PA Superior Court: Multiple Possession of Child Pornography Counts Do Not Combine for Purposes of Sentencing Enhancement
The Pennsylvania Superior Court has decided the case of Commonwealth v. Christman. holding that the trial court should not combine possession of child pornography charges to trigger the sentencing enhancement. As will be discussed in greater detail below, a defendant can be subjected to a sentencing enhancement if they are in possession of a certain number of child pornography images. This decision is significant because the Commonwealth will frequently charge a defendant with multiple charges of possessing child pornography (i.e. if a defendant is in possession of eleven videos, they will charge them with eleven counts). However, if the Commonwealth does do that, then they can no longer combine each count to trigger the sentencing enhancement.
Commonwealth v. Christman
On January 11, 2016, the defendant pleaded guilty to eleven counts of sexual abuse of children in Blair County, Pennsylvania. Specifically, the defendant admitted to possessing eleven videos depicting child pornography. It also appears that this was an open guilty plea, which means that the defendant and the prosecution did not negotiate a recommended sentence. The judge sentenced the defendant to an aggregate term of 36 to 72 months’ incarceration. The defendant received this sentence, in part, because the trial court applied the “Sexual Abuse of Children Enhancement” sentence that allows a court to increase the guidelines for a defendant when he or she is in possession of a specific amount of child pornography. Notably, the defendant did not file a post-sentence motion.
The defendant then filed a timely notice of appeal. His first appeal was denied by the Superior Court. The Superior Court’s logic was that his appeal was a challenge to the discretionary aspects of his sentence and because he failed to file a post-sentence motion he had waived the issue. Undeterred, the defendant then filed a timely petition under the Post-Conviction Relief Act (PCRA) alleging that his trial counsel was ineffective by not preserving his sentencing claim that the sentencing enhancement should not have applied. The court then appointed a new attorney for the defendant and after conducting an evidentiary hearing, the court granted his petition and reinstated his post-sentence motion and direct appeal rights.
The defendant then filed a nunc pro tunc post-sentence motion raising his challenge to the court’s application of the 18-month sentencing guideline enhancement. The trial court then denied that motion. The defendant then filed a nunc pro tunc notice of appeal. On appeal, he raised two issues: 1) whether the trial court abused its discretion in applying the sentencing enhancement to all eleven charges of sexual abuse of children and 2) whether the trial court erred as a matter of law by applying the sentencing enhancement to all eleven counts. The defendant specifically argued that the trial court improperly applied the sentencing enhancement because he was sentenced on eleven separate counts for possessing eleven separate videos and thus because these videos, by themselves, did not contain enough images to trigger the sentencing enhancement, the trial court should not have applied it to him.
What is the Sentencing Enhancement for Possessing Child Pornography?
204 Pa Code § 303.9 (I) lists the sentencing enhancements for a defendant who is convicted of possessing child pornography. Per § 303.9(I), a defendant’s guidelines can increase due to the number of images of child pornography the defendant possessed. For example, if a defendant was found to have more than 50 images, but less than 200, then six months are added to both the lower and upper limit of the standard range of one’s guidelines. If the offender is found to possess more than 200, but less than 500, twelve months are added to both the lower and upper limits. Finally, if a defendant is found to have more than 500 images of pornography, then eighteen months are added to both the lower and upper limits.
How Do Videos Impact the Sentencing Enhancements for Child Pornography?
204 Pa Code § 303.10 (e)(ii) provides guidance on this question. Though it can be done, it is typically difficult to determine how many images are in a video that contain child pornography. § 303.10 (e)(ii) states that a court “shall” consider that each video, video clip, or movie contains 50 images. It is worth noting that, per § 303.9 (I), 50 images would not be enough to trigger the sentencing enhancement.
The Superior Court’s Decision
The Superior Court agreed with the defendant and reversed his sentence. In making its decision, the Superior Court first analyzed the plain language of both § 303.9(I) and § 303.10 (e)(ii). In reading these statutes, the Superior Court found that the sentencing enhancement is only triggered when each violation meets the criteria. Thus, a court must examine each conviction to determine if it meets the requirement that offender possessed more than 50 images before the guideline enhancement may be applied.
In the instant case, the defendant pleaded guilty to eleven counts of child pornography. Because each count was possession of one video, and that video only counted as 50 images as provided by the statute, the trial court should not have applied the sentencing enhancement to any of the charges. Further, the Superior Court reminded the Commonwealth that they had made a strategic decision to charge the defendant with eleven separate counts of possessing child pornography. The Commonwealth could have elected to charge him with fewer counts, but with enough images to trigger the sentencing enhancement (i.e. made one charge possession of two videos). For whatever reason, the Commonwealth chose not to do this. Therefore, because of the trial court’s error in applying the sentencing enhancement, the defendant will get a new sentencing hearing.
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