United States v. Talkington

STATES, Appellee UNITED TALKINGTON,

Korey Airman First J. Force,

Class, Appellant. U.S. Air

No. 13-0601.

Crim.App. 37785. No. Appeals Court of for

U.S. Armed Forces.

Argued Dec. 2013. April

Decided

Sex offender is a collateral consequence alone, of the conviction not the sentence. may While an accused raise a collateral in an unsworn state ment, Rosato, United States v. (C.M.A.1991), 95-96 our also makes clear that military judge instruct the essentially disregard collateral arriving at an appropriate sentence for an accused. United States v. 485-86 (C.A.A.F.2005); Tschip, M.J. Because the here, took such action decision of the United States Air Force (AFCCA) Court of Appeals Criminal is af firmed.

I. FACTS The facts granted relevant issue Contrary are few. to his pleas, general composed court-martial of officer and enlist- ed members Appellant convicted of two RYAN, specifications J., attempted aggravated opinion delivered sexu- of the al Court, specification assault and one STUCKY, attempted in which ERDMANN and contact, JJ., abusive sexual joined. BAKER, C.J., both in violation of separate filed a Article Uniform opinion result, Military Code of conсurring in Justice in which (UCMJ), (2012).1 OHLSON, J., § 10 U.S.C. joined. The un- derlying Appellant facts were that touched Appellant: For Captain Thomas A Smith penetrated victim’s breasts and vagi- her (argued); Lieutenant Colonel Jane E. Boom- na while he believed that she sleeping, Captain er and K. Travis Ausland. substantially incapable thus declining Appellee: For Captain participation. court-martial, Matthew J. Neil At the in his (argued); Christensen; during Colonel Don M. sentencing, Ap- pellant Taylor register Lieutenant Colonel C. stated: “I will Smith and havе to as a (on brief); Gerald Major R. Bruce sex offender for life ... I very Charles am not sure G. Warren. what sort of work I can find.” instructed the members Judge RYAN opinion delivered the as follows on how to make Appellant’s use of Court. unsworn statement: granted Appellant’s We petition to review The court will not draw adverse infer- following issue: ence from the fact that the accused has WHETHER THE MILITARY JUDGE elected to make a statement which is not ERRED BY INSTRUCTING THE MEM- under oath. An unsworn statement is an BERS THAT CONSIDERATION OF authorized means for an bring aсcused to SEX OFFENDER REGISTRATION IS court, information to the attention of the “NOT A MATTER BEFORE THEM” given and must be appropriate consider- AND “FRAUGHT WITH PROBLEMS.” ation. 125, UCMJ, plea, panel acquitted (2Ó12). § Consistent with his Article 10 U.S.C. 925 charge sodomy, in violation of

