident.
FACTUAL BACKGROUND
On December 22, 2003, Appellant pled guilty at a general
court-martial to misusing a government computer, receiving child
pornography, and possession of visual depictions of minors
engaged in sexually explicit conduct.3 Appellant admitted to
violating a general regulation by using a government-owned
computer with Internet access to view, download, and store
pornographic images. The computer was located aboard the USS
HARRY S. TRUMAN (CVN 75) and was accessed by everybody on the
ship. Appellant set up password protected files in which he
stored over 100 downloaded pornographic images.
As to Appellant’s offenses of knowingly receiving child
pornography on divers occasions and possessing child
3
Appellant’s offenses were a violation of Articles 92 and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 934
(2000), respectively.
3
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pornography, Appellant stated that he knew the pornography
involved an actual minor or minors engaged in sexually explicit
conduct. He also stated that he viewed or downloaded the images
onto the government-owned computer onboard the ship while either
in port at Norfolk, Virginia, or while at sea. During the plea
colloquy, he testified that the images did not depict children
engaging in sexual intercourse, but rather, they were pictures
of a suggestive nature that portrayed the genitalia of the
children.
Appellant’s guilty plea colloquy and the providence inquiry
by the military judge were straightforward and uneventful. The
military judge accepted Appellant’s guilty pleas, convicted him
of the charged offenses, and sentenced Appellant to confinement
for one year, reduction to pay grade E-1 and a bad-conduct
discharge. Approximately four months later, the convening
authority approved the sentence as adjudged but pursuant to a
pretrial agreement suspended all confinement beyond time served
in excess of 210 days for a period of twelve months from the
date of trial.
Before the lower court, Appellant was represented by
detailed military appellate defense counsel. Appellate defense
counsel communicated by letter to Appellant soliciting
Appellant’s input as to issues Appellant would like to present
to the lower court. Appellant received this letter but never
4
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responded. Appellate defense counsel completed an examination
of the record and submitted the case to the Court of Criminal
Appeals on its merits. The lower court affirmed both findings
and sentence in a short opinion.4
After the decision by the lower court, Appellant submitted
an affidavit to this Court asserting that his trial defense
counsel was deficient in failing to advise him of the
consequences of his guilty plea and that this deficiency
rendered his guilty plea improvident. Appellant asserts that
upon his final release from confinement, a brig transition
counselor informed him for the first time that he would be
required, under Texas law, to register as a classified sex
offender for the remainder of his life.5 Appellant asserts that
he would not have pled guilty to child pornography if he had
4
United States v. Miller, No. NMCCA 200400762 (N-M. Ct. Crim.
App. July 29, 2004).
5
It appears that this information was presented to Appellant
pursuant to Dep’t of Defense, Instr. 1325.7, Administration of
Military Correctional Facilities and Clemency and Parole
Authority para. 6.18.5.1 (July 17, 2001, Incorporating Change,
June 10, 2003) [hereinafter DoD Instr. 1325.7], which states:
Before final release from confinement, DoD correctional
facility commanders will advise prisoners convicted of an
offense requiring registration as a sex offender (see
enclosure 27 for list of covered offenses) of the
registration requirements of the State in which the
prisoner will reside upon release from confinement. The
notice provided to a prisoner shall contain information
that the prisoner is subject to a registration requirement
as a sex offender in any State in which the person resides,
is employed, carries on a vocation, or is a student.
5
United States v. Miller, No. 04-0799/NA
known that the mandatory sex offender requirement applied to
him.
Also in his affidavit, Appellant asserts that his appellate
defense counsel was deficient in failing to communicate properly
with him. Although Appellant acknowledged receipt of the letter
from appellate defense counsel soliciting his input regarding
issues he would like to present to the lower court, Appellant
never responded. Appellant explained that “I felt assured that
I had an effective advocate who would represent me on appeal . .
. .” In his affidavit, Appellant complains that he never spoke
to his appellate defense counsel. He also claims that, in light
of the mandatory registration requirement for sexual offenders,
he would have sought review on the issue of whether his computer
pictures constituted child pornography.
