United States v. Rose

THOMPSON, Judge

(Concurring in part, Dissenting in part).

I join the majority’s opinion on all issues except the appellant’s ineffective assistance of counsel claim. There I must respectfully dissent.

As the majority notes, affirmatively misleading a criminal defendant about significant collateral consequences of a criminal conviction can rise to the level of ineffective assistance of counsel. 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). However, this is not such a case. Rather, for the reasons set forth below, I find the appellant failed to establish an affirmative misrepresentation on the part of his attorneys and conclude the appellant failed to meet either prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Ineffective Assistance of Counsel

Performance

The Strickland totality of the circumstances test mandates that we determine the *639import of Mr. C’s responses to the appellant’s questions about sex offender registration by considering the entire response within the context of the entire case. It is clear from the appellant’s own testimony at the DuBay21 hearing that Mr. C prefaced each response to the appellant’s questions by saying he did not know or was not sure of the answer, and indicated that he would have to research the matter further to determine the answer. The appellant testified at the Du-Bay hearing that he “probably brought it up to him two or three times.” Based on that response, the appellant clearly knew that he did not have a definitive answer to his question, yet nonetheless elected to proceed forward with the pretrial agreement (PTA), relying only on his “impression” that he would not have to register as a sex offender if convicted. I also find it instructive that the appellant, prior to raising the question with Mr. C and Capt L, had “heard rumors” that he might indeed have to register as a sex offender, so was already aware that it might be a possibility.22 Although the appellant indicated that such rumors “were put to an end by my counsel,” the totality of his Du-Bay testimony, and specifically his acknowl-edgement that Mr. C told him he did not know the answer, belies that statement. The DuBay hearing military judge found the appellant was never told that he would not have to register. Thus, I conclude that the appellant’s attorney never made an affirmative representation, but simply failed to effectively answer the appellant’s question directly and clearly.

Therefore, just as the complete failure to provide any advice on the need to register as a sex offender as a consequence of a criminal conviction has been held to be within the range of professional competence, I conclude that counsel’s acknowledgement, in response to questions two or three times about such consequences, that he did not know, is also not constitutionally deficient performance within the meaning of prong one of Strickland. As our superior court has indicated in United States v. Miller, 63 M.J. 452 (C.A.A.F.2006), the Constitution does not require criminal defense counsel to be all-knowing, especially in the area of law here at issue, which encompasses a “plethora of sexual offender registration laws enacted in each state_” Miller, 63 M.J. at 459. Additionally, an impression held by an appellant with respect to an issue, even a reasonable impression, is not sufficient to conclude this rises to the level of ineffective assistance of counsel. To hold otherwise opens the floodgates to all manners of impressions an accused may draw from his counsel’s demean- or, words, or lack of response.

While the failure to address questions regarding sex offender registration, in the face of repeated questioning, is not acceptable, I find no authority for the conclusion that this failure amounts to a constitutional defect, particularly in the face of Supreme Court precedence highlighting that “the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas.” United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). To conclude otherwise would simply encourage collateral attacks of guilty pleas whenever a defense counsel fails to answer every question related to a collateral consequence of a guilty plea posed by an accused. While I agree with the majority that sex offender registration is a serious issue, the fact remains, it is a collateral issue that constitutionally is outside the scope of any inquiry regarding the Sixth Amendment23 right to counsel.

*640 Prejudice

I also conclude the appellant has failed to establish the prejudice prong of the Strickland test. The Supreme Court has held the prejudice requirement of Strickland “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, bqt for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The appellant has not met this burden.

