In Clark v. State, the Georgia Court of Appeals vacated the defendant’s 20-year sentence for child molestation and held that the trial court failed to consider a deviation from the mandatory minimum sentence as provided in O.C.G.A. § 17-10-6.2 (c).
This subsection permits a trial court to deviate from the mandatory minimum sentence for a sexual offense upon the finding of certain factors set forth in the statute. One of the factors that the court must find is that the offense did not involve the transportation of the victim. In this case, the Court addressed an important issue of first impression for the Georgia appellate courts: When does an offense “involve the transportation of the victim” so as to preclude a deviation under O.C.G.A. § 17-10-6.2 (c)?
Clark was convicted of touching a girl on the buttocks while they were at a drug house in Meriwether County. He entered a plea to one count of child molestation and the trial court refused to deviate from the mandatory minimum sentence. The Court of Appeals vacated his sentence and held the following:
Although Clark had driven the victim and two of her siblings from Union City to Meriwether County that evening, Clark did not commit the charged offense until later, while they were at the drug house. Therefore, the offense itself did not involve any transportation of the victim or any of the other factors listed in O.C.G.A. § 17-10-6.2 (c)(1) that would prohibit the trial court from sentencing Clark under that subsection.
This is a very important decision for defendants in Georgia facing sentencing for child molestation or related offenses. Especially in cases involving consensual sexual conduct between a minor and a young adult, there is often incidental transportation that is not at all critical to the commission of the offense. A strict reading of the statute would seem to prevent the court from deviating from the mandatory minimum sentence if there was any transportation of the victim at any time. In this case, however, the Court held that transportation of the victim prior to the commission of the offense would not preclude a deviation. Although the Court of Appeals did not address this in their opinion, it is quite likely that Clark also drove the victim home from the drug house after the offense was committed.
In many cases, the transportation of the victim before or after the sexual encounter does nothing to make the offense more egregious, or the defendant less worthy of a deviation. The harm that the legislature was likely concerned with is when the transportation of the victim is critical to the offense. This decision opens the door for defendants in Georgia to argue that incidental transportation of the victim, that is not at all critical to the offense, should not preclude a deviation from the mandatory minimum sentence. Hopefully, we will now see the trial courts imposing more and more sentences below the mandatory minimum in the appropriate cases.
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