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Court of Appeals Vacates Defendant’s Child Pornography Sentence

March 28, 2012

In Hatcher v. State, the defendant was convicted of the offense of sexual exploitation of a child as a result of the possession of images of child pornography.

The court imposed the statutory minimum sentence of five years in prison.  The Georgia Court of Appeals, relying on the Georgia Supreme Court’s recent decision in Hedden v. State, has vacated the sentence and remanded the case for reconsideration of a downward deviation from the mandatory minimum sentence.  Under Georgia law, most sexual offenses carry mandatory minimum sentences.  However, if the defendant meets certain criteria, the trial court has discretion to impose a sentence below the mandatory minimum.

Courts may deviate from mandatory minimums under O.C.G.A. § 17-10-6.2(b) if a six-factor test is met.  The six factors are: (1) no prior sex crime convictions; (2) no deadly weapon or object used; (3) no similar transaction evidence; (4) no intentional physical harm to the victim during the commission of the offense; (5) the victim was not transported; and (6) the victim was not physically restrained during the commission of the offense.

In Hedden, the defendant pleaded guilty to multiple counts of sexual exploitation of a child by possessing sexually explicit images of children on his computer.  The lower court had refused to consider a lesser sentence because some of the images found on Hedden’s computer depicted children who were being physically restrained.  Thus, the trial court ruled that Hedden failed to meet the sixth factor set forth in the statute.

The Georgia Supreme Court reversed, holding that the court erred when it failed to consider the last factor in its entirety—the victim must be restrained during the commission of the offense.  The Supreme Court reasoned that the statute required that the victim be physically restrained during the commission of the defendant’s crime, or at the time Hedden possessed the images.  There was no evidence that the victims were restrained at the time Hedden possessed the images, only that they were restrained in the photographs.

In light of the Georgia appellate courts’ decisions in Hedden and now in Hatcher, sentencing courts must consider the entire text of the sentencing statutes and, in child pornography cases, must apply the six factor test specifically with respect to the defendant’s crime without regard to the content of the pornographic images or videos found in his possession.

As a result of these decisions, we should see an increase in sentences below the mandatory minimum for Georgia defendants charged with the possession of child pornography.

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