                       UNITED STATES, Appellee

                                    v.

                     Cassandra M. RILEY, Private
                         U.S. Army, Appellant

                              No. 11-0675

                       Crim. App. No. 20100084

       United States Court of Appeals for the Armed Forces

                       Argued January 22, 2013

                        Decided April 16, 2013

ERDMANN, J., delivered the opinion of the court, in which BAKER,
C.J., and EFFRON, S.J., joined. STUCKY, J., filed a separate
dissenting opinion, in which RYAN, J., joined.

                                 Counsel


For Appellant: Captain Brandon H. Iriye (argued); Colonel
Patricia A. Ham, Lieutenant Colonel Imogene M. Jamison, Major
Richard E. Gorini, and Captain Richard M. Gallagher (on brief).

For Appellee: Captain Daniel D. Maurer (argued); Major
Katherine S. Gowel, Major Robert A. Rodrigues, and Captain
Samuel Gabremariam (on brief); Captain Kenneth W. Borgnino.

Military Judge:   Gregory A. Gross


       This opinion is subject to revision before final publication.
United States v. Riley, No. 11-0675/AR

       Judge ERDMANN delivered the opinion of the Court.

       A military judge sitting as a general court-martial

convicted Private Cassandra M. Riley, pursuant to her plea, of

kidnapping a minor in violation of Article 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 934 (2006).    A panel of

officers sentenced Riley to confinement for five years,

forfeiture of all pay and allowances, and a dishonorable

discharge.    The convening authority approved the sentence as

adjudged.    The United States Army Court of Criminal Appeals

(CCA) summarily affirmed the findings and sentence.    United

States v. Riley, No. ARMY 20100084 (A. Ct. Crim. App. July 7,

2011).    This court granted review, set aside the CCA’s decision,

and remanded for further appellate inquiry and consideration of

the granted issues.     United States v. Riley, 70 M.J. 415

(C.A.A.F. 2011) (summary disposition).    On remand, the CCA again

affirmed the findings and sentence.    United States v. Riley, No.

ARMY 20100084, 2012 CCA LEXIS 175, at *10, 2012 WL 1816206, at

*4 (A. Ct. Crim. App. May 11, 2012).

       We granted review of two issues in this case:   whether

Riley’s trial defense counsel were ineffective; and, whether

there is a substantial basis to question the providence of

Riley’s guilty plea.1    As we conclude that the military judge



1
    We granted review of the following issues:



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United States v. Riley, No. 11-0675/AR

abused his discretion when he accepted Riley’s guilty plea

without ensuring that Riley was aware of the sex offender

registration consequences of her plea, we need not reach Issue

I.    The findings and sentence are set aside and the record of

trial returned to the Army Judge Advocate General.

                                   Facts

     a.     Background

          The incident giving rise to the charges took place in the

Mother/Baby Unit at Darnall Army Medical Center on Fort Hood,

Texas, on July 27, 2009.      Dressed in scrubs, apparently

pretending to be a nurse, Riley entered the room of MB and her

newborn son.      Believing Riley to be the charge nurse, MB asked

her for a few items from the front desk.      Riley began to exit

the room and MB went into the bathroom.      When MB came out of the

bathroom her baby was not in the bassinet where he had been

sleeping.      MB went out in the hallway and found Riley putting



          I. Whether Appellant received ineffective assistance of
          counsel when her defense counsel failed to inform her that
          she would have to register as a sex offender after pleading
          guilty.

          II. Whether, in light of United States v. Miller, 63 M.J.
          452 (C.A.A.F. 2006), there is a substantial basis to
          question Appellant’s guilty plea due to the military
          judge’s failure to inquire if trial defense counsel
          informed Appellant that the offense to which she pleaded
          guilty would require Appellant to register as a sex
          offender.

United States v. Riley, 71 M.J. 443 (C.A.A.F. 2012) (order
granting review).

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United States v. Riley, No. 11-0675/AR

the baby in a backpack.    MB took the baby and Riley left the

Mother/Baby Unit of the hospital.      Riley was apprehended five

days later and during a subsequent interview with Army

investigators, admitted taking the baby.

  b.     Riley’s Pretrial Agreement and the Sex Offender
         Registration Consequences of the Plea

        Riley entered into a pretrial agreement that capped

possible confinement at eleven years in exchange for her guilty

plea.    She was ultimately sentenced to five years confinement.

