State v. Simpson

• Decision Date: 08 January 2020
• Docket Number: Appellate Case No. 2016-002210,Opinion No. 5706
• Citation: 429 S.C. 83,837 S.E.2d 669
• Parties: The STATE, Appellant, v. Jamie Lee SIMPSON, Respondent.
• Court: South Carolina Court of Appeals

429 S.C. 83

837 S.E.2d 669

The STATE, Appellant,

v.Jamie Lee SIMPSON, Respondent.

Appellate Case No. 2016-002210

Opinion No. 5706

Court of Appeals of South Carolina.

Heard April 9, 2019

Filed January 8, 2020

Rehearing Denied February 14, 2020

Attorney General Alan McCrory Wilson and Senior Assistant Deputy Attorney General William M. Blitch, Jr., of Columbia, both for Appellant.

Appellate Defender Susan Barber Hackett, of Columbia, for Respondent.

MCDONALD, J.:

The State appealed Jamie Lee Simpson's sentence following his guilty plea to four counts of second degree sexual exploitation of a minor, arguing the circuit court erred in permitting home detention in lieu of the minimum two years' imprisonment mandated by section 16-15-405 of the South Carolina Code. We reverse.

Facts and Procedural History

On February 19, 2014, Special Investigator Lucinda McKellar of the South Carolina Attorney General's Office conducted an online investigation using file sharing programs to identify individuals distributing child pornography. McKellar was able to download and receive five files containing child pornography from a user later identified as Simpson. The videos were explicit and disturbing, containing images of children being forced to perform sexual acts and sexual assaults against children as young as six.

During a second investigation in March 2014, McKellar was again able to download explicit child pornography from Simpson. After obtaining subscriber information, McKellar identified Simpson's Richland County residence as the location from which the child pornography was being shared.

The Richland County Sheriff's Office executed a search warrant on Simpson's home on January 9, 2015, and seized several computers. Simpson admitted to police that he searched and downloaded child pornography using a file sharing network. A forensic examination revealed child pornography or the remnants and artifacts of child pornography on multiple seized devices, with file dates from 2006 through 2014. The Sheriff's Office arrested Simpson on January 13, 2015, charging him with sexual exploitation of a minor in the second degree.

On November 4, 2015, Dr. Thomas Martin of Martin Psychiatric Services conducted a comprehensive psychosexual evaluation of Simpson, which included a full interview and the review of discovery and investigative reports provided by the State. Dr. Martin concluded Simpson was not a pedophile, a psychopath, or a sexual predator. Following the evaluation, Simpson attended group therapy sessions with Dr. Martin twice a month. According to Dr. Martin, Simpson actively participated in the sessions, showing he was motivated for treatment, and cooperated in Dr. Martin's medication regimen, which included treatment for depression, post-traumatic stress disorder

, and other combat-related issues. Additionally, Dr. Martin opined Simpson is "a very low risk to sexually reoffend."

In January 2016, the Richland County Grand Jury indicted Simpson on four counts of sexual exploitation of a minor in the second degree under section 16-15-405(A) of the South Carolina Code (2015).¹ Simpson pled guilty to all counts on October 18, 2016.

Second degree sexual exploitation of a minor is classified as a violent felony,² and § 16-15-405 mandates that upon conviction a person "must be imprisoned not less than two years nor more than ten years. No part of the minimum sentence may be suspended nor is the individual convicted eligible for parole until he has served the minimum sentence ." S.C. Code Ann. § 16-15-405(D) (2015) (emphasis added).

At sentencing, Simpson requested to serve the two-year, mandatory minimum sentence on home detention. Simpson argued serving his sentence on home detention would satisfy both the Legislature's penological concerns as well as any community safety concerns. Emphasizing his military service and lack of a prior criminal history, Simpson argued home detention would protect the public and deter future criminal conduct. Additionally, Simpson noted if he were to be incarcerated for more than sixty days, he would lose his military benefits and retirement pay, causing great financial hardship to his family and the likely loss of their home. Concerning his rehabilitation, Simpson argued incarceration "would provide no needed treatment or vocational training" and his "continued access to private counseling and treatment with Dr. Thomas Martin [would] be far more effective to maintain his mental health than the correctional environment of a prison."

