United States v. Lara

• Court: United States Air Force Court of Criminal Appeals
• Decided: April 10, 2023
• Docket: 40247
• Status: Unpublished

Opinion

U NITED S TATES A IR F ORCE C OURT OF C RIMINAL APPEALS ________________________

No. ACM 40247 ________________________

UNITED STATES Appellee v. Douglas G. LARA Staff Sergeant (E-5), U.S. Air Force, Appellant ________________________

Appeal from the United States Air Force Trial Judiciary Decided 10 April 2023 ________________________

Military Judge: Matthew N. McCall. Sentence: Sentence adjudged 27 September 2021 by GCM convened at Hurlburt Field, Florida . Sentence entered by military judge on 28 Oc- tober 2021: Bad-conduct discharge and 12 months of confinement. For Appellant: Major Stuart J. Anderson, USAF; Major Nicole J. Her- bers, USAF. For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Major Deepa M. Patel, USAF; Major John P. Patera, USAF; Mary Ellen Payne, Es- quire. Before KEY, RAMÍREZ, and GRUEN, Appellate Military Judges. Judge RAMÍREZ delivered the opinion of the court, in which Senior Judge KEY and Judge GRUEN joined. ________________________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4. ________________________ United States v. Lara, No. ACM 40247

RAMÍREZ, Judge: A military judge found Appellant guilty, in accordance with his pleas and pursuant to a plea agreement, of one specification of attempt to view child por- nography in violation of Article 80, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 880, and one specification of willful dereliction of duty for failing to refrain from storing, processing, displaying, and transmitting pornography, sexually explicit material, or sexually oriented material while on duty, in vio- lation of Article 92, UCMJ, 10 U.S.C. § 892.1 Appellant’s plea agreement provided, among other things, that two origi- nally charged specifications would be withdrawn and dismissed with prejudice and there would be a minimum and a maximum sentence that could be ad- judged.2 It also stated, among other things, that the sentence would not include a dishonorable discharge. The military judge sentenced Appellant to a bad- conduct discharge and 12 months of confinement for the attempt to view child pornography specification and 2 months for the willful dereliction of duty spec- ification, each of the two specifications to run concurrently. The convening au- thority took no action on the findings or the sentence. Appellant raises four issues on appeal which we reword as follows: (1) whether Appellant received ineffective assistance of counsel regarding sex of- fender registration requirements; (2) whether the military judge abused his discretion when he accepted Appellant’s guilty plea despite the information he received concerning sex offender registration requirements; (3) whether Appel- lant’s guilty plea to attempted viewing of child pornography was improvident; and (4) whether Appellant’s guilty plea to willful dereliction of duty was im- provident. Having considered Appellant’s assignments of error, we find that Appellant’s pleas of guilty was not a knowing, intelligent act done with suffi- cient awareness of the relevant circumstances and likely consequences. We set aside the findings of guilty as to all Charges and Specifications as well as the sentence and authorize a rehearing. As a result, we do not reach a conclusion on any other raised issue.

1All references in this opinion to the UCMJ are to the Manual for Courts-Martial, United States (2019 ed.). 2 The plea agreement stated that for the attempt to view child pornography offense, Appellant would be sentenced to a minimum of 12 months of confinement and a max- imum of 18 months of confinement. It also stated that for the dereliction of duty of- fense, Appellant would be sentenced to a minimum of one month of confinement and a maximum of six months of confinement. Finally, it stated that any adjudged periods of confinement would run concurrently.

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I. BACKGROUND Appellant stipulated that between March 2019 and December 2019, on multiple occasions, he attempted to view child pornography on his personally owned communication systems and equipment. Appellant further stipulated that, during the same timeframe, he was derelict in the performance of his duties in that he willfully failed to refrain from storing, processing, displaying, and transmitting pornography, sexually explicit material, or sexually oriented material on government computer systems while on duty. Specifically, Appel- lant told the military judge he was viewing adult pornography on his govern- ment computer, at work, in an attempt to prevent his wife from catching him viewing pornography on his home computer after she installed software on the home computer for that purpose. According to Appellant, he would look at por- nography at work in an effort to “get away with it.” Appellant was represented by two military trial defense counsel who as- sisted Appellant in negotiating a plea agreement with the convening authority. The plea agreement was signed by all parties on 13 September 2021. On 24 September 2021, Appellant and his trial defense counsel signed a memoran- dum, which was prepared by both defense counsel.3 The memorandum con- cerns sex offender registration. In relevant part, it provides: You have been charged with attempting to view child pornogra- phy, a violation of Article 80 of the UCMJ. [Department of De- fense Instruction (DODI)] 1325.7[4] requires Department of De- fense officials to notify state and local law enforcement agencies, if you are found guilty of the charged offense. Additionally, if you are found guilty of a lesser included offense that is listed in DODI 1325.7, notification will also be required. If you are con- victed of any offense listed in DODI 1325.7 you may be required to register as a sex offender in your state of residence.

