United States v. Ferrando ( 2017 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39039
________________________
UNITED STATES
Appellee
v.
Todd J. FERRANDO
Master Sergeant (E-7), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 16 October 2017
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Military Judge: Joseph S. Imburgia.
Approved sentence: Dishonorable discharge, confinement for 90 days,
and reduction to E-1. Sentence adjudged 13 January 2016 by GCM
convened at Hill Air Force Base, Utah.
For Appellant: Major Allen S. Abrams, USAF.
For Appellee: Major Mary Ellen Payne, USAF; Major Meredith L.
Steer, USAF; Gerald R. Bruce, Esquire.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military
Judges.
Judge SPERANZA delivered the opinion of the court, in which Senior
Judge HARDING and Judge HUYGEN joined.
________________________
PUBLISHED OPINION OF THE COURT
________________________
SPERANZA, Judge:
A military judge sitting as a general court-martial found Appellant guilty,
consistent with his pleas pursuant to a pretrial agreement, of possessing
child pornography in violation of Article 134, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. § 934. The military judge sentenced Appellant to a
United States v. Ferrando, No. ACM 39039
dishonorable discharge, confinement for 13 months, and reduction to E-1.
Consistent with the terms of the pretrial agreement, the convening authority
approved only 90 days of confinement but approved the remainder of the ad-
judged sentence.
On appeal, Appellant raises the following errors: (1) his court-martial
lacked personal jurisdiction; (2) the military judge determined his sentence
based on the incorrect maximum punishment; (3) he was denied effective as-
sistance of counsel by one of his detailed military defense counsel; (4) his pro-
tection against double jeopardy was violated; (5) pre-preferral delay denied
him a speedy trial and due process; and (6) the conditions of his post-trial
confinement warrant sentence relief. 1 We disagree with Appellant’s asser-
tions, find no prejudicial error, and affirm. We address Appellant’s claims re-
lated to jurisdiction, the maximum authorized punishment, the effectiveness
of his senior defense counsel, and his post-trial confinement conditions. We
have considered and reject Appellant’s remaining claims, which neither re-
quire additional analysis nor warrant relief. See United States v. Matias, 25
M.J. 356, 363 (C.M.A. 1987).
I. BACKGROUND
Appellant, a reservist, downloaded and viewed child pornography from
2006 until his proclivity for child pornography was discovered by law en-
forcement in November 2011. Appellant subsequently admitted to possessing
digital images and videos of child pornography and estimated the youngest
child depicted in his files to be approximately 5 years old.
In July 2013, Appellant was charged in Utah state court with 20 counts of
sexual exploitation for child pornography files he possessed between May
2011 and January 2012. In May 2014, Appellant pleaded guilty to four of
these charges 2 and was sentenced to a suspended prison sentence, a fine,
three years’ probation, 250 days in jail (77 days of time served), therapy, and
sex offender registration.
The charge and specification in this case alleged Appellant possessed
eight specific digital depictions of child pornography while on active duty in
July 2010. The charge and its specification were preferred and received by
1 Issues (3)–(6) were raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982).
2 The remaining charges were dismissed.
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United States v. Ferrando, No. ACM 39039
the summary court-martial convening authority in July 2015, just short of
five years after the charged misconduct.
II. DISCUSSION
A. Personal Jurisdiction
Appellant is a member of the Air Force Reserve. In 2012, Appellant ex-
tended his enlistment in the reserves for an additional four years. Appellant
was on active duty when he committed the charged offense and stipulated to
this fact.
On 23 April 2015, the general court-martial convening authority (GCM-
CA) requested the Secretary of the Air Force (SECAF) approve, pursuant to
Article 2(d)(5), UCMJ, 10 U.S.C. § 802(d)(5) (2012), Appellant’s recall to ac-
tive duty, as needed.
In a 28 June 2015 memorandum to Appellant’s squadron commander with
the subject “Recall of [Appellant] for Trial by Court-Martial,” the GCMCA is-
sued the following order: “Pursuant to [Air Force Instruction (AFI)] 51-201,
paragraph 2.9, 3 I direct that [Appellant] be involuntarily ordered on to active
duty for preferral of charges, a pre-trial hearing, and trial by court-martial.”
Accordingly, Appellant received one-day active duty orders for preferral of
charges on 11 July 2015. The orders’ remarks section cited 10 U.S.C. §
12301(d) 4 as the orders’ authority and stated, inter alia, “Member is involun-
tarily ordered to active duty for referral of charges, pre-trail [sic] hearing and
trial by court-martial pursuant to AFI 51-201 para 2.9 in liew [sic] of sched-
uled [inactive duty training].” As ordered, Appellant appeared before his
commander, who properly preferred the charge and specification in this case.
However, Appellant refused to sign his orders. At the time of trial, Appellant
had not yet been paid for performing active duty on these orders.
