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                                http://www.gaappeals.us/rules/


                                                                        July 13, 2015




In the Court of Appeals of Georgia
 A15A0369. AVILA v. THE STATE

      RAY, Judge.

      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 one count of the lesser included offense of

child molestation.1 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)

      1
          The State agreed to nolle prosse the statutory rape charge.
(E). For the reasons explained below, we believe the trial court correctly determined

that it did not have discretion under O.C.G.A § 17-10-6.2(c) to deviate from the

mandatory minimum sentence;2 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 SE2d 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.”3 And OCGA § 17-10-6.2 (b) provides that,




      2
         In taking the position that the trial court was required to sentence the
Appellant to no less than the mandatory minimum prescribed by the statute, we do not
intend to imply that trial judges should not have maximum discretion in fashioning
sentencing to respond appropriately to the facts of the case. Indeed, we recognize that
trial judges welcome such discretion and feel that it serves to promote justice.
      3
        OCGA § 17-10-7 governs the punishment of repeat offenders and is not
applicable here.

                                          2
      [e]xcept as provided in subsection (c) . . . any person convicted of a
      sexual offense4 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 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 “child 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




      4
          The term “sexual offense” is defined in OCGA § 17-10-6.2 (a).

                                          3
years old, and E. S. was either 14 or 15 years old.5 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. Afterwards, Avila returned E. S. to the entrance of her

neighborhood. At the time of his arrest, Avila admitted to engaging in the sexual acts

with E. S.

      Pertinent to this case, the trial court must find that “[t]he offense did not

involve the transportation of the victim[.]” O.C.G.A § 17-10-6.2(c)(1)(E). Here, it is

undisputed that the Appellant picked up the victim in his automobile from the front

of her subdivision, transported her to a church parking lot, engaged in sex acts with

the victim, and then transported her back to the subdivision. Thus, that the Appellant




      5
        Defense counsel stated at the hearing that E. S. was 15 years old, but during
a voluntary psychosexual evaluation, Avila admitted that E. S. told him she was 14
years old. Either way, it is undisputed that E. S. was under the age of consent. See
OCGA § 16-6-3. Therefore, any attempt by Avila to portray E. S. as a “consensual”
participant who “orchestrated the entire sequence of events leading to [their]
meeting” is entirely misplaced. And certainly the repeated interjection of the victim’s
prior sexual experiences is inappropriate and irrelevant as a matter of law. See OCGA
§ 24-4-412.

                                          4
transported the victim to a location for purposes of committing the crime for which

he stands convicted is clear.

      At the hearing and on appeal, the State argued that the trial court is not allowed

to deviate from the mandatory minimum sentencing because Avila transported E. S.

from her neighborhood to the parking lot where he committed the offense of child

molestation, and thus, does not satisfy the requirement of OCGA § 17-10-6.2 (c) (1)

(E).6 The trial court agreed, finding that “involve” is a broad word and that the

offense involved the transportation of the victim. In reaching its decision, the trial

court made the following statement:

      I believe that the statutory language is clear. I believe that on its face it
      bars me from reaching the deviation that you have urged from the Court.
      I’m not saying I’m not sympathetic to your argument, but I do believe
      that the language is clear and that I must give way to what the legislature
      has said in this case. So I’m going to let the sentence of the Court be the
      mandatory minimum. It is going to be 10 years with 5 to be served. And
      I believe that is what the law directs that I do.


      Avila’s interpretation of this statute is that the trial court can deviate from the

mandatory minimum sentence so long as the child molestation offense did not occur


      6
         None of the other factors set forth in OCGA § 17-10-6.2 (c) (1) are at issue
in this case.

                                           5
during the transportation of the victim, i.e. that the crime was committed while the

defendant was transporting the victim, or so long as the offense itself did not include

transportation as an element of the offense. Since neither was the case here, Avila

argues, then the trial court was entitled to deviate from the mandatory minimum set

by the legislature. We disagree. Such an interpretation would render the

transportation provision essentially meaningless. Of the offenses involved in this

statute, only the offense of enticing a child for indecent purposes would ever have

transportation as an element of the offense and then only in some cases.7 Had the

General Assembly intended to limit the transportation factor merely to that offense,

it could have easily done so.8

Also, it seems silly to argue, as Avila has essentially posited, that the General