3 During the pendency of his appeal, Appellant filed a declaration and attachments with this court to support his allegations of ineffective assistance. In response to an order from this court, trial defense counsel, Major CB and Captain ET, provided re- sponsive declarations as well as attachments, including the memorandum evidencing the advice. We considered Appellant’s declaration, the declarations of trial defense counsel, and the attachments to resolve the claim of ineffective assistance of counsel. See United States v. Jessie, 79 M.J. 437, 442 (C.A.A.F. 2020) (noting Courts of Criminal Appeals have considered declarations “when necessary for resolving claims of ineffec- tive assistance of trial defense counsel”). 4 Department of Defense Instruction (DoDI) 1325.07, Administration of Military Cor- rectional Facilities and Clemency and Parole (11 Mar. 2013, incorporating Change 4, 19 Aug. 2020). DoDI 1325.07 is also sometimes listed as DoDI 1325.7.

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The memorandum further contains an indorsement from Appellant which pro- vides: I, [Appellant], have read DODI 1325.7, Appendix 4 to Enclosure 2: Listing Offenses Requiring Sex Offender Processing. [Major CB] and [Captain ET] have informed me orally and in writing that I may be required to register as a sex offender if I am found guilty of any offense listed in DODI 1325.7, Appendix 4 to Enclo- sure 2. I fully understand if I plead guilty to, or I am found guilty of, any offense listed in DODI 1325.7, Department of Defense officials will notify state and local authorities of my conviction and I may be required to register as a sex offender. I fully un- derstand that if I am required to register as a sex offender, I must comply with all sex offender registration laws and I may be subject to criminal prosecution if I fail to comply with all sex offender registration laws. Three days later, on 27 September 2021, at Appellant’s court-martial and prior to accepting Appellant’s guilty pleas, the following exchange occurred on the record: MJ [Military Judge]: So as to sex offender reporting and regis- tration requirements, the court’s reading of DoD Instruction[ ] 1325.07, [A]ppendix 4 of [E]nclosure 2, this offense does not re- quire sex offender reporting and registration. Government, what is the [G]overnment’s position? TC [Trial Counsel]: Your Honor, that is the [G]overnment’s un- derstanding as well. MJ: And understanding that this is the federal rule, [D]efense, I believe that you have already discussed this with your client? DC [Area Defense Counsel]: Yes, Your Honor, out of an abun- dance of caution with regard to the state rules, we did discuss the possibility of sex offender registration. MJ: Okay. But just to make sure that it is clear, although that’s -- it’s impossible to say what some state authority might decide, you agree with the court’s and the [G]overnment’s interpretation that this offense that [Appellant] is pleading guilty to does not require sex offenses registration and reporting? DC: That is correct, Your Honor. MJ: So [Appellant], at this time -- well hold on while your coun- sel are talking.

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CDC [Circuit Defense Counsel]: Could we have just a moment, Your Honor? MJ: Sure, let’s go ahead and we will slow things down. We are moving quite [along] this morning, so let’s go ahead and take a recess and then we will come back on the record when you’re ready to go forward. Court is in recess. After a recess, the following exchange ensued: MJ: Please be seated. Court is called order. Parties are again present. All right, I believe where we left off, [Appellant] take a moment now and consult again with your defense counsel and tell me whether you still want to plead guilty. So take your time and talk with them. [The accused conferred with his counsels.][5] MJ: Do you still want to plead guilty? ACC [Appellant]: Yes, Your Honor. Part of trial defense counsel’s declaration to this court provides more in- sight as to what occurred during the colloquy. Major CB’s declaration states: When the [m]ilitary [j]udge asked Defense specifically if advise- ment was required . . . a strategic decision was made that alert- ing the [c]ourt to a loophole, would not be in [Appellant]’s best interest, but would in fact be the opposite. If there was a loop- hole, an error in DODI 1325.7, or an error in the [m]ilitary [j]udge’s reading of the requirements for such advisements, De- fense was not going, to the detriment of our client, bring that to the [c]ourt’s attention. This strategy did not change the advice to [Appellant], nor did it change the substance of the advice and the consequences of which [Appellant] was advised that he could face as a product of his plea of guilty. Shortly after the colloquy above, trial counsel asked to address the issue again. CTC [Circuit Trial Counsel]: Your Honor, I apologize for inter- rupting. So just one point of clarification, earlier you had asked [Appellant] about reporting requirements of the DoDI? MJ: Yes.