3 The Secretary concerned shall prescribe regulations setting forth rules and proce-
dures for the exercise of court-martial jurisdiction over reserve component personnel
under Article 2(d), subject to the limitations of the Manual for Courts-Martial and
the UCMJ. Rule for Courts-Martial (R.C.M.) 204(a). AFI 51-201, Administration of
Military Justice, sets forth such rules and procedures for the exercise of court-martial
jurisdiction over Air Force Reserve members.
4 10 U.S.C. § 12301(d) provides that “[a]t any time, an authority designated by the
Secretary concerned may order a member of a reserve component under his jurisdic-
tion to active duty, or retain him on active duty, with the consent of that member.”
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United States v. Ferrando, No. ACM 39039
On 14 July 2015, three days after preferral, the SECAF approved the
GCMCA’s request to recall Appellant. The SECAF’s response stated,
On April 23, 2015, you requested my approval, pursuant to Ar-
ticle 2(d)(5), Uniform Code of Military Justice [UCMJ], to recall
[Appellant] to active duty, as needed. You made this request so
that, if convicted, a court-martial may adjudge, and [Appellant]
may be required to serve, a sentence to confinement or re-
striction on liberty. I hereby approve any recall to active duty
of [Appellant] which you have ordered, or may hereafter order.
Appellant was placed on one-day active duty orders for his pretrial hear-
ing on 27 August 2015. The remarks section of the orders again cited 10
U.S.C. § 12301(d) as the orders’ authority and included the statement,
“Member is recalled for a court-martial proceeding.” Appellant attended his
pretrial hearing and was paid for performing his duties.
Appellant’s three-day active duty orders for his court-martial also cited 10
U.S.C. § 12301(d) as the orders’ authority. The remarks section was silent
with respect to any disciplinary purpose and, instead, referenced “Home Sta-
tion Training.”
At trial, Appellant moved to dismiss the charge and its specification, ar-
guing that the errors in his orders divested the court-martial of personal ju-
risdiction. The military judge rejected this claim and found that Appellant’s
orders and Article 2(c), 10 U.S.C. § 802(c), 5 “gave the Air Force jurisdiction
over [Appellant] on the date of preferral and the date of the Article 32 hear-
ing as well.” The military judge also sought Appellant’s position regarding his
orders for trial. Appellant’s trial defense counsel affirmed “for today’s orders
5 10 U.S.C. § 802(c) provides:
Notwithstanding any other provision of law, a person serving with an
armed force who—
(1) submitted voluntarily to military authority;
(2) met the mental competence and minimum age qualifications of
sections 504 and 505 of this title at the time of voluntary submission
to military authority;
(3) received military pay or allowances; and
(4) performed military duties;
is subject to this chapter until such person’s active service has been
terminated in accordance with law or regulations promulgated by the
Secretary concerned.
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United States v. Ferrando, No. ACM 39039
we believe it’s best just to proceed without a delay, so we would consent to
continuing only with regard to today’s orders.” Appellant agreed with his
counsel, stating, “I do consent to continue on with the orders that are present
today.” The military judge, in turn, concluded,
And so with your consent, we will proceed. I will say that I
think the same analysis would apply even without your con-
sent, but pursuant to Article 2(c), we’re still all here and you’re
-- you are objecting to the fact now you could potentially make
an argument going forward, but as of -- everything that’s oc-
curred up to this point in time, I believe 2(c) covers that and
therefore provides jurisdiction to this court.
Appellant now raises similar jurisdictional arguments on appeal. Appel-
lant claims that “the error in [his] orders go to the heart of whether there was
jurisdiction altogether.” Specifically, Appellant maintains that the “error in
[his] orders here is critical because 10 U.S.C. 12301(d) is not a proper basis to
recall a member to active duty for disciplinary proceedings and because the
Air Force’s error in relying on that authority was not an administrative er-
ror.” In Appellant’s estimation, this “critical error” demands we “set aside the
findings and sentence.” We disagree. Appellant committed his offense while
on active duty. Importantly, Appellant retained his military status as a re-
servist, thus remaining subject to court-martial jurisdiction.
“Jurisdiction is a legal question which we review de novo.” United States
v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006) (internal quotations omitted).
There are three general prerequisites “that must be met for courts-martial
jurisdiction to vest: (1) jurisdiction over the offense, (2) personal jurisdiction
over the accused, and (3) a properly convened and composed court-martial.”
Id.; see Rule for Courts-Martial (R.C.M.) 201(b). Here, we are focused only on
whether the court-martial had personal jurisdiction over Appellant.
“[B]oth the Supreme Court of the United States and [the Court of Ap-
peals for the Armed Forces (CAAF)] have insisted that courts-martial not ex-
ercise jurisdiction beyond that granted by the applicable statutes.” Willen-
bring v. Neurauter, 48 M.J. 152, 157 (C.A.A.F. 1998).
Article 2, UCMJ, 10 U.S.C. § 802, establishes the classes of persons sub-
ject to the code. See R.C.M. 202(a), Discussion. Generally, a court-martial
“may try any person when authorized to do so under the [UCMJ].” R.C.M.