The mere fact that the appellant, knowing that he did not have a definitive answer, nonetheless was still willing to enter into a favorable PTA and plead guilty to the indecent assaults strongly contradicts his DuBay testimony that he would not have pled guilty to those offenses if he had known he was required to register Simply put, his actions speak louder than his appellate protestations to the contrary. From his willingness to plead guilty without a definitive answer, I conclude that while sex offender registration was, as the DuBay judge found, a “key concern,” it was not the controlling concern. Rather, as Mr. 0 testified, the length of potential confinement “was an overriding concern” and the decision to plead guilty to the indecent assault offenses “was finally settled on the importance of the term of confinement, a limitation of confinement....”24 The appellant faced significant potential confinement of 41 years and 6 months for the offenses he was charged with as compared to the 24-month confinement cap pursuant to the PTA.25 The DuBay hearing testimony contained references to PTA negotiations immediately prior to trial surrounding the three indecent assault charges. Mr. C testified this was heavily negotiated. Without the three indecent assault charges being included in the PTA, the record indicates the government would not approve the PTA. In fact, the appellant testified at the DuBay hearing that Mr. C told him to “plead out so we have a safety net of twenty-four months, and then we try to beat the twenty-four months with the different extracurricular activities and the sentencing phase....” The record is clear. Limiting the confinement length was the controlling concern surrounding the decision to plead guilty to all the charges and specifications, including the three indecent assault specifications.

Review of the entire record reveals additional support for concluding that the appellant failed to establish that he was prejudiced. During the trial, the military judge inquired into the terms of the PTA and the appellant’s plea. The relevant excerpts are as follows:

MJ: Have you had enough time to discuss this agreement with your defense counsel?
ACC: Yes, sir.
MJ: Are you satisfied with their advice concerning the agreement is in your best interest?
ACC: Yes, Your Honor.
MJ: Did you enter into the agreement of your own free will?
ACC: Yes, sir.
MJ: Has anyone tried to force you to enter into the agreement?
ACC: No, sir.
MJ: Do you have any questions about the agreement?
ACC: No, sir.
MJ: Do you fully understand all the terms of the agreement and how they affect your case?
ACC: Yes, sir.
MJ: Thank you. Airman Rose, have you had enough time and opportunity to discuss this case with both your defense counsel?
ACC: Yes, sir.
*641MJ: Have you, in fact, consulted fully with your defense counsel and received the full benefit of their advice?
ACC: Yes, sir.
MJ: Are you satisfied that their advice is in your best interest?
ACC: Yes, sir.
MJ: Are you satisfied with your defense counsel?
ACC: Yes, sir.
MJ: All right. Airman Rose, I don’t believe anything this morning or this afternoon has taken you by surprise. Nevertheless, if you would like, we’ve had extended delays and recesses. I’ll be happy to give you any more time you need to discuss any outstanding issues or questions you have with your lawyers, or we can press on. That’s your call. Do you want to take a minute, or do you want to press on?
ACC: We can press on, sir.

The appellant had the opportunity to clear up this important issue with the military judge or with his counsel, but did not do so. The appellant knew he did not have an answer, yet he also knew he was gaining the benefit of a limit on confinement length. If the issue was as important to the plea as the appellant is now asserting, he would have taken this opportunity to clarify the issue.

Furthermore, review of the appellant’s actions following sentencing and during clemency provide additional support that the appellant has not shown he was prejudiced. As background, the appellant testified in the DuBay hearing that upon entry into confinement he found out he would have to register as a sex offender. He testified he was “real upset” and “real mad” at his counsel. The DuBay hearing judge asked him, “So you at no point wanted to talk to either of them about the advice they gave you when you found out you were going to have to register?” The appellant answered: “No ma'am, I didn’t want to talk to either one of them about it.” The appellant testified that he did call his mother and “got in touch with some of her friends that are attorneys that started trying to find out information.” The appellant was sentenced on 11 October 2005 and submitted clemency dated 3 November 2005. The clemency submission included a memo from the military trial defense counsel, a two-page memo from the appellant, and four letters from family members. There is not one reference in the clemency submission to the sex offender registration issue. The letters from family request the confinement be shortened and the discharge be changed. Even the letter from his mother has no mention of the sex offender registration issue. The defense counsel asks that confinement be shortened to 15 months. Finally, the appellant’s own clemency memo requests the confinement be shortened to 15 months and contains nearly two pages of justification for granting clemency, but no mention of the sex offender registration issue. It is reasonable to conclude that had this issue been the reason the appellant pled guilty to the three indecent assault specifications, the issue would have been raised during clemency.