2.14 accuracy. requirements

The accused cannot be cross examined Even if such were prosecution interrogated by predictable, whether or not the accused upon registered court members or me an unsworn will be or should be as a sex prosecution may but the offer offender and whether he will be or should of fact con- administratively discharged evidence to rebut statements is not a weight significance in Rather, tained it. The and you. determining matter before to be attached to an unsworn statement accused, appropriate an sentence for this rests within the sound of each instructions, discretion my your in accordance with is may court member. You consider that the short, charge. In use of this limited infor- oath, not under its inherent fraught problems. mation is with There- probability improbability, whether it is fore, after due consideration of the un- supported by or contradicted evidence in my prior sworn statement and instructions case, as well as matter other statement, [on] the nature of an unsworn may bearing upon credibility. have a its weight you give the consideration and weighing you an unsworn up you your reference is in sound dis- your expected are to use common sense cretion. your knowledge and of human nature and Appellant’s objected counsel to the ways of the world. judge’s proposed instruction related to sex The accused’s unsworn statement includ- ground on the that its personal ed the accused’s belief that he language: administratively discharged would be if he goes beyond just letting a matter of punitive discharge did not received [sic] only members know that this is evidence required and his belief that he would be appropriate through an unsworn statement register as a sex offender. An unsworn commentary in an unsworn statement bring statement is a means to infor- goes really and to another insinuating level attention, your you mation to must they give to the members that should it give appropriate it considei’ation. Your very weight. little appropri- deliberations should focus on an ate sentence for the accused for the of- Defense counsel continued: fense of which the accused stands convict- brought up by collateral matters that are ed. the accused are matters that be con- However, general evidentiary as a mаt- light sidered and that’s in of [United ter, regarding possible registra- evidence Grill, (C.A.A.F.1998), States M.J. 131 potential tion as a sex offender or the anof nothing regarding which] mentions discharge, administrative and the conse- any regard trying to limit thereof, quences would be characterized as paying or dissuade them from attention to [sic], consequences a collateral and thus what’s the accused’s unsworn statement. inadmissible outside of the context of an objection The overruled the unsworn statement. This is so because explaining, “The court does not read [Grill] your duty in sentencing adjudge is to an broadly you as do.” appropriate accused, sentence for this un- facts, my der these in accordance with Ap The maximum available sentence for instructions. Possible collateral conse- pellant’s forty-seven years convictions was sentence, quences beyond those discharge; and a dishonorable trial counsel instructed, upon you are should not argued for a sentence of not less than three your be a deliberations other than years of confinement and a dishonorable dis as I have earlier discussed. Courts-Martial, IV, charge. pt. Manual for 45.f(5) (2008 ed.). 4.e, 45.f(2), paras. registration require- As to sex offender The ments, they may adjudged jurisdic- differ between sentence confine months, registration requirements, eight tions such that ment for a bad-eonduet dis thereof, allowances, charge, and the pay are not nec- forfeiture of all essarily predictable аny degree with and reduction to E-1.

The affirmed findings quenee AFCCA an abuse of discretion. We dis- agree. sentence as approved convening au States ‍​​‌‌‌​​​​‌​​‌​‌‌​‌‌​‌​​​‌‌​​‌‌​​‌​‌‌​‌‌‌‌‌​​‌‌‌‌‍v. Talkington, thority. United No. holding inapposite in this *27, 2013 CCA LEXIS at context, separate judge’s

WL *8 (A.F.Ct.Crim.App. Apr. instructions were not an abuse discretion 26, 2013) (unpublished). appeal On under the of this Court. AFCCA, Appellant did not raise the issue granted by this Court. A (R.C.M.) Rule for Courts-Martial