Finally, in his affidavit Appellant explains his violation
of the Texas sexual registration statute and its impact on him.
Appellant states that upon his release from military service and
his return to Texas, he was required by Texas law to register as
a sexual offender.6 Appellant was convicted of violating the
Texas sex offense registration statute and was sentenced to
three years incarceration in the Texas prison system. Appellant
complains that no one in the military advised him of the time
6
This registration requirement was pursuant to Tex. Code Crim.
Proc. Ann. arts. 62.001-62.009 (Vernon 2005).
6
United States v. Miller, No. 04-0799/NA
requirements for registration as a sexual offender or that
failure to comply with the Texas law was a felony. Appellant
remains in custody.
DISCUSSION
A. Issue I: Appellant’s claim of ineffective assistance of
appellate defense counsel
Appellant alleges three deficiencies by appellate defense
counsel amounting to ineffective assistance of counsel: first,
that appellate defense counsel did not personally communicate
with him; second, that appellate defense counsel did not raise
any specific issue before the lower court, including whether
Appellant should have been informed of the requirement to
register as a sex offender prior to pleading guilty to the
charges; and third, that appellate defense counsel did not
address whether the photographs met the statutory definition of
child pornography.
The test for ineffective assistance of appellate defense
counsel is the same as the test for ineffective assistance of
trial defense counsel that the Supreme Court established in
Strickland v. Washington.7 The Supreme Court in Strickland
established a two-pronged test to determine whether there has
7
466 U.S. 668, 687 (1984); see also United States v. Adams, 59
M.J. 367, 370 (C.A.A.F. 2004); United States v. Polk, 32 M.J.
150, 153 (C.M.A. 1991).
7
United States v. Miller, No. 04-0799/NA
been ineffective assistance of counsel within the meaning of the
Sixth Amendment:
First the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive the
defendant of a fair trial.8
In Polk, this Court applied Strickland using a three-
pronged test to determine whether counsel has been ineffective:
(1) “Are the allegations made by appellant true; and, if they
are, is there a reasonable explanation for counsel’s actions in
the defense of the case?”; (2) If the allegations are true,
“did the level of advocacy ‘fall[] measurably below the
performance . . . [ordinarily expected] of fallible lawyers?’”;
and (3) “If ineffective assistance of counsel is found to exist,
‘is . . . there . . . a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt
respecting guilt?’”9
Appellate defense counsel must comply with the fundamental
duty to communicate effectively with the client.10 However, in
8
466 U.S. at 687.
9
32 M.J. at 153 (citations omitted) (interpolations in
original); see also United States v. Hullum, 15 M.J. 261, 267
(C.M.A. 1983).
10
See American Bar Association Standards for Criminal Justice:
Prosecution Function and Defense Function, Standards 4-2.1, 4-
3.1, 4-3.8, 4-5.1, 4-5.2 (3d ed. 1993); see also United States
8
United States v. Miller, No. 04-0799/NA
the military justice system, there is a special duty of the
appellate defense counsel to afford an accused the opportunity
to raise issues.11 Appellate defense counsel must not only
communicate with an appellant but must identify to an appellate
court those issues the appellant wishes to present.12
In the present case, Appellant did not identify specific
issues that he wished his appellant defense counsel to raise at
the lower court. Appellate defense counsel notified Appellant
in a letter dated July 16, 2004, that he had been assigned as
Appellant’s appellate defense counsel. In this letter,
appellate defense counsel also explained that he would review
the record of trial to determine if any prejudicial error
occurred during the court-martial and that he intended to file a
pleading with the lower court. The letter specifically
explained that if Appellant desired to address any issues to the
lower court, he should contact appellate defense counsel. At
this time, Appellant had been released from confinement and had
been notified by the brig counselor that he would have to
register as a sex offender in Texas. If Appellant desired to
raise this matter with either his appellate defense counsel or
the lower court, Appellant had the opportunity to do so.
v. Hood, 47 M.J. 95, 97 (C.A.A.F. 1997); United States v.