Based on the above, the appellant has failed to meet his burden as to both prongs of Strickland and his ineffective assistance of counsel claim is therefore without merit. I accordingly now turn to the additional assertions of error not specifically addressed by the majority.

Providency of Plea

The appellant asserts that his plea to Specification 3 of Charge Y, alleging indecent assault of Airman First Class (A1C) TMG, was improvident.

We review a military judge’s decision to accept a plea of guilty for abuse of discretion and will not set aside a plea of guilty on appeal unless there is “substantial basis” in law or fact for questioning the plea. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F.2008) (internal quotations omitted). “If an accused ‘sets up a matter inconsistent with the plea’ at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea.” United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F.1996) (quoting Article 45(a), UCMJ, 10 U.S.C. § 845(a)) (citing Rule for Courts-Martial (R.C.M.) 910(h)(2)). “Once the military judge has accepted a plea as provident and has entered findings based on *642it, an appellate court will not reverse that finding and reject the plea unless it finds a substantial conflict between the plea and the accused’s statements or other evidence of record. A ‘mere possibility’ of such a conflict is not a sufficient basis to overturn the trial results.” Id. (citations omitted).

The specification at issue alleged that the appellant indecently assaulted A1C TMG “by kissing her and grabbing her by the crotch.” At trial, evidence of the offense was provided by a stipulation of fact and by the appellant’s admissions during the Care26 inquiry. According to the stipulation of fact, the assault occurred at a party attended by 15-20 people, where the appellant “tried to make a pass at [A1C TMG]” and “kissed her twice without her consent.” The stipulation also indicates that when A1C TMG later bent down to pick up a water bottle, the appellant “slid his hand down the center of her buttocks from behind and grabbed her by the crotch ... pull[ing] her backwards at the same time.” The stipulation specified that the appellant’s assaults on A1C TMG were done “with the intent to gratify his sexual desires.”

During the Care inquiry, the appellant provided additional details of his actions toward A1C TMG. With regard to the kissing incident, he indicated in part: “I made a little advance on her. I told her to give me a kiss on the cheek. When she leaned over to do that, I moved my lips toward hers and met her lips to lips. Then, the second time, I tried to kiss her on the lips, which didn’t work. She turned away.”

With regard to the allegation that he grabbed A1C TMG’s crotch, the appellant indicated that “[w]hen she bent over to grab the water bottle, [he] reached under her legs and pulled her to [him].” Later during the inquiry, the following additional colloquy occurred between the military judge and the appellant:

MJ: Tell me about the grabbing of the crotch. You told me that you reached between or under her legs. Is that right?
ACC: Yes, sir.
MJ: Where was she facing as you did that?
ACC: She was actually' — came over to grab something, and I kind of just reached up and pulled like this way at her stomach with my arm all the way up towards me. MJ: Okay. Airman Rose has extended his right hand, palm up, and pulled the palm back toward his face.

Based on the above exchanges, the appellant now argues that because A1C TMG consented to kiss the appellant on the cheek, the kiss that actually occurred, when he met her “lips to lips,” was itself arguably consensual. He asserts that the judge should therefore at least have explained to him the potential defense of mistake of fact as to whether or not A1C TMG consented to the kiss. As to the allegation that he grabbed A1C TMG’s crotch, the appellant asserts that his testimony that he placed his arm between her legs and pulled her toward him is inconsistent with the stipulation of fact assertion that he slid his hand down her buttocks and grabbed her crotch. He argues that the military judge should have resolved the discrepancy before accepting his plea, but did not. Finally, with respect to both actions, the appellant asserts there was not a sufficient basis for the judge to find that the appellant acted with “unlawful force or violence” or with the intent to “gratify his lust or sexual desires.” He cites United States v. Hoggard, 43 M.J. 1 (C.A.A.F.1995), for the proposition that not every kiss or attempted kiss, even if done with romantic intent, necessarily encompasses an intent to gratify the lust or sexual desires of the kisser. Likewise, with respect to the purported crotch grabbing, he asserts that “attempts at crude horseplay” also do not evidence the intent required for the offense of indecent assault.

