The perils of sex offender registration for defense counsel

We all know that military defense counsel is required to advise a client of potential sex offender registration issues since United States v. Miller, 63 M.J. 452, 458-59 (C.A.A.F. 2006).

With that in mind, United States v. Toth, No. 201700014 (NMCCA 28 February 2018) is worth the read.

In Toth, the appellant alleged he was misadvised in his guilty plea by his defense counsel that he would not have to register as a sex offender and that his counsel were ineffective for that reason.  At trial

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.  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.”  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?”  The appellant said that he did.

Relying on Miller, the NMCCA found that the counsel was not ineffective.

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.”  TDCs are required, however, to advise their clients of the contents of the relevant Department of Defense (DoD) instruction, which identifies those offenses that trigger mandatory sex offender reporting.

Everyone was correct here.  While a person may not have to register today, the laws change.  The federal appellate courts have held there is no ex-post facto violation by applying new changes retroactively.  Whereas, some states are now finding that new changes are no retroactive under their state constitution.

SOR is complicated.

SOR laws change.

That’s the bottom line.  To quote an old TV cop show, “be careful out there.”

Check the DOD Instruction.

Check the state law.

Make sure you tell the client that the law can change!

And take note:

The appellant argues that the TDC’s performance should be found deficient under United States v. Rose [71 M.J. 138 (C.A.A.F. 2012)].  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.  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.

The problem in Rose is that the defense counsel did nothing in response to the client’s registration question.