II. DISCUSSION permits presentation of matters in exten- uation, mitigation, by The Court a or military judge’s reviews rebuttal an accused through an sentencing instructions for statement. an R.C.M. abuse dis 1001(c). Despite Barrier, rule, the limits of this cretion. the 61 M.J. at In 485. this has, hand, Court on the one context, held that the military a judge abuses his discre right present to an unsworn statement tion when the instructions are based on an Rosato, “generally considered unrestricted.” erroneous of the view law or are not tailored 32 hand, M.J. at 96. On the other an un- to the ease’s circumstances. Unit facts sworn “may tempered by ap- Duncan, ed States v. 494, 53 M.J. 499 propriate instructions military from the Greaves, (C.A.A.F.2000); Unitеd States v. 46 Barrier, judge.” 61 M.J. at 484. This Court (C.A.A.F.1997). M.J. 139 Appellant ar explained has that right while the of allocu- gues that the judge erred in his right tion present includes the to evidence instruction to raising related the extenuation, is not relevant as mitiga- prospect registration offender sex in his tion, rebuttal, or the may “put view, unsworn statement. In his the the information in proper context effec- judge abused his instructing discretion in the tively advising the ignore to it.” members that (internal Id. at 486 omitted). quotation marks in arriving irrelevant at the in sentеnce his First, case for two reasons. he asserts that A consequence collateral is “‘[a] consideration of sex penalty crime, committing for a in addition to during sentencing required by this Court’s penalties the included in the criminal sen ” Riley, United States v. holding in 72 M.J. Miller, United States v. tence.’ 116-17 Brief Appel for (alteration (C.A.A.F.2006) 457 origi in 3-4, Talkington, United States v. lant at 73 nal) (quoting Dictionary Black’s Law (C.A.A.F.2014). Second, M.J. 212 relat- (8th 2004) (citing ed. original)), in edly, he that sex asserts overruled by Riley, in 72 M.J. at 120-2 is similar impact «ipjjg to punitive the a dis generai ruie concerning collateral 1.2 charge benefits, on retirement consequences is that ‘courts-martial [are] Court has deemed akin to “a direct and concern themselves with appropriateness proximate consequence sentence,” of the particular sentence for an accused and Griffin, offense, his regard without collateral (C.M.A.1988), so that an instruction penalty administrative effects of the under ” disregard members to it as a Griffin, (al- collateral consе- consideration.’ 25 M.J. at 424 contrast, 2. In "[mlatter a extenuation an sion that constitutes the of which the offense explain offense serves to sur- guilty, circumstances particular accused has been found acts rounding offense,” the commission of an good R.C.M. bravery conduct or and evidence of the 1001(c)(1)(A), mitigation a matter in is: reputation or record of the accused in the subordination, efficiency, fidelity, punishment introduced for to lessen the service temperance, courаge, to be ad- court-martial, judged by or to other trait that is furnish grounds for a clemency. recommendation of desirable in a servicemember. 1001(c)(1)(B). It nonjudicial punish- includes the fact that examples R.C.M. All of above ment imposed under Article 15 has mitigation particular been for an of accused, focus on traits of the growing offense out of the same prior punishment. act or omis- context ‍​​‌‌‌​​​​‌​​‌​‌‌​‌‌​‌​​​‌‌​​‌‌​​‌​‌‌​‌‌‌‌‌​​‌‌‌‌‍does not consequences a original) (quoting United States teratíon 609, 612, apply in this case. 31 C.M.R. Quesinberry, 12 USCMA (1962)). 195, 198 consequences The collateral do not constitute R.C.M. of a court-martial B. material, they may be refer and while re- Appellant argues that after this Court’s statement, Rosato, 32 enced in an unsworn decision, sex offender status is no cent (C.M.A.1991)(finding where error M.J. at 96 any pur- for longer a collateral appellant from military judge precluded an Riley is not so broad. pose. mentioning consequences of a collateral trial defense counsel and program rehаbilitation court-martial —a —in pleading appellant not inform the did statement), they not be an unsworn should subject kidnapping of a child would guilty to sentencing. States v. considered for United offender,” registration as a “sex her to (C.A.A.F.2005);

