United States v. Ferrando, ACM 39039

Background

Appellant, an Air Force reservist who committed the charged possession of child pornography while on active duty in July 2010, pleaded guilty at a general court-martial pursuant to a pretrial agreement.
He had earlier been convicted in Utah (pleaded guilty in 2014 to related child-pornography counts arising from 2011–2012 conduct).
The charge in this court-martial concerned eight digital depictions from July 2010; charges were preferred in July 2015.
The GCMCA ordered Appellant involuntarily to active duty for preferral, an Article 32 hearing, and trial; the SECAF later approved recalls under Article 2(d)(5). Some written active-duty orders incorrectly cited authority (10 U.S.C. § 12301(d)), and Appellant initially refused to sign one-day orders for preferral.
At trial the military judge determined the statutory maximum confinement could be 20 years (based on age-enhancement and prior convictions), but a pretrial agreement limited approved confinement to 90 days; Appellant pleaded guilty and was sentenced to a dishonorable discharge, 13 months’ confinement (only 90 days approved), and reduction to E‑1.
On appeal Appellant argued lack of personal jurisdiction, incorrect maximum punishment, ineffective assistance by senior defense counsel, speedy-trial/double jeopardy issues, and that post-trial confinement conditions warranted sentence relief; the court affirmed.

Issues

Issue	Appellant's Argument	Government's Argument	Held
Personal jurisdiction (reservist recall/orders)	Orders cited improper statutory authority (10 U.S.C. § 12301(d)); clerical errors and lack of consent deprived the court of personal jurisdiction	Appellant committed offense on active duty, remained a reservist when proceedings initiated, GCMCA ordered recall and SECAF approved Article 2(d) authority; clerical errors were administrative only and did not divest jurisdiction	Court held jurisdiction valid: statutory prerequisites met; administrative errors in orders were clerical and not prejudicial; Appellant consented at trial
Maximum punishment	Military judge incorrectly applied later-enacted enhancement and prior-conviction enhancement to reach 20 years (should be 10 years)	Judge’s determination of 20 years not shown to have prejudiced Appellant; pretrial agreement limited approved confinement to 90 days	Court did not decide error (if any) on merits because Appellant showed no material prejudice from the alleged miscalculation
Ineffective assistance of counsel (senior counsel)	Senior counsel failed to move to suppress, coerced a guilty plea despite evidentiary weaknesses and Appellant’s mental stress	Record (counsel declaration, signed memoranda, plea colloquy) shows competent representation; plea was voluntary and counseled; no reasonable probability Appellant would have gone to trial	Court applied Strickland/Hill, found counsel performance within norms and no prejudice; claim denied
Post-trial confinement conditions / sentence relief	Conditions amounted to solitary confinement, inadequate access to counsel/materials/religion/mental health warrant sentence relief	Appellant did not exhaust administrative remedies or show Eighth Amendment/Article 55 violations; conditions did not present extraordinary circumstances	Court declined to grant Article 66(c) relief: no legal deficiency, exhaustion of remedies not shown, and allegations not egregious enough to warrant relief

Key Cases Cited

United States v. Matias, 25 M.J. 356 (C.M.A. 1987) (standard for considering undeveloped appellate claims)
United States v. Harmon, 63 M.J. 98 (C.A.A.F. 2006) (jurisdiction is reviewed de novo and prerequisites for courts-martial jurisdiction)
Willenbring v. Neurauter, 48 M.J. 152 (C.A.A.F. 1998) (limits on courts-martial exercising jurisdiction beyond statute)
United States v. Finch, 73 M.J. 144 (C.A.A.F. 2014) (use of closely related federal statutes to determine maximum punishment)
Strickland v. Washington, 466 U.S. 668 (1984) (standards for ineffective assistance of counsel)
Hill v. Lockhart, 474 U.S. 52 (1985) (applying Strickland prejudice standard to guilty pleas)
United States v. Gay, 75 M.J. 264 (C.A.A.F. 2016) (limits on appellate sentence relief for post-trial confinement conditions)