MacCulloch, 40 M.J. 236, 239 (C.M.A. 1994).
11
United States v. Grostefon, 12 M.J. 431, 435-36 (C.M.A. 1982).
12
Id. at 435.
9
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Although the letter from appellate defense counsel
indicated that Appellant had twenty days to respond, four days
later, appellate defense counsel submitted the case to the lower
court without specific assignment of error and without admitting
that the findings and sentence were correct in law and fact.
Appellant defense counsel should have waited longer to afford
Appellant an opportunity to respond. However, appellate defense
counsel’s action did not result in prejudice, because Appellant
never responded and therefore failed to identify any issues he
would have raised had counsel waited for his input.
We conclude that Appellant’s assertions in Issue I are
without merit.
B. Issue II: Whether Appellant’s plea was involuntary and
therefore failed to meet the requirements of R.C.M. 910(d)
Appellant’s arguments regarding Issues II and III are
rooted in the fact that Appellant did not know that he would be
required to register as a sex offender in the state of Texas as
a result of his conviction. It is unrebutted that neither
Appellant’s trial defense counsel, nor the military judge who
accepted his plea, informed him that any state in general, nor
Texas in particular, required that persons convicted of
possessing child pornography in military courts register as sex
offenders.
10
United States v. Miller, No. 04-0799/NA
The rejection requires that the “record of trial show a
‘substantial basis’ in law and fact for questioning the guilty
plea.”13 The record reflects that the military judge established
a sufficient legal and factual basis for Appellant’s pleas.
During the plea inquiry, the military judge gave a
constitutionally sound definition of child pornography.14 In
support of his guilty pleas, Appellant admitted that, based on
his knowledge of what a child less than eighteen years of age
looks like, the images in question were photographs of “real
children” rather than adults or “some artist’s rendition of
children.” Appellant also admitted that the images of the child
pornography at issue were transported through interstate
commerce when he downloaded them from the Internet -– some from
foreign websites.15
A collateral consequence is “[a] penalty for committing a
crime, in addition to the penalties included in the criminal
sentence.”16 In the present case, the requirement that Appellant
register as a sexual offender is a consequence of his conviction
that is separate and distinct from the court-martial process.
13
Prater, 32 M.J. at 436.
14
See Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C.
§ 2256(8) (2000).
15
See United States v. Mason, 60 M.J. 15, 18 (C.A.A.F. 2004).
16
Black’s Law Dictionary 278 (8th ed. 1999).
11
United States v. Miller, No. 04-0799/NA
This Court has previously explained the difficult task of
challenging a guilty plea in light of unforeseen consequences of
a court-martial conviction:
[W]hen collateral consequences of a court-martial
conviction –- such as administrative discharge, loss of a
license or a security clearance, removal from a military
program, failure to obtain promotion, deportation, or
public derision and humiliation -– are relied upon as the
basis for contesting the providence of a guilty plea, the
appellant is entitled to succeed only when the collateral
consequences are major and the appellant’s misunderstanding
of the consequences (a) results foreseeably and almost
inexorably from the language of a pretrial agreement; (b)
is induced by the trial judge’s comments during the
providence inquiry; or (c) is made readily apparent to the
judge, who nonetheless fails to correct that
misunderstanding. In short, chief reliance must be placed
on defense counsel to inform an accused about the
collateral consequences of a court-martial conviction and
to ascertain his willingness to accept those consequences.17
In both Bedania and Williams the misinformation about a
collateral consequence resulted from a question of whether that
misunderstanding undermined a pretrial agreement. Since this is
a guilty plea case, the underlying analysis of the Bedania case
is helpful here.
In this case, Appellant’s misunderstanding was not the
result of the language of the pretrial agreement, was not
induced by the military judge’s comments, nor was it made
readily apparent to the military judge. Because Appellant’s
lack of knowledge is not the result of any of the above, the
17
United States v. Bedania, 12 M.J. 373, 376 (C.M.A. 1982);
United States v. Williams, 53 M.J. 293, 296 (C.A.A.F. 2000).