202(a). Accordingly, active duty personnel, to include “persons lawfully called
or ordered into, or to duty in or for training in, the armed forces, from the
dates when they are required by the terms of the call or order,” are subject to
the code. See Article 2(a)(1), UCMJ, 10 U.S.C. § 802(a)(1); see also R.C.M.
202(a), Discussion (5) Members of a Reserve Component (“Members of a re-
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United States v. Ferrando, No. ACM 39039
serve component in federal service on active duty, as well as those in federal
service on inactive-duty training, are subject to the code. Moreover, members
of a reserve component are amenable to the jurisdiction of courts-martial
notwithstanding the termination of a period of such duty.”).
In pertinent part, Article 3, UCMJ, 10 U.S.C. § 803, provides,
A member of a reserve component who is subject to this chap-
ter is not, by virtue of the termination of a period of active duty
or inactive-duty training, relieved from amenability to the ju-
risdiction of this chapter for an offense against this chapter
committed during such period of active duty or inactive-duty
training.
10 U.S.C. § 803(d) (emphasis added).
In other words,
[a] member of a reserve component at the time disciplinary ac-
tion is initiated, who is alleged to have committed an offense
while on active duty or inactive-duty training, is subject to
court-martial jurisdiction without regard to any change be-
tween active and reserve service or within different categories
of reserve service subsequent to commission of the offense.
R.C.M. 204(d); see also Manual for Courts-Martial, United States (2016 ed.)
(MCM), App. 21, at A21–13 (“Use of the term ‘member of a reserve compo-
nent’ in Article 3(d) means membership in the reserve component at the time
disciplinary action is initiated.”).
However, a person whose military status was completely terminated after
commission of an offense is generally not subject to court-martial jurisdiction.
Id.; R.C.M. 204(d) Discussion (“A member of a regular or reserve component
remains subject to court-martial jurisdiction after leaving active duty for of-
fenses committed prior to such termination of active duty if the member re-
tains military status in a reserve component without having been discharged
from all obligations of military service.”).
Article 30, UCMJ, 10 U.S.C. § 830, establishes the requirements for pre-
ferral of charges and specifications. The statute requires the following:
(a) Charges and specifications shall be signed by a person sub-
ject to this chapter under oath before a commissioned officer of
the armed forces authorized to administer oaths and shall
state—
(1) that the signer has personal knowledge of, or has investi-
gated, the matters set forth therein; and
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(2) that they are true in fact to the best of his knowledge and
belief.
(b) Upon the preferring of charges, the proper authority shall
take immediate steps to determine what disposition should be
made thereof in the interest of justice and discipline, and the
person accused shall be informed of the charges against him as
soon as practicable.
Article 30(a)-(b), UCMJ, 10 U.S.C. § 830(a)-(b) (emphasis added).
Pursuant to Article 2(d)(1), UCMJ, 10 U.S.C. § 802(d)(1),
a member of the reserve component who is not on active duty
and who is made the subject of proceedings under [Article 30,
UCMJ,] with respect to an offense against the [UCMJ] may be
ordered to active duty involuntarily for the purpose of —
(A) a preliminary hearing under [Article 32, UCMJ; or]
(B) trial by court-martial[.]
Article 2(d)(1)(A)-(B), UCMJ, 10 U.S.C. § 802(d)(1)(A)-(B) (emphasis added).
“A member of a reserve component must be on active duty prior to ar-
raignment at a general or special court-martial.” R.C.M. 204(b).
A member ordered to active duty pursuant to Article 2(d) may
be retained on active duty to serve any adjudged confinement
or other restriction on liberty if the order to active duty was
approved in accordance with Article 2(d)(5), but such member
may not be retained on active duty pursuant to Article 2(d) af-
ter service of the confinement or other restriction on liberty.
R.C.M. 204(b)(1).
Only a general court-martial convening authority in a regular component
of the armed forces may order a member of the reserve component to active
duty involuntarily for the purpose of a preliminary hearing and trial by court-
martial under Article 2(d). Article 2(d)(4), UCMJ, 10 U.S.C. § 802(d)(4).
Moreover, “unless the order to active duty was approved by the Secretary
concerned,” a member involuntarily ordered to active duty pursuant to Arti-
cle 2(d) may not be sentenced to confinement or generally “be required to
serve a punishment consisting of any restriction on liberty during a period
other than a period of inactive-duty training or active duty.” Article 2(d)(5),
UCMJ, 10 U.S.C. § 802(d)(5).