Because she was convicted of kidnapping a minor, Riley was

required to register as a sex offender.     According to her post-

trial affidavit, Riley did not learn of the sex offender

registration requirement until several months after her court-

martial was complete.    In her post-trial affidavit, Riley wrote:

        Had I known that after pleading guilty I would have to
        take my place among the ranks of sex offenders, I
        would not have entered the pre-trial agreement as
        written. I would have asked [my attorney] to do
        whatever she could during negotiations with the
        government to ensure that any guilty plea would not
        require sex offender registration. I would have been
        open to pleading guilty to another offense or an
        amended Specification of the Charge, provided I would
        not have to register as a sex offender. Unless a deal
        removed the prospect of sex offender registration, I
        would have made clear to the government that I was not
        going to plead guilty, as charged, and I would have
        insisted on going to trial.

        Riley’s court-martial took place in the fall of 2009, three

years after we issued our decision in United States v. Miller,

in which we held “[f]or all cases tried later than ninety days



                                   4
United States v. Riley, No. 11-0675/AR

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 [Instruction] Listing Of Offenses Requiring

Sex Offender Processing.”2   63 M.J. 452, 459 (C.A.A.F. 2006).

Riley’s lead defense counsel submitted a post-trial affidavit

addressing the issue of sex offender registration.   Riley’s

attorney wrote that she did not advise Riley that a conviction

for kidnapping a minor was an offense requiring sex offender

registration because she “was not aware of the requirement or

consequence for such a kidnapping conviction.”

     Defense counsel’s affidavit reveals, however, that

throughout the fall of 2009 when she was handling Riley’s case,

her superiors repeatedly reminded defense counsel to notify

clients about potential sex offender registration consequences

of convictions:

     On or about 15 September 2009, I received an email
     forwarded to me from my Regional Defense Counsel
     concerning an updated Post Trial & Appellate Rights
     form and Advice Concerning Possible Requirements to
     Register as a Sex Offender . . . .

          During the Fiscal Year 2010 Fall TDS CONUS
     Conference held at Naval Station Newport in Rhode
     Island from 28 through 30 October 2009, Mr. Keith
     Hodges, one of the TDS Highly Qualified Experts, asked
     all attendees if we had received the email from 15

2
  The list of offenses requiring sex offender registration
contained in Dep’t of Defense, Instr. 1325.07, Administration of
Military Correctional Facilities and Clemency and Parole
Authority Enclosure 27, at 101 (July 17, 2001), includes the
Article 134, UCMJ, offense of Kidnapping of a Minor (by a person
not parent).

                                 5
United States v. Riley, No. 11-0675/AR

     September 2009. Once he verified that we had received
     the email, he mentioned that it should be self-
     explanatory, but that if anyone had any questions
     about its use to contact him . . . .

     On or about 4 December 2009, I received another email
     forwarded to me from my Regional Defense Counsel which
     was entitled “DCAP Sends 3-31 – Sex Offender
     Registration Advice (1 Dec 09)” which contained a word
     document entitled, “DCAP SENDS 3-31 Sex Offender
     Registration Advice (1 December 2009).”

Riley’s defense counsel went on to state that, “[o]ther than the

two email forwards and the one reference at the . . . conference

to the first email, I did not receive any formal training or

instruction about providing clients with advice on collateral

consequences stemming from convictions, in particular,

requirements for sex offender registration.”   She did, however,

have experience advising clients about sex offender registration

consequences.

     The standard post-trial and appellate rights form used at

the time of Riley’s court-martial did not address sex offender

registration, but the instructions to defense counsel using the

form advised counsel of the additional steps that needed to be

taken if the accused was charged with any sex offense or an

offense involving a minor.   In her affidavit, defense counsel

stated:

     Between the issuance of the email containing this form
     on 15 September 2009 and my explanation to appellant
     of her post-trial and appellate rights on 2 February
     2010, I had not used the updated Post Trial and
     Appellate Rights form that was issued on 15 September
     2009. When I advised appellant of her post-trial and


                                 6
United States v. Riley, No. 11-0675/AR

       appellate rights using the 15 September 2009 form, I
       had not read the instruction sheet; I printed the form
       and advised appellant of her rights using the form
       itself.

