Sentence. Catoosa Superior Court. Before Judge Van Pelt.
Herbert E. Franklin, Jr., District Attorney, for appellant.
McCracken Poston, for appellee.
Brandon A. Bullard, James C. Bonner, Jr., Joseph S. Key, Peters, Rubin & Sheffield, Robert G. Rubin, amici curiae.
BARNES, Presiding Judge. Boggs and Branch, JJ., concur.
Barnes, Presiding Judge.
The State appeals from the trial court's order deviating from the mandatory minimum sentence requirements under OCGA § 17-10-6.2 (b), contending that the defendant has the burden of proving that he is eligible for the deviation. The statute provides that a defendant convicted of certain sexual offenses must be sentenced to at least the minimum term of imprisonment applicable to the offense, but allows the trial court to exercise its discretion to deviate from the mandatory minimum under certain circumstances. For the reasons that follow, we affirm.
Stephen Crossen was indicted on six counts of sexual exploitation of a child, OCGA § 16-12-100 (b), one count of sodomy, OCGA § 16-6-2 (a) (1), six counts of misdemeanor dissemination of pornography to a [328 Ga.App. 199] minor, OCGA § 16-12-103 (a), and one count of interference with custody, OCGA § 16-5-45 (b). The charges stemmed from Crossen's involvement in a relationship with a 16-year-old girl, in which the two exchanged sexually explicit pictures and text messages and engaged in consensual oral sodomy in a public park on one occasion.
Crossen pled guilty to all charges and after accepting his plea, the trial court granted his request for a pre-sentence investigation. After the pre-sentence investigation report was complete, the trial court held a sentencing hearing, during which the State presented no aggravating factors or victim impact testimony. Crossen presented several character witnesses, and also testified. At the end of the hearing, the trial court found that OCGA § 17-10-6.2 required him to sentence Crossen to serve no less than the minimum statutory sentence on the sexual exploitation of children and sodomy counts, and sentenced him to seven years to serve five in custody on each of the six sexual exploitation of children counts and on the sodomy count, twelve months to serve on each of the six pornography dissemination counts, and one month to serve on the interference with custody count, all to be served concurrently.
Later that day, the trial court issued an order stating that it appeared to have misinterpreted the mandatory sentencing statute and set a hearing " for a reconsideration of the sentence." At the second hearing, held approximately two weeks after the first one, the trial court informed the parties that it had determined that it had the discretion under OCGA § 17-10-6.1 (c) to sentence Crossen to less than the minimum statutory sentences on all of the charges against him except the sodomy count.
After hearing argument, the court resentenced Crossen, reducing his sentence on the six charges of sexual exploitation from seven years with five to serve in custody to five years with two to serve in custody. In its order approving the deviation, the trial court explained ...