                       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
United States v. Miller, No. 04-0799/NA


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.

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United States v. Miller, No. 04-0799/NA


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
United States v. Miller, No. 04-0799/NA


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
United States v. Miller, No. 04-0799/NA


     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.




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United States v. Miller, No. 04-0799/NA


                                  DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals as to both findings and sentence is

affirmed.




                                     19
United States v. Miller, No. 04-0799/NA


     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
United States v. Miller, No. 04-0799/NA


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).

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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).

                                 4
United States v. Miller, No. 04-0799/NA


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.

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