UNITED STATES, Appellee 

v. 

Timothy E. MILLER, Interior Communications Electrician 

Third Class 

U.S. Navy, Appellant 

No. 04-0799 

Crim. App. No. 200400762 

United States Court of Appeals for the Armed Forces 

Argued January 11, 2006 

Decided August 29, 2006 

GIERKE, C.J., delivered the opinion of the Court, in which 

EFFRON, BAKER, and ERDMANN, JJ., joined. CRAWFORD, J., filed a 

separate opinion concurring in the result. 

Counsel 

For Appellant: James W. Volberding, Esq. (argued); Captain 

Peter H. Griesch, USMC. 

For Appellee: Major Wilbur Lee, USMC (argued); Captain Glen R. 

Hines, USMC, and Commander Charles N. Purnell II, JAGC, USN (on 

brief). 

Military Judge: David A. Wagner 

This opinion is subject to revision before final publication. 
United States v. Miller, No. 04-0799/NA 

2

Chief Judge GIERKE delivered the opinion of the Court. 

This Court has granted review of three issues.1 The first 

issue addresses the duties of an appellate defense counsel to 

communicate with Appellant prior to submitting a case on the 

merits to the United States Navy-Marine Corps Court of Criminal 

Appeals. The second and third issues address the responsibility 

of trial defense counsel to inform a client of a collateral 

consequence of a court-martial conviction -- that his guilty 

plea to possession of child pornography requires him to register 

as a sex offender. These two issues focus on whether trial 

defense counsel’s failure to inform Appellant of a sex offender 

registration requirement is either ineffective assistance of 

trial defense counsel or created in the record of trial a 

“‘substantial basis’” in law and fact for questioning the guilty 

plea thereby rendering Appellant’s plea improvident.2

We hold that there is no ineffective assistance of 

appellate counsel. Appellate defense counsel communicated by 

 

1

 I. WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF 

APPELLATE COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT 

TO THE U.S. CONSTITUTION AND R.C.M. 1202. 

II. WHETHER APPELLANT’S PLEA WAS INVOLUNTARY AND 

THEREFORE FAILED TO MEET THE REQUIREMENTS OF R.C.M. 

910(d). 

III. WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF 

DEFENSE COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO 

THE U.S. CONSTITUTION. 

United States v. Miller, 61 M.J. 466 (C.A.A.F. 2005). 

2

 United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991). 
United States v. Miller, No. 04-0799/NA 

3

letter to Appellant soliciting Appellant’s input as to the 

issues Appellant would like to present to the lower court. 

Appellant never responded to this letter. Appellate defense 

counsel completed an examination of the record and submitted the 

case to the Court of Criminal Appeals on its merits. We also 

hold that trial defense counsel’s failure to inform Appellant of 

the requirement to register as a sex offender did not rise to 

the level of ineffective assistance of counsel nor did it result 

in a substantial basis to render Appellant’s plea improvident. 

FACTUAL BACKGROUND

On December 22, 2003, Appellant pled guilty at a general 

court-martial to misusing a government computer, receiving child 

pornography, and possession of visual depictions of minors 

engaged in sexually explicit conduct.3 Appellant admitted to 

violating a general regulation by using a government-owned 

computer with Internet access to view, download, and store 

pornographic images. The computer was located aboard the USS 

HARRY S. TRUMAN (CVN 75) and was accessed by everybody on the 

ship. Appellant set up password protected files in which he 

stored over 100 downloaded pornographic images. 

As to Appellant’s offenses of knowingly receiving child 

pornography on divers occasions and possessing child 

 

3

 Appellant’s offenses were a violation of Articles 92 and 134, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 934 

(2000), respectively. 
United States v. Miller, No. 04-0799/NA 

4

pornography, Appellant stated that he knew the pornography 

involved an actual minor or minors engaged in sexually explicit 

conduct. He also stated that he viewed or downloaded the images 

onto the government-owned computer onboard the ship while either 

in port at Norfolk, Virginia, or while at sea. During the plea 

colloquy, he testified that the images did not depict children 

engaging in sexual intercourse, but rather, they were pictures 

of a suggestive nature that portrayed the genitalia of the 

children. 

