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                                           IN THE DISTRICT COURT OF APPEAL
                                           OF FLORIDA
                                           SECOND DISTRICT



JAY GOLDSTEIN,                     )
                                   )
           Appellant,              )
                                   )
v.                                 )                Case No. 2D13-2598
                                   )
STATE OF FLORIDA,                  )
                                   )
           Appellee.               )
___________________________________)

Opinion filed January 7, 2015.

Appeal from the Circuit Court for
Hillsborough County; Chet A. Tharpe,
Judge.

Frank de la Grana, Tampa; and Kenneth S.
Siegle, Tampa, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Cerese Crawford Taylor,
Assistant Attorney General, Tampa, for
Appellee.



KHOUZAM, Judge.


             On January 20, 2012, Jay Goldstein was charged with one hundred

counts of possession of child pornography. Though his Criminal Punishment Code

Scoresheet indicated a lowest permissible sentence of 1342.5 months (111.875 years)
in prison, the State offered Goldstein an open plea that would cap his sentence at ten

years and that allowed for an unlimited amount of supervision. But the court rejected

the plea negotiations. Goldstein entered an open plea, and the court sentenced him to

fifteen years on count one and five years on the remaining counts, to run consecutively

to the sentence on count one but concurrent to each other. These sentences are a

significant downward departure.

              Goldstein appeals, relying on this court's decision in Barnhill v. State, 140

So. 3d 1055 (Fla. 2d DCA 2014), to argue that the trial judge's explanation of the

sentence revealed that he committed fundamental error by applying a general policy

and lumping Goldstein with all other similarly charged defendants regardless of the

evidence about his individual case presented at sentencing. Ultimately, Goldstein

seeks resentencing before a different judge, which may or may not result in a shorter

overall sentence for him. We conclude that Goldstein is entitled to the relief he

requests. As we will discuss below, explanations at sentencing can lend legitimacy to

the court's decisions and foster a public confidence in our judicial system. But the

problem in this case, much like in Barnhill, is that the trial judge had established a

general policy—personal to himself and at odds with the law of Florida—that caused

him to sentence Goldstein, not for the crimes he had committed and for his

circumstances at the time of sentencing, but rather for the crimes the judge feared

Goldstein might commit in the future based on the nature of the crimes for which he was

convicted.




                                            -2-
      I.     BACKGROUND

             The State offered Goldstein a plea that would have capped his sentence

at ten years. Goldstein had been collecting child pornography via the internet since

2007, but there was no evidence that he had used the internet to meet children or, most

importantly, that he had ever had any sexual contact with any child. Indeed, Goldstein

had taken a polygraph examination that indicated that he had never inappropriately

touched a child. In offering the sentencing cap, the State had also considered the

psychological evaluation prepared by Dr. Imhof, who had concluded as follows:

             Available information indicates Mr. Goldstein is a low risk to
             commit future sexual offenses, either a contact or
             pornography offense. Additionally, Mr. Goldstein presents
             without antisocial orientation, significant problems with
             general or sexual self-management, or substance use
             problems and is participating in mental health services and
             has a positive and supportive social system in the
             community, all of which suggest a reduced risk to commit
             sexual offenses in the future. It is further noted that Mr.
             Goldstein has been in the community for approximately eight
             months since his arrest and there is no indication he has
             engaged in any inappropriate sexual behavior or accessed
             child pornography via the internet. As research involving
             samples of generic sexual offenders has indicated risk for
             future sexual offenses is reduced by approximately half
             between five and ten years post release, Mr. Goldstein's
             already low risk will reach negligible levels at approximately
             eight years. Although diagnostic issues are unclear for Mr.
             Goldstein, mental health treatment is indicated given his
             excessive use of pornography, some of which involved
             minors, and the interference it has caused in his
             performance at home and work. Given Mr. Goldstein's
             relatively low risk for future sexual offenses and amenability
             for treatment, he presents with minimal risk should he be
             returned to the community with supervision and supportive
             mental health treatment.

Goldstein was receiving treatment as recommended in the psychological evaluation.