Emphasis added.   The instructions for the post trial and

appellate rights form, which defense counsel did not read,

provides in part:   “If the accused has been charged with any sex

offense or offense involving a minor (see table below), also

have the accused execute the ‘Advice Concerning Requirements to

Register as a Sex Offender form.’”    The table included on the

instruction sheet listed the various UCMJ, state, territorial

and federal laws, the violation of which would trigger

registration as a sex offender.   The Article 134 offense of

kidnapping of a minor by other than a parent or guardian is

specifically listed as an offense requiring sex offender

registration.

  c.    The Providence Inquiry

       The military judge questioned Riley about her plea during

the providence inquiry.   The military judge explained the rights

she was giving up by pleading guilty, reviewed the stipulation

of fact with her, reviewed the elements of the offense, and

asked Riley to tell him, in her own words, why she was guilty of

kidnapping.   The military judge reviewed the maximum punishment

with Riley and the attorneys.    The military judge asked Riley

whether she entered into the pretrial agreement of her own free

will, and whether she understood the pretrial agreement and how


                                  7
United States v. Riley, No. 11-0675/AR

it would affect her case.    The military judge also asked Riley

if she was satisfied with her defense counsel and their advice.

       The military judge, however, did not address the sex

offender registration consequences of Riley’s plea before

finding the plea provident and issuing his findings.   As a

result, there was no mention or discussion of the sex offender

registration consequences of Riley’s guilty plea by anyone,

either prior to, or during the court-martial proceedings.     The

military judge found Riley guilty and the panel sentenced her to

forfeiture of all pay and allowances, confinement for five

years, and a dishonorable discharge.

  d.    Review by the Army Court of Criminal Appeals

       The Army Court of Criminal Appeals initially summarily

affirmed Riley’s conviction.   On appeal to this court, we

remanded the case to the CCA for further appellate inquiry and

consideration of the granted issues including the sex offender

registration issue.   The CCA again affirmed the findings and

sentence, concluding that Riley suffered no prejudice and the

military judge did not err in accepting Riley’s guilty plea,

because “nothing in the record [showed] any misunderstanding of

a collateral consequence [by Riley] [that] was made readily

apparent to the judge.”   Riley, 2012 CCA LEXIS 175, at *7-*9,

2012 WL 1816206, at *2-*3.




                                  8
United States v. Riley, No. 11-0675/AR

                            Discussion

     On appeal to this court Riley argues that sex offender

registration is a major consequence of her plea because:     she

will have to endure the societal stigma of being a sex offender

for the rest of her life; she would not have pled guilty and

would have insisted on going to trial unless the Government

removed the prospect of sex offender registration; Miller

implicitly elevated sex offender registration as a “major”

collateral consequence of a plea; and, the Government’s case

against Riley was worth “nowhere near her cap of eleven years of

confinement.”   According to Riley, this court’s decision in

Miller, and the Supreme Court’s ruling in Padilla v. Kentucky,

130 S. Ct. 1473, 1487 (2010) (finding defense counsel’s

performance “constitutionally deficient” based on his failure to

advise defendant that his plea of guilty made him subject to

automatic deportation), compel the conclusion that the accused

must be aware of sex offender registration requirements in order

for the plea to be knowing and voluntary under Article 45, UCMJ,

10 U.S.C. § 845 (2006).   She goes on to argue that the military

judge had an affirmative duty to ask if she had been informed of

the sex offender registration requirements, in accordance with

the Military Judges’ Benchbook.   Riley maintains that the

military judge’s failure to do so provides a substantial basis

in law to question the plea.



                                  9
United States v. Riley, No. 11-0675/AR

        In response, the Government contends that military judges

have no affirmative obligation to inquire into whether an

accused is aware of sex offender registration consequences of a

plea.    The Government reads our decision in Miller as placing

the burden to inform the accused of sex offender registration

requirements on defense counsel rather than the military judge.