The applicable statutes subjected Appellant to court-martial jurisdiction
for the charged offense. Appellant committed the charged offense while on
active duty. Appellant was a member of the Air Force Reserve at the time
7
United States v. Ferrando, No. ACM 39039
disciplinary action in this case was initiated and maintained his military sta-
tus as a member of the Air Force Reserve. The Air Force had personal juris-
diction over Appellant. 6
The Air Force chose to exercise jurisdiction. The charge and specification
were properly preferred, 7 making Appellant the subject of proceedings under
Article 30, UCMJ, with respect to an offense against the code. A GCMCA in
the regular component of the Air Force directed—in no uncertain terms—
Appellant be involuntarily ordered to active duty for a pretrial hearing and
trial by court-martial. The GCMCA’s command was administratively execut-
ed and Appellant was issued active duty orders for the preliminary hearing
and trial. These orders were approved by the SECAF, thus authorizing the
court-martial to sentence Appellant to confinement. The statutory require-
ments necessary to order Appellant onto active duty involuntarily under Ar-
ticle 2 were met; Appellant’s consent manifested by his signature was unnec-
essary despite the administrative errors in Appellant’s written orders that
cited authority requiring Appellant’s consent. See United States v. O’Connor,
No. ACM 38420, 2015 CCA LEXIS 47, at *11 (A.F. Ct. Crim. App. 12 Feb.
2015) (unpub. op.) (holding that erroneous citation to 10 U.S.C. § 12301(d) in
reservist appellant’s orders was an administrative error that did not divest
the court-martial of personal jurisdiction when the Air Force clearly intended
to recall Appellant to active duty for his court-martial pursuant to the GCM-
CA’s directive and the Secretary’s approval). These administrative errors,
while careless and avoidable, did not divest the court-martial of personal ju-
risdiction. Put another way, an administrative or clerical error committed by
the Air Force in properly exercising its statutory jurisdiction over a member
does not divest the court-martial of its otherwise lawful jurisdiction over that
member.
6 Appellant conceded these “Jurisdictional Facts” in a stipulation of fact admitted as
a Prosecution Exhibit at trial.
7 Contrary to Appellant’s argument that administrative errors on his one-day active
duty orders for preferral somehow divested the court-martial of personal jurisdiction,
the law does not require Appellant to be on active duty orders the day charges and
specifications are preferred in order for the requirements of Article 30 to be met. See
Article 30, UCMJ, 10 U.S.C. § 830; see also R.C.M. 308 (The “sole remedy” for failing
to inform an accused of the preferred charges and the name of the accuser and of any
person who ordered the charges to be preferred, if known, is “a continuance or recess
of sufficient length to permit the accused to adequately prepare a defense, and no
relief shall be granted upon a failure to comply with this rule unless the accused
demonstrates that the accused has been hindered in the preparation of a defense.”).
8
United States v. Ferrando, No. ACM 39039
Nonetheless, we will test the clerical mistakes in Appellant’s orders for
prejudice. See id. In addressing the prejudice he suffered due to the errors in
his orders, Appellant maintains that the “flaws” in his orders “were not mere-
ly clerical.” Accordingly, Appellant contends that there were no facts “present
in this case” to indicate that Appellant consented to jurisdiction; did not ob-
ject to jurisdiction at the time of preferral, the pretrial hearing, or trial;
signed his recall orders; and received pay or would receive pay.
Appellant concludes,
Here, the error goes directly to [his] recall to active duty at pre-
ferral and each of the ensuing proceedings, [he] never took any
action that would indicate his consent to jurisdiction—instead
challenging it at every opportunity8—and the government’s ac-
tions thrice disregard [this court’s decision in O’Connor that
made] clear Appellant’s orders [were] plainly wrong.
Based on these distinctions, the errors in Appellant’s recall to
active duty were not clerical and, even if they were, Appellant
was prejudiced. As such, this Court should determine Appel-
lant never consented to jurisdiction, was never properly or-
dered to active duty, and his court-martial lacked personal ju-
risdiction
Appellant’s argument hinges on a finding that, in this case, the adminis-
trative errors or “flaws” in his orders “were not merely clerical.” Indeed, his
orders contained errors, but those administrative errors did not cause any
discernable prejudice to Appellant, apart from his circular argument that the
court-martial therefore lacked personal jurisdiction. Appellant was issued
active duty orders and appeared for duty, in uniform, pursuant to those or-
ders, for preferral, his Article 32, UCMJ, hearing, and his general court-
martial. There simply was no confusion about his active duty status at the
time he committed the charged offense, preferral, the preliminary hearing,
and trial. See United States v. Nettles, 74 M.J. 289, 291 (C.A.A.F. 2015) (“The
overarching interest implicated by the law of personal jurisdiction . . . is the
need—of both servicemember and service—to know with certainty and finali-
ty what the person’s military status is and when that status changes.”).
Moreover, Appellant was on active duty orders for his general court-martial,
prior to arraignment and affirmatively consented to jurisdiction at trial. See
8Appellant’s trial defense counsel made a different argument in seeking clemency on
behalf of Appellant. She stated “[Appellant] even consented to being court-martialed
so [he] could take responsibility for his actions and move forward with his life.”
9
United States v. Ferrando, No. ACM 39039
R.C.M. 204(b). Appellant’s broad claim of prejudice considering the certainty
of his status fails.
