THE STATE v. CROSSEN
A14A0008
Court of Appeals of Georgia
JULY 11, 2014
761 SE2d 596
BARNES, Presiding Judge.
testify about his limited education. She further conceded at the hearing that Murray had been represented by counsel at his pleas. Likewise, on appeal, Murray has not identified any evidence showing an infringement of his rights in the taking of his prior guilty pleas. Consequently, even though the trial court clearly erred at the sentencing hearing by telling Murray that he could not challenge the voluntariness of his guilty pleas at that hearing, such error is not reversible since Murray has not pointed to any affirmative evidence showing an irregularity with any of the pleas. Compare Grant v. State, 326 Ga. App. 121, 132 (6) (756 SE2d 255) (2014) (physical precedent only) (at motion for new trial and on appeal, defendant pointed to evidence in the record showing that he was not informed of his right to counsel and also submitted affidavit evidence, thus making affirmative showing of infirmity in taking of plea).
Judgment affirmed. Andrews, P. J., and Ray, J., concur.
DECIDED JULY 10, 2014.
Veronica E. Brinson, for appellant.
K. David Cooke, Jr., District Attorney, Myra H. Tisdale, Assistant District Attorney, for appellee.
A14A0008. THE STATE v. CROSSEN.
(761 SE2d 596)
The State appeals from the trial court‘s order deviating from the mandatory minimum sentence requirements under
Stephen Crossen was indicted on six counts of sexual exploitation of a child,
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
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
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 its reasoning and found as fact that there was no evidence of any of the factors
[t]he defendant has no prior convictions of any kind, the defendant did not use a deadly weapon or similar object during the commission of the offense, there was no evidence of similar transactions presented, the victim was not touched during the commission of the offense, the offense did not involve the transportation of the victim and the victim was not physically restrained during the commission of the offense.
The court further found that “the fact of a divergence not being available in only one count does not disqualify the defendant from receiving it in other counts where it is available. The allegations of the indictment combine offenses that occurred over a period of time.” Finally, the trial court held that, contrary to the State‘s contention, Crossen did not bear the burden of proving his entitlement to the deviation. Instead, the court held, “the statute itself contemplates a failure of proof on the part of the State,” and held that placing the burden of proof on the defendant “would be burden shifting and unconstitutional.”
The State appeals, contending that the trial court erred in deviating from the mandatory minimum sentence under
may deviate from the mandatory minimum sentence as set forth in subsection (b) of this Code section, or any portion thereof, . . . provided that:
(A) The defendant has no prior conviction of an offense prohibited by Chapter 6 of Title 16 [sexual offenses] or Part 2 of Article 3 of Chapter 12 of Title 16 [obscenity offenses related to minors], nor a prior conviction for any [similar] offense under federal law or the laws of another state . . . ;
(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.
We first note that “[p]enal statutes are always construed strictly against the State and liberally in favor of human liberty.” Gee v. State, 225 Ga. 669, 676 (7) (171 SE2d 291) (1969). Moreover, in so construing a statute, “the cardinal rule is to glean the intent of the legislature. Language in one part of the statute must be construed in the light of the legislative intent as found in the
In addition, [in] interpreting a statute, we must presume that the General Assembly had full knowledge of the existing state of the law and enacted the statute with reference to it. We construe statutes in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and their meaning and effect is to be determined in connection, not only with the common law and the constitution, but also with reference to other statutes and decisions of the courts.
(Citations and punctuation omitted.) Chase v. State, 285 Ga. 693, 695-696 (2) (681 SE2d 116) (2009). And in so doing, criminal statutes should not be limited or extended by application of subtle and forced interpretations. State v. Johnson, 269 Ga. 370, 371 (1) (499 SE2d 56) (1998).
In applying these principles, under the statutory scheme set forth in
The statute, however is silent in regard as to who carries the burden of establishing the absence of the factors that would permit a downward departure. This silence creates an ambiguity. See State v. Langlands, 276 Ga. 721, 724 (2) (583 SE2d 18) (2003). And, where the language in a criminal statute is ambiguous, it must be construed in favor of the defendant. State v. Mills, 268 Ga. 873, 875 (495 SE2d 1) (1998). Thus, the trial court did not err in doing so.
Moreover, the record demonstrates that the trial court held two pre-sentencing hearings and the option of downward deviation in
Although the State filed a supplemental brief in which it argued that the trial court erred because each individual count constituted a “relevant similar transaction” to the other sexual offenses, and that under
Accordingly, in these circumstances, the trial court did not abuse its discretion in its downward departure in sentencing Crossen.
Judgment affirmed. Boggs and Branch, JJ., concur.
DECIDED JULY 11, 2014.
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.