In addition, the Government argues that nothing in Riley’s

guilty plea evidenced any misunderstanding about collateral

consequences readily apparent to the military judge and there is

no substantial basis to question Riley’s guilty plea.

        “‘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) (citations

omitted).    An abuse of discretion occurs when there is

“something 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.”

        Article 45(a), UCMJ provides:

        If an accused after arraignment makes an irregular
        pleading, or after a plea of guilty sets up matter
        inconsistent with the plea, or if it appears that he
        has entered the plea of guilty improvidently or
        through lack of understanding of its meaning and
        effect, or if he fails or refuses to plead, a plea of
        not guilty shall be entered in the record, and the
        court shall proceed as though he had pleaded not
        guilty.




                                  10
United States v. Riley, No. 11-0675/AR

     This article “includes procedural requirements to ensure

that military judges make sufficient inquiry to determine that

an accused’s plea is knowing and voluntary, satisfies the

elements of charged offense(s), and more generally that there is

not a basis in law or fact to reject the plea.”   United States

v. Hayes, 70 M.J. 454, 457 (C.A.A.F. 2012).    In order to

determine whether Riley’s plea was knowing and voluntary, we

look to the record of trial and the documents considered by the

court below.   United States v. Garlick, 61 M.J. 346, 350

(C.A.A.F. 2005).

     A “guilty plea is a grave and solemn act” which should be

accepted “only with care and discernment.”    Brady v. United

States, 397 U.S. 742, 748 (1970).    “[T]he plea is more than an

admission of past conduct; it is the defendant’s consent that

judgment of conviction may be entered without a trial -- a

waiver of his right to trial before a jury and judge.”    Id.

“Waivers of constitutional rights not only must be voluntary but

must be knowing, intelligent acts done with sufficient awareness

of the relevant circumstances and likely consequences.”      Id.

     “It is axiomatic that ‘[t]he military justice system

imposes even stricter standards on military judges with respect

to guilty pleas than those imposed on federal civilian judges.’”

United States v. Soto, 69 M.J. 304, 306 (C.A.A.F. 2011)

(alteration in original) (quoting United States v. Perron, 58



                                11
United States v. Riley, No. 11-0675/AR

M.J. 78, 81 (C.A.A.F. 2003)).    “[I]t is the military judge’s

‘responsibility to police the terms of pretrial agreements to

insure compliance with statutory and decisional law as well as

adherence to basic notions of fundamental fairness.’”    Id. at

307 (quoting United States v. Partin, 7 M.J. 409, 412 (C.M.A.

1979)).

  a.      Sex Offender Registration as a Collateral Consequence of
          the Plea

       The Government, quoting United States v. Delgado-Ramos, 635

F.3d 1237, 1239 (9th Cir. 2011) (internal quotations omitted),

argues that the military judge had no affirmative obligation to

inquire into whether Riley was aware of sex offender

registration consequences of her plea because “a court

conducting a plea colloquy must [only] advise the defendant of

the direct consequences of his plea, [and] need not advise him

of all the possible collateral consequences.”    Indeed, in

Miller, 63 M.J. at 457-58, we addressed sex offender

registration as a collateral consequence which was “separate and

distinct from the court-martial process,” when we held that the

military judge “did not err in his responsibility to ensure that

Appellant understood all the consequences of his guilty plea.”

Our analysis in Miller was informed, in part, by the reasoning

of other federal courts related to collateral consequences and

ineffective assistance of counsel claims.    We noted that the

United States Court of Appeals for the Tenth Circuit held that


                                  12
United States v. Riley, No. 11-0675/AR

“‘deportation is a collateral consequence of the criminal

proceeding and therefore the failure to advise does not amount

to ineffective assistance of counsel.’”    Id. at 458 (quoting

Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir. 1992)).

However, following our decision in Miller, the Supreme Court

issued its decision in Padilla, 130 S. Ct. at 1482, holding that

“[d]eportation as a consequence of a criminal conviction is,

because of its close connection to the criminal process,

uniquely difficult to classify as either a direct or collateral

consequence.    The collateral versus direct distinction is ill-

suited to evaluating a Strickland claim concerning the specific

risk of deportation.”3

       State courts have grappled with the import of Padilla with

respect to sex offender registration consequences.   For example,

in People v. Fonville, 804 N.W.2d 878, 894 (Mich. Ct. App.

