          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201600383
                         _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.

             ERICSON J. GERONIMOHERNANDEZ
  Information Systems Technician (Submarines) Third Class (E-4),
                            U.S. Navy
                            Appellant
                     _________________________

 Appeal from the United States Navy -Marine Corps Trial Judiciary

       Military Judge: Captain Ann K. Minami, JAGC, USN.
    Convening Authority: Commander, Navy Region Northwest,
                          Silverdale, WA.
 Staff Judge Advocate’s Recommendation: Lieutenant Commander
                  Justin L. Hawks, JAGC, USN.
      For Appellant: Commander Brian L. Mizer, JAGC, USN.
 For Appellee: Captain Brian L. Farrell, USMC; Lieutenant James
                     M. Belforti, JAGC, USN.
                      _________________________

                          Decided 26 April 2018
                          ______________________

  Before M ARKS , J ONES , and W OODARD , Appellate Military Judges
                         _________________________

This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
                        _________________________

   MARKS, Senior Judge:
   A military judge sitting as a general court-martial convicted the appellant,
pursuant to his pleas, of a single specification each of indecent recording and
wrongful possession of child pornography in violation of Articles 120c and
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920c and 934
                 United States v. Geronimohernandez, No. 201600383


(2012). The military judge awarded four years’ confinement, reduction to pay
grade E-1, and a bad-conduct discharge. Pursuant to a pretrial agreement
(PTA), the convening authority (CA) deferred and then waived for a period of
six months the automatic forfeitures. The CA approved the remaining
sentence as adjudged and, except for the punitive discharge, ordered it
executed.
   The appellant asserts two assignments of error (AOE). First, the military
judge erred when she considered an affidavit about the Navy’s Sex Offender
Treatment Program (SOTP) stating that a sentence of at least 45 months’
confinement was necessary for enrollment in the program and then sentenced
the appellant to 48 months. Second, the appellant received ineffective
assistance of counsel when his trial defense counsel (TDC) argued the
military judge should fashion her sentence around the SOTP affidavit, a
collateral matter.
    After carefully considering the pleadings and the record of trial, we find no
error materially prejudicial to the substantial rights of the appellant and
affirm the findings and sentence. Arts. 59(a) and 66(c), UCMJ.
                                   I. BACKGROUND
   The appellant pleaded guilty to indecent visual recording and possession
of child pornography. He surreptitiously recorded his 15-year-old half-sister
in her bedroom after she took a shower. Using frames of the video, the
appellant created and saved four still images of her while she was naked.
Additionally, the appellant admitted to possessing approximately 1,000
images and 20 videos of child pornography.
   As a provision of the PTA, the CA agreed to recommend the appellant’s
placement at Naval Consolidated Brig (NCB) Miramar, “which is a military
facility with a non-violent sex offender treatment program, to serve the
period of confinement.”1 During the providence inquiry, the military judge
asked the appellant, “[i]s this a provision that you requested to be in your
pretrial agreement?”2 The appellant replied that it was, and he acknowledged
that he understood that the CA would recommend his placement at NCB
Miramar.
   The appellant’s struggle with pornography addiction and his desire for
help were central themes of his presentencing case. TDC presented two
exhibits about the SOTP at NCB Miramar. The first exhibit was an affidavit
from the Clinical Services Director at NCB Miramar and Senior Clinician for


   1   Appellate Exhibit (AE) I at 5.
   2   Record at 52.


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                   United States v. Geronimohernandez, No. 201600383


