Thursday, February 12, 2009

Published AFCCA opinion grants relief due to counsel's failure to accurately answer accused's questions about sex offender registration

AFCCA today issued a published opinion setting aside findings of guilty to indecent assault due to the civilian and military defense counsel's failure to provide accurate advice when their client asked about whether pleading guilty to indecent assault would require him to register as a sex offender. United States v. Rose, __ M.J. ___, No. ACM 36508 (A.F. Ct. Crim. App. Feb. 12, 2009). I've posted the opinion here. Senior Judge Francis wrote for himself and Senior Judge Heimann. Judge Thompson dissented.


Mike "No Man" Navarre said...

I am sure Mr. Denedo is happy to see that-if he ever gets to NMCCA he can cite it. Did Mr. Rose plead guilty? Hainh downloading issues.

Phil Cave said...

Any, I repeat any mention of the word "sex" in a charge has be be viewed as a potential registration offense. The sentence and "level" of court is generally irrelevant, even back in 2004.
I agree that there are less incentives to plead guilty to "sex" cases because of the registration issue. Did one not too long ago where we had NG on the sex allegation, G on LIO of assault and battery. A reduced likelihood of registration.
The AWA is readily available on-line and I find, a helpful start on registration issues.
Check out Sex Crimes blog at, it's an excellent resource on sex offender issues also, including the ongoing litigation about application and constitutionality.

Cloudesley Shovell said...

The sample pretrial agreement in the Navy JAG Manual is two pages long. PTAs in the real world are already 6-10 pages.

They are about to get longer. Any SJA or trial counsel that fails to foreclose these appellate issues with a well-crafted PTA is not doing his job.

Every PTA should have boilerplate paragraphs putting the accused on notice of collateral consequences, a complete laundry list, with the accused acknowledging that the law can change at any time. The accused should be required to affirmatively acknowledge that he has been put on notice of all possible collateral consequences, known and unknown, and that the accused bears the risk of being subject to an undiscovered or unperceived collateral consequence, and also places upon the accused the affirmative duty to research all possible collateral consequences, and require him to affirmatively state his is satisfied with his attorney's advice with regard to collateral consequences.

SJAs should not rely upon the diligence of defense counsel. If a guilty plea gets flipped, its the gov't that deals with the consequences, not the defense atty.

I can think of several collateral consequences that the PTA should put the accused on notice of, regardless: deportation, voting, weapons possession, sex offender registration, limitations on foreign travel (either through loss or inability to get a passport or through prohibitions by the foreign country), property forfeiture, inability to get a student loan, loss of military and veteran's benefits, inability to get a professional license (depending on the state licensing scheme), inability to hold public office, mandatory DNA testing, impairment of ability to get employment (public and private), inability to qualify to adopt a child, loss of child custody in a divorce, termination of parental rights, inability to qualify for public housing, loss of drivers license. I'm sure others could think of more categories.

If not in the PTA, then SJA's and trial counsel should require that the laundry list of collateral consequences be listed on a separate document, signed by the accused and counsel, and admitted into evidence at the guilty plea hearing in order to insulate against appellate attacks on the guilty plea based upon lack of knowledge of guilty pleas or "affirmative misrepresentation." Or demand that the military judge address the issue on the record. Haven't looked at the Benchbook lately; has a colloquy regarding collateral consequences been inserted into the Benchbook?

Please accept my humble apologies if this post comes off a bit intemperate; typed in haste, and Cloudesley is annoyed by this whole issue.

I will also take this moment to reassert my belief that courts-martial exist only to enforce good order and discipline in the armed forces, and should therefore have no (none, nada, zero) consequences outside the military, except as specifically provided for in the case of serious traditional felonies (which would probably not include drunken groping).

Thank you for indulging my rant.

Yrs humbly,

Phil Cave said...

Security clearances, you left off security clearances -- a common question. Although likely subsumed within the inability to get employment.