B. Maximum Punishment
Because the specification in this case alleged Appellant violated Article
134, UCMJ, by knowingly possessing in 2010 one or more depictions of a mi-
nor engaging in sexually explicit conduct and, thus, committing conduct of a
nature to bring discredit upon the armed forces, the maximum authorized
punishment was determined by reference to 18 U.S.C. § 2252A(a)(5) (2006), a
“closely related” offense in the United States Code. See United States v.
Finch, 73 M.J. 144, 147 (C.A.A.F. 2014); R.C.M. 1003(c)(1)(B).
Under the statute, the maximum punishment for knowingly possessing
child pornography in violation of 18 U.S.C. § 2252A(a)(5) is ten years’ impris-
onment. 18 U.S.C. § 2252A(b)(2).
[B]ut, if any image of child pornography involved in the offense
involved a prepubescent minor or a minor who had not attained
12 years of age, such person shall be fined under this title and
imprisoned for not more than 20 years, or if such person has a
prior conviction under this chapter, chapter 71, chapter 109A,
or chapter 117 [18 USCS § 2251 et seq., § 1460 et seq., § 2241
et seq., or § 2421 et seq.], or under section 920 of title 10 (arti-
cle 120 of the Uniform Code of Military Justice), or under the
laws of any State relating to aggravated sexual abuse, sexual
abuse, or abusive sexual conduct involving a minor or ward, or
the production, possession, receipt, mailing, sale, distribution,
shipment, or transportation of child pornography, such person
shall be fined under this title and imprisoned for not less than
10 years nor more than 20 years.
Id.
At trial prior to arraignment, the parties disagreed about what the maxi-
mum punishment authorized was in Appellant’s case. The Government ar-
gued Appellant could be sentenced to 20 years of confinement due to the age
of the minors depicted in the material Appellant possessed and Appellant’s
prior conviction in Utah. The Defense argued that neither enhancement pro-
vision applied. The military judge took a recess in order to review the depic-
tions and consider the matter. During the recess, the convening authority
signed the pretrial agreement limiting Appellant’s sentence to no more than
90 days of confinement.
Immediately after the recess, the military judge found that both en-
hancement provisions applied and Appellant faced a maximum of 20 years of
confinement. The military judge noted that he was informed of the signed
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pretrial agreement during the recess. Appellant was arraigned; litigated and
lost his motion to dismiss the charge and specification; and pleaded guilty
pursuant to the pretrial agreement. After completing the providence inquiry
with Appellant, the military judge advised Appellant that, on the plea of
guilty alone, the court-martial could sentence Appellant, inter alia, to con-
finement for 20 years. Appellant did not have any questions regarding the
maximum punishment and continued with his guilty plea after being advised
that he could withdraw from the pretrial agreement at any time prior to his
sentence being announced. The military judge found Appellant guilty con-
sistent with Appellant’s pleas and sentenced Appellant.
On appeal, Appellant argues that the military judge erred in determining
the maximum punishment included 20 years of confinement, instead of 10
years of confinement. Appellant specifically contends that the statutory pro-
vision regarding the age of the minors depicted in the child pornography was
not part of the legislation until after the charged misconduct and that Appel-
lant’s Utah convictions were not “prior convictions” because those convictions
were based on conduct that occurred after the charged misconduct in this
case. Accordingly, Appellant asks we set aside his sentence.
“The maximum punishment authorized for an offense is a question of law,
which we review de novo.” United States v. Beaty, 70 M.J. 39, 41 (C.A.A.F.
2011) (citing United States v. Ronghi, 60 M.J. 83, 84–85 (C.A.A.F. 2004);
United States v. Ingham, 42 M.J. 218, 229–30 (C.A.A.F. 1995)).
“A finding or sentence of a court-martial may not be held incorrect on the
ground of an error of law unless the error materially prejudices the substan-
tial rights of the accused.” Article 59(a), UCMJ, 10 U.S.C. § 59(a).
Here, we need not decide whether the military judge erred in the deter-
mination of the maximum lawful sentence to confinement because we find
the disparity did not prejudice Appellant. Appellant makes no argument that
the military judge’s determination of the maximum confinement rendered his
guilty plea improvident in any way. Appellant also makes no argument that
any misunderstanding he may have held as to the maximum punishment was
a factor, let alone a substantial factor, in his decision to plead guilty. Im-
portantly, Appellant makes no showing that he suffered any prejudice when
he signed a pretrial trial agreement limiting his confinement to 90 days, be-
lieving the maximum confinement he faced was 10 years of confinement 9 ra-
9 In a pretrial memorandum, Appellant certified that “[b]ased solely on the charges
[sic] that were preferred upon [him, he understood] the maximum punishment is 10
(Footnote continues on next page)
11
United States v. Ferrando, No. ACM 39039
ther than the 20 years determined by the military judge afterwards. The ad-
judged confinement of 13 months was roughly a tenth of a presumed maxi-
mum of 10 years of confinement and Appellant’s pretrial agreement limited
the confinement that could be approved to only 90 days. If there was an error
in the determination of the maximum punishment, we find that it did not
materially prejudice the substantial rights of Appellant.