2011), the Court of Appeals of Michigan analogized Padilla as

follows:

       Like the consequence of deportation, sex offender
       registration is not a criminal sanction, but it is a
       particularly severe penalty. In addition to the
       typical stigma that convicted criminals are subject to
       upon release from imprisonment, sexual offenders are
       subject to unique ramifications, including, for
       example, residency-reporting requirements and place of
       domicile restrictions. Moreover, sex offender
       registration is “intimately related to the criminal
       process.” The “automatic result” of sex offender
       registration for certain defendants makes it difficult
       to “divorce the penalty from the conviction . . . .”

3
    Strickland v. Washington, 466 U.S. 668 (1984).

                                 13
United States v. Riley, No. 11-0675/AR

Id. (alteration in original) (footnotes omitted) (quoting

Padilla, 130 S. Ct. at 1481).4   We agree with this reasoning.

Indeed, when we set forth the prospective rule in Miller, we

emphasized the specific need for knowledge of sex offender

registration consequences in the court-marital setting:

     [T]he 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 the plea may occur without the
     assistance of counsel from the accused’s domicile
     state. Finally, every state 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.

Miller, 63 M.J. at 459.

     Last term in United States v. Rose, 71 M.J. 138, 143

(C.A.A.F. 2012), we referenced the Supreme Court’s decision in

Padilla in our analysis of an ineffective assistance of counsel

claim based on defense counsel’s failure to respond to the

defendant’s question about the sex offender registration

consequences of his plea.   We held the failure to respond to his

client’s request for information about sex offender registration

requirements amounted to “deficient performance where counsel

4
  See also Taylor v. State, 698 S.E.2d 384, 388-89 (Ga. Ct. App.
2010) (comparing sex offender registration requirements to the
deportation consequences discussed in Padilla and holding that
“registration as a sex offender, like deportation, is a ‘drastic
measure’ . . . with severe ramifications for a convicted
criminal” and “the failure to advise a client that pleading
guilty will require him to register as a sex offender is
constitutionally deficient performance”).

                                 14
United States v. Riley, No. 11-0675/AR

knew that this was a ‘key concern,’ and where, had the request

been investigated and answered, even counsel acknowledge[d] that

his advice would have been different.”    Id. at 144.

       Thus, in light of the concerns we expressed about sex

offender registration consequences in Miller and Rose, and

following the Supreme Court’s guidance in Padilla, we hold that

in the context of a guilty plea inquiry, sex offender

registration consequences can no longer be deemed a collateral

consequence of the plea.

  b.     The Role of the Military Judge

       At the time of Riley’s court-martial, the Military Judges’

Benchbook set forth detailed instructions for the acceptance of

a guilty plea.     Dep’t of the Army, Pam. 27-9, Legal Services,

Military Judges’ Benchbook ch. 2, § II, para. 2-2-8 (Jan. 1,

2010).   Paragraph 2-2-8, included the following provision:

       If the accused has pleaded guilty to an offense listed
       in DoD Instruction 1325.7, Enclosure 27: Listing of
       Offenses Requiring Sex Offender Processing, the MJ
       must ask the following question:

       MJ: Defense Counsel, did you advise the accused prior
       to trial of the sex offender reporting and
       registration requirements resulting from a finding of
       guilty of (state Specification(s) and Charge(s))?

       DC:    (Responds.)

       MJ: Take a moment now and consult again with your
       defense counsel, then tell me whether you still want
       to plead guilty? (Pause.) Do you still want to plead
       guilty?

       ACC:   (Responds.)


                                  15
United States v. Riley, No. 11-0675/AR

The military judge did not conduct this inquiry during Riley’s

providence inquiry.   Riley challenges his failure to do so and

argues that there is a substantial basis in law or fact to

question the plea.    The CCA dismissed this argument by holding,

“[a]lthough this inquiry of the defense counsel by the military

judge is stated as a requirement, we find that this is countered

by the objective of the Benchbook, which serves as a publication

intended only as a guide with suggestions for military judges.”