Also, the other Services's PTA's are usually only one or two pages. I've had SJA's and MJ's in other Services reject the Navy/Marine PTA.

Anonymous said...

Some other collateral consequences that should be placed in PTA's:

Self-esteem issues because of a conviction, weight loss or perhaps weight gain while incarcerated, loss of future earning potential, having your spouse divorce you while incarcerated, etc, etc.

Putting in TOO many potential collateral consequences because of a conviction -- beyond those not required by case law -- will create more appellate issues, not less.

System is working just fine as it is. AFCCA correctly decided this case. CDC was clearly ineffective.

Cloudesley Shovell said...

I'm intrigued by the less is more idea . . .

The natural attorney reaction is to write more and more, in an attempt to cover all possible contingencies and react to case law.

I can see how that would just invite a court to find a loophole. Maybe saying less would be better, relying just on the idea that the law should encourage guilty pleas. It's a point to ponder.

Anonymous said...


Did you really say "The accused should be required to affirmatively acknowledge that he has been put on notice of all possible collateral consequences, known and unknown" You don't really think CAAF would hold an appellant to a collateral consequence that was unknown at the time, just because he put it in writing, do you? And trying to cover any attorney's 6 with all unknown consequences is insane.

I remember the days when members asked questions about adseps and the like and the MJ instructed them that they were not to concern themselves with collateral issues and decide the case within their CM authority. I know TDC should explain many more things to the accused before he pleads guilty than members are instructed but why should an appellate court get involved in every possible collateral consequence. One commentator discussed some other ones, why not include the possibility of non-consensual sodomy while confined?

Anonymous said...

Besides being a sex offender, Mr Rose is also an ignorant slob. Does he not listen to the news or read the paper? Sex offender registration is routine stuff. Defense counsel should not have to wipe their client's butts. Do the courts want defense counsel to become life coaches for their clients? Collateral consequences? What BS. If you do the crime, then do the time. And shut up about the fact that your federal conviction is a badge of dishonor that will generally hinder you in future pursuits.

John O'Connor said...

I have to say I am not a big fan of setting aside a guilty plea where the accused admitted his guilt to the charged offenses, simply because his defense counsel told him they didn't know what a collateral consequence would be of his conviction.

That is foisting upon the Government the considerable disruption of a retrial (a disruption that is greater in the court-martial context) essentially because the civilian lawyer the accused hired told him he didn't know if the accused would have to register as a sex offender. The most that can be said about what the Government did to deserve this hardship is that it assigned the accused a military defense counsel who told the accused he didn't know the answer to the question and referred the accused to civilian defense counsel.

And because the accused "beat the deal," he has no risk of a lengthier sentence by pleading guilty and then later saying that, while not repudiating his providence admissions, he wants to withdraw his plea.

I've been giving some thought to whether the current PTA system makes sense -- should judge-alone sentencing involve a PTA with caps that are not disclosed to the MJ, or would it be more sensible to have a deal that fixes the accused's punishment, perhaps subject to the MJ's approval of the PTA. That might eliminate some of theb perverse incentives on appeal (which I'll note would mostly go away of the accused could waive appellate review in a PTA).

I guess the real issue is the discharge, which probably shouldn't be an issue of collusion just between the accused and the CA. But maybe you could do PTAs that say if the MJ gives you the BCD, you get 45 days, and if not you get 90 days.

Anonymous said...

But Rose (and Denedo) aren't about a failure to advise an accused, they're about advising an accused erroneously. I don't think a defense counsel necessarily has the duty in the first instance to advise a client of all conceivable consequences of the plea (let alone to perform the gluteal ablutions suggested by Anon 065). If you decide to undertake that duty, however, you better be correct -- especially if it's on a matter that is plausibly material to the plea.

On these matters, I'm generally a fan of the "less is more" approach. On Code 20's NKO page, though, there is a separate 3-4 page "notification" document (look under "Hot Topics") which can be used in addition to the standard PTA and attached to the record as an AE.