McNutt, 19-20 held that “in the context of a this Court (noting gen also 61 M.J. at 486 see guilty plea inquiry, sex offender preference eral for a “contextual instruction” longer can no be deemed raised in an unsworn statement for matters plea.” Riley, collateral outright preclusion”); Tschip, “rather than (permitting 277 to however, guilty plea ease in was a discharge was a instruct that administrative reasoning sought apply to the which we collateral matter when referenced 356, Kentucky, 130 S.Ct. Padilla v. 559 U.S. statement and that the members had discre (2010), 1473, 176 to the different L.Ed.2d 284 collat disregard tion to the reference to the registration. 72 M.J. at fact of sex offender matter); Griffin, (citing 25 M.J. at 424 eral provi the Consequently, we considered 612, Quesinberry, 12 USCMA at 31 C.M.R. guilty plea where neither the dence of a 198). at military judge in defense counsel nor the pleading guilty that formed the defendant both because the focus This is registration. require sex offender Ri would sentencing on the offense and the char is ley, 72 at 118-19. concluded that it M.J. We 1001(b)-(c), accused, and acter of the ‍​​‌‌‌​​​​‌​​‌​‌‌​‌‌​‌​​​‌‌​​‌‌​​‌​‌‌​‌‌‌‌‌​​‌‌‌‌‍R.C.M. plea, emphasized and the provident was not a military prevent “to ‘the sen waters requirement “plea to was a ‘know ensure by tencing process’ being ‘muddied’ ‘an from ing, intelligent done with sufficient act[] unending catalogue infor of administrative of the relevant circumstances and awareness ” Rosato, (quoting mation.’ 32 M.J. at 96 ” (alteration 122 likely consequences.’ Id. at Quesinberry, 12 USCMA at 31 C.M.R. States, original) (quoting Brady v. United 198).3 742, 748, L.Ed.2d 397 U.S. 90 S.Ct. 25 (1970)). sure, To there is a “tension between the pre-sentencing scope of unsworn statements Riley us extend the Appellant now asks to military judge’s obligation provide and the sentencing prohibit a mili- rationale to and proper instructions.” 61 M.J. at 487 informing tary judge from the members that result). (Erdmann, J., concurring in the registra- they need not consider sex offendеr However, Appellant does not take issue with arriving at a sentence. decline tion We it. In- precedent First, this or ask us to overrule for two reasons. unlike this invitation argues registra- he nothing stead that sex offender plea inquiry, of a about the context and, any impact require- tion is not a collateral sentence has on the therefore, recognizes duty register a sex offender. ment or as indepen- registration operates judge’s put discretion to collateral Sex оffender measured,” registration directly implicates which make it difficult for members 3. Sex offender and "muddied wa these concerns of ‘‘minitrials” ters” because v. an informed decision. United States to make requirements for sex offender Datavs, (A.F.Ct.Crim.App.2011), "precise” "[e]ach state are not 420, 422, grounds, 71 M.J. on other aff'd when has different rules as to required compliance and how is monitored and dently adjudged of the sentence and remains this bearing has no on our treatment of sex See, consequence. e.g., a collateral 42 U.S.C. in the context of deter (2012) § (defining catego- sex offender mining providence guilty plea of a within by ries the fact of length conviction and the military justice system, we have been corresponding maximum sentences avail- presented with unique no military reason to able, and imposed); not the sentences cf. extend reasoning Riley Padilla or Pena, United v. States 265 further. In the sentencing, context of Miller (C.A.A.F.2007) (“[T]he collateral administra- good remains law to the recognizes extent it sentence, tive of a such as ear- requirement that “the register ly programs, release pun- do not constitute as a sexual offender is a consequence of his law.”). purposes ishment for of the criminal conviction separate that is and distinct from despite Appellant’s argu- process.” Miller, court-martial contrary, registra- ments sex offender at 457. markedly tion is different than retirement benefits, directly which can be affected C. imposition punitive.dischargе of a —loss possible retirement benefits is one While altered this Court’s result of itself, opposed the sentence treatment of sex offender in the See, e.g., Griffin, conviction. 25 M.J. at 424 providence context of the guilty plea, it (“[I]t only in a theoretical sense that the did not alter this Court’s definition of a col punitive discharge effect a has on retirement consequence, lateral regis benefits can be labeled collateral.... [T]he tration remains one outside the context оf a impact on benefits —whatever it be—can guilty See, plea inquiry. e.g., United States only proximate be a direct Lindsey, No. ACM 2013 CCA LEX sentence.”); Greaves, see also *16-*17, IS at 2013 WL at *5 (“[Wjhere at 139 a peril- servicemember is 18, 2013) (A.F.Ct.Crim.App. June (unpub ously general close to retirement ... a collat- lished) (distinguishing ‍​​‌‌‌​​​​‌​​‌​‌‌​‌‌​‌​​​‌‌​​‌‌​​‌​‌‌​‌‌‌‌‌​​‌‌‌‌‍Riley’s conclusion that eral-consequences disregarding instruction registration sex offender is not a collateral punitive the effects of a discharge on retire- consequence in guilty plea context from suffice.”). Thus,

