• The Marine had tried to invalidate his court-martial plea agreement because his defense attorney failed to properly instruct him about New Jersey’s law.
  • Megan’s Law requires military personnel convicted of sex crimes to register within days days of returning to New Jersey.

A Marine convicted of a sex crime in California must register as a special offender when he returns home to New Jersey, a military appellate court has ruled.

A unanimous decision last week by the United States Navy-Marine Corps Court of Criminal Appeals reaffirmed the court-martial conviction of Lance Cpl. Dakota S. Toth and ordered the Marine stationed at Twentynine Palms to comply with New Jersey’s Megan’s Law when he leaves the service.

On Oct. 13, 2016, Toth was convicted there by a military judge of attempted sexual abuse of a child and sentenced to eight months confinement and a bad conduct discharge, although a pretrial plea deal capped the jail time at six months.

While assigned to Marine Corps Communication Electronics School, Toth had used the social media application Kik to sent pictures of his genitalia to a person he believed to be a 14-year-old girl. Questions about whether he would have to register as a sex offender when he returned home to New Jersey sparked his appeal.

His defense attorney told the military judge that he spoke with the district attorney and public defender in New Jersey’s Middlesex County and learned that Toth would “probably not” have to register, according to court filings. The judge then told Toth that state laws can change and he might need to register there in the future and asked if he still wanted to plead guilty, and Toth said that he did.

New Jersey authorities later told Toth that he would need to register as an offender. Toth appealed, contending that his defense counsel was ineffective and that plea was involuntary because it was given without full knowledge of what he would have to do when he got home.

Writing on behalf of the appellate tribunal, Navy judge Cmdr. Marcus N. Fulton reasoned that Toth was armed with enough information about the potential of registering as a New Jersey sex offender to make a voluntary plea. As for Toth’s argument that he was burdened with an ineffective attorney, Fulton ruled that the counsel’s work was adequate and that the defendant received a fair trial.

“Talking to the district attorney and public defender in Middlesex County, New Jersey, is a reasonable way to learn about registration requirements,” Fulton wrote. “We cannot explain why there is a discrepancy — if in fact there is one — between what the (defense lawyer) was told and what the appellant was told upon his release. We are certain, however, that the appellant was informed that registration was a possible consequence of his guilty plea.”

Toth, 22, did not respond to telephone or social media messages from The San Diego Union-Tribune, and attempts to reach him by email were unsuccessful.

According to Training Command spokesman Capt. Joshua J. Pena, Toth has been transferred from Twentynine Palms to Manpower and Reserve Affairs in Quantico, Virginia.

Officials there declined to answer questions from the Union-Tribune and it remains unclear whether he remains on active duty in the Marines or has been placed on unpaid leave and assigned to the inactive reserve until his appeals end.

The United States Court of Appeals for the Armed Forces has yet to docket an appeal of Fulton’s opinion.

It’s also unclear whether Toth already has registered as a sex offender in New Jersey. By law, a convict must register within 10 days of returning there from the military.

Toth’s name does not appear on the state’s online sex offender registry and representatives of the New Jersey State Police and Attorney General did not return messages.

The online list only features convicts deemed to be a “high risk” of offending again, plus some tagged as “moderate risk” but they appear online only under special circumstances.

Information about all other moderate risk convicts is shared with law enforcement agencies, schools, licensed day care centers, summer camps and several types of community organizations.

Data about low risk offenders goes only to police departments.

Since the beginning of the year, nine Marines have been convicted at court-martial for sexual offenses, including trafficking in child pornography and molesting children. Three were stationed at Camp Pendleton.

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