Cloudesley Shovell said...

Anon at 1028 pm--

You asked, "Why should an appellate court get involved in every possible collateral consequence." Good question, I don't think they should, but what I think the law should be and what the law actual is are not always aligned.

CAAF has said for a long time that a guilty plea is not knowing and voluntary if the appellant misunderstands the collateral consequences. US v. Bendania, 12 MJ 373, 376 (CMA 1982). In Bedania, CAAF said that chief reliance is placed on the trial defense counsel to inform the accused of collateral consequences, but also says that it is permissible for the military judge to inquire about the accused's knowledge of and acceptance of those collateral consequences when the accused pleads guilty.

SJAs and trial counsel should not remain silent and assume that the defense counsel has done his job on collateral consequences. As JO'C pointed out, the Gov't suffers the consequences of blown pleas. Instead of rolling the dice, trial counsel and SJAs should ensure that the issue of collateral consequences gets a full airing at every single guilty plea.

And yes, even unknown or unknowable consequences can be discussed to avoid appellate reversal. Just have the MJ make sure the accused knows that convictions are forever, and future changes in state or federal law may result in adverse collateral consequences. If the accused doesn't like that, his remedy is to withdraw his pleas right then and there, not complain two years later on appeal.

John O'Connor said...

As usual, Cloudesley is right on (well, except for that whole Isle of Scilly thing).

On the surface, it seems that you wouldn't be able to have leave the accused state that he has been put on notice of known and unknown collateral consequences but I don't think that's accurate.

It's all about allocation of risk. I think the government could include a provision in a PTA whereby the accused states that he understand sthat he is taking the risk as to any collateral consequences, and that it shall not be a basis for voiding his plea if there is a collateral consequence that is not specifically addressed in the PTA. That is, the government says "all I'm promising you is that we'll do what it says in this document." There may be all sorts of collateral consequences to your plea, but the basis for this plea is you plead guilty, we give sentencing relief, and you take your chances on collateral consequences. It might even include a place where it requires the accused to disclose any understandings the accused has as to collateral consequcnes so the government knows what it is buying in terms of how solid the voluntariness of the plea is (i.e., is the accused's voluntariness based on any understanding he has as to what the collateral consequences of his plea will be).

Anonymous said...

You know, this blog is a wonderful source of information, discussion, and provides for the occasional intense intellectual exercise. As one who is currently living the "collateral consequences" of a PTA, had I understood this area of the law at the time my appeals were ongoing (my direct appeals have run their course), I would have certainly brought this up, though in my case the consequence was firearms disability, not anything remotely sexual. And for my trial, I had a famous, expensive, well-known civilian military defense lawyer!

I would have preferred to face a trial and the possibility of confinement/DD than taking a PTA that ensured a lifelong firearms disability without a struggle. I am grateful for the decent PTA, though I did, as JOC put it, "beat the deal," but I would have rather done some confinement or hard labor if I would have been guaranteed not to lose my firearms rights in the PTA somehow. Barring that, I was willing to proceed to trial.

Sometimes simply staying out of jail or reducing confinement time really isn't the most important goal. Unfortunately some DC's and civilian DC's usually view it as such and fixate on that aspect of a plea, while ignoring or glossing over the other major concerns of an accused. Can't say it happens often or a lot, but I can tell you that it does happen. So can AB Rose.

Anonymous said...

Anon 1231. You say "but I would have rather done some confinement or hard labor if I would have been guaranteed not to lose my firearms rights in the PTA somehow" implying that if the CA could have protected your firearm rights you would have done more jail time, or if they couldn't then you would have plead not guilty, knowing that would result in more jail time, and then kept your firearm rights.

First, I don't think the CA can protect you from collateral consquences in a PTA. Second, Isn't the firearm consequences a result of the conviction, not the jail time served?

Socrates said...