                                          -3-
                The court rejected the plea negotiations, and Goldstein entered an open

guilty plea on April 23, 2013. After accepting the plea, the judge took testimony to

consider before imposing sentence. Goldstein's attorney presented numerous letters,

video recorded statements, and testimony from people who knew Goldstein in an effort

to show that he was not a danger to the community. As a diving coach, Goldstein was

constantly interacting with minors, and yet there was no evidence whatsoever that he

ever acted inappropriately toward them. To the contrary, the evidence affirmatively

suggested that no such contact had ever taken or would ever take place. Several of

Goldstein's diving students, who had trained with him for years, stated that they had

never felt uncomfortable around him. They trusted him, describing him not only as a

friend but as a member of their families and a role model. One young woman stated

that Goldstein was "an inspiration." Another attested, "Jay is one of my best friends.

He still is."

                Several parents asserted that even in light of Goldstein's conviction they

would still want him to coach their children. They described him as a wonderful coach

and friend. One mother wrote that the worst thing about this case was that her

granddaughter would not be able to train with Goldstein as her daughter had. The

father of two girls who were Goldstein's students testified that Goldstein was a leader,

that he had the utmost respect for Goldstein, and that his girls and society would be

missing out if Goldstein were put in prison. Another father of two children Goldstein had

coached testified that his children had been taught to look out for inappropriate behavior

by coaches, and they told him that Goldstein had never done anything inappropriate.

The man stated, "frankly, knowing my kids are the single most important thing in my life,




                                             -4-
given the opportunity I would have no apprehension to allow Jay to be their coach

again."

              Goldstein's neighbors, including two young men who had grown up living

next door to him, testified that they were close to Goldstein and that nothing

inappropriate had ever happened between them. One of the young men described

Goldstein as "the brother I never had." The young men's mothers also testified they

allowed their children to spend time with Goldstein and nothing inappropriate ever

happened. One explained, "I believe in my heart that Jay would never, ever do anything

inappropriate to a child." The other mother testified that she had five children who grew

up living next door to Goldstein and that he had been a mentor to her boys when her

husband left. She stated, "to this moment I would allow my children to be with him. He

has been nothing but wonderful to my children. We are all human." She also noted that

she is vigilant about child abuse because she owns a child care center.

              Many of Goldstein's friends and colleagues, who had known him for years

and even decades, testified as well. They maintained that Goldstein was not a threat.

They noted the numerous opportunities that Goldstein had working with children and

that there was never any indication that he had acted inappropriately in any way. For

example, a fellow swim coach testified that as an educator, coach, and Boy Scout

leader, he had been trained to look for child predation and he had never seen such

behavior with Goldstein during the fifteen years that they had known each other. A

friend who had been close to Goldstein for about thirty years described him as "the kind

of person that I want to be."




                                           -5-
              Members of Goldstein's family also testified. Goldstein's former brother-

in-law described Goldstein as "an outstanding individual" and a "pillar of the

community." Several witnesses mentioned that Goldstein had been taking care of his ill

mother for years and that recently he had been visiting her on a daily basis. Goldstein's

cousin, a physician, stated that Goldstein would often contact him with questions about

how to best care for his mother. "It's incredible, I can tell you," the cousin stated,

"[b]etter than any nurse I've . . . worked with." All of the witnesses asked the court to

show mercy on Goldstein.

              Goldstein's attorney also made reference to two studies prepared for the

United States Sentencing Commission that show how child pornographers who do not

commit contact offenses are far less likely to commit any contact offenses in the future.

He argued that the studies support a claim that online offenders have a lower recidivism

rate, suggesting that Goldstein would be unlikely to reoffend.

              On the other side, the State presented evidence that a search of

Goldstein's computers uncovered 272 images of child pornography. Forty-eight "known

notable child victims as characterized by the National Center for Missing and Exploited

Children" were depicted. There were approximately eight videos located on Goldstein's

computers. Various other images of child pornography were on discs categorized and

labeled with titles such as PTHC, standing for "Preteen Hard Core." Some showed

young children between the ages of eight and fifteen. All showed children engaging in

almost any imaginable sex act. An investigating detective testified that Goldstein

admitted downloading the child pornography and that he knew what it was.