Appellant’s guilty plea colloquy and the providence inquiry 

by the military judge were straightforward and uneventful. The 

military judge accepted Appellant’s guilty pleas, convicted him 

of the charged offenses, and sentenced Appellant to confinement 

for one year, reduction to pay grade E-1 and a bad-conduct 

discharge. Approximately four months later, the convening 

authority approved the sentence as adjudged but pursuant to a 

pretrial agreement suspended all confinement beyond time served 

in excess of 210 days for a period of twelve months from the 

date of trial. 

Before the lower court, Appellant was represented by 

detailed military appellate defense counsel. Appellate defense 

counsel communicated by letter to Appellant soliciting 

Appellant’s input as to issues Appellant would like to present 

to the lower court. Appellant received this letter but never 
United States v. Miller, No. 04-0799/NA 

5

responded. Appellate defense counsel completed an examination 

of the record and submitted the case to the Court of Criminal 

Appeals on its merits. The lower court affirmed both findings 

and sentence in a short opinion.4

After the decision by the lower court, Appellant submitted 

an affidavit to this Court asserting that his trial defense 

counsel was deficient in failing to advise him of the 

consequences of his guilty plea and that this deficiency 

rendered his guilty plea improvident. Appellant asserts that 

upon his final release from confinement, a brig transition 

counselor informed him for the first time that he would be 

required, under Texas law, to register as a classified sex 

offender for the remainder of his life.5 Appellant asserts that 

he would not have pled guilty to child pornography if he had 

 

4

 United States v. Miller, No. NMCCA 200400762 (N-M. Ct. Crim. 

App. July 29, 2004). 

5

 It appears that this information was presented to Appellant 

pursuant to Dep’t of Defense, Instr. 1325.7, Administration of 

Military Correctional Facilities and Clemency and Parole 

Authority para. 6.18.5.1 (July 17, 2001, Incorporating Change, 

June 10, 2003) [hereinafter DoD Instr. 1325.7], which states: 

Before final release from confinement, DoD correctional 

facility commanders will advise prisoners convicted of an 

offense requiring registration as a sex offender (see 

enclosure 27 for list of covered offenses) of the 

registration requirements of the State in which the 

prisoner will reside upon release from confinement. The 

notice provided to a prisoner shall contain information 

that the prisoner is subject to a registration requirement 

as a sex offender in any State in which the person resides, 

is employed, carries on a vocation, or is a student. 
United States v. Miller, No. 04-0799/NA 

6

known that the mandatory sex offender requirement applied to 

him. 

Also in his affidavit, Appellant asserts that his appellate 

defense counsel was deficient in failing to communicate properly 

with him. Although Appellant acknowledged receipt of the letter 

from appellate defense counsel soliciting his input regarding 

issues he would like to present to the lower court, Appellant 

never responded. Appellant explained that “I felt assured that 

I had an effective advocate who would represent me on appeal . . 

. .” In his affidavit, Appellant complains that he never spoke 

to his appellate defense counsel. He also claims that, in light 

of the mandatory registration requirement for sexual offenders, 

he would have sought review on the issue of whether his computer 

pictures constituted child pornography. 

Finally, in his affidavit Appellant explains his violation 

of the Texas sexual registration statute and its impact on him. 

Appellant states that upon his release from military service and 

his return to Texas, he was required by Texas law to register as 

a sexual offender.6

 Appellant was convicted of violating the 

Texas sex offense registration statute and was sentenced to 

three years incarceration in the Texas prison system. Appellant 

complains that no one in the military advised him of the time 

 

6

 This registration requirement was pursuant to Tex. Code Crim. 

Proc. Ann. arts. 62.001-62.009 (Vernon 2005). 
United States v. Miller, No. 04-0799/NA 

7

requirements for registration as a sexual offender or that 

failure to comply with the Texas law was a felony. Appellant 

remains in custody. 

DISCUSSION

A. Issue I: Appellant’s claim of ineffective assistance of 

appellate defense counsel 

 Appellant alleges three deficiencies by appellate defense 

counsel amounting to ineffective assistance of counsel: first, 

that appellate defense counsel did not personally communicate 

with him; second, that appellate defense counsel did not raise 

any specific issue before the lower court, including whether 

Appellant should have been informed of the requirement to 

register as a sex offender prior to pleading guilty to the 

charges; and third, that appellate defense counsel did not 

address whether the photographs met the statutory definition of 

child pornography. 