Assembly intended to punish more severely any of the 10 offenses included herein



      7
        O.C.G.A. § 16-6-5(a): “A person commits the offense of enticing a child for
indecent purposes when he or she solicits, entices, or takes any child under the age
of 16 years to any place whatsoever for the purpose of child molestation or indecent
acts.”
      8
        O.C.G.A. § 17-10-6.2(a) defines a sexual offense which is subject to
mandatory minimums to include aggravated assault with intent to rape, false
imprisonment, sodomy, statutory rape, child molestation, enticing a child for indecent
purposes, sexual assault against persons in custody, incest, a second or subsequent
conviction for sexual battery, and sexual exploitation of children.

                                          6
only if it was committed while a victim was in transit. We find that the aggravating

factor which limits the trial court’s discretion to deviate from the mandatory

minimum sentence is the transportation itself, as it removes the victim from an area

wherein the crime may have more easily been detected or where the victim could have

more easily escaped.

      In addition, the wording used by the General Assembly in this sub-section of

the statute is instructive. For example, also disqualifying a defendant from the

possibility of a lesser sentence is if the victim suffered intentional physical harm or

was physically restrained, either of which occurred “during the commission of the

offense.” O.C.G.A. § 17-10-6.2(c)(1)(D) and (F). Thus, it is clear that the legislature

knew how to specify that the disqualifying event must occur while the crime was in

process, rather than before crime was attempted or after the crime was complete. Yet,

the statute does not similarly require that the transportation of the victim occur

“during the commission of the offense” so as to limit the trial court’s sentencing

discretion, only that the offense “involve” transportation of the victim. Certainly, the

offense here did “involve” transportation.

      In support of his argument, Avila relies on the case of Clark v. State, 328 Ga.

App. 268 (761 SE2d 826)(2014), to buttress his position that transportation which is

                                           7
incidental to the offense would not disqualify a trial court from exercising discretion

to deviate from the mandatory minimum sentence. In Clark, a separate panel of this

Court reversed and remanded for reconsideration the sentence of a defendant who

was convicted of child molestation when he committed the offense after he drove the

victim earlier in the evening from one town to another to visit a “drug house.” As

Avila has acknowledged, however, Clark is physical precedent only.9 Moreover, it

is distinguishable in that there did not appear to be evidence in Clark, as there is here,

that the defendant drove the victim to the location for the express purpose of

committing the act of child molestation. In the current case we entertain in this

appeal, it is undisputed that the illegal sexual acts were the purpose of Avila’s

transportation of the victim.

      In sum, we believe that the trial court’s decision as to its sentencing

requirements was correct.

      Judgment affirmed. Doyle, C. J., Andrews P. J., and Boggs, J., concur. Barnes

P. J., Phipps, P. J. and McMillian, J., dissent.

      9
        In Clark, one judge joined in judgment only to the division of the opinion
regarding the type of the transportation which would limit a trial court’s discretion
to deviate from the mandatory minimum sentence. Thus, the holding therein is
persuasive authority only.


                                            8
 A15A0369. AVILA v. THE STATE.



      MCMILLIAN, Judge, dissenting.

      Because I believe that the trial court erred in determining that it did not have

discretion to deviate from the minimum sentencing requirements of OCGA § 17-10-

6.2 (b), I must respectfully dissent.

      In construing a set of statutory provisions, “we look at its terms, giving words

their plain and ordinary meaning, and where the plain language of a statute is clear

and susceptible of only one reasonable construction, we must construe the statute

according to its terms.” (Citation and punctuation omitted.) Mahalo Investments III,

LLC v. First Citizens Bank & Trust Co., 330 Ga. App. 737, 738 (769 SE2d 154)

(2015). Moreover, “in construing language in any one part of a statute, a court should

consider the entire scheme of the statute and attempt to gather the legislative intent

from the statute as a whole.” (Citation omitted.) Tew v. State, 320 Ga. App. 127, 129