Navy Corrections. The affidavit provided detailed information about the
SOTP at NCB Miramar, including the entry criteria.3 A table imbedded in
the affidavit indicated that a sentence of 45 months’ confinement or more was
necessary to complete the SOTP. An individual with a sentence of 30 to 45
months’ confinement would have to agree to hold earned time and/or good
conduct time in abeyance in order to complete the program. The second
exhibit was a scholarly article entitled “Navy Sex Offender Treatment:
Promoting Community Safety.”4
    In his unsworn statement, the appellant told the military judge:
          I’ve been struggling with, like, a porn addiction. . . . I choose
          my behavior. I regret that I did it, but I don’t want to do it
          anymore. That’s what I told my lawyer to probably get a
          program for sex offender might probably help me. . . . I looked
          into programs over here in Washington while this process was
          going on for porn addiction and sex addiction and all this stuff.
          I wasn’t too successful, it was pretty hard to find, but when my
          lawyer told me about the program in Miramar, I said, “well,
          that’s—that’s—that’s a good option.”5
    In his sentencing argument, TDC emphasized the appellant’s “sickness”
and “weakness.”6 He invited the military judge’s attention to the entry
criteria for the SOTP in the affidavit and the journal article, assured the
military judge of the appellant’s willingness to participate in the program,
and argued that 36 months was an adequate sentence to complete the
program. As previously stated, the military judge adjudged a sentence
including four years’ confinement.7
                                       II. DISCUSSION
A. Military judge’s consideration of defense affidavit about SOTP
   In his first AOE, the appellant argues that the military judge erred when
she considered defense exhibits about the SOTP at NCB Miramar in her
sentencing deliberations.



    3   Defense Exhibit (DE) D at 3.
    DE E. Tina M. Marin and Deborah L. Bell, Navy Sex Offender Treatment:
    4

Promoting Community Safety, CORRECTIONS TODAY (Dec. 2003) at 84.
    5   Record at 64-65.
    6   Id. at 74-75, 77-81.
    7   The appellant’s PTA suspended any confinement in excess of 48 months. AE II
at 1.


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   We review a military judge’s consideration of sentencing factors under an
abuse of discretion standard. United States v. Green, 64 M.J. 289, 292
(C.A.A.F. 2007) (citing United States v. McDonald, 55 M.J. 173, 178 (C.A.A.F.
2001)).
    Through his unsworn statement, an affidavit, and a scholarly article, the
appellant presented evidence about his struggle with pornography, his desire
for treatment, and the SOTP at NCB Miramar as matters in extenuation and
mitigation.
   1. Collateral matters
    The availability of treatment and rehabilitation programs in confinement
facilities and the time needed to complete them are among the collateral
matters “normally off limits” to military judges and members considering an
appropriate court-martial sentence. United States v. Flynn, 28 M.J. 218, 221
(C.M.A. 1989) (citing United States v. Lapeer, 28 M.J. 189 (C.M.A. 1989))
(additional citation omitted). Our superior court has not held that “all
evidence of service-rehabilitation programs is per se inadmissible at courts-
martial[,]” but “the details of these programs need not be generally admitted
as a sentence concern.” United States v. Rosato, 32 M.J. 93, 95 (C.M.A. 1991)
(citation omitted). The rationale for excluding such collateral matters is “to
prevent ‘the waters of the military sentencing process’ from being ‘muddied’
by ‘an unending catalogue of administrative information.’” Id. at 96 (quoting
United States v. Quesinberry, 31 C.M.R. 195, 198 (C.M.A. 1962)). Instead,
“the proper focus of sentencing is on the offense and the character of the
accused, [RULE FOR COURTS-MARTIAL] 1001(b)-(c)[.]” United States v.
Talkington, 73 M.J. 212, 216 (C.A.A.F. 2014) (citing RULE FOR COURTS-
MARTIAL (R.C.M.) 1001, MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.)).
   Relying on our decision in United States v. Goldberg, No. 200601093,
2007 CCA LEXIS 8, unpublished opinion, (N-M. Ct. Crim. App. 24 Jan 2007),
the appellant argues that “[t]his Court has previously determined the
availability of SOTP to be impermissible collateral matter inadmissible under
R.C.M. 1001.”8 Petty Officer Goldberg pleaded guilty to receiving, possessing,
and distributing child pornography and admitted to soliciting approximately
700 images and 70 videos depicting child pornography. Id. at *2. The
government submitted a stipulation of expected testimony from a doctor as
presentencing evidence in aggravation. Id. at *3. The stipulation included the
doctor’s opinion:




