UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

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 MARKS, JONES, and WOODARD, 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

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(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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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. 

4 DE E. Tina M. Marin and Deborah L. Bell, Navy Sex Offender Treatment: 

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 courtsmartial[,]” 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 COURTSMARTIAL (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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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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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 fouryear 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-yearold 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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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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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