(739 SE2d 423) (2013).
      In construing the language of OCGA § 17-10-6.2 (c) (1) (E), Avila maintains

that the question is not whether transportation of E. S. occurred “incidentally to the

offense” or at some point prior to the commission of the offense, but rather whether

in proving the elements of the offense, the transportation of E. S. was involved.1 After

applying the ordinary rules of statutory construction, I cannot say that Avila’s

interpretation of OCGA § 17-10-6.2 (c) (1) (E) is unreasonable. The statute defines

the term “offense” to include child molestation as set out in OCGA § 16-6-4,

suggesting that the elements of the crime of child molestation should be the focus of

whether the offense involved transportation. And a definition of “involve” is “[t]o

have as a necessary feature or consequence; entail.” The American Heritage

Dictionary, New College Edition (1991). Here, it is undisputed that the act of child

molestation took place after the victim was transported to the location and the

transportation was not necessary to complete the crime.

      On the other hand, as asserted by the State, the statute does not specifically

limit the inquiry to whether the elements of the crime involved transportation.


      1
        And here, he argues, the child molestation offense itself did not involve the
transportation of the victim, positing that such transportation may be more frequently
involved in the offenses of enticing a child for indecent purposes (OCGA § 16-6-5)
or false imprisonment (OCGA § 16-5-41), both of which are defined as sexual
offenses under particular circumstances. See OCGA § 17-10-6.2 (a) (2) and (6).

                                           2
Moreover, I note that a broader definition of the term “involve” is “[t]o contain or

include as a part,” The American Heritage Dictionary, New College Edition (1991),

and, certainly, part of the factual basis underlying the offense was meeting up with

and transporting the victim to the location where the crime was more readily

committed. Thus, I also find that after applying the ordinary rules of statutory

construction, the State’s interpretation of OCGA § 17-10-6.2 (c) (1) (E) is likewise

reasonable.2

      It is a long-standing principle under Georgia law that “criminal statutes must

be strictly construed against the [S]tate and liberally in favor of human liberty.

Matthews v. Everett, 201 Ga. 730 (41 SE2d 148) (1947). And if a statute increasing

a penalty is capable of two constructions, it should be construed so as to operate in

favor of life and liberty.” Knight v. State, 243 Ga. 770, 775 (2) (257 SE2d 182)

(1979). See also Hedden v. State, 288 Ga. 871, 875-876 (708 SE2d 287) (2011)

(strictly construing the language of OCGA § 17-10-6.2 (c) (1) (F) against the State).

      Although the majority finds Avila’s interpretation to be “silly,” I believe that

OCGA § 17-10-6.2 (c) (1) (E) may also reasonably be interpreted to preclude a


      2
        I, however, find no basis in the text to support the State’s argument that we
should adopt a Garza-like asportation test to determine whether the offense involved
transportation. See Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008).

                                          3
deviation from the mandatory minimum only when proving the elements of the

offense involve the transportation of the victim. Therefore, this Court is bound to

liberally interpret this statute in favor of human liberty. See Jenkins v. State, 284 Ga.

642, 645 (2) (670 SE2d 425) (2008) (“A criminal statute must be construed strictly

against criminal liability and, if it is susceptible to more than one reasonable

interpretation, the interpretation most favorable to the party facing criminal liability

must be adopted.”) (citation and punctuation omitted).

      And while I am wholly unpersuaded by Avila’s argument that his

transportation of E. S. from the relative safety of her neighborhood to an empty

parking lot did not “do anything to make the offense more egregious,” I would leave

it to the General Assembly to clarify its intention if indeed OCGA § 17-10-6.2 (c) (1)

(E) was meant to encompass an offense such as the one committed here, in which the

victim was transported to a more remote location in order for the offense of child

molestation to be more easily committed without detection.




                                           4
      Accordingly, I believe that this matter should be remanded to the trial court so

that it may exercise its discretion to deviate from the minimum sentencing

requirements of OCGA § 17-10-6.2 (b).3

      I am authorized to state that Presiding Judge Barnes and Presiding Judge

Phipps join in this dissent.




      3
       The trial court certainly may have, upon remand, ultimately decided not to
sentence Avila to less than the mandatory minimum sentence, given the facts of this
case. However, this Court ought to “let the exercise of the trial court’s discretion in
the imposition of [its] sentence be cast upon the record.” Bradshaw v. State, 237 Ga.
App. 627, 630 (2) (516 SE2d 333) (1999).

                                          5
