               U NITED S TATES AIR F ORCE
              C OURT OF C RIMINAL APPEALS
                          ________________________

                               No. ACM 39375
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                         Anthony B. PATRON
              Senior Airman (E-4), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                           Decided 11 April 2019
                          ________________________

Military Judge: Jefferson B. Brown.
Approved sentence: Dishonorable discharge, confinement for 10 years,
forfeiture of all pay and allowances, and reduction to E-1. Sentence
adjudged 17 October 2017 by GCM convened at Barksdale Air Force
Base, Louisiana.
For Appellant: Major Dustin J. Weisman, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Mary Ellen Payne, Esquire.
Before HUYGEN, POSCH, and KEY, Appellate Military Judges.
Judge KEY delivered the opinion of the court, in which Senior Judge
HUYGEN and Judge POSCH joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
KEY, Judge:
    A military judge sitting as a general court-martial convicted Appellant, in
accordance with his pleas pursuant to a pretrial agreement, of one specifica-
tion of attempted rape of a child under the age of 12 years, one specification
                   United States v. Patron, No. ACM 39375


of rape of a child under the age of 12, and two specifications of sexual abuse
of a child under the age of 12, in violation of Articles 80 and 120b, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 920b. Specifically, Appel-
lant was convicted of committing sexual and lewd acts upon his younger half-
sister, when she was between 7 and 9 years old, by penetrating her vulva
with his penis; licking her genitalia with his tongue, with the intent to gratify
his sexual desire; touching her genitalia, groin, inner thighs, and buttocks
with his penis, with the intent to gratify his sexual desire; and attempting to
penetrate her mouth with his penis. The military judge sentenced Appellant
to a dishonorable discharge, confinement for 12 years, forfeiture of all pay
and allowances, and reduction to the grade of E-1. In accordance with the
limitation of the pretrial agreement, the convening authority approved only
ten years of confinement. He otherwise approved the sentence as adjudged.
    On appeal, Appellant asserts there is a “substantial question regarding
whether [Appellant’s] plea was knowing and voluntary” because the military
judge conducted an insufficient colloquy regarding sex offender registration
requirements, thereby failing to ensure Appellant “fully appreciated the con-
sequences that would ‘automatically result’ from his plea of guilty to a sex
offense.” We find no error and affirm.

                               I. BACKGROUND
    After Appellant joined the Air Force, he periodically visited his mother,
stepfather, and half-sister at Fort Hood, Texas, and later at Fort Leonard
Wood, Missouri. Appellant’s younger half-sister (AL) was between 7 and 9
years old during this time. On approximately three occasions, after the others
in the house fell asleep, Appellant engaged in various sexual conduct with
AL, largely consisting of Appellant licking AL’s genitals and rubbing his pe-
nis on AL’s naked body until he ejaculated. On one occasion, Appellant tried
to convince AL to put her mouth on his penis, but AL refused, and Appellant
abandoned that effort. The investigation in this case began when AL dis-
cussed her suicidal ideations with classmates, and Appellant subsequently
confessed to committing the sexual abuse.
    At Appellant’s court-martial, the military judge held the following ex-
change with trial defense counsel and Appellant regarding sex offender regis-
tration and Appellant’s continued desire to plead guilty:
       MJ [Military Judge]: Defense Counsel, did you advise the ac-
       cused prior to trial of the sex offender reporting and registra-
       tion requirements resulting from a finding of guilty as to these
       charges and specifications?
       DC [Trial Defense Counsel]: We have, Your Honor.


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                   United States v. Patron, No. ACM 39375


       MJ: Airman Patron, are you a United States citizen?
       ACC [Accused]: Yes, sir.
       MJ: Take a moment now and consult again with your defense
       counsel, and then tell me whether you still want to plead
       guilty.
       [The accused conferred with his defense counsel.]
       DC: Thank you, Your Honor.
       MJ: Do you still want to plead guilty?
       ACC: Yes, sir.
The military judge subsequently found Appellant’s guilty plea provident and
accepted it.

                                II. DISCUSSION
    Appellant asserts the military judge erred by not advising him of the neg-
ative consequences of being labeled a “sex offender.” Although the military
judge confirmed that trial defense counsel advised Appellant of sex offender
reporting and registration requirements, Appellant now asserts “the military
judge erred when he abrogated his responsibility to ensure [Appellant]’s
guilty plea was knowing and voluntar[y] by outsourcing that responsibility to
trial defense counsel.” We disagree.
    “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) (quoting United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996)) (ad-
ditional citations omitted). An abuse of discretion occurs when there is “some-
thing 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.” Id.
In United States v. Miller, where the appellant asserted he was unaware of
sex offender registration requirements, the United States Court of Appeals
for the Armed Forces (CAAF) found the military judge did not abuse his dis-
cretion in accepting the guilty plea but provided a “prospective rule . . . to ad-
dress the importance of trial defense counsel explaining the sex offender reg-
istration 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 Pro-
       cessing. Trial defense counsel should also state on the record of
       the court-martial that counsel has complied with this advice


