Cert. applied for.
Child molestation. Harris Superior Court. Before Judge McBride.
Brody Law Firm, Bernard S. Brody, for appellant.
Julia F. Slater, District Attorney, Ray W. Daniel, Assistant District Attorney, for appellee.
RAY, Judge. Doyle, C. J., Andrews P. J., and Boggs, J., concur. Barnes P. J., Phipps, P. J. and McMillian, J., dissent.
On November 6, 2013, Kark Avila was indicted in Harris County Superior Court on one count of statutory rape and one count of aggravated child molestation. On June 18, 2014, Avila pled guilty to [333 Ga.App. 67] one count of the lesser included offense of child molestation. The trial court, after finding that it was not permitted to deviate from the mandatory minimum sentencing provisions pursuant to OCGA § 17-10-6.2 (c), sentenced Avila to ten years, to serve five in prison and the balance on probation. In his sole enumeration of error, Avila argues that the trial court erred in finding that it was not authorized to deviate from the mandatory minimum sentence because the offense " involve[d] the transportation of the victim." See OCGA § 17-10-6.2 (c) (1) (E). For the reasons explained below, we believe the trial court correctly determined that it did not have discretion under OCGA § 17-10-6.2 (c) to deviate from the mandatory minimum sentence;  thus, the sentence that the trial court imposed is affirmed.
As this issue turns on the proper interpretation of OCGA § 17-10-6.2, it " is a question of law, which is reviewed de novo on appeal." (Citation and punctuation omitted.) Jenkins v. State, 284 Ga. 642, 645 (2) (670 S.E.2d 425) (2008). The sentencing in this case is controlled by several statutory provisions. Pursuant to OCGA § 16-6-4 (b) (1), " a person convicted of a first offense of child molestation shall be punished by imprisonment for not less than five nor more than 20 years and shall be subject to the sentencing and punishment provisions of [OCGA § § ] 17-10-6.2 and 17-10-7."  And OCGA § 17-10-6.2 (b) provides:
Except as provided in subsection (c) ... 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. ...
Subsection (c) of that statute grants the trial court discretion to deviate from the mandatory minimum sentence, provided that six conditions are met, including that " [t]he offense did not involve the [333 Ga.App. 68] transportation of the victim." OCGA § 17-10-6.2 (c) (1) (E). For purposes of the statute, the term " offense" refers to ten sexual offenses, including " [c]hild molestation, as defined in subsection (a) of Code Section 16-6-4, unless subject to the provisions of paragraph (2) of subsection (b) of Code Section 16-6-4." OCGA § 17-10-6.2 (a) (5).
At the guilty plea hearing in this case, the State proffered evidence that Avila met the victim, E. S., through a dating website. After chatting online for a period of time, they agreed to meet in person on April 17, 2012. At that time, Avila was 22 years old, and E. S. was either 14 or 15 years old. Per their
agreement, Avila waited until her parents were asleep and then picked E. S. up at 2:00 a.m. at the front of her neighborhood. He drove her to a church parking lot down the road where E. S. performed oral sex on him. He then performed oral sex on her before engaging in sexual intercourse. Afterward, Avila returned E. S. to the entrance of her ...