C. Effectiveness of Counsel
Appellant was represented by a Major (O-4) senior defense counsel and
Captain (O-3) area defense counsel. Over the course of their representation,
neither one of Appellant’s counsel expressed concern regarding Appellant’s
mental responsibility or capacity to stand trial. Appellant expressed his de-
sire to reach an agreement that would minimize his exposure to confinement.
Accordingly, Appellant’s counsel negotiated a pretrial agreement that would
limit Appellant’s confinement to no more than 90 days.
Prior to trial, Appellant’s counsel advised him of his rights, including his
right to decide how to plead. Appellant decided he wanted to plead guilty to
the charge and specification. Appellant’s trial defense counsel’s advice and
Appellant’s decision to plead guilty were documented. In a memorandum,
Appellant certified the following: both of his detailed counsel explained his
rights to him “on multiple occasions during the months leading up to this
court-martial;” he was “fully aware of the charges and specifications [sic]
against [him;]” he “discussed with [his] attorney the evidence the Govern-
ment intends to introduce against [him] at trial;” he chose to plead guilty af-
ter consulting with his attorneys; he understood that the decision to plead
guilty was his and his alone; he was “only pleading guilty because [he was]
guilty and believe[d] that doing so [would] be in [his] best interest;” he under-
stood he could change his election to plead guilty with or without good cause;
the memorandum was intended to memorialize his decision to plead guilty
prior to trial after fully consulting with his attorney; he was “fully counseled
by [his senior defense counsel and area defense counsel] and [he] made this
decision [to plead guilty] and signed [the memorandum] knowingly, voluntar-
ily and of [his] own free will;” “[a]fter a full and in-depth discussion with
[both of his counsel], [he felt] fully informed of [his] rights and the potential
consequences of [his] decision;” “[he had] plenty of time to discuss this with
[his counsel];” he did “not feel the need for additional time to discuss [his
guilty plea] with [both of his counsel] or review evidence;” he “fully believe[d]
years confinement, forfeiture of all pay and allowances, reduction to the rank of E-1,
and a dishonorable discharge.”
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United States v. Ferrando, No. ACM 39039
[both of his counsel] have provided [him] with all of the necessary infor-
mation to enable [him] to make a fully informed decision and that his [coun-
sel’s] representation has been to the benefit of [Appellant] and [his] case;”
and he has “not been threatened or coerced and [made] these decisions of
[his] own free will.”
Appellant signed a pretrial offer to plead guilty in exchange for a 90-day
limitation on any adjudged confinement. In his offer, Appellant agreed, inter
alia, to enter into a reasonable stipulation of fact and waive all waivable mo-
tions. Appellant also asserted that he was, in fact, guilty; he understood the
agreement “permits the [G]overnment to avoid presentation in court of suffi-
cient evident to prove [his] guilt;” he offered to plead guilty because the sen-
tencing relief was in his best interest; he was satisfied with his defense coun-
sel and considered them competent to represent him at the court-martial; and
“[n]o person or persons made any attempt to force or coerce [him] into making
this offer to plead guilty.” Appellant further maintained the following:
My defense counsel fully advised me of the nature of the charge
against me, the possibility of my defending against it, any de-
fense which might apply, and the effect of the guilty plea which
I am offering to make, and I fully understand their advice and
the meaning, effect, and consequences of this plea.
The convening authority accepted Appellant’s offer prior to arraignment.
After litigating his motion to dismiss the charge, Appellant pleaded guilty
pursuant to the pretrial agreement. The military judge admitted a stipula-
tion of fact establishing the jurisdictional and factual basis for Appellant’s
guilty plea. Appellant signed the stipulation; agreed, under oath, to its con-
tents; and agreed, under oath, that he entered into the stipulation voluntari-
ly.
The military judge conducted a providence inquiry of Appellant, explain-
ing the elements of the offense and eliciting from Appellant the factual basis
for his guilty plea. Next, the military judge discussed Appellant’s pretrial
agreement. Appellant confirmed that he understood the terms of the agree-
ment and affirmed that he was not forced in any way to enter into the agree-
ment. Appellant then confirmed, once again, that he fully consulted with his
defense counsel and was satisfied with their representation and their advice.
He also confirmed, once again, that he was pleading guilty voluntarily and of
his own free will and affirmatively denied that anyone made any threat or
tried in any way to force him to plead guilty. Appellant acknowledged that he
understood he had a moral and legal right to plead not guilty and place the
burden on the Government to prove his guilt beyond a reasonable doubt. Ap-
pellant consulted with his counsel before being found guilty consistent with
his plea.
13
United States v. Ferrando, No. ACM 39039
Now on appeal, Appellant claims that his senior defense counsel “was de-
ficient in his performance.” In general, Appellant alleges that the senior de-
fense counsel “failed to seek the suppression of the evidence that would sup-
port the prosecution’s case had Appellant entered a plea of not guilty, and
coerced Appellant to plead guilty and waive motions despite the evidentiary
weaknesses in the case and Appellant’s mental stress.”