5This bracketed comment is contained in the certified transcript of Appellant’s court- martial.

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CTC: And just to make sure it is clear on the record that the [G]overnment’s understanding that that instruction merely in- dicates what sort of offenses the federal government will actively report to the state. Not necessarily what a particular state’s in- dividual reporting requirements may be. And it is our under- standing that the [D]efense has advised [Appellant] that even under the terms of the plea agreement, it is potentially possible that he may have to register given whatever law of the state that he may end up residing in. MJ: Sure. So did we -- so did you give that advice in writing, [D]efense? CDC: Your Honor, we did give that advice in writing. [Appellant] has been advised that a state may have different requirements than the federal and that this is based off of DoD reporting and federal reporting, [ ] we have advised as you have. MJ: Okay. Do you want to make that an Appellate Exhibit, if you have that advice or? CDC: Your Honor, our advice is tied to another legal document that’s attorney[-]client privileged. Unless -- I don’t think . . . MJ: We don’t make it -- I mean, you have put it on the record that you gave that advice. CDC: Certainly. MJ: And you understand that, [Appellant], that every state is different? When we talk about sex offender reporting and regis- tration requirements, we are discussing on the federal level what the military would put on the confinement order and would report. And it doesn’t meet the federal requirements when it comes to the military, but we can’t necessarily say what effect it might have in every state. ACC: Yes, Your Honor. (Omission in original) (emphasis added). After Appellant’s court-martial, the staff judge advocate prepared the first indorsement to the “[S]tatement of [T]rial [R]esults,” which states that sex of- fender notification is not required in accordance with DoDI 1325.07. When Appellant was released from confinement, he received a document entitled, “United States Probation System Offender Notice and Acknowledg- ment of Duty to Register as a Sex Offender.” This document indicated Appel- lant had to register as a sex offender under the federal requirements, pursuant

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to the Sex Offender Registration and Notification Act of 2006 (SORNA) codified at 34 U.S.C. § 20901, and he had to register as a sex offender in any state in which he resided. However, Appellant claims in his declaration that “[p]rior to [his] offer to enter into a plea agreement, [he] was advised by [his] trial defense counsel that [he] would not have to federally register for Attempt to view Child Pornogra- phy.” Appellant continues that he told “trial defense counsel about [his] con- cerns about sex offender registration requirements prior to the offer to plead guilty.” Appellant then states that “[a]t the time that [he] entered into that agreement and when [he] was at [his] court-martial, it was [his] understanding that [he] did not have to federally register.” Regarding the military judge, Appellant claims in his declaration that the “military judge at [his] trial advised [him] on the record that this offense did not require federal registration.” Appellant explains that he “understood that [his] federal conviction and potential sex offender registration requirements imposed by various [s]tates would impact where [he and his family] could live and what jobs [he] could do.” Appellant claims prejudice, arguing he “did not know [he] would have to feder- ally register, which now makes any location or job search more difficult.” Ad- ditionally, Appellant claims that his “concern for [his] minor children and being able to provide for them is documented in both [his] oral and written unsworn statement, which [he] conferred on with [his] trial defense counsel.” Appellant concludes his declaration stating: “I would not have [pleaded] guilty nor entered into a plea agreement if I knew I would have to federally register for attempt to view child pornography.”

II. DISCUSSION A. Law A guilty “plea is more than an admission of past conduct; it is [an accused]’s consent that judgment of conviction may be entered without a trial -- a waiver of his right to trial before a jury and judge.” United States v. Riley, 72 M.J. 115, 120 (C.A.A.F. 2013) (internal quotation marks and citation omitted). Such waivers “not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely conse- quences.” Id. (internal quotation marks and citation omitted). Sex offender reg- istration requirements are some of those relevant circumstances and likely consequences. See id. at 121 (“[W]e hold that in the context of a guilty plea inquiry, sex offender registration consequences can no longer be deemed a col- lateral consequence of the plea.”).