   8   Appellant’s Brief of 8 Mar 2017 at 7.


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              United States v. Geronimohernandez, No. 201600383


       that sex offenders, including those who receive, possess and
       distribute child pornography, require a minimum of 48 months
       of confinement in order to complete the military sex offender
       treatment program due to good time reducing the time they
       spend in confinement. In addition, the expected testimony
       contained the opinion that eight or more years of confinement
       is the optimal sentence for a sex offender because it gives the
       offender time to complete the treatment program and have
       additional time in confinement to allow their symptoms to
       relapse prior to being paroled.
Id. at *3. In Goldberg, we noted that “the stipulated testimony concerned
collateral matters and, therefore, was not appropriate sentencing evidence.”
Id. at *8. “The availability of child sex offender treatment programs is a
collateral matter that should not be presented in aggravation for
consideration in determining a proper sentence, unless presented in
rebuttal.” Id. (emphasis added) (citing Lapeer, 28 M.J. 189; Flynn, 28 M.J.
218; United States v. Murphy, 26 M.J. 454 (C.M.A. 1988); United States v.
Griffin, 25 M.J. 423 (C.M.A. 1988); United States v. Pollard, 34 M.J. 1008
(A.C.M.R. 1992), rev’d on other grounds, 38 M.J. 41 (C.A.A.F. 1993)). “Second,
administrative confinement reduction procedures such as good time and
parole are collateral matters that should not be considered in reaching an
appropriate sentence.” Id. at *9 (citing United States v. McNutt, 62 M.J. 16,
20 (C.A.A.F. 2005)).
    In the case before us, the defense—not the government—submitted the
evidence of the time required to complete an SOTP. This is an important
distinction. To the extent the appellant claims there was error in admitting
the SOTP evidence he presented, he invited it. An “[a]ppellant cannot create
error and then take advantage of a situation of his own making” on appeal.
United States v. Raya, 45 M.J. 251, 254 (C.A.A.F. 1996) (citing United States
v. Johnson, 26 F.3d 669, 677 (7th Cir. 1994) (“A party may not ‘invite’ error
and then argue on appeal that the error for which he was responsible entitles
him to relief.”)). See also United States v. Martin, 75 M.J. 321, 325 (C.A.A.F.
2016) (“Although it is inadmissible, we will not find reversible error from the
introduction of human lie detector evidence at trial when the accused invites
its admission.”).
    As to whether the military judge improperly considered collateral matters
in the evidence, “[m]ilitary judges are presumed to know the law and to
follow it absent clear evidence to the contrary.” United States v. Erickson, 65
M.J. 221, 225 (C.A.A.F. 2007) (citing United States v. Mason, 45 M.J. 483, 484
(C.A.A.F. 1997)).




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                 United States v. Geronimohernandez, No. 201600383


   2. Sentence severity as evidence of improper consideration
    Clear evidence to the contrary existed in Goldberg but does not exist in
the case before us. In Goldberg, the government’s stipulation of expected
testimony recommended not less than 48 months’ confinement but “optimally
eight or more years of confinement.” 2007 CCA LEXIS 8 at *10. In
announcing his sentence, the military judge said, “it is my duty, as military
judge, to reluctantly sentence you as follows[,]” and then he awarded ten
years’ confinement. Id. (emphasis in original). Our court noted that ten years
“far exceed[ed]” the amount of confinement typically adjudged in similar and
even more serious cases. Id. at *10-11. “[T]he severity of the adjudged
sentence, combined with the military judge’s own words, convince[d] us that
the military judge considered inappropriate information in determining the
appellant’s sentence.” Id. at *10.
   In contrast, here we have neither expressions of reluctance from the
military judge nor an excessive sentence. The appellant asserts that his four-
year sentence “‘far exceeds what is typically adjudged’” and “is a draconian
punishment for the non-contact offenses at issue in this case.”9 As
comparison, the appellant offers four cases with sentences of two years of
confinement or less for one or two specifications of child pornography
possession. Such cases are inapposite. In addition to possessing a relatively
large amount of child pornography, the appellant hid a camera in his 15-year-
old half-sister’s bedroom while she was in the shower so he could record her
disrobing and dressing in her room after her shower. Using the video footage,
he created four still images in order “to have stable visual depictions of [her]
nude body to increase the sexual gratification [he] had experienced from the
fleeting video images.”10 Even in light of his half-sister’s request that the
military judge spare him incarceration,11 the appellant has failed to
demonstrate that his sentence of four years is excessive. The maximum
confinement for indecent recording in violation of Article 120c, UCMJ, is five
years—in addition to the maximum of ten years’ confinement for the child
pornography the appellant possessed.