I thought that the original post was brilliant. But unlike Cloudesly, I am not “intrigued” by the less-is-more approach; I am repulsed by it. What unprofessional drivel. I’m sorry to say that only among military lawyers would the value of “minimal servicing” of a client be so openly harmonized. Shame. Civilian lawyers who espouse this view, the disheveled or drunk ones, usually have the good sense to quietly hum these odes to incompetence. To themselves.

It would make for a great advertising, though: "Alexander & Smith: We Provide the Minimum Advice Required by Law to Our Clients (because protecting our law licenses is job #1)"

Instead of philosophizing about the matter, or listening to posts by prosecutors who simply don't understand the defense function, lets look at the professional standards of our profession, shall we?

The A.B.A. Model Rules of Professional Conduct, begin with this, Client-Lawyer Relationship, Rule 1.1 Competence: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Hmmm. “Thoroughness.” I wonder what that means? Surely the hucksters among you can jam this circle through the “minimalist” square hole.

Then there’s this: A.B.A. Model Rules of Professional Conduct, Counselor, Rule 2.1 Advisor: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.” Hmmm. Rendering “candid” advice. How does knowing that there are collateral consequences lurking out there, but hiding them from the client in such a lurid exercise of self-protection, square with this rule? Answer: It doesn’t. It is lazy and dishonest. It puts the lawyer first and the client last, violating the fiduciary duty.

And the contrived parade of horribles argument that there are oh-so-many collateral consequences, I just can’t count them all – “Calgon, take me away!” Please. First, in a few hours on this very internet chat, without any research, we have collectively pretty much identified all of them. Second, our very constitutional structure answers the kind of dilemma suggested by this problem for us. There were those who did not want to enumerate our rights out of fear that leaving some off the list would abrogate those rights. So it’s the same fear floated in a different context. After thinking over the matter, we decided its better to actually list some of the basic rights. Same idea here. A lawyer should at least try to lay out the basic collaterals for his client. Third, a professional lawyer has a duty to employ due diligence to inquire and research into basic collateral consequences. I do not like the “willful ignorance” stance insinuated by many of the posters. Fourth, a lawyer can still be conservative in advising his client about the possible consequences – Denedo’s lawyer made the fatal mistake of definitively misstating the law. “You should be aware that pleading guilty to this offense could harm your immigration status, but you will have to check with an immigration attorney” would have been perfectly professional advice. Finally, we would not put up with this “minimalist-service” excuse from any other profession. Think this through. Doctor, auto-mechanic, home inspector…even a waiter, etc. We expect other professionals to service us with a little more than “the minimum.”

The ABA Standards identify two types of collateral consequences: "collateral sanctions," defined as penalties imposed automatically upon conviction, and "discretionary disqualifications," defined as penalties that are authorized but not required to be imposed.

By the way, the most common question about collateral consequences that I have received from clients is about access to criminal history information.

Finally, to Anon 12:31, if I were your "counselor," I would advise you to do what convicted felon G. Gordon Liddy does: He cannot own a firearm, so his wife keeps her firearm stored on G. Gordon's side of the bed.

John O'Connor said...


I think you're missing Cloudeley's point. I think he is saying that the "less is more" approach might eb a good philosophy for the TRIAL COUNSEL to include a short statement in PTAs that, rather than listing every possible collateral consequence, essentially says that there could be collateral consequences and that the accused is pleading voluntarily anyway.

If I were a TC, and my job was to protect the record, that's the sort of provision I would advicate, and if the accused's voluntary agreement to plead was based on any understanding re collateral consequences, I would have those listed out in the PTA (which generally would be "none").

I don't think Cloudeley is talking about what the DC should do in advising his client.

Socrates said...


Thats a sound correction. I'm duly chastised. But, still, if I'm the DC, I would like those warnings memorialized in the PTA, if possible. The PTA is a two-party document. And it still seems that cautiously worded warnings in the PTA would give the accused a certified "heads-up" of most of the issues he should be aware of, without necessarily invoking a contractual obligation.