 The test for ineffective assistance of appellate defense 

counsel is the same as the test for ineffective assistance of 

trial defense counsel that the Supreme Court established in 

Strickland v. Washington.7

 The Supreme Court in Strickland

established a two-pronged test to determine whether there has 

 

7

 466 U.S. 668, 687 (1984); see also United States v. Adams, 59 

M.J. 367, 370 (C.A.A.F. 2004); United States v. Polk, 32 M.J. 

150, 153 (C.M.A. 1991). 
United States v. Miller, No. 04-0799/NA 

8

been ineffective assistance of counsel within the meaning of the 

Sixth Amendment: 

First the defendant must show that counsel’s performance 

was deficient. This requires showing that counsel made 

errors so serious that counsel was not functioning as the 

“counsel” guaranteed the defendant by the Sixth Amendment. 

Second, the defendant must show that the deficient 

performance prejudiced the defense. This requires showing 

that counsel’s errors were so serious as to deprive the 

defendant of a fair trial.8

 In Polk, this Court applied Strickland using a threepronged test to determine whether counsel has been ineffective: 

(1) “Are the allegations made by appellant true; and, if they 

are, is there a reasonable explanation for counsel’s actions in 

the defense of the case?”; (2) If the allegations are true, 

“did the level of advocacy ‘fall[] measurably below the 

performance . . . [ordinarily expected] of fallible lawyers?’”; 

and (3) “If ineffective assistance of counsel is found to exist, 

‘is . . . there . . . a reasonable probability that, absent the 

errors, the factfinder would have had a reasonable doubt 

respecting guilt?’”9

 Appellate defense counsel must comply with the fundamental 

duty to communicate effectively with the client.10 However, in 

 

8

 466 U.S. at 687. 

9

 32 M.J. at 153 (citations omitted) (interpolations in 

original); see also United States v. Hullum, 15 M.J. 261, 267 

(C.M.A. 1983). 

10 See American Bar Association Standards for Criminal Justice: 

Prosecution Function and Defense Function, Standards 4-2.1, 4-

3.1, 4-3.8, 4-5.1, 4-5.2 (3d ed. 1993); see also United States 
United States v. Miller, No. 04-0799/NA 

9

the military justice system, there is a special duty of the 

appellate defense counsel to afford an accused the opportunity 

to raise issues.11 Appellate defense counsel must not only 

communicate with an appellant but must identify to an appellate 

court those issues the appellant wishes to present.12

 In the present case, Appellant did not identify specific 

issues that he wished his appellant defense counsel to raise at 

the lower court. Appellate defense counsel notified Appellant 

in a letter dated July 16, 2004, that he had been assigned as 

Appellant’s appellate defense counsel. In this letter, 

appellate defense counsel also explained that he would review 

the record of trial to determine if any prejudicial error 

occurred during the court-martial and that he intended to file a 

pleading with the lower court. The letter specifically 

explained that if Appellant desired to address any issues to the 

lower court, he should contact appellate defense counsel. At 

this time, Appellant had been released from confinement and had 

been notified by the brig counselor that he would have to 

register as a sex offender in Texas. If Appellant desired to 

raise this matter with either his appellate defense counsel or 

the lower court, Appellant had the opportunity to do so. 

 

v. Hood, 47 M.J. 95, 97 (C.A.A.F. 1997); United States v. 

MacCulloch, 40 M.J. 236, 239 (C.M.A. 1994). 

11 United States v. Grostefon, 12 M.J. 431, 435-36 (C.M.A. 1982). 

12 Id. at 435. 
United States v. Miller, No. 04-0799/NA 

10

 Although the letter from appellate defense counsel 

indicated that Appellant had twenty days to respond, four days 

later, appellate defense counsel submitted the case to the lower 

court without specific assignment of error and without admitting 

that the findings and sentence were correct in law and fact. 

Appellant defense counsel should have waited longer to afford 

Appellant an opportunity to respond. However, appellate defense 

counsel’s action did not result in prejudice, because Appellant 

never responded and therefore failed to identify any issues he 

would have raised had counsel waited for his input. 