In response to Appellant’s claims, we ordered and received a declaration
from Appellant’s senior defense counsel. The senior defense counsel’s declara-
tion addressed the specific allegations raised by Appellant and included
memoranda initialed and signed by Appellant.
The Sixth Amendment guarantees Appellant the right to effective assis-
tance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). In
assessing the effectiveness of counsel, we apply the standard set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Accordingly, “an appellant must demonstrate both (1) that his counsel’s
performance was deficient, and (2) that this deficiency resulted in prejudice.”
United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland,
466 U.S. at 687). “The Strickland test applies in the context of guilty pleas
where an appellant challenges the plea based on ineffective assistance of
counsel.” United States v. Rose, 71 M.J. 138, 143 (C.A.A.F. 2012) (citing Hill
v. Lockhart, 474 U.S. 52, 58 (1985)).
In determining whether counsel’s performance was deficient, we “must
indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Ap-
pellant must therefore establish that counsel’s “representation amounted to
incompetence under ‘prevailing professional norms.’” Harrington v. Richter,
562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at 690).
To prevail on his ineffective assistance of counsel claim, Appellant must
also establish that he was prejudiced. Rose, 71 M.J. at 144. In the context of a
guilty plea, the prejudice question is whether “there is a reasonable probabil-
ity, but for counsel’s errors, [Appellant] would not have pleaded guilty and
would have insisted on going to trial.” Id. (quoting Hill, 474 U.S. at 59).
We review allegations of ineffective assistance of counsel de novo. United
States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (citing United States v.
Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)).
The record in Appellant’s case, to include the declaration of the senior de-
fense counsel and memoranda signed by Appellant, refutes Appellant’s inef-
14
United States v. Ferrando, No. ACM 39039
fective assistance of counsel allegations. 10 Trial defense counsel’s explana-
tions and actions in this case were reasonable, and his level of advocacy was
at or above the performance ordinarily expected of fallible lawyers. See
Gooch, 69 M.J. at 362. Accordingly, we find the senior defense counsel—along
with Appellant’s unchallenged area defense counsel—competently represent-
ed Appellant. Appellant’s senior defense counsel was presumed to be compe-
tent and Appellant failed to overcome that presumption. 11 Moreover, Appel-
lant failed to establish prejudice as we find no reasonable probability, given
the record of this case and Appellant’s specific allegations of ineffective assis-
tance of counsel, that Appellant would have pleaded not guilty and insisted
on going to trial. Consequently, Appellant’s ineffective assistance of counsel
claim cannot prevail; Appellant cannot demonstrate (1) that his senior de-
fense counsel’s performance was deficient and (2) that any deficiency resulted
in prejudice.
D. Post-trial Confinement Conditions
After trial, Appellant served a total of 74 days confinement in a local civil-
ian confinement facility. During Appellant’s confinement processing, a mili-
tary confinement official explained the civilian confinement facility rules to
Appellant and provided Appellant the time to review the facility’s prisoner
handbook. The military official also informed Appellant that any requests
concerning confinement conditions must be submitted in writing or digitally
through the civilian confinement facility’s kiosks.
Pursuant to the base’s memorandum of agreement with the civilian con-
finement facility, Appellant was placed in a single-person cell in order to
avoid any commingling with foreign nationals and other servicemembers in
pretrial confinement. However, if another military member shared Appel-
lant’s classification, Appellant would have been permitted to commingle with
that military prisoner.
10Having applied the principles announced in United States v. Ginn, 47 M.J. 236, 248
(C.A.A.F. 1997), and considered the entire record of Appellant’s trial, including a
guilty plea during which Appellant expressed his satisfaction with trial defense
counsel, we find we can resolve the issues raised by Appellant without additional
fact-finding.
11In addition to the specific claims identified in this opinion, we considered all other
ineffective assistance of counsel claims raised by Appellant in his declarations and
brief pursuant to Grostefon, 12 M.J. 431. We reject those remaining claims, which
neither require additional analysis nor warrant relief. See Matias, 25 M.J. at 363.
15
United States v. Ferrando, No. ACM 39039
Appellant was provided the civilian confinement facility uniform provided
to all prisoners. Appellant’s cell had two windows and contained two bunk-
beds, a desk, a stool, and a standard toilet and sink. Appellant was afforded
day room, recreation, and shower access for two hours, four times per week.
Appellant was served standard meals.
The civilian confinement facility denied Appellant access to materials Ap-
pellant packed in preparation for confinement, as such items were considered
contraband. Furthermore, Appellant did not have money in his inmate ac-
count. However, he was issued basic hygienic supplies and comfort items at
no cost. Pencils and toothbrushes were also available to indigent inmates on
request.