After reviewing § 24-13-1530, which addresses home detention programs as an alternative to incarceration, the plea court stated, "based on the testimony that was heard from Dr. Martin, apparently [Simpson] is a low risk [for reoffending]. The question really comes down to the non-violent adult offenders." Acknowledging "[t]his particular crime has been classified as violent under the statute," the circuit court expressed concern as to whether or not the home detention program "is available." However, the court found Simpson "would be a good candidate for home detention" and opined that despite the Legislature's classification of second degree sexual exploitation of a minor as a "violent offense," "it is not [typically] what we consider [a] violent offense."

Over the State's objection, the plea court sentenced Simpson to four years' imprisonment, suspended upon his service of two years' home detention and two years' probation. The court imposed restrictions on the home detention, including restricting Simpson to his residence except for work and medical treatment. The court ordered electronic monitoring and mandatory continued counseling, prohibited Simpson from having access to a personal computer, and required that Simpson register as a sex offender.

Standard of Review

"In criminal cases, the appellate court sits to review errors of law only." State v. Wilson , 345 S.C. 1, 5, 545 S.E.2d 827, 829 (2001). A sentence will not be overturned absent an abuse of discretion; an abuse of discretion occurs "when the ruling is based on an error of law or a factual conclusion without evidentiary support." In re M.B.H. , 387 S.C. 323, 326, 692 S.E.2d 541, 542 (2010). "A trial judge has broad discretion in sentencing within statutory limits." Id. "A judge must be permitted to consider any and all information that reasonably might bear on the proper sentence for a particular defendant." Id.

Law and Analysis

I. Threshold Mootness Question³

Simpson argues this case is moot as he has already served the two years of home detention, which he argues is the "imprisonment" portion of his sentence. See Hayes v. State , 413 S.C. 553, 558, 777 S.E.2d 6, 9 (Ct. App. 2015) (explaining an individual's completion of a sentence renders an appeal on the propriety of that sentence moot); McClam v. State , 386 S.C. 49, 55, 686 S.E.2d 203, 206 (Ct. App. 2009) (dismissing appeal as moot where the State appealed an order releasing an individual after the individual completed the SVP program and was released from confinement); In the Interest of Kaundra C. , 318 S.C. 484, 486, 458 S.E.2d 443, 444 (Ct. App. 1995) (holding a juvenile's appeal of her sentence was moot because she had already served the determinate sentence). "However, ‘an appellate court can take jurisdiction, despite mootness, if the issue raised is capable of repetition but evading review.’ " Hayes , 413 S.C. at 558–59, 777 S.E.2d at 9 (quoting Curtis v. State , 345 S.C. 557, 568, 549 S.E.2d 591, 596 (2001) ).

The State has argued persuasively that the sentencing question raised here is capable of repetition yet generally evades review in that the suspension of mandatory minimum sentences continues to occur in circuit court, but due to the duration of the home detention or probationary portions of such sentences, the question presented here generally evades review. At oral argument, the State referenced another case involving the suspension of a mandatory minimum sentence to home detention pending in this court as well as our prior unpublished case, State v. Williams , No. 2014-001886, 2016 WL 6471974 (S.C. Ct. App. Nov. 2, 2016). Accordingly, while we find the question of Simpson's own sentence moot due to his completion of the determinate home detention portion of the sentence, we find this home detention sentencing issue is capable of repetition yet generally evades review. Thus, we will address the merits. See Nelson v. Ozmint , 390 S.C. 432, 433–34, 702 S.E.2d 369, 370 (2010) (addressing moot issue of the Department's calculation of the prisoner's sentence as not including good time credits or earned work credits because it was an issue that was capable of repetition, yet it would usually evade review); Hayes , 413 S.C. at 558, 777 S.E.2d at 9 (taking jurisdiction, despite mootness, because the issue raised was capable of repetition but evading review).

II. Statutory Considerations

The State argues the circuit court erred in interpreting § 24-13-1530(A) to allow two years of home detention as an alternative to § 16-15-405's mandatory minimum term of two-years' imprisonment because the plain language of § 24-13-1530(A) limits its application to "low risk, nonviolent adult and juvenile offenders." We agree.

Section 24-13-1530(A) of the South Carolina Code (2018) provides:

(A) Notwithstanding another provision of law which requires mandatory incarceration, electronic and nonelectronic home detention programs may be used as an alternative to incarceration for low risk, nonviolent adult and juvenile offenders as selected by the court if there is a home detention program available in the jurisdiction. Applications by offenders for home detention may be made to the court as an alternative to the following correctional programs:

(1) pretrial or preadjudicatory detention;

(2) probation (intensive supervision);

(3) community corrections (diversion);

(4) parole (early release);

(5) work release;

(6) institutional furlough;

(7) jail diversion; or

(8) shock

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