   9   Appellant’s Brief at 8-9 (quoting Goldberg, 2007 CCA LEXIS 8 at *11-12).
   10   PE 1 at 2.
   11   DE C.


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    Finding no clear evidence to the contrary, we presume the military judge
did not consider inappropriate collateral matters in formulating her sentence.
B. Ineffective assistance of counsel
   The appellant also contends that he received ineffective assistance of
counsel when his TDC argued the military judge should fashion her sentence
around a collateral matter.
   “To establish ineffective assistance of counsel, ‘an appellant must
demonstrate both (1) that his counsel’s performance was deficient, and (2)
that this deficiency resulted in prejudice.’” United States v. Datavs, 71 M.J.
420, 424 (C.A.A.F. 2012) (quoting United States v. Green, 68 M.J. 360, 361
(C.A.A.F. 2010) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
“In reviewing for ineffectiveness, [we look] ‘at the questions of deficient
performance and prejudice de novo.’” Id. (quoting United States v. Gutierrez,
66 M.J. 329, 330-31 (C.A.A.F. 2008)). “The burden on each prong rests with
the appellant challenging his counsel’s performance.” United States v. Davis,
60 M.J. 469, 473 (C.A.A.F. 2005).
   1. Counsel’s performance
    Counsel enjoy a presumption that they “‘rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment.’” United States v. Akbar, 74 M.J. 364, 371 (C.A.A.F. 2015) (quoting
Strickland, 466 U.S. at 689, 690) cert. denied, 137 S. Ct. 41 (Oct. 3, 2016).
Additionally, appellate courts “are constrained by the principle that strategic
choices made by trial defense counsel are ‘virtually unchallengeable’ after
thorough investigation of the law and the facts relevant to the plausible
options.” Id. (quoting Strickland, 466 U.S. at 690-91).
    The record in this case reveals that TDC researched the SOTP program at
NCB Miramar, consulted with at least one clinician there, secured the
appellant’s consent to pursue the treatment, negotiated for the CA’s
recommendation to place the appellant at NCB Miramar, and constructed his
sentencing argument around the appellant’s suitability and amenability to
the program. TDC clearly made a strategic decision to present matters in
extenuation and mitigation that were inextricably intertwined with collateral
matters of SOTP availability and timelines. In weighing the presentation of
collateral matters against the extenuation and mitigation value of the
appellant’s openness to treatment, we accord the highest levels of deference
to the TDC’s professional judgment.
   But there is no need to delve more deeply into the adequacy and
reasonableness of TDC’s assistance and judgment if they did not result in
prejudice to the appellant.



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                     United States v. Geronimohernandez, No. 201600383


   2. Prejudice
    “[A] court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant as a result
of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we expect will often
be so, that course should be followed.” Strickland, 466 U.S. at 697. See also
United States v. Captain, 75 M.J. 99, 103 (C.A.A.F. 2016).
    To demonstrate sufficient prejudice, an appellant “must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland, 466 U.S. at
694. In the context of ineffective assistance of counsel during sentencing, a
different result is a lesser sentence. Captain, 75 M.J. at 103.
    The appellant argues there is “a reasonable probability that [he] would
have been sentenced to substantially less than four years in prison had his
[TDC] not centered his argument on a table suggesting forty-five months of
confinement was sufficient for SOTP.”12 In support, he offers the four cases of
child pornography possession with sentences of two years or less cited in the
previous section. As for the charge of indecent recording, the appellant
asserts that the comparable charge is often a misdemeanor. He cites four
state cases in which he claims the defendants were convicted of misdemeanor
“video voyeurism.”13 Review of those cases undermines the appellant’s
argument. In the cases cited by the appellant, surreptitiously recording an
adult was a misdemeanor. But two of the cases cited involved minor victims,
and recording the minors without consent was a felony. The appellant has
failed to demonstrate that, but for his TDC’s presentation of collateral
matters, the military judge would have awarded a sentence to confinement
for less than four years.
  Without a showing of prejudice, the appellant’s claim that his TDC was
ineffective is without merit.




   12   Appellant’s Brief at 10 (citation omitted).
   13   Id. at 11.


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             United States v. Geronimohernandez, No. 201600383


                           III. CONCLUSION
    The findings of guilty and the sentence, as approved by the CA, are
affirmed.
   Judge JONES and Judge WOODARD concur.
                                   For the Court




                                   R.H. TROIDL
                                   Clerk of Court




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