Appellant could request phone access throughout the day, with access
limited by scheduling constraints and consideration for other inmates. In-
mates had to pay a fixed rate for phone calls and individual calls were limited
to 20 minutes. However, Appellant could coordinate free phone calls to his
attorneys and authorized Air Force officials. Clergy visits and religious books
were available to Appellant upon request.
A military confinement official visited Appellant at the civilian confine-
ment facility. Appellant lodged only one official complaint or grievance—he
was unable to contact his senior defense counsel.
Although Appellant submitted no other formal complaints or grievances
with the Air Force or civilian confinement facility, he now alleges on appeal
that his post-trial confinement conditions warrant meaningful sentence re-
lief. In general, Appellant asserts he was placed in solitary confinement and
denied the following: access to his defense counsel; access to materials he
packed for confinement; access to writing materials; and “any type of com-
munication with family, friends, and employers.” Appellant further main-
tains, “[d]espite [his] request, diminishing physical well-being, and degrading
mental health, Appellant was provided insufficient access to religious mate-
rials, religious services, and mental healthcare.”
We “may affirm only such findings of guilty and the sentence or such part
or amount of the sentence, as we find correct in law and fact and determine,
on the basis of the entire record, should be approved.” Article 66(c), UCMJ, 10
U.S.C. § 866(c). In Gay, this court invoked Article 66(c) to grant the appellant
sentencing relief even in the absence of cruel or unusual punishment in viola-
tion of the Eighth Amendment, U.S. Const. amend. VIII, and Article 55,
UCMJ, 10 U.S.C. § 855. United States v. Gay, 74 M.J. 736, 743 (A.F. Ct.
Crim. App. 2015). The Court of Appeals for the Armed Forces (CAAF) held
that this court did not abuse its discretion in doing so. United States v. Gay,
75 M.J. 264, 269 (C.A.A.F. 2016). However, the CAAF noted that Gay in-
16
United States v. Ferrando, No. ACM 39039
volved unique facts driven by legal errors in the post-trial process that in-
cluded both a violation of the appellant’s rights under Article 12, UCMJ, 10
U.S.C. § 812, and the ordering of solitary confinement by an Air Force official
where an alternative solution was available. Id. Significantly, the CAAF em-
phasized, “[i]n reaching this conclusion, we do not recognize unlimited au-
thority of the Courts of Criminal Appeals to grant sentence appropriateness
relief for any conditions of post-trial confinement of which they disapprove.”
Id.
While we have granted sentence relief based upon conditions of post-trial
confinement where a legal deficiency existed, we are not a clearing house for
post-trial confinement complaints or grievances. See id. Only in very rare cir-
cumstances do we anticipate granting sentence relief when there is no viola-
tion of the Eighth Amendment or Article 55, UCMJ. United States v. Milner,
No. ACM S32338, 2017 CCA LEXIS 84, at *13 (A.F. Ct. Crim. App. 7 Feb.
2017) (unpub. op.); United States v. Garcia, No. ACM 38814, 2016 CCA LEX-
IS 490, at *14 (A.F. Ct. Crim. App. 16 Aug. 2016) (unpub. op.); cf. United
States v. Nerad, 69 M.J. 138, 145–48 (C.A.A.F. 2010) (holding that despite
our significant discretion in reviewing the appropriateness of a sentence, this
court may not engage in acts of clemency). This case does not present such
circumstances. 12
Moreover, Appellant’s case does not present any evidence to suggest he
attempted to utilize any grievance process to address the complaints he now
puts forward. The CAAF emphasized, “A prisoner must seek administrative
relief prior to invoking judicial intervention to redress concerns regarding
post-trial confinement conditions.” United States v. Wise, 64 M.J. 468, 469
(C.A.A.F. 2007). This requirement “promot[es] resolution of grievances at the
lowest possible level [and ensures] that an adequate record has been devel-
oped [to aid appellate review].” Id. at 471 (quoting United States v. Miller, 46
M.J. 248, 250 (C.A.A.F. 1997)). An appellant must show that “absent some
unusual or egregious circumstance . . . he has exhausted the prisoner-
grievance system [in his detention facility] and that he has petitioned for re-
lief under Article 138.” Id. (quoting United States v. White, 54 M.J. 469, 472
(C.A.A.F. 2001)). Appellant failed to make such a showing.
12 Although Appellant claimed that the conditions of his post-trial confinement
amounted to cruel or unusual punishment in violation of the Eighth Amendment,
U.S. CONST. amend. VIII, or Article 55, UCMJ, his brief acknowledges that “Appel-
lant’s allegations may not rise to the level of such a violation.” We agree that Appel-
lant’s allegations do not rise to that “level” and we find no such violation.
17
United States v. Ferrando, No. ACM 39039
Plainly, Appellant’s assertions do not warrant the extraordinary use of
our Article 66(c) power to grant sentence relief.
III. CONCLUSION
The findings of guilt and the sentence are correct in law and fact and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and sentence are AFFIRMED.
FOR THE COURT
KATHLEEN M. POTTER
Acting Clerk of the Court
18