 We conclude that Appellant’s assertions in Issue I are 

without merit. 

B. Issue II: Whether Appellant’s plea was involuntary and 

therefore failed to meet the requirements of R.C.M. 910(d) 

 Appellant’s arguments regarding Issues II and III are 

rooted in the fact that Appellant did not know that he would be 

required to register as a sex offender in the state of Texas as 

a result of his conviction. It is unrebutted that neither 

Appellant’s trial defense counsel, nor the military judge who 

accepted his plea, informed him that any state in general, nor 

Texas in particular, required that persons convicted of 

possessing child pornography in military courts register as sex 

offenders. 
United States v. Miller, No. 04-0799/NA 

11

 The rejection requires that the “record of trial show a 

‘substantial basis’ in law and fact for questioning the guilty 

plea.”13 The record reflects that the military judge established 

a sufficient legal and factual basis for Appellant’s pleas. 

During the plea inquiry, the military judge gave a 

constitutionally sound definition of child pornography.14 In 

support of his guilty pleas, Appellant admitted that, based on 

his knowledge of what a child less than eighteen years of age 

looks like, the images in question were photographs of “real 

children” rather than adults or “some artist’s rendition of 

children.” Appellant also admitted that the images of the child 

pornography at issue were transported through interstate 

commerce when he downloaded them from the Internet -– some from 

foreign websites.15

 A collateral consequence is “[a] penalty for committing a 

crime, in addition to the penalties included in the criminal 

sentence.”16 In the present case, the requirement that Appellant 

register as a sexual offender is a consequence of his conviction 

that is separate and distinct from the court-martial process. 

 

13 Prater, 32 M.J. at 436. 

14 See Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. 

§ 2256(8) (2000). 

15 See United States v. Mason, 60 M.J. 15, 18 (C.A.A.F. 2004). 

16 Black’s Law Dictionary 278 (8th ed. 1999). 
United States v. Miller, No. 04-0799/NA 

12

 This Court has previously explained the difficult task of 

challenging a guilty plea in light of unforeseen consequences of 

a court-martial conviction: 

[W]hen collateral consequences of a court-martial 

conviction –- such as administrative discharge, loss of a 

license or a security clearance, removal from a military 

program, failure to obtain promotion, deportation, or 

public derision and humiliation -– are relied upon as the 

basis for contesting the providence of a guilty plea, the 

appellant is entitled to succeed only when the collateral 

consequences are major and the appellant’s misunderstanding 

of the consequences (a) results foreseeably and almost 

inexorably from the language of a pretrial agreement; (b) 

is induced by the trial judge’s comments during the 

providence inquiry; or (c) is made readily apparent to the 

judge, who nonetheless fails to correct that 

misunderstanding. In short, chief reliance must be placed 

on defense counsel to inform an accused about the 

collateral consequences of a court-martial conviction and 

to ascertain his willingness to accept those consequences.17

In both Bedania and Williams the misinformation about a 

collateral consequence resulted from a question of whether that 

misunderstanding undermined a pretrial agreement. Since this is 

a guilty plea case, the underlying analysis of the Bedania case 

is helpful here. 

In this case, Appellant’s misunderstanding was not the 

result of the language of the pretrial agreement, was not 

induced by the military judge’s comments, nor was it made 

readily apparent to the military judge. Because Appellant’s 

lack of knowledge is not the result of any of the above, the 

 

17 United States v. Bedania, 12 M.J. 373, 376 (C.M.A. 1982); 

United States v. Williams, 53 M.J. 293, 296 (C.A.A.F. 2000). 
United States v. Miller, No. 04-0799/NA 

13

military judge did not err in his responsibility to ensure that 

Appellant understood all the consequences of his guilty plea. 

Therefore, as there is no substantial basis to question his 

guilty plea, Appellant’s plea was provident and will not be set 

aside. 

Issue III is related to Issue II but focuses on the role of 

trial defense counsel in addressing the collateral consequence 

issue rather than the role of the military judge. We next turn 

to this companion issue. 

C. Issue III: Whether Appellant received ineffective 

assistance of trial defense counsel 

There is no need to look further than the first prong of 

the Polk analysis above to determine that Appellant did not 

receive ineffective assistance of trial defense counsel. 

