          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201700014
                         _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.

                           DAKOTA S. TOTH
                Lance Corporal (E-3), U.S. Marine Corps
                              Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

             Military Judge: Major M.D. Sameit, USMC.
      Convening Authority: Commanding Officer, Marine Corps
     Communication Electronics School, Twentynine Palms, CA.
    Staff Judge Advocate’s Recommendation: Lieutenant Colonel
                     Michael E. Sayegh, USMC.
  For Appellant: Commander Suzanne M. Lachelier, JAGC, USN.
 For Appellee: Lieutenant Commander Justin C. Henderson, JAGC,
           USN; Lieutenant George R. Lewis, JAGC, USN.
                       _________________________

                        Decided 28 February 2018
                         _________________________

 Before GLASER-ALLEN, H UTCHISON , and F ULTON , Appellate Military
                              Judges
                       _________________________

This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
                        _________________________

   FULTON, Judge:
   A military judge sitting as a special court-martial convicted the appellant,
consistent with his pleas, of two specifications of attempted sexual abuse of a
                          United States v. Toth, No. 201700014


child in violation of Article 80, Uniform Code of Military Justice (UCMJ).1
The military judge sentenced the appellant to eight months’ confinement and
a bad-conduct discharge. The convening authority approved the sentence and,
in accordance with a pretrial agreement (PTA), suspended confinement in
excess of six months.
    The appellant raises two assignments of error. First, he alleges that his
guilty pleas were not knowingly made because he was erroneously advised
that he would not have to register as a sex offender. Second, he alleges that
his trial defense counsel (TDC) was ineffective because the TDC erroneously
advised him that he would not have to register as a sex offender. We find that
no error materially prejudiced the appellant’s substantial rights, and we
affirm.
                                   I. BACKGROUND
    Using the social media application, “Kik,” the appellant sent pictures of
his penis to and communicated indecently with a person he believed to be a
14-year-old girl.
    The appellant pleaded guilty in accordance with a pretrial agreement.
The agreement included an acknowledgement that the appellant’s defense
counsel had advised the appellant that, as a result of his pleas, he may be
required to register as a sexual offender in any state in which he is domiciled.
During the plea colloquy, the military judge, the appellant, and the TDC
discussed collateral consequences of the appellant’s guilty pleas, including
the possibility that the appellant would have to register as a sexual offender.
The military judge asked the TDC if he had advised the appellant of the
sexual offender registration requirements in New Jersey, where the appellant
wanted to live after completing confinement. The TDC told the military judge
that he had spoken with the district attorney and the public defender in
Middlesex County, New Jersey, and learned that the appellant would
“probably not” have to register.2 The military judge told the appellant that
“sex offender registration laws can and do change, so just because you don’t
have to register now in New Jersey does not mean you might not have to
register sometime in the future.”3 The military judge added, “. . . New Jersey
could change their law on this and this may become a registerable offense. . . .
Considering the possible effects of the registration laws, do you still want to
plead guilty?”4 The appellant said that he did.


   1   10 U.S.C. § 880.
   2   Record at 28.
   3   Id. at 28-29.
   4   Id. at 29.


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    We granted the appellant’s motion to attach a document in which the
appellant is purportedly informed by a New Jersey law enforcement official
following his release from confinement and return to New Jersey that he
must register as a sexual offender.
                                    II. DISCUSSION
A. Voluntariness of guilty pleas
   The appellant alleges that his pleas were not voluntary because they were
not made knowingly. We disagree.
    A guilty plea must be both knowing and voluntary.5 The providence of a
plea is based both on the accused’s understanding and recitation of the
factual history of the offense and on an understanding of how the law relates
to those facts.6 A guilty plea must be made with a sufficient awareness of the
relevant circumstances and the plea’s likely consequences.7
   We find that the appellant was sufficiently aware of the potential for
sexual-offender registration. The TDC expressed the view that the appellant
would “probably not” have to register, which necessarily left open the chance
that the appellant would have to. Taken together, the appellant’s colloquy
with the military judge, the notification language in the pretrial agreement,
and the advice of the TDC put the appellant on notice that sexual offender
registration was a possible consequence of his pleas, even if he and his lawyer
thought it unlikely. We therefore find this assignment of error without merit.
B. Ineffective assistance of counsel
   The appellant alleges that the TDC was ineffective because he told the
appellant that his pleas of guilty would not result in his being required to
register as a sexual offender. We disagree.
   The Sixth Amendment entitles criminal defendants to representation that
does not fall “below an objective standard of reasonableness” in light of
“prevailing professional norms.”8 The Sixth Amendment right to effective
assistance of counsel at trials by court-martial is a fundamental right of
service members.9




   5   See United States v. Care, 40 C.M.R. 247, 250-51 (C.M.A. 1969).
   6   See United States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008).
   7   See Brady v. United States, 397 U.S. 742, 748 (1970).
   8   Strickland v. Washington, 466 U.S. 668, 688 (1984).
   9   United States v. Knight, 53 M.J. 340, 342 (C.A.A.F. 2000).


