Goldstein v. State
| Decision Date | 07 January 2015 |
| Docket Number | No. 2D13–2598.,2D13–2598. |
| Citation | 154 So.3d 469 |
| Parties | Jay GOLDSTEIN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
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.
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.
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.
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,
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, 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, 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.”
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:
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