Although the requirement of registering as a sex offender is a 

serious consequence of a conviction, trial defense counsel’s 

failure to advise Appellant of this consequence does not rise to 

the level of ineffective assistance of counsel. 

The registration requirement that Texas imposes on persons 

convicted of certain crimes is a consequence that is separate 

and distinct from the court-martial process. This consequence 

is a result of, but not part of, the court-martial process. 

This Court has stated that “‘chief reliance must be placed on 

defense counsel to inform an accused about the collateral 
United States v. Miller, No. 04-0799/NA 

14

consequences of a court-martial and to ascertain his willingness 

to accept those consequences.’”18 But the failure of defense 

counsel in this matter has not in the past been found to be 

ineffective assistance of counsel. 

Finally, we conclude that nothing in the representation of 

Appellant rendered his plea involuntary. The Supreme Court has 

stated that when “a defendant is represented by counsel during 

the plea process and enters his plea upon the advice of counsel, 

the voluntariness of the plea depends on whether counsel’s 

advice ‘was within the range of competence demanded of attorneys 

in criminal cases.’”19

We observe that several federal courts of appeals have 

concluded that trial defense counsel’s failure to address 

several other collateral consequences with a defendant was 

within the range of professional competence. We view these 

cases to be persuasive. The United States Court of Appeals for 

the Tenth Circuit addressed this “range of competence” and has 

held that “deportation is a collateral consequence of the 

criminal proceeding and therefore the failure to advise does not 

amount to ineffective assistance of counsel.”20 Similarly, the 

United States Court of Appeals for the Seventh Circuit has held 

 

18 Williams, 53 M.J. at 296 (quoting Bedania, 12 M.J at 376). 

19 Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting McMann v. 

Richardson, 397 U.S. 759, 771 (1970)). 

20 Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir. 1992). 
United States v. Miller, No. 04-0799/NA 

15

that “while the Sixth Amendment assures an accused of effective 

assistance of counsel in ‘criminal prosecution,’ this assurance 

does not extend to collateral aspects of the prosecution.”21 

Explaining its holding, the court stated that “actual knowledge 

of consequences which are collateral to the guilty plea is not a 

prerequisite to the entry of a knowing and intelligent plea.”22 

Finally, the United States Court of Appeals for the Eleventh 

Circuit has held that where “potential consequences are clearly 

collateral, neither the court nor [the defendant’s counsel] were 

constitutionally required to make [the defendant] aware of 

them.”23

We assume as correct Appellant’s allegation that he was not 

informed of the requirement to register as a sex offender as a 

result of pleading guilty.24 In light of the well-established 

precedent of this Court and other courts of appeals, we hold 

that this failure of trial defense counsel to inform Appellant 

of this collateral consequence does not rise to the level of 

ineffective assistance of counsel. However, information of this 

 

21 United States v. George, 869 F.2d 333, 337 (7th Cir. 1989). 

22 Id.; see also Wright v. United States, 624 F.2d 557, 561 (5th 

Cir. 1980) (“[A] plea’s possible enhancing effect on a 

subsequent sentence is merely a collateral consequence of the 

conviction; it is not the type of consequence about which a 

defendant must be advised before the defendant enters the 

plea.”). 

23 McCarthy v. United States, 320 F.3d 1230, 1234 (11th Cir. 

2003). 

24 See United States v. Ginn, 47 M.J. 236, 242-43 (C.A.A.F. 

1997). 
United States v. Miller, No. 04-0799/NA 

16

type may have been helpful to Appellant in understanding the 

consequences of his guilty plea, in accepting those 

consequences, and in pleading guilty. 