I find no merit in the appellant’s arguments. The stipulation of fact, which he signed and the military judge properly admitted at trial, sets forth sufficient facts to establish all the required elements of indecent assault. Nor is there any material conflict between the stipulation of fact and the appellant’s admissions during the Care inqui*643ry.27 A1C TMG’s consent to kiss the appellant on the cheek did not, under the facts of this ease, equate to consent to what the appellant now refers to as the “lip-lock” he instead gave her. Further, her consent to one kind of kiss did not, without more, raise the specter of a mistake of fact defense as to the other. On the contrary, the stipulation of fact specifically indicates that A1C TMG did not consent to the appellant’s “lip-lock” and the appellant specifically admitted to the military judge that the kiss he gave A1C TMG was “different from that offered” and was “against her will and without her consent.” The fact that such admissions were in response to questions by the military judge does not make them any less compelling. The appellant also specifically admitted that he had no legal justification or excuse for laying a “lip-lock” on A1C TMG without her consent.

I also find no significant conflict between the stipulation of fact and the appellant’s explanation to the judge of how he grabbed A1C TMG’s crotch. When examining the provideney of a challenged guilty plea, we are ever mindful that it is human nature for an accused to rationalize his own behavior or to paint his actions in as favorable a light as possible. United States v. McCrimmon, 60 M.J. 145, 152 (C.A.A.F.2004). Accordingly, minor variations or omissions in an accused’s discussion of his offenses with the military judge are neither unexpected nor fatal to a guilty plea. In any event, even taking the appellant’s explanation during the Care inquiry literally, the stipulation of fact does not indicate exactly how the appellant “grabbed” the victim’s crotch, nor what part of his own body he used to do so. From the additional details provided by the appellant in his discussion with the military judge, it is evident, though not expressly stated, that he may have grabbed A1C TMG’s crotch not with his hand, but with the crook of his arm when he reached up between her legs from behind and pulled her back toward him with his hand on her stomach. There is no indication that the victim found the appellant’s behavior any less offensive simply because he grabbed her crotch with his arm instead of his hand, nor does such after-the-fact appellate word parsing negate the provideney of his plea.

The appellant’s current contention that neither the kiss nor the crotch grabbing was done -with the requisite intent to gratify his lust or sexual desires is contradicted by the record. The stipulation of fact specifically indicates that the appellant acted with such intent. Similarly, when the military judge, referring to both actions, asked the appellant what he was trying to do, the appellant replied “I was trying to pretty much gratify my sexual desires.” That response, under oath, to an open ended question by the military judge, speaks volumes. Indeed, who better than the appellant to know his own intent? Thus, while the appellant correctly notes that not every stolen kiss or attempt at “crude horseplay” constitutes an indecent assault, either can, given the right circumstances and intent. The record, including the appellant’s explanation of his offenses during the Care inquiry, demonstrates beyond a reasonable doubt that such circumstances and intent are present here.

Sentence Appropriateness

The appellant also asserts that the portion of the adjudged and approved sentence extending to a dishonorable discharge is inappropriately severe.28

This Court reviews sentence appropriateness de novo. United States v. Baier, 60 M.J. 382 (C.A.A.F.2005). We make such determinations in light of the character of the offender, the nature and seriousness of his offenses, and the entire record of trial. United States v. Snelling, 14 M.J. 267, 268 (C.M.A.1982); United States v. Rangel, 64 M.J. 678, 686 (A.F.Ct.Crim.App.2007).

Having carefully considered the nature of the appellant’s offenses and the other evidence of record properly admitted at trial, I find the adjudged and approved sentence to *644be fair, just, and appropriate. The offenses of which the appellant was convicted are both many and serious. In addition, the appellant had an established track record of prior disciplinary actions, including a prior civilian conviction for driving while intoxicated and a prior nonjudicial punishment action for failing to go to his place of duty, making a false official statement, and willfully disobeying the order of a noncommissioned officer. Given his offenses and record, a dishonorable discharge is not inappropriately severe.

