Under O.C.G.A. § 17-10-6.2 (a), sexual exploitation of children, as defined in Code Section 16-12-100, which includes the possession of child pornography, is a sexual offense.
O.C.G.A. § 17-10-6.2 (b) states the requirements for trial courts imposing sentences for “sexual offenses”, including possession of child pornography:
Except as provided in subsection (c) of this Code section, and notwithstanding any other provisions of law to the contrary, any person convicted of a sexual offense shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to the offense. No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and such sentence shall include, in addition to the mandatory imprisonment, an additional probated sentence of at least one year. No person convicted of a sexual offense shall be sentenced as a first offender pursuant to Article 3 of Chapter 8 of Title 42, relating to probation for first offenders, or any other provision of Georgia law relating to the sentencing of first offenders.
However, O.C.G.A. § 17-10-6.2 (c)(1) provides the trial court to deviate downward from the mandatory minimum sentences in “sex offense” cases when:
the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum or provided that:
(A) The defendant has no prior conviction of an offense prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16, nor a prior conviction for any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of offenses prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16;
(B) The defendant did not use a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury during the commission of the offense;
(C) The court has not found evidence of a relevant similar transaction;
(D) The victim did not suffer any intentional physical harm during the commission of the offense;
(E) The offense did not involve the transportation of the victim; and
(F) The victim was not physically restrained during the commission of the offense.
AVAILABILITY OF DOWNWARD DEVIATION IN SENTENCING IN CHILD PORNOGRAPHY CASES IN GEORGIA
In Hedden v. State, 288 Ga. 871, 871-72, 708 S.E.2d 287, 288-89 (2011), the Georgia Supreme Court addressed the availability of a downward sentence modification when at least some of the child pornography at issue depicted children being physically restrained during sexually explicit conduct. The trial court found that the defendant was ineligible for the court to exercise discretion because of O.C.G.A. § 17-10-6.2 (c)(1)(F), which requires that the “victim was not physically restrained during the commission of the offense.”
In Hedden, the defendant(s) pled guilty to multiple counts of sexual exploitation of children by knowingly possessing photographic images stored in their respective computers that depicted a minor's body engaged in sexually explicit conduct. See OCGA § 16–12–100(b)(8) (“It is unlawful for any person knowingly to possess or control any material which depicts a minor or a portion of a minor's body engaged in any sexually explicit conduct.”).1 Such a crime is a felony, punishable “by imprisonment for not less than five nor more than 20 years and by a fine of not more than $100,000.00.” OCGA § 16–12–100(g)(1).
In its holding the Georgia Supreme Court held that the defendants were entitled to have the trial court exercise its discretion to deviate from the mandatory minimum sentence:
The appellants were charged with possession of material in violation of OCGA § 16–12–100(b)(8). Therefore, it would have to be shown that the child victims in the images were physically restrained at the same time that the appellants possessed the offending material in order for OCGA § 17–10–6.2(c) (1)(F) to exclude the trial court from having the sentencing discretion set forth in OCGA § 17–10–6.2(c)(1).4 It is uncontroverted that no such evidence exists. Accordingly, the trial court erred in determining that it was without discretion to deviate from the minimum sentencing requirements of OCGA § 17–10–6.2(b), and the Court of Appeals erred in affirming that ruling.
Hedden v. State, 288 Ga. 871, 875-76, 708 S.E.2d 287, 291 (2011).
Hedden does not guarantee a sentence lesser than the mandatory minimum required under O.C.G.A. § 17-10-6.2 (b) in child pornography cases. However, Hedden, at least, provides an opportunity to present mitigating evidence and make the trial court consider deviation in the appropriate case.
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