12
United States v. Miller, No. 04-0799/NA
military judge did not err in his responsibility to ensure that
Appellant understood all the consequences of his guilty plea.
Therefore, as there is no substantial basis to question his
guilty plea, Appellant’s plea was provident and will not be set
aside.
Issue III is related to Issue II but focuses on the role of
trial defense counsel in addressing the collateral consequence
issue rather than the role of the military judge. We next turn
to this companion issue.
C. Issue III: Whether Appellant received ineffective
assistance of trial defense counsel
There is no need to look further than the first prong of
the Polk analysis above to determine that Appellant did not
receive ineffective assistance of trial defense counsel.
Although the requirement of registering as a sex offender is a
serious consequence of a conviction, trial defense counsel’s
failure to advise Appellant of this consequence does not rise to
the level of ineffective assistance of counsel.
The registration requirement that Texas imposes on persons
convicted of certain crimes is a consequence that is separate
and distinct from the court-martial process. This consequence
is a result of, but not part of, the court-martial process.
This Court has stated that “‘chief reliance must be placed on
defense counsel to inform an accused about the collateral
13
United States v. Miller, No. 04-0799/NA
consequences of a court-martial and to ascertain his willingness
to accept those consequences.’”18 But the failure of defense
counsel in this matter has not in the past been found to be
ineffective assistance of counsel.
Finally, we conclude that nothing in the representation of
Appellant rendered his plea involuntary. The Supreme Court has
stated that when “a defendant is represented by counsel during
the plea process and enters his plea upon the advice of counsel,
the voluntariness of the plea depends on whether counsel’s
advice ‘was within the range of competence demanded of attorneys
in criminal cases.’”19
We observe that several federal courts of appeals have
concluded that trial defense counsel’s failure to address
several other collateral consequences with a defendant was
within the range of professional competence. We view these
cases to be persuasive. The United States Court of Appeals for
the Tenth Circuit addressed this “range of competence” and has
held that “deportation is a collateral consequence of the
criminal proceeding and therefore the failure to advise does not
amount to ineffective assistance of counsel.”20 Similarly, the
United States Court of Appeals for the Seventh Circuit has held
18
Williams, 53 M.J. at 296 (quoting Bedania, 12 M.J at 376).
19
Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting McMann v.
Richardson, 397 U.S. 759, 771 (1970)).
20
Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir. 1992).
14
United States v. Miller, No. 04-0799/NA
that “while the Sixth Amendment assures an accused of effective
assistance of counsel in ‘criminal prosecution,’ this assurance
does not extend to collateral aspects of the prosecution.”21
Explaining its holding, the court stated that “actual knowledge
of consequences which are collateral to the guilty plea is not a
prerequisite to the entry of a knowing and intelligent plea.”22
Finally, the United States Court of Appeals for the Eleventh
Circuit has held that where “potential consequences are clearly
collateral, neither the court nor [the defendant’s counsel] were
constitutionally required to make [the defendant] aware of
them.”23
We assume as correct Appellant’s allegation that he was not
informed of the requirement to register as a sex offender as a
result of pleading guilty.24 In light of the well-established
precedent of this Court and other courts of appeals, we hold
that this failure of trial defense counsel to inform Appellant
of this collateral consequence does not rise to the level of
ineffective assistance of counsel. However, information of this
21
United States v. George, 869 F.2d 333, 337 (7th Cir. 1989).
22
Id.; see also Wright v. United States, 624 F.2d 557, 561 (5th
Cir. 1980) (“[A] plea’s possible enhancing effect on a
subsequent sentence is merely a collateral consequence of the
conviction; it is not the type of consequence about which a
defendant must be advised before the defendant enters the
plea.”).
23
McCarthy v. United States, 320 F.3d 1230, 1234 (11th Cir.