ment will not unlike the loss consequences collateral at sentencing). benefits, of retirement which would be a direct of imposition of a Consequently, Appellant per was punitive discharge, there is no causal relation mitted registration to mention sex offender between the sentence imposed and the sex Duncan, in his unsworn statement. See registration offender requirement. Whether 499; Rosato, 96; M.J. at 32 M.J. at see also punishment received no or the Macias, maximum punishment available he would be (A.Ct.Crim.App.1999) (concluding that a mili required register as a sex offender based tary judge abused her discretion when she on the fact of his conviction alone. permit failed to the accused to mention in an Second, even after Kentucky, Padilla v. unsworn statement may accused question which considered the whether it was register have to as sex offender for a non-sex ineffective assistance of counsel not to inform crime). turn, offense militаry judge an accused of deportation consequences had “temper[]” discretion to the unsworn guilty plea, reasoning a case whose we “appropriate statement with instructions.” upon 119-21, relied 72 M.J. at Barrier, 61 M.J. at 484. “While the Supreme categorize Court continues to sex judge’s choosing discretion in whether to in offender as a collateral conse- — upon broad, struct such ‘collateral’ matters is quence. States, Chaidez v. United U.S. required he or she give legally -, correct 133 S.Ct. 1108 n. 185 L.Ed.2d (2013) instructions that are tailored (stating that to the facts and the “effects of a Duncan, commonly conviction viewed as collateral in- circumstances of the case.” clude ... registration”). sex offender at While arguments jurisdiction raised on ... in which he or will

Relevant to the she nothing reside, work, com appeal, in the instructions upon leaving attend school an inaccurate statement of plained of was confinement, upon conviction if not con- or the facts. Our eithеr the law fined. military judge place authorized the the sex Indeed, Emphasis reg- added. sex offender during Ap mentioned offender fifty required istration is in all states.2 Sex in its pellant’s unsworn statement also addresses at least context, by informing Ap the members that recognized purposes four of the of sentenc- pellant permitted to address sex offend ing: wrongdoer, punish- rehabilitation of the registration in his unsworn er wrongdoer, protection society ment of the of informing possible them that col while аlso preservation good order and disci- lateral should not be Furthermore, pline.3 it be the most arriving their deliberations sentence. 485-86; Rosato, significantly stigmatizing longest lasting See Accordingly, M.J. at 96. arising effect from the fact of conviction. discretion. did not abuse his Therefore, view, my good enough it is not

to call it collateral and leave it to the mem- bers to sort out what to make of it based on III. DECISION received, perceived, their own and often erro- of the United Air The decision States understanding registration. neous A tai- Appeals Court of Criminal is affirmed. Force appropriate required. lored and instruction is how, question raised in this case is if at BAKER, Judge, Chief with whom all, should a instruct on the OHLSON, joins (concurring Judge, in the subject in the context anof unsworn state- result): ment. deportation, Like the sex present, judges At are left to in- is not a criminal sanc- way through their struct and around the tion, particularly penal- but it is a severe rocks and shoals inconsistent case law and ty.... registra- hand, ambiguous On thе one mem- rules. intimately tion is related to the criminal give bers must due consideration to an ac- process. The automatic result of sex of- statement, registration fender cused’s unsworn in for certain defendants this penalty makes it to difficult divorce the registra- case made reference to sex offender from the conviction. regis- tion. because sex offender purposes tration is addressed to the of sen- 115, United States v. 120-21 many tencing, appropriate in cases it is alsо (C.A.A.F.2013) (internal quotation marks omitted). mitigation, potentially as and as rebuttal. Appendix 4 to 2 Enclosure of De- present partment right of Defense Instruction 1325.071 The to an unsworn statement is point clearly emphatically: makes this and “generally considered unrestricted.” United (C.M.A.1991). Rosato, 93, States v. 96 A Service member who is convicted in a hand, highlights, On the other as the Court general special or court-martial of of registration sex offender is a collateral conse- regis- the offenses listed in Tablе must appropriate ter quence with the authorities in the of conviction rather than a conse- Defense, 1325.07, 103-322, Dep’t registry. 1. See of Instr. Pub.L. No. 108 Adminis- Stat. 2038 (1994) (codified Military tration of Correctional Facilities and as amended at 42 U.S.C. (2006)), Clemency Authority repealed by Regis- § app. and 4 Parole Enclosure 14071 Sex Offender (Mar. 11, 2013) Act, Dep’t [hereinafter of Defense tration and Notification ‍​​‌‌‌​​​​‌​​‌​‌‌​‌‌​‌​​​‌‌​​‌‌​​‌​‌‌​‌‌‌‌‌​​‌‌‌‌‍Pub.L. No. 109-248 1325.07], (2006). § Instr. 120 Stat. It was enacted part the Federal Violent Crime of Control Law Enforcement Act of 1994. Id. Wetterling Against 2. Thе Jacob Crimes Children Sexually Registration Violent Offender Act Ohrt, (the Act) Wetterling required imple- all states to 3.See United States (C.M.A.1989). against ment a sex offender and crimes children quenee sentencing.4 ample, might make the fol- Talkington, 73 M.J. lowing instructional references: This in results the Court’s conclusion that Instructions, Under DOD when convicted registration sex offender is collateral and offenses, of certain including the offenses inadmissible, thus and should not be here, the accused must register as a sex their deliberаtions. Id. offender with appropriate authorities I would conclude instead that a tailored jurisdiction resides, in which he warranted, instruction works, is which recognizes goes to school. the role of the unsworn the fact Sex registration offender required is in all that registration is intimately related to the states; fifty however, sex registra- offense process, criminal as well as the fact that sex tion requirements may ju- differ between registration offender is not in fact a sentence result, risdictions. As a imposed at court-martial. requirements and the consequences of do-