APPENDIX Appellate Processing Chronology

Dates Events

11 Oct 05 Trial completed.

17 Nov 05 Case initially docketed with the Court.

14 Feb 06-21 Nov 06 Delay granted to the appellant to file assignment of errors. (Does not include the normal 60 days allotted appellant to file assignment of errors or the 30-day automatic extension of time provided by the Court’s Rules of Practice and Procedure.)

21 Nov 06 Appellant filed initial assignment of errors, raising three assertions of error.

18 Dec 06-23 Mar 07 Delay granted to the government to file answer, obtain affidavit from trial defense counsel, and obtain a confinement facility report of investigation referenced in the appellant’s assignment of errors. (Does not include the normal 30 days allotted the government by the Rules to file answer.)

23 Mar 07 Government filed answer, along with initial trial defense counsel affidavit and confinement facility report.

28 Jun 07 Court found the initial trial defense counsel affidavit lacking, and directed the government to obtain an additional affidavit directly addressing the IAC * issue raised by the appellant.

1 Aug 07 Government filed the required additional affidavit.

7 Sep 07 Court ordered a DuBay hearing to address the IAC issue, directing completion by 21 Oct 07. An administrative error delayed distribution of the Court’s order until 17 Oct 07.

24 Oct 07 Convening Authority (CA) directed DuBay hearing IAW the Court’s Order.

9 Nov 07 Appellant requested a delay until 1 Feb 08 to complete the DuBay hearing.

13 Nov 07 Convening order published.

15 Nov 07 DuBay judge, with the agreement of the appellant and the government, set the hearing for 8 Jan 08. Action initiated to bring the appellant back to active status from appellate leave for the hearing.

8 Jan 08 DuBay hearing.

28 Jan 08 DuBay record transmitted to the Court.

28 Mar 08 Appellant filed supplemental assignments of error, re-addressing the IAC issue in light of the DuBay result and raising a new, unrelated assertion of error.

*64511 Apr 08 Appellant filed supplemental citation of authority and analysis.

28 Apr 08 Government filed answer to supplemental assignments of error.

23 May 08 Court specified issue, directing the parties to further address potential prejudice to the appellant arising from the asserted IAC error.

20 Jun 08 Appellant filed second supplemental assignment of errors, addressing the specified issue.

26 Jun 08 Appellant moved for oral argument on the IAC and specified issues.

21 Jul 08 Government filed answer to second supplemental assignment of errors.

24 Jul 08 Court granted request for oral argument and, in consultation with the appellant and the government, set argument for 28 Aug 08.

11 Aug 08 Court changed argument date to 27 Aug 08.

25 Aug 08 Appellant filed second supplemental citation of authority and analysis.

26 Aug 08 Appellant filed third supplemental citation of authority and analysis.

27 Aug 08 Oral argument.

3 Sep 08 Government filed motion asking the Court to order an affidavit from the appellant’s first assigned defense counsel, who is not named in the IAC claim.

11 Sep 08 Appellant filed reply.

22 Sep 08 Court denied government motion.

. United States v. DuBay, 37 C.M.R. 411, 1967 WL 4276 (C.M.A.1967).

. The appellant did not specify the source of such rumors. At the DuBay hearing, the appellant indicated that he had been represented by another military defense counsel prior to his representation by Mr. C and Capt L. Upon the objection of the appellant, the military judge prohibited the government from questioning the appellant concerning what, if any, advice he had received from his prior counsel on sex offender registration and prohibited the government from calling the prior counsel as a witness for that purpose. This Court similarly denied a government motion to direct an affidavit from the prior counsel on this issue.

.U.S. Const, amend. VI.

. Having so found, I need not determine whether or not the appellant was in fact required to register as a sex offender.

. Both the trial and defense counsel calculated the maximum punishment to include 37 years confinement; this minor miscalculation did not prejudice the appellant.

. United States v. Care, 40 C.M.R. 247, 1969 WL 6059 (C.M.A.1969).

. The appellant correctly observes that although the stipulation of fact indicates that he twice kissed A1C TMG without her consent, the Care inquiry colloquy indicates he did so only once, and that his second attempt to do so was unsuccessful. This minor discrepancy is insignificant and lacks any potential prejudicial impact.

. This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982).

Ineffective assistance of counsel.