2003).
24
See United States v. Ginn, 47 M.J. 236, 242-43 (C.A.A.F.
1997).
15
United States v. Miller, No. 04-0799/NA
type may have been helpful to Appellant in understanding the
consequences of his guilty plea, in accepting those
consequences, and in pleading guilty.
The sex offender registration requirement was initially
enacted as a federal statute in 1994.25 While addressing
civilian criminal offenses, the statute also specifically states
that a court-martial sentence for a criminal offense against a
victim who is a minor or a sexually violent offense triggers
mandatory reporting and registration.26 Every state has also
passed mandatory sexual offender registration. In accordance
with the federal statute and in light of state statutes
addressing this subject, DoD Instr. 1325.7 identifies those
offenses that trigger mandatory sex offender registration.27
Given the plethora of sexual offender registration laws
enacted in each state, it is not necessary for trial defense
25
In 1994, Congress passed the Jacob Wetterling Crimes Against
Children and Sexually Violent Offender Registration Act
[hereinafter the Wetterling Act] (codified as amended at 42
U.S.C. § 14071 (2000)), which conditioned availability of
federal crime prevention funds upon a state’s creation of a sex
offender registration and community notification program. The
Wetterling Act was amended on May 17, 1996, by “Megan’s Law,”
which removed the original requirement that the registry
information be private and added a mandatory community
notification provision to the existing requirements. Megan’s
Law, Pub. L. No. 104-145, 110 Stat. 1345 (1996) (codified at 42
U.S.C. § 14071(d)). There is now a version of “Megan’s Law” in
every state.
26
42 U.S.C. § 14071(a)(3)(A), (b)(7).
27
DoD Instr. 1325.7 Enclosure 27: Listing Offenses Requiring
Sex Offender Processing.
16
United States v. Miller, No. 04-0799/NA
counsel to become knowledgeable about the sex offender
registration statutes of every state. However, we do expect
trial defense counsel to be aware of the federal statute
addressing mandatory reporting and registration for those who
are convicted of offenses within the scope of this statute.28
Also, we expect counsel to be aware of DoD Instr. 1325.7, which
identifies offenses that trigger mandatory sex offender
reporting. The operation of this statute and instruction may
have an impact on an accused’s decisions both before and at
trial, and on an accused’s legal obligations after conviction.
In light of the federal statute, DoD Instr. 1325.7, and
state statutes requiring sex offender registration, we conclude
that a prospective rule is appropriate to address the importance
of trial defense counsel explaining the sex offender
registration requirement to an accused. 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.29
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
28
See 42 U.S.C. § 14071(a)(3)(A), (b)(7).
29
Id.17
United States v. Miller, No. 04-0799/NA
se ineffective assistance of counsel, it will be one
circumstance this Court will carefully consider in evaluating
allegations of ineffective assistance of counsel.
In our view, the 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 plea
may occur without the assistance of counsel from the accused’s
domicile state. Finally, every state now 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.
This rule will serve two distinct functions. First, it
will promote a professional dialogue between an accused and
trial defense counsel because it obligates trial defense counsel
to address a legal issue about which an accused may be
uninformed. Additionally, it will foster an accused’s proper
consideration of this unique collateral circumstance that may
affect the plea decisions as to any offense that would trigger a
sex offender registration requirement.
18
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DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals as to both findings and sentence is
affirmed.
19
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CRAWFORD, Judge (concurring in the result):
I respectfully disagree with the majority’s continuing
pattern of engaging in judicial rulemaking by usurping the
authority of the President as delegated to him by Congress
pursuant to Article 36(a), Uniform Code of Military Justice
Article (UCMJ), 10 U.S.C. § 836(a) (2000).1 This Court does not
have the authority to create a rule requiring trial defense
counsel to advise an accused regarding a particular consequence
of a conviction in order to find a guilty plea provident.
“[T]he power of judging . . . [must be] separated from the
legislative and executive powers.” United States v. Moreno, 63
M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J., concurring in part
and dissenting in part) (citing The Federalist, No. 47, at 302
(James Madison) (Clinton Rossiter ed., 1961)).