Riley, 2012 CCA LEXIS 175, at *9, 2012 WL 1816206, at *3.    The

CCA reasoned that that military judge did not err because “chief

reliance must be placed on defense counsel to inform an accused

about the collateral consequences.”   Id., 2012 WL 1816206, at *3

(citation and internal quotation marks omitted).

     While we agree that the Benchbook is not binding as it is

not a primary source of law, the Benchbook is intended to ensure

compliance with existing law.   In our view, the Benchbook

accurately reflects the Miller and Padilla line of cases

therefore “an individual military judge should not deviate

significantly from these instructions without explaining his or

her reasons on the record.”   United States v. Rush, 54 M.J. 313,

315 (C.A.A.F. 2001) (citation and internal quotation marks

omitted).   “[M]eaningful appellate review of the trial judge’s

decision on this important sentencing matter requires that he

articulate his reason for his decision.”   Id.   In this case,



                                 16
United States v. Riley, No. 11-0675/AR

there is no evidence on the record as to why the military judge

failed to ensure that Riley understood the sex offender

registration consequences of her plea.     The record is completely

devoid of any reference to sex offender registration.

     “In order to ensure that pleas of guilty are not only

knowing and voluntary but appear to be so, detailed procedural

rules govern the military judge’s duties with respect to the

plea inquiry.”   Soto, 69 M.J. at 306 (citing United States v.

King, 3 M.J. 458, 458-59 (C.M.A. 1977)).     Here, the military

judge failed to adhere to the straightforward guidance set forth

in the Benchbook, which simply instructed the military judge to

ensure that defense counsel complied with this court’s decision

in Miller as to advice concerning sex offender registration

requirements.    Such an instruction is clearly consistent with a

military judge’s responsibilities while conducting a plea

inquiry.   As “[t]he trial judge must shoulder the primary

responsibility for assuring on the record that an accused

understands the meaning and effect of each condition as well as

the sentence limitations imposed by any existing pretrial

agreement,”5 it was incumbent upon the military judge to ensure

that Riley’s plea was a “knowing, intelligent act[] done with

sufficient awareness of the relevant circumstances and likely

consequences.”   Brady, 397 U.S. at 748.    “The failure to inform

5
  King, 3 M.J. at 458 (citation and internal quotation marks
omitted).

                                 17
United States v. Riley, No. 11-0675/AR

a pleading defendant that the plea will necessarily require

registration as a sex offender affects whether the plea was

knowingly made.”    Fonville, 804 N.W.2d at 895.

       Given the lifelong consequences of sex offender

registration, which is a “particularly severe penalty,”6 the

military judge’s failure to ensure that Riley understood the sex

offender registration requirements of her guilty plea to

kidnapping a minor results in a substantial basis to question

the providence of Riley’s plea.     Inabinette, 66 M.J. at 322.

       We note that the Government argues, and the CCA held, that

the burden is only on the defense counsel to notify clients

about sex offender registration consequences.      However, the

military judge “shoulder[s] the primary responsibility” for the

acceptance of a knowing plea.      King, 3 M.J. at 458.   Our

decisions as far back as United States v. Care, 18 C.M.A. 535,

541-42, 40 C.M.R. 247, 253-54 (1969), indicate that while the

defense counsel plays an important role in securing a provident

plea, it is the duty of the military judge to ensure “that there

is a knowing, intelligent, conscious waiver in order to accept

the plea.”    To be sure, as we explained in Miller, defense

counsel must inform the accused of these consequences, but it is

the military judge who bears the ultimate burden of ensuring

that the accused’s guilty plea is knowing and voluntary.


6
    Fonville, 804 N.W.2d at 894.

                                   18
United States v. Riley, No. 11-0675/AR

     We therefore conclude that the military judge abused his

discretion when he accepted Riley’s guilty plea without

questioning defense counsel to ensure Riley’s knowledge of the

sex offender registration consequences of her guilty plea to

kidnapping a minor.    The remedy for finding a plea improvident

is to set aside the finding based on the improvident plea and

authorize a rehearing.   United States v. Negron, 60 M.J. 136,

143-44 (C.A.A.F. 2004); see also United States v. Williams, 53

M.J. 293 (C.A.A.F. 2000); United States v. Marsh, 15 M.J. 252

(C.M.A. 1983).7   A rehearing will provide Riley with the

opportunity to enter a guilty plea, or plead not guilty, with

full knowledge of the consequences of her decision.

