Articles Posted in Collateral Consequences

The AFCCA has issued its opinion in the relook at United States v. Rose.  The court comes to the same conclusion that the defense counsel advice to the client about sex offender registration was wrong and IAC.  The initial decision at AFCCA is here, and CAAF’s 28 October 2009 journal entry and order is here.

The statements of the appellant’s civilian defense counsel clearly attempt to minimize the seriousness of the indecent assault charges and assure the appellant that he would not have to register as a sex offender. In his testimony at the DuBay hearing, Mr. NC, the appellant’s civilian defense counsel, repeatedly used such phrases as “fairly innocuous” and “just foolery” to describe the sexual assault offenses. Mr. NC claimed lack of memory on many points but, in response to questions from the military judge, did recall concluding that sex offender registration was “not really a credible concern.” Consistent with this testimony, the appellant testified that when he directly asked Mr. NC if sex offender registration would be required Mr. NC told him: “I don’t see why it would be with the allegations that were brought against you. I don’t see why that would be a registerable offense.”

Bottom line it appears AFCCA believes the defense counsel considered the statements as “affirmative misrepresentations . . . concerning significant collateral consequences.”  Slip op. at 5.  Rose was tried in 2005. reports that:

Both the Montgomery and Post 9/11 GI Bills are worth over $49,000. This money is not a loan and will help you cover the costs of getting a degree. Full-time students receive up to $1,368 a month no matter how much tuition costs. The Post 9/11 GI Bill may even give you a monthly housing stipend of $1,200.

Allen v. United States Air Force, No. 08-3450 (8th Cir. 7 May 2010).

Joseph Allen served in the United States Air Force (Air Force) for more than twenty years, from January 14, 1985, until September 30, 2006, when he voluntarily retired and received an Honorable Discharge. During his service, on February 18, 2004, the Air Force initiated general court-martial proceedings against Allen, alleging that he took indecent liberties with a minor child and contributed to the delinquency of two minor children. The general court-martial trial began more than two years later, on March 21, 2006. Allen was convicted, and his sentence included a reduction in grade from Master Sergeant (E-7) to Senior Airman (E-4), significantly reducing his retirement benefits. Following the conviction, Allen filed a complaint against the Air Force and nineteen individuals in the District Court for the District of North Dakota, claiming that his Sixth Amendment speedy trial rights were violated. The district court[ 2 ] granted the Air Force’s motion for summary judgment. Allen appeals, and for the following reasons, we affirm. Allen also moves to supplement the record, and we deny his motion.

Following his conviction, Allen requested that the court-martial’s findings and sentence be set aside and that the charge and specifications be dismissed because the military judge should have granted Allen’s motion to dismiss for violation of his speedy trial or due process rights. In a memorandum, the Director of the Air Force Judiciary, Colonel Roberta Moro, acting pursuant to Article 69 of the UCMJ, reviewed the record of the court-martial, determined that no relief was warranted and declined to send the case to the Air Force Court of Criminal Appeals because the court-martial’s findings and sentence were supported by law. On September 30, 2006, Allen voluntarily retired from the Air Force and received an Honorable Discharge.

Here courtesy of Sentencing Law & Policy:

This weekend’s must-read comes via this link at SSRN to a new piece by Margaret Colgate Love and Gabriel Chin concerning the Supreme Court’s important decision late last month in Padilla v. Kentucky.   "Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction."  Here is the abstract:

In Padilla v. Kentucky, 559 U.S. (March 31, 2010), the Supreme Court broke new ground in holding in a 7-2 decision that a criminal defense lawyer had failed to provide his noncitizen client effective assistance of counsel when he did not tell him that he was almost certain to be deported if he plead guilty.  It is the first time that the Court has applied the 1984 Strickland v. Washington standard to a lawyer’s failure to advise the client about a “collateral” consequence of conviction – something other than imprisonment, fine, probation and the like, that the court imposes at sentencing.  While Padilla’s implications for cases involving deportation are clear, it may also require lawyers to consider many other legal implications of the plea.

The Supreme Court has issued an opinion in Padilla v. Kentucky, which addresses the duty to inform a client of the collateral consequences of the conviction on their immigrant status.  I have posted on this in connection with United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006) and other cases: here, here, here, and here.  Here’s a link to Padilla on SCOTUSWiki.  There are important consequences for military practitioners because as I have pointed out, there are thousands of green-card holders serving in the military.  Here are a some highlights – more later.

Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient.  Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here.

So, to what extent does Padilla impact Denedo?  Here is the SCOTUSWiki link to the Supreme Court litigation in Denedo.  Here is a link to Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008).  Here is a link to United States v. Denedo, in which N-MCCA denied Denedo relief again.

Not all states allow a prior court-martial conviction into evidence.  But as the decision in Oliver v. Commonwealth, 60 S.E. 2d 567 (2005), shows, the Commonwealth of Virginia considers a prior special court-martial conviction admissible in sentencing.

In principle, we accept that certain "wholly unconstitutional" convictions can be collaterally attacked and disqualified for consideration during sentencing. United States v. Tucker, 404 U.S. 443 (1972).  But, when available, the collateral attack remedy would not be offered on the ground that the invalid UCMJ conviction rested on something other than the "laws of … the United States" as that phrase appears in Code § 19.2-295.1. Instead, the invalid UCMJ conviction would be excluded from trial, if at all, because it violated a higher law of the United States: the Federal Constitution.

In any event, we need not address Oliver’s hypothesis further. He does not raise on appeal any constitutional objections in contest of his UCMJ convictions.

In this case we decide whether Joshua Williams, who pleaded guilty to carnal knowledge of a minor in violation of military law while serving in the Navy, is exempt from registration as a sex offender pursuant to Penal Code sections 290, subdivision (c) and 290.005 (undesignated statutory references are to the Penal Code), and therefore entitled to have his name removed from the Justice Department’s sex offender registry. We conclude that based on Williams’s plea, he was denied equal protection of the law in that persons convicted in California of the equivalent offense of unlawful sexual intercourse in violation of section 261.5 are not required to register. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1206-1207 (Hofsheier).) In reaching this conclusion, we focus on the offense of which Williams was convicted, not a hypothetical offense of which he could have been convicted based on the conduct underlying the charge. (People v. Ranscht (2009) 173 Cal.App.4th 1369, 1374-1375 (Ranscht).) Accordingly, the trial court erred in denying Williams’s request to have his name removed from the registry.

Williams v. Superior Court of San Diego, D055457 (10 March 2010).

An Air Force colonel will be forced to retire as a first lieutenant, an Air Force review determined.

Col. Michael D. Murphy, convicted in April 2009 by a general court-martial for failing to tell the Air Force he was disbarred as an attorney in 1984, will be retired from the Air Force effective April 1 as a first lieutenant, Air Force spokesman Lt. Col. Barbara Carson said Monday.

By operation of 10 U.S. Code Sec. 1407, his monthly retirement check will be based on the amount of his last check.  That last check will be based on his being an O-2 with 20 plus years of service.  $4377.30 is the current rate for over 20 years, still nothing to sniff at under the circumstances.

The 8th Circuit Court of Appeals considers a conviction of “housebreaking,” under Article 130, UCMJ, to be a crime of violence for firearms possession charges in federal district court.  We frequently are asked by clients if they can still own a firearm.  The answer is a very nuanced one, as Begay and Whetzell indicate.

Appellant’s prior crime, the crime of housebreaking, occurs when "[a]ny person subject to [the Uniform Code of Military Justice] . . . unlawfully enters the building or structure of another with intent to commit a criminal offense therein. . . ." 10 U.S.C. § 930. . . .

Appellant’s primary argument against this conclusion is that the district court improperly referenced the military court’s discussion of the underlying facts of his conviction. Generally, a court is only to consider "the fact of conviction and the statutory definition of the prior offense." Taylor, 495 U.S. at 602. But the district court’s reference in this case to the underlying facts of Appellant’s housebreaking conviction, as articulated in the military court’s opinion, does not change the fact that the elements of housebreaking constitute a generic burglary crime, a crime of violence under our precedents. Further, and contrary to Appellant’s argument, the Supreme Court’s opinion in Begay v. United States, 553 U.S. 137 (2008), did not alter our decisions in regard to generic burglary and does not provide reason for reversal.

Haven’t posted on this for a while.  There’s a lot going on out there in terms of state and federal litigation.  A significant issue relates to the types of restrictions on a sex offender.

So, what are the limits on computer and technology use for those convicted of sex offenses?

Although rules may vary, many state lawmakers have begun to advocate for ways to limit sex offenders’ use of technology to find more victims.

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