In this case, the majority creates a prospective rule “to
address the importance of trial defense counsel explaining the
sex offender registration requirement to 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.”2 In addition, the majority requires that, in the
1
I agree with the majority’s conclusion that Appellant did not
receive ineffective assistance of counsel.
2
Dep’t of Defense, Instr. 1325.7, Administration of Military
Correctional Facilities and Clemency and Parole Authority
Enclosure 27: Listing of Offenses Requiring Sex Offender
Processing (July 17, 2001, Incorporating Change 1, July 10,
United States v. Miller, No. 04-0799/NA
future, trial defense counsel “state on the record of the court-
martial” that he has advised the accused of this requirement.3
This Court stated that while failure to advise an accused of the
registration requirement will not per se amount to ineffective
assistance of counsel, the failure to do so will be “carefully
consider[ed] in evaluating allegations of ineffective assistance
of counsel.”
Rulemaking authority belongs to the legislature through
statute or the President through the implementation of changes
in the Manual for Courts-Martial, United States (2005 ed.)
(MCM). Pursuant to Article 36(a), UCMJ, the President of the
United States is given express authority to promulgate
“[p]retrial, trial, and post-trial procedures, including modes
of proof, for cases . . . triable in courts-martial . . . so far
as [the President] considers practicable, apply[ing] the
principles of law and the rules of evidence generally recognized
in the trial of criminal cases in the United States district
courts . . . .” The President does this through executive order
2003) [hereinafter DoD Instr. 1325.7]; see also Jacob Wetterling
Crimes Against Children and Sexually Violent Offender
Registration Act, 42 U.S.C. § 14071 (2000).
3
It is not clear when this statement is supposed to be made or
whether it is to become part of the guilty plea inquiry by the
military judge. The majority opinion also does not address the
requirements for trial defense counsel to advise an accused of
the consequences of a conviction for one of the enumerated
offenses in the event there is a contested case. The trigger is
conviction of a listed offense and not whether the accused
pleads guilty or is found guilty contrary to his pleas.
2
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by creating and modifying the Rules of Courts-Martial (R.C.M.)
and the Military Rules of Evidence in the MCM. R.C.M. 910 sets
out what is required before an accused’s plea is acceptable.
Like Fed. R. Crim. P. 11(b)(1),4 R.C.M. 910(c) sets forth
the military judge’s responsibility regarding the advice given
to an accused to ensure a knowing and voluntary plea. Just as
these rules do not require that the military judge specifically
notify an accused of all the rights he or she is waiving by a
plea, they also do not require that the military judge inform an
accused of all the possible collateral consequences of pleading
guilty. The military judge must ensure that the plea is
voluntary and not the result of coercion or unlawful promises.
There is no requirement to inform an accused of potential
deportation;5 revocation of a pilot’s license;6 potential
immigration consequences;7 possibility of consecutive sentences;8
loss of the right to vote, loss of eligibility to work as a
civil servant, travel freely abroad, or possess firearms, a
4
R.C.M. 910 generally follows Fed. R. Crim. P. 11. MCM,
Analysis of the Rules for Courts-Martial app. 21 at A21-58 to
A21-59.
5
United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir.
1988); United States v. Yearwood, 863 F.2d 6, 7-8 (4th Cir.
1988).
6
Kratt v. Garvey, 342 F.3d 475, 485 (6th Cir. 2003).
7
Broomes v. Ashcroft, 358 F.3d 1251, 1256-57 (10th Cir. 2004).
8
United States v. Hurlich, 293 F.3d 1223, 1231 (10th Cir. 2002).