judge tried to thread this needle. The mili- ing necessarily so are not predictable. tary judge genuine amade effort to distin- Sex offense is a guish the to sex registra- reference conviction; however, it is not a sentence tion contained the unsworn statement Thus, adjudged at court-martial. while the from regarding possible evidence consideration and weight you give the ref- However, as a sex offender. legal this is a Appellant’s erence in unsworn statement subtlety likely lay lost on the members of the to up you court-martial. The result confusing, was a if your discretion, and in your duty is to not an and contradictory inconsistent instruc- determine the criminal sentence to ad- tion. The members were instructed that judge case, in this any, if for the offenses weight significance “[t]he to be attached for which the accused has been found to an unsworn statement rests within the guilty. sound discretion of each court member” and “you that This givе approach [the must it avoids the state- dilemma faced unsworn consideration,” appropriate judge in ment] this trying also case of while being navigate right that instructed “whether accused’s or not the to make an un- accused will sworn registered should be statement about a ... collateral matter you” not a matter is nonetheless a before direct “use of importantly, this limited conviction. As fraught prevents information is prob- it with from applying lems.” This have their own unintentionally sig- diverse understаndings naled the registra- members that the sex notwithstanding his previous instruction, requirement. tion they really ought ig- nore the reference contained in error, found Having instructional I none altogether. result, As a I would theless concur the result. The maximum conclude that the internally instruction was authorized sentence for Appellant’s convic confusing inconsistent and and therefore er- forty-seven years tions included of confine roneous. ment and a discharge. dishonorable view, my recognized and аs argued Government for a of not sentence less Dep’t 1325.07, of Defense Instr. years sex than three of confinement and a dis integral penalty land- discharge. honorable Manual Courts- for scape Therefore, for Martial, certain sexual offenses. IV, 4.e, pt. paras. United States an 45.f(2), 45.f(5) (2008 ed.) accused should be (MCM). able to refer to sex The mem in an adjudged unsworn state- bers eight confinement, months of ment with accompanying an instruction at discharge, bad-conduct pay of all forfеiture least to the Dep’t allowances, extent Thus, of Defense and reduction to E-1. Instr. 1325.07 addresses the issue. For Appellant ex- has not sentencing demonstrated Therefore, agree 4. I with the Court that longer fender status is no a collateral conse- providence guilty plea, quence any purpose. addressed Talkington, for proposition does not stand for the sex of- Dep’t of Defense Instr. register under generated from confusion prejudice Therefore, or relevant state law. 1325.07 in this case. the instruction sentencing noted, prejudiced was not on Appellant in fact I affirm. have and would evidence that he would never did offer

Case Details

Case Name: United States v. Talkington

Court Name: Court of Appeals for the Armed Forces

Date Published: Apr 7, 2014

Citation: 2014 CAAF LEXIS 396

Docket Number: 13-0601/AF

Court Abbreviation: C.A.A.F.