                              Decision

     The decision of the United States Army Court of Criminal

Appeals is reversed.   The findings and sentence are set aside.

The record of trial is returned to the Judge Advocate General of

the Army.   A rehearing may be ordered.




7
  We are mindful of the requirements of Article 59(a), UCMJ, 10
U.S.C. § 859(a) (2006) and, as in all cases where the court sets
aside a finding of the court-martial, we find the error in this
case materially prejudiced the substantial rights of the
accused.

                                 19
United States v. Riley, No. 11-0675/AR


     STUCKY, Judge, with whom RYAN, Judge, joins (dissenting):

     We granted review to consider two issues:   (1) whether the

defense counsel provided ineffective assistance by failing to

advise Appellant that her guilty plea to kidnapping a minor

whose parent or guardian she was not would require her to be

processed as a sex offender; and (2) whether the military judge

abused his discretion in accepting her guilty plea to such an

offense by failing to inquire whether she had been advised of

the sex offender processing requirement.   The majority does not

reach issue (1) and holds that the military judge abused his

discretion.   I disagree.

     “A finding or sentence of a court-martial may not be held

incorrect on the ground of an error of law unless the error

materially prejudices the substantial rights of the accused.”

Article 59(a), Uniform Code of Military Justice (UCMJ),

10 U.S.C. § 859(a) (2006).   When an appellant asserts that his

counsel provided ineffective assistance “[i]n the context of a

guilty plea, the prejudice question is whether ‘there is a

reasonable probability that, but for counsel’s errors, [the

defendant] would not have pleaded guilty and would have insisted

on going to trial.’”   United States v. Rose, 71 M.J. 138, 144

(C.A.A.F. 2012) (quoting Hill v. Lockhart, 474 U.S. 52, 59

(1985)).
United States v. Riley, No. 11-0675/AR


     “[W]e will reject the providency of a plea only where the

appellant demonstrates a ‘material prejudice to a substantial

right.’”   United States v. Hunter, 65 M.J. 399, 403 (C.A.A.F.

2008) (quoting United States v. Felder, 59 M.J. 444, 446

(C.A.A.F. 2006)).   Where, as here, an appellant seeks relief for

a military judge’s failure to inquire into the appellant’s

knowledge of a sex offender registration requirement, it makes

sense to employ the same prejudice standard in determining

whether an appellant was prejudiced by a military judge’s error

in accepting her guilty plea as we do for ineffectiveness of

counsel claims.

     Whether one frames the question before us as an ineffective

assistance of counsel claim for failing to advise Appellant of

the requirement to register as a sex offender, or as a claim

that the military judge abused his discretion by failing to

ensure that defense counsel had so advised Appellant prior to

accepting Appellant’s plea, as a matter of logic, the touchstone

for granting relief has to be the same:   Appellant must

demonstrate a reasonable probability that, absent the alleged

error, she would not have pleaded guilty, see Hill, 474 U.S. at

59; Hunter, 65 M.J. at 403.   A mere allegation post-trial is

insufficient.   See United States v. Bradley, 71 M.J. 13, 17

(C.A.A.F. 2012) (affidavit alleging that the appellant would not

have pleaded guilty if the defense counsel had made the


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United States v. Riley, No. 11-0675/AR


appellant aware that the plea waived a disqualification issue is

insufficient to demonstrate prejudice:   “Appellant also must

satisfy a separate, objective inquiry -- he must show that if he

had been advised properly, then it would have been rational for

him not to plead guilty” (citing Padilla v. Kentucky, 130 S. Ct.

1473, 1485 (2010))).

     Even if we were to assume that it was deficient performance

for the defense counsel and error for the military judge to fail

to advise Appellant that sex offender processing was one of the

consequences of pleading guilty to the offense charged,

Appellant has not demonstrated material prejudice under the

circumstances of this case.   She has not shown that, if she had

been properly advised of the consequences of pleading guilty, it

would have been rational for her not to do so.