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    We apply the two-pronged test set forth by the Supreme Court in
Strickland v. Washington10 to determine whether counsel rendered ineffective
representation. To prevail on a claim of ineffective assistance of counsel, an
appellant must demonstrate that his counsel’s performance was deficient,
and that this deficiency resulted in prejudice.11 The burden on each prong
rests with the appellant challenging his counsel’s performance.12
    The first prong requires the appellant to show that counsel’s performance
fell below an objective standard of reasonableness, indicating that counsel
was not functioning as counsel within the meaning of the Sixth
Amendment.13 Our review of counsel’s performance is highly deferential and
is buttressed by a strong presumption that counsel provided adequate
representation.14
    The second prong requires a showing of prejudice resulting from counsel’s
deficient performance.15 Such prejudice must result in the denial “of a fair
trial, a trial whose result is unreliable.”16 The appropriate test for this
prejudice is whether there is a reasonable probability that, but for counsel’s
error, there would have been a different result.17
    We find that the appellant’s counsel was not deficient, and that the
appellant therefore does not satisfy this first prong of Strickland. In United
States v. Miller, the Court of Appeals for the Armed Forces (CAAF) examined
whether a TDC’s failure to inform a client that if he pleaded guilty he would
have to register as a sexual offender violated Strickland’s first prong.18 The
CAAF observed that, “[g]iven 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.”19 TDCs are required, however, to advise their clients of the contents of

   10   See Strickland, 466 U.S. at 687 (1984).
   11United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing Strickland,
466 U.S. at 687) (additional citation omitted).
   12   United States v. Davis, 60 M.J. 469, 473 (C.A.A.F. 2005).
   13   United States v. Terlep, 57 M.J. 344, 349 (C.A.A.F. 2002).
   14   United States v. Garcia, 59 M.J. 447, 450 (C.A.A.F. 2004).
   15   Strickland, 466 U.S. at 687.
   16 United States v. Dewrell, 55 M.J. 131, 133 (C.A.A.F. 2001) (citation and
internal quotation marks omitted).
   17   United States v. Quick, 59 M.J. 383, 387 (C.A.A.F. 2004).
   18   63 M.J. 452, 458-59 (C.A.A.F. 2006).
   19   Id. at 459.


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the relevant Department of Defense (DoD) instruction, which identifies those
offenses that trigger mandatory sex offender reporting.20
    Here, the TDC did affirmatively advise the appellant regarding sexual
offender registration requirements pursuant to the DoD instruction and,
although not required, took additional steps to determine how New Jersey
law would affect the appellant after his release. Talking to the district
attorney and public defender in Middlesex County, New Jersey is a
reasonable way to learn about registration requirements. We cannot explain
why there is a discrepancy—if in fact there is one—between what the TDC
was told and what that the appellant was told upon his release. We are
certain, however, that the appellant was informed that registration was a
possible consequence of his guilty plea. This is amply demonstrated in his
PTA and in the colloquy between the appellant and the military judge.
    The appellant argues that the TDC’s performance should be found
deficient under United States v. Rose.21 In Rose, the appellant asked his TDC
whether he would have to register as a sexual offender if he pleaded guilty—a
matter his counsel knew to be a “key concern” of that appellant.22 The TDC in
Rose failed to investigate whether his client would have to register, even
though the appellant in that case stated definitively before trial that he did
not want to plead guilty if doing so would mean he would have to register.23
    In this case, the TDC did provide the appellant with information about
the possibility that he would have to register as a sexual offender. He was
advised that he was “entering a plea of guilty to an offense requiring sex
offender registration processing” under the relevant DoD instruction.24 And
when informed that New Jersey law might at some point require him to
register as a sexual offender, the appellant stated that he wanted to plead
guilty anyway. We find Rose inapposite.
   Because the TDC’s performance was not deficient, this assignment of
error lacks merit.




   20   See id.
   21   71 M.J. 138 (C.A.A.F. 2012).
   22   Id. at 143.
   23   Id. at 142.
   24   Appellate Exhibit I at ¶ 12b.


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                           III. CONCLUSION
    The findings and sentence as approved by the convening authority are
affirmed.
   Chief Judge GLASER-ALLEN and Senior Judge HUTCHISON concur.
                                   For the Court




                                   R.H. TROIDL
                                   Clerk of Court




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