3
United States v. Miller, No. 04-0799/NA
driver’s license, or a professional license;9 or other
consequences that may be imposed by the various branches of the
federal or state government.10
The American Bar Association (ABA) suggests that defense
counsel “should determine and advise the defendant . . . as to
the possible collateral consequences that might ensue from entry
of the contemplated plea.” ABA Standards for Criminal Justice:
Pleas of Guilty, Standard 14-3.2(f) (3d ed. 1993). This
requirement, however, is not mandatory.11 The failure to do so
may constitute ineffectiveness of counsel. Rather than
overstepping the separation of powers boundaries by creating a
prospective rule, which is not within our authority, this Court
should recommend that the President consider requiring that
9
See People v. Ford, 657 N.E.2d 265, 267-68 (N.Y. 1995), and
cases cited therein.
10
Numerous cases have held that a defense attorney’s mere
failure to advise a defendant of the possibility of a collateral
consequence does not constitute ineffective assistance of
counsel. See Yearwood, 863 F.2d at 7-8. However, if an
attorney affirmatively misstates a collateral consequence of a
guilty plea, the courts are more open to considering whether the
misstatement constituted ineffective assistance of counsel. See
United States v. Kwan, 407 F.3d 1005, 1015-16 (9th Cir. 2005);
United States v. Couto, 311 F.3d 179, 187-88, 191 (2d Cir.
2002).
11
“Failure of the court or counsel to inform the defendant of
applicable collateral sanctions shall not be a basis for
withdrawing the plea of guilty, except where otherwise provided
by law or rules of procedure, or where the failure renders the
plea constitutionally invalid.” ABA Standards for Criminal
Justice: Collateral Sanctions and Discretionary
Disqualification of Convicted Persons, Standard 19-2.3(b) (3d
ed. 2004).
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defense counsel give such notice to accuseds to avoid any claim
in the future of ineffectiveness. The advice from defense
counsel would reinforce DoD Instr. 1325.7 that “correctional
facility commanders will advise prisoners convicted of an
offense requiring registration as a sex offender (see enclosure
27 for list of covered offenses) of the registration
requirements of the State in which the prisoner will reside upon
release from confinement.” Id. at para. 6.18.5.1.
If there needs to be a change to the requirements of R.C.M.
910, it is up to the President to make that change and not this
Court. Some states, through their elected officials, have
mandated such requirements. See, e.g., Ducally v. State, 809
A.2d 472, 474 (R.I. 2002) (noting state statute requiring judges
to inform aliens of impact on immigration status); State v.
Douangmala, 2002 WI 62, ¶4, 253 Wis. 2d 173, 176-77, 646 N.W.2d
1, 2-3 (citing statute requiring warning of deportation). Cf.
Mitschke v. State, 129 S.W.3d 130, 136 (Tex. Crim. App. 2004)
(although state requires registration of sex offenders, failure
to apprise a defendant of such a requirement does not require
finding a plea involuntary).
The collateral consequence notification requirement imposed
by the majority is also inconsistent with Bradshaw v. Stumpf.12
At issue in Bradshaw was whether a plea was voluntary. As the
12
125 S. Ct. 2398 (2005).
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United States v. Miller, No. 04-0799/NA
Supreme Court stated, the “prerequisites of a valid plea may be
satisfied where the record accurately reflects that the nature
of the charge and the elements of the crime were explained to
the defendant by his own, competent counsel.”13 But “[w]here a
defendant pleads guilty to a crime without having been informed
of the crime’s elements,” the plea is not voluntary, knowing,
and intelligent.14 The voluntariness of a plea does not depend
on notification of the collateral consequences of the plea.
The majority’s opinion is a step down the slippery slope of
judicial rulemaking and lays the foundation for creating a
future laundry list of potential collateral consequences that
military judges and defense counsel will have to discuss with an
accused before his or her plea is accepted as provident and
voluntary. This approach not only oversteps our judicial role,
but also places this Court outside the judicial mainstream.
Although I agree with the result to affirm the findings and
sentence, I respectfully disagree with this Court’s creation of
a rule requiring defense counsel to provide notice to their
clients of a sexual offender registration requirement and to
state on the record at trial that such notice has been provided.
13
Id. at 2405.
14
Id.6