     Appellant was charged with kidnapping a minor whose parent

or guardian she was not.    Article 134, UCMJ, 10 U.S.C. § 934

(2006).   The maximum punishment for this offense includes a

dishonorable discharge and confinement for life without

eligibility for parole.    Manual for Courts-Martial, United

States pt. IV, ¶ 92.e. (2012 ed.).

     The evidence of record established that Appellant, while

dressed in medical scrubs

     entered the baby ward of Darnall Army Medical Center on
     Fort Hood, Texas. Appellant then entered the maternity
     room of a new mother and baby, and pretended to be an


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United States v. Riley, No. 11-0675/AR


     attending nurse. When the mother left to use the bathroom,
     appellant took the baby out of the room and into the
     hallway. After the mother returned and noticed her baby
     missing, she also went out of her room into the hallway.
     At this time appellant was placing the baby in a backpack
     and when the mother saw her, she told appellant to stop.
     Appellant responded that the baby needed to be fed and gave
     the baby back to the mother and left the area. Five days
     later, appellant was apprehended by law enforcement agents
     and admitted to kidnapping the baby from the hospital room.

United States v. Riley, No. 20100084, 2012 CCA 175, at *2–*3,

2012 WL 1816206, at *1 (A. Ct. Crim. App. May 11, 2012)

(unpublished) (footnote omitted).   The mother identified

Appellant as the perpetrator and Appellant’s truck was captured

on video leaving Fort Hood at the relevant time.   After

Appellant’s arrest, her car was seized and searched.   It

contained “an infant car seat, mini diaper bag containing

bottles and formula, a box of Enfamil baby formula, a package of

baby swaddles, a black back pack, one knife with a 10 inch-long

blade, one 8 inch-long knife, one 6 inch-long knife, a pacifier,

blankets, onesies, baby hats, washcloths, bibs, towels and

medical scrubs.”

     The affidavit of Appellant’s defense counsel, in response

to the allegation that her performance was deficient, is

telling:

     The only concern that appellant expressed to me regarding
     her guilty plea was that regardless of my evaluation of her
     confinement risk, facing life without eligibility for
     parole weighed heavily upon her and that if the best cap
     she could get from the government was 11 years, then she
     wanted to take it. She explained that even if the


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United States v. Riley, No. 11-0675/AR


     government would not agree to permit her to be sentenced by
     a panel, she still wanted the 11-year cap.1 She also
     expressed that even if the government would not agree to
     fund her mother’s travel to be a defense witness for her,
     she still wanted the 11-year cap.2 Even understanding that
     I was specifically advising her against offering to plead
     guilty unless the government acquiesced to sentencing by
     panel and agreed to a seven or eight year cap, she
     expressed her fervent desire to receive some cap on
     confinement, even if she was to be sentenced by military
     judge alone.

     With the overwhelming evidence of Appellant’s guilt, her

unwavering desire to accept a cap on her sentence despite the

advice of her counsel to the contrary, and her willingness to

give up her right to have the Government fund her mother’s

travel and her right to have a panel of members decide her

sentence, I am convinced Appellant still would have pled guilty

under the terms of the pretrial agreement, even had she known of

the sex offender processing requirement.   She was faced with a

choice of pleading guilty and getting that cap on confinement or

litigating the case -- which with the state of the evidence

would almost certainly have resulted in her conviction -- and

taking her chances on the sentence.   Sex offender processing was

a certainty in either case.3   Appellant has failed to demonstrate


1
  The defense counsel secured trial by court members.
2
  The defense counsel secured funded travel for Appellant’s
mother.
3
  In light of the strength of the Government’s case, the notion
that the Government would have agreed to a pretrial agreement
that would not trigger such processing is fanciful. See
Missouri v. Frye, 132 S. Ct. 1399, 1409–11 (2012) (holding that
to show prejudice where a plea offer has lapsed or been rejected

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United States v. Riley, No. 11-0675/AR


a material prejudice in this case -- she failed to show that if

she had known she would be required to undergo sex offender

processing, it would have been rational for her not to plead

guilty.   Therefore, I respectfully dissent.




because of counsel’s deficient performance, an accused must
demonstrate not only a “reasonable probability that he would
have accepted the lapsed plea but also a reasonable probability
that the prosecution would have adhered to the agreement and
that it would have been accepted by the trial court”).

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