U.S. v. Miller, 63 M.J. 452

Military Justice Personnel: Defense Function: Responsibilities

1. 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
2. given the plethora of sexual offender registration laws enacted in each state, it is not necessary for trial defense counsel to become knowledgeable about the sex offender registration statutes of every state; however, trial defense counsel should be aware of the federal statute addressing mandatory reporting and registration for those who are convicted of offenses within the scope of this statute, and counsel should also 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
3. 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 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 an appellate court will carefully consider in evaluating allegations of ineffective assistance of counsel

Military Justice Personnel: Defense Function: Appellate Counsel

1. appellate defense counsel must comply with the fundamental duty to communicate effectively with the client; however, in the military justice system, there is a special duty of the appellate defense counsel to afford an accused the opportunity to raise issues; appellate defense counsel must not only communicate with an appellant but must identify to an appellate court those issues the appellant wishes to present

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. appellant did not establish the his appellate defense counsel was ineffective in not personally communicating with him and in not raising any specific issue before the court of criminal appeals where the appellate defense counsel sent a letter to appellant explaining that if he desired to address any issues to that court, he should contact him, but appellant never replied to the letter
2. although the appellate defense counsel who sent a letter to appellant informing him that he had twenty days to respond should have waited the full twenty days before submitting his case to the court of criminal appeals, rather than submitting it four days later without specific assignment of error, the 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
3. 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 of his guilty plea to a child pornography charge did not rise to the level of ineffective assistance of counsel; in addition, nothing in the representation of appellant rendered his plea involuntary; a trial defense counsel’s failure to address such a collateral consequence with an accused is within the range of professional competence; actual knowledge of consequences which are collateral to the guilty plea is not a prerequisite to the entry of a knowing and intelligent plea
4. 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 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 an appellate court will carefully consider in evaluating allegations of ineffective assistance of counsel

Trial Stages: Merits: Guilty Pleas

1. in this case, appellant’s failure to know that he would be required to register in his state as a sex offender as a result of his conviction 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 military judge did not err in his responsibility to ensure that appellant understood all the consequences of his guilty plea; therefore, as there was no substantial basis to question his guilty plea, appellant’s plea was provident and will not be set aside
2. when an accused 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

Trial Stages: Sentence and Punishment: Lawfulness of Sentence

1. a collateral consequence is a penalty for committing a crime, in addition to the penalties included in the criminal sentence; 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

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the test for ineffective assistance of appellate defense counsel is the same as the test for ineffective assistance of trial defense counsel; first, the accused 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 accused by the Sixth Amendment; second, the accused 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
2. CAAF employs 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
3. the rejection of a guilty plea requires that the record of trial show a substantial basis in law and fact for questioning the plea
4. when 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
5. 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 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 an appellate court will carefully consider in evaluating allegations of ineffective assistance of counsel