The sex offender registration requirement was initially 

enacted as a federal statute in 1994.25 While addressing 

civilian criminal offenses, the statute also specifically states 

that a court-martial sentence for a criminal offense against a 

victim who is a minor or a sexually violent offense triggers 

mandatory reporting and registration.26 Every state has also 

passed mandatory sexual offender registration. In accordance 

with the federal statute and in light of state statutes 

addressing this subject, DoD Instr. 1325.7 identifies those 

offenses that trigger mandatory sex offender registration.27

Given the plethora of sexual offender registration laws 

enacted in each state, it is not necessary for trial defense 

 

25 In 1994, Congress passed the Jacob Wetterling Crimes Against 

Children and Sexually Violent Offender Registration Act 

[hereinafter the Wetterling Act] (codified as amended at 42 

U.S.C. § 14071 (2000)), which conditioned availability of 

federal crime prevention funds upon a state’s creation of a sex 

offender registration and community notification program. The 

Wetterling Act was amended on May 17, 1996, by “Megan’s Law,” 

which removed the original requirement that the registry 

information be private and added a mandatory community 

notification provision to the existing requirements. Megan’s 

Law, Pub. L. No. 104-145, 110 Stat. 1345 (1996) (codified at 42 

U.S.C. § 14071(d)). There is now a version of “Megan’s Law” in 

every state. 

26 42 U.S.C. § 14071(a)(3)(A), (b)(7). 

27 DoD Instr. 1325.7 Enclosure 27: Listing Offenses Requiring 

Sex Offender Processing. 
United States v. Miller, No. 04-0799/NA 

17

counsel to become knowledgeable about the sex offender 

registration statutes of every state. However, we do expect 

trial defense counsel to be aware of the federal statute 

addressing mandatory reporting and registration for those who 

are convicted of offenses within the scope of this statute.28 

Also, we expect counsel to be aware of DoD Instr. 1325.7, which 

identifies offenses that trigger mandatory sex offender 

reporting. The operation of this statute and instruction may 

have an impact on an accused’s decisions both before and at 

trial, and on an accused’s legal obligations after conviction. 

In light of the federal statute, DoD Instr. 1325.7, and 

state statutes requiring sex offender registration, we conclude 

that a prospective rule is appropriate to address the importance 

of trial defense counsel explaining the sex offender 

registration requirement to an accused. For all cases tried 

later than ninety days after the date of this opinion, trial 

defense counsel should inform an accused prior to trial as to 

any charged offense listed on the DoD Instr. 1325.7 Enclosure 

27: Listing Of Offenses Requiring Sex Offender Processing.29 

Trial defense counsel should also state on the record of the 

court-martial that counsel has complied with this advice 

requirement. While failure to so advise an accused is not per 

 

28 See 42 U.S.C. § 14071(a)(3)(A), (b)(7). 

29 Id. 
United States v. Miller, No. 04-0799/NA 

18

se ineffective assistance of counsel, it will be one 

circumstance this Court will carefully consider in evaluating 

allegations of ineffective assistance of counsel. 

In our view, the importance of this rule springs from the 

unique circumstances of the military justice system. More often 

than not, an accused will be undergoing court-martial away from 

his or her state of domicile. Also, the court-martial and plea 

may occur without the assistance of counsel from the accused’s 

domicile state. Finally, every state now has its own version of 

Megan’s Law. These circumstances can contribute to an accused 

being uninitiated to the collateral consequence of mandatory 

registration requirement as a result of his court-martial 

conviction. 

This rule will serve two distinct functions. First, it 

will promote a professional dialogue between an accused and 

trial defense counsel because it obligates trial defense counsel 

to address a legal issue about which an accused may be 

uninformed. Additionally, it will foster an accused’s proper 

consideration of this unique collateral circumstance that may 

affect the plea decisions as to any offense that would trigger a 

sex offender registration requirement. 
United States v. Miller, No. 04-0799/NA 

19

DECISION

 The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals as to both findings and sentence is 

affirmed. 
United States v. Miller, No. 04-0799/NA 

CRAWFORD, Judge (concurring in the result): 

I respectfully disagree with the majority’s continuing 

pattern of engaging in judicial rulemaking by usurping the 

authority of the President as delegated to him by Congress 

pursuant to Article 36(a), Uniform Code of Military Justice 

Article (UCMJ), 10 U.S.C. § 836(a) (2000).1

 This Court does not 

have the authority to create a rule requiring trial defense 

counsel to advise an accused regarding a particular consequence 

of a conviction in order to find a guilty plea provident. 

“[T]he power of judging . . . [must be] separated from the 

legislative and executive powers.” United States v. Moreno, 63 

M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J., concurring in part 

and dissenting in part) (citing The Federalist, No. 47, at 302 

(James Madison) (Clinton Rossiter ed., 1961)). 