              In imposing sentence, the trial judge made the following statements:




                                            -6-
         I can tell you that I could probably count on one hand
the number of persons that come in front of me charged with
child pornography that have criminal histories. Almost every
single one has never been involved in the criminal system.
It's [a] first-time offense.

        Someone mentioned that Mr. Goldstein lived in—or in
his circle of friends, that no one knew about this. And I'm
sure that you didn't because there's a dark side in child
pornographers['] lives that no one knows about, except other
child pornographers. Those are the ones that know.

        And I would be just like you, had I not had the
experience of being involved with child pornography, of
knowing someone for 30 years or all my life because I'm
related to them, or 10 or 15 years thinking I can't believe that
this happened, that's not the person that I know, but what
you don't also realize is that these—for the most part men,
live two lives. They live the life that we all know. And then
they live the dark side that no one knows other than other
child pornographers that they are sharing their files with. . . .

       Some people have told me that "it's just pictures,
Judge." It's not just pictures. In order to make that picture or
to make that movie, you have to rape a child. There's no
other way of getting around it. You have to rape a child.

       I'm in trial in this division every other week. . . . In the
years that I've been trying these cases, there has not been
one time when I didn't have at least two people, I have had
as many as ten or twelve, approach the bench, some crying,
saying that they had been abused as a child and could not
hear this particular case. I have had more than that
approach the bench and tell me that they have had a loved
one sexually abused.

       ....

       I guess the last thing that I want to say is child
pornography perpetuates the sexual abuse of children. It
does. And although you may not have had someone tell you
this before, but I know from my experience in sitting in this
courtroom day-in and day-out, that these men in their dark
side are sexually aroused, sexually interested in children.
And a child's innocence, it's not like stealing a car or
someone breaks in your house and steals your television or



                               -7-
            your jewelry, you can replace that. You cannot replace a
            child's innocence. Once that's taken away from a child, it's
            taken away forever.

                   We—we are taught to respect adults. We're taught to
            respect our elders. An adult man can be rebuked by an
            adult woman. It's very, very, very hard for a child to stop an
            adult or a man from grooming them or getting into a situation
            where the child is vulnerable and now because of his sexual
            interest he takes advantage of that child.

                   We also know that we don't have years and years of
            studies and competent data to accurately predict whether or
            not a person who is a child pornographer is going to reoffend
            by actually touching a child because the phenomenon,
            according to experts, is still too new. And we have had
            studies that say the risk assessments are so low, and then
            that same study has gone back to those individuals who
            have then said we didn't tell the truth or we then went out
            and we actually did contact children when we told you that
            we had not.

                  There are other studies that say that the risk
            assessments are higher than what other studies say and
            they have come back and revised those studies as well.

                   The fact of the matter is, the phenomenon is so new
            to the scientific society, that we don't know what the honest
            to good true risk assessment is for a child pornographer
            going out and touching a child, even though we do know that
            they are sexually attracted to children. That's a given.

                   I'm not willing to take that risk. It's real easy for me to
            put a child—a car thief on probation, say don't do it again.
            He goes out and steals a car, okay. I'm not—I'm not willing
            to take the risk that at some point in time Mr. Goldstein, or
            others that have a proclivity for child pornography, bondage,
            eight year olds, that's not at some point in time going to
            offend by actually sexually abusing a child.

(Emphasis added.)




                                           -8-
      II.    ANALYSIS

             The judge's statements in this case are remarkably similar—in fact, almost

identical—to the statements that this court found fundamentally erroneous in Barnhill v.

State, 140 So. 3d 1055 (Fla. 2d DCA 2014). In Barnhill, the same trial judge rejected

the defendant's request for a downward departure sentence based on his general

concern in child pornography cases. In sentencing Barnhill, the judge made the

following statements:

             I just want you to know that I struggle on these cases, not
             just Mr. Barnhill's, but these types of cases every single day
             of my life since I've been put into this division, and there's
             not one day that goes by, not one, that I don't think about
             these cases.

                     Mr. Barnhill is one of many individuals that come in
             front of me that have absolutely no criminal record
             whatsoever, none, that live a dark side, if you will, that no
             one knows about. Family members don't know about,
             teachers don't know about, business associates don't know
             about[.] [T]he only people that know about it is Mr. Barnhill
             and other persons that have like interests that he would
             choose to know about his interests as well.

