United States v. KEVIN D. WASHINGTON

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
LIND, KRAUSS, and PENLAND
Appellate Military Judges
KEVIN D. WASHINGTON,
Petitioner
v.
UNITED STATES,
Respondent
ARMY MISC 20140826
25 November 2014
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OPINION OF THE COURT AND ACTION ON PETITION FOR
EXTRAORDINARY RELIEF IN THE NATURE OF A WRIT OF CORAM NOBIS
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Per Curiam:
On 7 October 1999, a military judge sitting as a general court -martial,
convicted petitioner, pursuant to his pleas, of three specifications of uttering a
worthless check without sufficient funds, one specification of sodomy with a child
under the age of 16, one specification of non-forcible sodomy, two specifications of
wrongfully soliciting another to commit non-forcible sodomy, and three
specifications of impersonating a commissioned officer in violation of Articles 123a,
125, and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C.
§§ 923a, 925, 934 (1994 & Supp. IV 1999). He was sentenced to a dishonorable
discharge, six years confinement, and forfeiture of all pay and allowances. The
convening authority approved the adjudged sentence and credited petitioner with
106 days against the sentence to confinement.
On 30 August 2001, this court summarily affirmed the findings and the
sentence. On 18 December 2001, the Court of Appeals for the Armed Forces denied
petitioner’s petition for grant of review.
Petitioner, in propria persona, now seeks extraordinary relief in the nature of
a writ of coram nobis. See All Writs Act, 28 U.S.C. § 1651(a) (2012). His direct
appeal is final and, as a result of his court -martial, he avers that he is required to
maintain registration as a sex offender. He argues that, in light of United States v.
Riley, 72 M.J. 115 (C.A.A.F. 2013), certain of his pleas of guilty were improvident
because the military judge failed to advise him of the necessity to register as a sex
offender if his pleas to those offenses were accepted. In support of his argument,
WASHINGTON—ARMY MISC 20140826
petitioner contends that the Court of Appeals for the Armed Forces did not limit the
retroactive application of Riley.
The military judge did not advise petitioner that as a consequence of his pleas
of guilty to certain offenses, petitioner would be required to register as a sex
offender. However, it matters not. Precedent requiring a military judge to ensure an
accused understood that he is subject to sex offender registration requirements prior
to the judge accepting a plea of guilty did not exist until 2013. Riley, 72 M.J. 115.
In addition, the expectation that defense counsel advise an accused that a guilty plea
will subject him to sex offender registration requirements did not exist until 2006
and was established in a decision that declared this expectation would come into
enforceable effect 90 days from the date of that opinion. United States v. Miller,
63 M.J. 452, 459 (C.A.A.F. 2006). The military judge fulfilled the requirements of
Article 45(a), UCMJ, and United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247(1969), in effect at the time of petitioner’s trial, therefore, it cannot be said that the
military judge either abused his discretion or committed plain error by accepting
petitioner’s pleas despite the lack of such advice. See Gonzales v. Hickey,
949 F. Supp. 2d 688, 697 (E.D. Ky. 2013); see also United States v. Warner, 73 M.J.
1, 4 (C.A.A.F. 2013) (“[A]n error is ‘plain’ when it is ‘obvious’ or ‘clear under
current law.’” (quoting United States v. Olano, 507 U.S. 725, 734 (1993))). Finally,
applying the principles of Chaidez v. United States, 133 S. Ct. 1103, 1105-13,
1118 n.5 (2013), we hold that the rule in Riley requiring a judge to advise an
accused of sex offender registration requirements prior to accepting a guilty plea is
not retroactively applicable. See also Casa-Garcia v. United States, 71 M.J. 586(Army Ct. Crim. App. 2012).
Accordingly, the Petition for Extraordinary Relief in the Nature of a Writ of
Coram Nobis is DENIED.
FORTHE
FOR THECOURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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