In this case, the majority creates a prospective rule “to 

address the importance of trial defense counsel explaining the 

sex offender registration requirement to an accused. . . . prior 

to trial as to any charged offense listed on the DoD Instr. 

1325.7 Enclosure 27: Listing Of Offenses Requiring Sex Offender 

Processing.”2

 In addition, the majority requires that, in the 

 

1

 I agree with the majority’s conclusion that Appellant did not 

receive ineffective assistance of counsel. 

2

 Dep’t of Defense, Instr. 1325.7, Administration of Military 

Correctional Facilities and Clemency and Parole Authority 

Enclosure 27: Listing of Offenses Requiring Sex Offender 

Processing (July 17, 2001, Incorporating Change 1, July 10, 
United States v. Miller, No. 04-0799/NA 

2

future, trial defense counsel “state on the record of the courtmartial” that he has advised the accused of this requirement.3

 

This Court stated that while failure to advise an accused of the 

registration requirement will not per se amount to ineffective 

assistance of counsel, the failure to do so will be “carefully 

consider[ed] in evaluating allegations of ineffective assistance 

of counsel.” 

Rulemaking authority belongs to the legislature through 

statute or the President through the implementation of changes 

in the Manual for Courts-Martial, United States (2005 ed.) 

(MCM). Pursuant to Article 36(a), UCMJ, the President of the 

United States is given express authority to promulgate 

“[p]retrial, trial, and post-trial procedures, including modes 

of proof, for cases . . . triable in courts-martial . . . so far 

as [the President] considers practicable, apply[ing] the 

principles of law and the rules of evidence generally recognized 

in the trial of criminal cases in the United States district 

courts . . . .” The President does this through executive order 

 

2003) [hereinafter DoD Instr. 1325.7]; see also Jacob Wetterling 

Crimes Against Children and Sexually Violent Offender 

Registration Act, 42 U.S.C. § 14071 (2000). 

3

 It is not clear when this statement is supposed to be made or 

whether it is to become part of the guilty plea inquiry by the 

military judge. The majority opinion also does not address the 

requirements for trial defense counsel to advise an accused of 

the consequences of a conviction for one of the enumerated 

offenses in the event there is a contested case. The trigger is 

conviction of a listed offense and not whether the accused 

pleads guilty or is found guilty contrary to his pleas. 
United States v. Miller, No. 04-0799/NA 

3

by creating and modifying the Rules of Courts-Martial (R.C.M.) 

and the Military Rules of Evidence in the MCM. R.C.M. 910 sets 

out what is required before an accused’s plea is acceptable. 

Like Fed. R. Crim. P. 11(b)(1),4 R.C.M. 910(c) sets forth 

the military judge’s responsibility regarding the advice given 

to an accused to ensure a knowing and voluntary plea. Just as 

these rules do not require that the military judge specifically 

notify an accused of all the rights he or she is waiving by a 

plea, they also do not require that the military judge inform an 

accused of all the possible collateral consequences of pleading 

guilty. The military judge must ensure that the plea is 

voluntary and not the result of coercion or unlawful promises. 

There is no requirement to inform an accused of potential 

deportation;5 revocation of a pilot’s license;6 potential 

immigration consequences;7 possibility of consecutive sentences;8

loss of the right to vote, loss of eligibility to work as a 

civil servant, travel freely abroad, or possess firearms, a 

 

4

 R.C.M. 910 generally follows Fed. R. Crim. P. 11. MCM, 

Analysis of the Rules for Courts-Martial app. 21 at A21-58 to 

A21-59. 

5

 United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 

1988); United States v. Yearwood, 863 F.2d 6, 7-8 (4th Cir. 

1988). 

6

 Kratt v. Garvey, 342 F.3d 475, 485 (6th Cir. 2003). 

7

 Broomes v. Ashcroft, 358 F.3d 1251, 1256-57 (10th Cir. 2004). 