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Trial “defense counsel must inform the accused of [sex offender registra- tion] consequences, but it is the military judge who bears the ultimate burden of ensuring that the accused’s guilty plea is knowing and voluntary.” Id. at 122. There are three different, but interrelated, aspects of sex offense registra- tion pertinent to this case: (1) the federal statute (34 U.S.C. § 20901, et seq.) which requires mandatory sex offender registration for those who are convicted of offenses within the statute’s scope; (2) DoDI 1325.7 which identifies offenses that trigger mandatory sex offender reporting; and (3) state laws concerning registration for qualified sex offenses. See United States v. Miller, 63 M.J. 452, 459 (C.A.A.F. 2006); United States v. Torrance, 72 M.J. 607, 611–12 (A.F. Ct. Crim. App. 2013). “[T]rial defense counsel should inform an accused prior to trial as to any charged offense listed on the DoD Instr[uction] 1325.7 [ ]: Listing Of Offenses Requiring Sex Offender Processing.” Miller, 63 M.J. at 459 (citation omitted). Additionally, trial “defense counsel must be aware of the federal statute that requires mandatory reporting and registration for those who are convicted of offenses within the statute’s scope, as well as DoDI 1325.7, which identifies offenses that trigger mandatory sex offender reporting.” Torrance, 72 M.J. at 611–12 (internal quotation marks, brackets, and citation omitted.) “Trial de- fense counsel should also state on the record of the court-martial that counsel has complied with this advice requirement.” Miller, 63 M.J. at 459. “While fail- ure to so advise an accused is not per se ineffective assistance of counsel, it will be one circumstance [an appellate c]ourt will carefully consider in evaluating allegations of ineffective assistance of counsel.” Id. However, “[g]iven the pleth- ora of sexual offender registration laws enacted in each state, it is not neces- sary for trial defense counsel to become knowledgeable about the sex offender registration statutes of every state.” Id. A military judge has a duty to ensure that trial defense counsel has com- plied with their obligation to advise an accused concerning sex offender regis- tration requirements. Riley, 72 M.J. at 122. The Military Judges’ Benchbook “simply instruct[s] the military judge to ensure that defense counsel [has] com- plied” with our superior court’s requirements for advice regarding sex offender registration requirements. Id. This is “clearly consistent with a military judge’s responsibilities while conducting a plea inquiry.” Id. “Given the lifelong conse- quences of sex offender registration, which is a particularly severe penalty,” a military judge’s failure to ensure an appellant understood the sex offender reg- istration requirements of his guilty plea results in a substantial basis to ques- tion the providence of an appellant’s plea. Id. (internal quotation marks and footnote omitted). In order to determine whether an appellant’s plea was knowing and volun- tary, or whether trial defense counsel were ineffective on such a matter, we

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look to the record of trial. Riley, 72 M.J. at 120; see also United States v. Jessie, 79 M.J. 437, 442 (C.A.A.F. 2020) (noting Courts of Criminal Appeals may con- sider declarations “when necessary for resolving claims of ineffective assis- tance of trial defense counsel”). However, “[d]etermining whether a plea is vol- untary is by no means an exact science.” United States v. Perron, 58 M.J. 78, 85 (C.A.A.F. 2003). “The remedy for finding a plea improvident is to set aside the finding based on the improvident plea and authorize a rehearing.” Riley, 72 M.J. at 122 (citations omitted). “[W]here there is a mutual misunderstanding regarding a material term of a pretrial agreement, resulting in an accused not receiving the benefit of his bargain, the accused’s pleas are improvident” and the law requires remedial action “in the form of specific performance, withdrawal of the plea, or alterna- tive relief.” Perron, 58 M.J. at 82 (citations omitted). B. Analysis As we explained above, there are three relevant aspects of sex offense reg- istration raised in this case: (1) the federal statute, 34 U.S.C. § 20901, et seq., that requires mandatory registration for those who are convicted of offenses within the statute’s scope; (2) DoDI 1325.07, which the Department of Defense identifies offenses that trigger mandatory sex offender reporting; and (3) state laws concerning registration for qualified sex offenses. See Torrance, 72 M.J. at 611–12. Appellant takes issue with the first—federal registration. Reviewing trial defense counsel’s declarations and attachments, it appears that trial defense counsel conflated the federal statutory registration frame- work and the Department of Defense’s sex offender reporting to states. More importantly, there is nothing in (1) trial defense counsel’s “Offenses Requiring Sex Offender Processing Advisement,” (2) Appellant’s indorsement, or (3) the trial transcript indicating that Appellant was ever notified that he would have to register as a sex offender under the federal statutory registration require- ments. In fact, the opposite appears to be the case. During the court-martial, the military judge conducted his own legal anal- ysis of federal registration requirements and told Appellant on the record that he would not have to federally register. It further appears that trial defense counsel believed the military judge’s analysis may have been wrong and pur- posefully chose to keep quiet on the record. The military judge told Appellant on the record that in his “reading of DoD Instructions [sic] 1325.07, [A]ppendix 4 of [E]nclosure 2, this offense does not require sex offender reporting and registration.” Trial counsel agreed with this interpretation and apparently the staff judge advocate did as well, given his annotations in the Statement of Trial Results. Indeed, by all indications, these