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                    United States v. Patron, No. ACM 39375


       requirement. While failure to so advise an accused is not per se
       ineffective assistance of counsel, it will be one circumstance
       this Court will carefully consider in evaluating allegations of
       ineffective assistance of counsel.
63 M.J. 452, 459 (C.A.A.F. 2006) (footnote omitted).
    As the CAAF later explained in United States v. Riley, defense counsel
must inform the accused of any sex offender registration requirement that is
a consequence of a guilty plea, “but it is the military judge who bears the ul-
timate burden of ensuring that the accused’s guilty plea is knowing and vol-
untary.” 72 M.J. 115, 122 (C.A.A.F. 2013). In Riley, the CAAF found “that the
military judge abused his discretion when he accepted [the appellant]’s guilty
plea without questioning defense counsel to ensure [the appellant]’s
knowledge of the sex offender registration consequences of her guilty plea to
kidnapping a minor.” 1 Id. The Riley court further found that “it was incum-
bent upon the military judge to ensure that [the appellant]’s plea was a
‘knowing, intelligent act[ ] done with sufficient awareness of the relevant cir-
cumstances and likely consequences.’” Id. (second alteration in original)
(quoting United States v. Brady, 397 U.S. 742, 748 (1970)). Moreover, “[t]he
failure to inform a pleading defendant that the plea will necessarily require
registration as a sex offender affects whether the plea was knowingly made.”
Id. (quoting People v. Fonville, 804 N.W.2d 878, 895 (Mich. Ct. App. 2011)). In
Riley, the CAAF further explained that following the guidance in the Military
Judges’ Benchbook would meet the requirement. 2 Id.
   Appellant concedes the military judge followed the Benchbook guidance
but argues the military judge should have asked more questions based upon
Padilla v. Kentucky, in which the Supreme Court found defense counsel’s per-
formance was defective based on the failure to advise the defendant that his
plea of guilty made him subject to automatic deportation. 559 U.S. 356
(2010). The CAAF, however, has specifically found, “[i]n our view, the Bench-
book accurately reflects the Miller and Padilla line of cases.” Riley, 72 M.J. at


1Riley involved a trial defense counsel who did not realize kidnapping of a child
would require sex offender registration, even in the absence of a sexual offense.
2 At the time of Private Riley’s court-martial, the 1 January 2010 version of the
Benchbook was in effect. See Military Judges’ Benchbook, Dept. of the Army Pam-
phlet 27–9 at 28 (1 Jan. 2010). The 10 September 2014 version was in effect at the
time of Appellant’s court-martial. The sex offender question is the same in both ver-
sions of the Benchbook. See Military Judges’ Benchbook, Dept. of the Army Pamphlet
27–9 at 28 (10 Sep. 2014).




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                   United States v. Patron, No. ACM 39375


122 (citation omitted). Indeed, the fault the CAAF found with the military
judge in Riley was the judge’s failure to ask the one question set out in the
Benchbook—whether or not defense counsel had advised the accused of the
sex offender reporting and registration requirements. Id. The CAAF went on
to state, “therefore ‘an individual military judge should not deviate signifi-
cantly from [the Benchbook] instructions without explaining his or her rea-
sons on the record.’” Id. (quoting United States v. Rush, 54 M.J. 313, 315
(C.A.A.F. 2001)).
    In this case, the military judge fulfilled his obligation to ensure Appellant
had been advised by the trial defense counsel of the sex offender reporting
and registration requirements. The military judge did so by explicitly follow-
ing the Benchbook instructions endorsed by the CAAF regarding sex offender
registration. The military judge asked trial defense counsel whether he had
advised Appellant of reporting and registration requirements, and trial de-
fense counsel confirmed he had. Nothing more is required.
    Having reviewed the record, we find nothing with regard to the factual
basis or the law that would raise a substantial question regarding the provi-
dence of Appellant’s guilty plea. In addition to trial defense counsel’s state-
ment that he had discussed sex offender registration with Appellant, trial de-
fense counsel visited the issue in both his sentencing argument and clemency
submission, indicating that sex offender registration was one of defense coun-
sel’s foremost considerations and was not an oversight, which was the case in
Riley. Military judges must ensure that an accused’s guilty plea is knowing
and voluntary, as the military judge in this case did. We decline Appellant’s
invitation to require additional inquiry into the topic of sex offender registra-
tion beyond what is required in Riley.

                               III. CONCLUSION
     The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c) (2016). According-
ly, the findings and the sentence are AFFIRMED.


                     FOR THE COURT



                     CAROL K. JOYCE
                     Clerk of the Court




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