Anonymous said...

So Crates,

I don't think we should confuse apples and oranges (despite CAAF calling an orange an apple). An ethical duty to your client is one thing, and voluntary plea is another. CAAF would seemingly require perfection in an ethical duty before finding a plea voluntary. All of us who have been TDC know that when it comes to the plea, the single, if not only important issue is not collateral consequences, whatever they may be, but how long does the client have to be in the big house. Everything else is window dressing until, on appela, it becomes important.

Cloudesley Shovell said...


Yes, thank you very much for dragging up that very painful subject of the Isles of Scilly. While you're at it, why don't you give me a nice paper cut and pour lemon juice on it?

(Miracle Max is a friend of mine; there's a difference between mostly dead and all dead, you know. How else could I be here?)

If only John Harrison had invented his wonderful clocks a bit sooner, I would not have been so bedeviled by the longitude.

But on to the law. You're risk-allocation idea is also intriguing. Perhaps the answer is a PTA provision (or a military judge's admonishment) that there are many and myriad collateral consequences, which may or may not apply, that the accused understands this and accepts the risk of all known and unknown collateral consequences, and also assumes the risk of mistaken or erroneous beliefs regarding collateral consequences.

Whatever the correct solution, surely there is a solution that will put an end to this silly appellate issue. Anybody here from Code 20? Hello? Perhaps the drafters of the Benchbook?

Now if I could only find my emerald ring. . . .

Anonymous said...

As former Commissioner of the Sewers, it's no surprise Sir C. should find such warm welcome among the denizens of the military justice system.

Anonymous said...

Anon 0117,

It is true the CA might not have had much to with the firearms rights portion of the case, however, my firearms disability is due to the section in the Brady law stating that a conviction for an offense punishable by a year or more in confinement is disqualifying. Never mind that I didn't serve a single day and the PTA was actually capped at 6 months/no DD, the offense carried a possibility of over a year, as written on the charge portion of the PTA. Had the charges been rewritten to reflect less than a year per charge (ie, changing the word "willful" to "negligent" would have reduced the max from 1 year to 6 months on the primary charge, as was done with one of the other charges), the disability wouldn't be applicable. My attorney believed, and relayed to me, that since none of the charges involved any sort of violence or weapons use, the firearms disability wouldn't apply. Unfortunately, such wasn't the case.

The question still remains of whether a PTA that caps punishment at less than the Brady requirements for disqualification is still disqualifying. Not every conviction is disqualifying, after all. I'm not sure, but I'm currently taking no chances. My best hope for a return of my firearms rights as of now is a pardon from the President.

With the way laws are written now, in spite of the constitutional protection from ex post facto laws, punishments for previous convictions continue to increase. The Lautenberg Amendment that created firearms disabilities for those convicted of misdemeanor domestic violence is an example of this. Having a physical altercation with a family member 20 years ago, where the conviction landed the offender 30 days community service, causes that person to now no longer have firearms rights, even if they had previously been able to purchase and carry them. Collateral consequences continue to increase, years after the conviction. We can at least strive to make the accused aware of what those consequences are currently, even though they may change down the road. In my case, it would have been nice to know exactly what I was agreeing to. Would I have withdrawn my plea, knowing what I know now? I believe I would have, hindsight being 20/20 and all.

Shelton Smalls said...

Socrates 2:44

Talk about giving bad legal advice: "if I were your "counselor," I would advise you to do what convicted felon G. Gordon Liddy does: He cannot own a firearm, so his wife keeps her firearm stored on G. Gordon's side of the bed."

Ohh how so many ex-con's (and now newly convicted 2nd Degree Felons) have proclaimed to the judge about how the gun was their roomates or some other family member as they were being carted off to State Prison.

The key word in most states is not "own" a gun, but "possession" of a gun.