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individuals were under the impression Appellant would not be required to reg- ister as a sex offender under the federal system—pursuant to federal law and the Department of Defense instruction. This interpretation, however, turned out to be wrong, and this error did not come to light until Appellant’s release from confinement.6 Now, on appeal, Appellant’s trial defense counsel suggest they might have understood the military judge’s interpretation was incorrect, but made the specific decision not to highlight a possible “error in the [m]ilitary [j]udge’s reading of the requirements for such advisements” by bringing the matter to the court’s attention. During Appellant’s guilty plea colloquy, trial defense counsel first dodged the question with regards to the federal statute and the DoD Instruction: MJ: And understanding that this is the federal rule, [D]efense, I believe that you have already discussed this with your client? DC: Yes, Your Honor, out of an abundance of caution with regard to the state rules, we did discuss the possibility of sex offender registration. Then trial defense counsel put on the record that they agreed with the military judge’s reading of the law: MJ: Okay. But just to make sure that it is clear, although that’s -- it’s impossible to say what some state authority might decide, you agree with the court’s and the [G]overnment’s interpretation that this offense that [Appellant] is pleading guilty to does not require sex offenses registration and reporting? DC: That is correct, Your Honor. (Emphasis added). Shortly afterwards, trial defense counsel put on the record, “[W]e have ad- vised as you have,” telling the military judge that they advised Appellant that his plea did not require federal sex offender registration and reporting. In order to determine whether Appellant’s plea was knowing and volun- tary, we have looked to the record of trial and the documents submitted by Appellant and trial defense counsel. We find that Appellant’s plea may have been voluntary but was not a knowing, intelligent act done with sufficient awareness of the relevant circumstances and likely consequences. See Riley, 72 M.J. at 121. Specifically, because Appellant was not properly informed— and was then misinformed—about federal sex offender registration, we find

6The Government does not challenge Appellant’s assertions that he was appropriately required to register with federal authorities.

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that his plea of guilty was not a knowing, intelligent act done with sufficient awareness of the relevant circumstances and likely consequences. This, however, does not end our analysis. Appellant makes clear in his dec- laration that he “would not have [pleaded] guilty nor entered into a plea agree- ment if [he] knew [he] would have to federally register for attempt to view child pornography.” We read that to mean he would not have entered into a plea agreement as to either offense knowing the consequences of a plea of guilty as to the one offense. Neither the Government nor trial defense counsel rebuts his claim with any evidence for us to consider. Accordingly, we are left to determine which one of the three remedial ac- tions listed in Perron should be taken. See 58 M.J. at 82. We have considered specific performance, withdrawal of the plea, and alternative relief. Here, nei- ther specific performance—deregistering from a federal sex offender list—nor alternative relief is available. Perron instructs that if neither specific perfor- mance nor alternative relief is available, “the result is to nullify the original pretrial agreement, returning the parties to the status quo ante.” Id. at 86. Therefore, we find the only appropriate remedial remedy is to nullify the original plea agreement and return the parties to the status quo ante. We set aside the findings and the sentence and authorize a rehearing.

III. CONCLUSION The findings of guilty as to all Charges and Specifications are SET ASIDE. The sentence is SET ASIDE. A rehearing is authorized. The record of trial is returned to The Judge Advocate General. Article 66(f), UCMJ, 10 U.S.C. § 866(f). Thereafter, Article 66(b), UCMJ, 10 U.S.C. § 866(b), will apply.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court