                    ....

                     This child pornography phenomenon, if you will, is
             becoming an epidemic. It's bigger, I think, than what any of
             us in this room or in law enforcement circles absolutely
             realize . . . .

                    And the psychologists in their book . . . list it as a
             fantasy [.] [P]edophiles are real. They're real. They may
             have some twisted fantasy about observing prepubescent
             children in bondage situations and being raped and having
             sexual intercourse and oral intercourse, being sodomized,
             but even though that might be a fantasy of watching those
             things on a computer while they stimulate themselves, it's
             real when they touch. And when they touch, that child is
             damaged forever, forever.




                                          -9-
                     And maybe it's what some people don't even—don't
              even think about. It's just a picture. It's not just a picture.
              This is a child who has actually been manipulated either by
              fear or because a person is so much older and can control
              them and grooms them to go into these sexual scenarios,
              and even though you get some of these pictures where you
              get a six year old [sic] or seven year old [sic] and it appears
              to be, and I've seen them, I've seen them in this courtroom,
              where they appear in the video or on the pictures to be
              enjoying the act, they've been groomed.

                     That first time they are—they were raped and they are
              being raped each time as it happens. That's what scares
              me. That is what scares me in these types of cases.

                     But I guess first and foremost, I want you to know that
              there is not one thing that the [S]tate of Florida can, has or
              ever will be able to say that is going to cause me to sentence
              someone that I don't believe the sentence is appropriate, for
              whatever that is worth.

                     ....

              . . . I honestly believe that this is an epidemic of greater
              proportions than any of us in this room . . . ever realized.

                     And there is no magic answer as to whether you're
              going to reoffend, or you're not going to reoffend in this
              particular case, whether you're going to touch or you're not
              going to touch. . . .

                      And some people say, well, you've taken my life away
              or you've taken my husband's life away or you've taken my
              father's life away, but in these types of cases, if you touch,
              you take the life away of a child[.] [A]nd I cannot tell you how
              many times I have seen in this courtroom where we have
              attempted to pick a jury[,] the numbers of men and women,
              adult men and women, some of which are older than I am
              [who] have stood at the bench in front of me with tears rolling
              down their faces because they were sexually abused as a
              child.

Id. at 1058-59 (some alteration in original).




                                           - 10 -
              In Barnhill, we held that the trial judge's statements indicated that he was

applying a general policy in child pornography cases and that the application of such a

general policy amounted to fundamental error:

                      We recognize that these types of cases are disturbing
              by their very nature and that trial judges must deal with them
              on a regular basis. As a result, we are not unsympathetic to
              the difficulty that each trial judge must face when presiding
              over such cases. However, trial judges are required to rise
              above the disturbing nature of these and other crimes and to
              provide every defendant a fair opportunity to be heard by an
              impartial judge who will consider only the evidence
              presented to the court within that case.

                      . . . It is . . . apparent that in considering Barnhill's
              sentence, the trial judge lumped Barnhill with all other
              similarly charged defendants irrespective of the testimony
              that Barnhill presented at sentencing.

                      . . . [E]ven to the most casual observer, it could not be
              believed that Barnhill received a hearing in a dispassionate
              environment before a fair and impartial judge. Rather, the
              transcript reflects the trial judge here was deeply concerned
              not by the facts specific to Barnhill's case but by the general
              nature of the crimes involved and the potential for
              defendants charged with these types of crimes to progress
              into crimes involving "hands-on" contact with children. Thus
              the trial judge at least implied that he would not consider a
              downward departure in child pornography cases as a
              general policy.

                     We conclude that the application of such a general
              policy constitutes a due process violation resulting in
              fundamental error.

Id. at 1061 (emphasis added) (citations omitted).

              By the same token, the statements made by the judge in the instant case

reveal that he lumped Goldstein with all other similarly charged defendants and applied

a general policy, regardless of the evidence presented at sentencing. As we read the

trial court's comments, the policy he explains is one of denying probation to all



                                             - 11 -
defendants convicted of possession of child pornography because science has not

proven they will not become sexual predators in the future. It is true that the purpose of

uniform sentencing laws is to create "general policies" for the sentencing of defendants,

but here the judge applied a personalized general policy that was at odds with Florida

law.