8

 United States v. Hurlich, 293 F.3d 1223, 1231 (10th Cir. 2002). 
United States v. Miller, No. 04-0799/NA 

4

driver’s license, or a professional license;9 or other 

consequences that may be imposed by the various branches of the 

federal or state government.10 

The American Bar Association (ABA) suggests that defense 

counsel “should determine and advise the defendant . . . as to 

the possible collateral consequences that might ensue from entry 

of the contemplated plea.” ABA Standards for Criminal Justice: 

Pleas of Guilty, Standard 14-3.2(f) (3d ed. 1993). This 

requirement, however, is not mandatory.11 The failure to do so 

may constitute ineffectiveness of counsel. Rather than 

overstepping the separation of powers boundaries by creating a 

prospective rule, which is not within our authority, this Court 

should recommend that the President consider requiring that 

 

9

 See People v. Ford, 657 N.E.2d 265, 267-68 (N.Y. 1995), and 

cases cited therein. 

10 Numerous cases have held that a defense attorney’s mere 

failure to advise a defendant of the possibility of a collateral 

consequence does not constitute ineffective assistance of 

counsel. See Yearwood, 863 F.2d at 7-8. However, if an 

attorney affirmatively misstates a collateral consequence of a 

guilty plea, the courts are more open to considering whether the 

misstatement constituted ineffective assistance of counsel. See

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). 

11 “Failure of the court or counsel to inform the defendant of 

applicable collateral sanctions shall not be a basis for 

withdrawing the plea of guilty, except where otherwise provided 

by law or rules of procedure, or where the failure renders the 

plea constitutionally invalid.” ABA Standards for Criminal 

Justice: Collateral Sanctions and Discretionary 

Disqualification of Convicted Persons, Standard 19-2.3(b) (3d 

ed. 2004). 
United States v. Miller, No. 04-0799/NA 

5

defense counsel give such notice to accuseds to avoid any claim 

in the future of ineffectiveness. The advice from defense 

counsel would reinforce DoD Instr. 1325.7 that “correctional 

facility commanders will advise prisoners convicted of an 

offense requiring registration as a sex offender (see enclosure 

27 for list of covered offenses) of the registration 

requirements of the State in which the prisoner will reside upon 

release from confinement.” Id. at para. 6.18.5.1. 

If there needs to be a change to the requirements of R.C.M. 

910, it is up to the President to make that change and not this 

Court. Some states, through their elected officials, have 

mandated such requirements. See, e.g., Ducally v. State, 809 

A.2d 472, 474 (R.I. 2002) (noting state statute requiring judges 

to inform aliens of impact on immigration status); State v. 

Douangmala, 2002 WI 62, ¶4, 253 Wis. 2d 173, 176-77, 646 N.W.2d 

1, 2-3 (citing statute requiring warning of deportation). Cf.

Mitschke v. State, 129 S.W.3d 130, 136 (Tex. Crim. App. 2004) 

(although state requires registration of sex offenders, failure 

to apprise a defendant of such a requirement does not require 

finding a plea involuntary). 

The collateral consequence notification requirement imposed 

by the majority is also inconsistent with Bradshaw v. Stumpf.12 

At issue in Bradshaw was whether a plea was voluntary. As the 

 

12 125 S. Ct. 2398 (2005). 
United States v. Miller, No. 04-0799/NA 

6

Supreme Court stated, the “prerequisites of a valid plea may be 

satisfied where the record accurately reflects that the nature 

of the charge and the elements of the crime were explained to 

the defendant by his own, competent counsel.”13 But “[w]here a 

defendant pleads guilty to a crime without having been informed 

of the crime’s elements,” the plea is not voluntary, knowing, 

and intelligent.14 The voluntariness of a plea does not depend 

on notification of the collateral consequences of the plea. 

The majority’s opinion is a step down the slippery slope of 

judicial rulemaking and lays the foundation for creating a 

future laundry list of potential collateral consequences that 

military judges and defense counsel will have to discuss with an 

accused before his or her plea is accepted as provident and 

voluntary. This approach not only oversteps our judicial role, 

but also places this Court outside the judicial mainstream. 

Although I agree with the result to affirm the findings and 

sentence, I respectfully disagree with this Court’s creation of 

a rule requiring defense counsel to provide notice to their 

clients of a sexual offender registration requirement and to 

state on the record at trial that such notice has been provided. 

 

 

13 Id. at 2405. 

14 Id.