              Additionally, in both Barnhill and the instant case, the judge apparently

feared that the defendants would commit new criminal acts of abuse that they were

never accused of committing and took this speculation into account when imposing

sentence. As in Barnhill, this fear was not based on the evidence before the trial court

as to this defendant. In a different context, this court has stated: "A sentencing court

may not rely on 'unsubstantiated allegations of misconduct or speculation that the

defendant probably committed other crimes' when it imposes sentence." Craun v.

State, 124 So. 3d 1027, 1030 (Fla. 2d DCA 2013) (quoting Nusspickel v. State, 966 So.

2d 441, 445 (Fla. 2d DCA 2007)); see also Martinez v. State, 123 So. 3d 701, 704 (Fla.

1st DCA 2013) ("[A] sentence based on mere allegation or surmise violates the

fundamental constitutional rights of the defendant."). It seems even more evident to us

that a court cannot rely on crimes it fears the defendant might possibly commit in the

future simply because he has admitted the charged offenses. While protection of the

public is clearly a proper consideration, the judge's comments taken in the context of the

evidence presented raise the concern that the court was applying generalized, personal

concerns rather than considering the specific circumstances of this case.

              However, we must emphasize that the holding in this case, much like the

holding in Barnhill, is narrow. This opinion does not disturb trial judges' wide discretion




                                           - 12 -
in sentencing criminal defendants. See Bracero v. State, 10 So. 3d 664, 665 (Fla. 2d

DCA 2009) ("A sentencing court has wide discretion regarding the factors it may

consider when imposing a sentence."); Stano v. State, 473 So. 2d 1282, 1286 (Fla.

1985) ("A trial court's discretion extends to determining what is relevant evidence at

sentencing."). A court has the discretion to reject a negotiated plea, to reject the

testimony presented at sentencing hearings, and to impose departure sentences as

permitted by law. The court's discretion also encompasses providing explanations at

sentencing to support the reasonableness and legitimacy of its decision to both the

public and to the reviewing court. Although a trial court is often free to impose a

sentence with no public explanation, a thoughtful explanation can foster a public

confidence in our judicial system. Explaining to the public that possession of

pornography is not a victimless crime, for example, is a completely appropriate role for

the trial judge and for this court.

              Likewise, we do not intend to suggest that trial judges cannot learn from

experience or consider prior cases when seeking to impose a proper sentence. See In

re Inquiry Concerning a Judge, J.Q.C. No. 77-16, 357 So. 2d 172, 178 (Fla. 1978)

("Every judicial officer is the sum of his past. When he dons his robe and ascends to

the bench, he is not divested of the effects of his previous training, education and real

life experiences. He takes his official office as a human being, not as a judicial robot.");

Nateman v. Greenbaum, 582 So. 2d 643, 644 (Fla. 3d DCA 1991) (recognizing that

judges are "expected to be influenced by real life experiences"). On the contrary, we

recognize that all good judges attempt to improve their skills and sensitivities from their

prior experience on the bench. So the fact that the trial judge in this case may have




                                           - 13 -
relied on his previous training, education, and experience in imposing sentence is not

problematic in and of itself—indeed, judges can and should learn from experience in

order to reach a just result.

              The problem here is that the trial court expressly considered and relied

upon its own generalized fears of greater future offenses for any person who possesses

child pornography. Such fear is simply a factor that the court, as a matter of law, had no

authority to use when exercising its wide discretion or drawing from personal

experience. Accordingly, we conclude that the court fundamentally erred in relying on

its generalized fears of greater future offenses for any similarly charged defendant and

applying a general policy in sentencing Goldstein contrary to Florida law. We reverse

Goldstein's sentences and remand for sentencing before a different judge.

              Judgment affirmed; sentences reversed; and remanded with instructions.



WALLACE, J., and DAKAN, STEPHEN L., ASSOCIATE SENIOR JUDGE, Concur.




                                          - 14 -
