HINES, Justice.
In OCGA § 17-10-6.2, the General Assembly has provided that, as to certain sexual offenses, resulting sentences are to include a minimum time that must be served in prison, although in certain circumstances, the trial court is given discretion to deviate from the minimum prison term. This Court granted a writ of certiorari to the Court of Appeals to consider whether that Court properly held that the factor of possession of a photographic image of a victim being restrained precludes deviation from mandatory minimum sentencing under OCGA § 17-10-6.2 (c) (1) (F).
See Hedden v. State,
301 Ga. App. 854 (690 SE2d 203) (2010). Finding that the Court of Appeals erred, we reverse.
In separate proceedings, Joseph Hedden and George Mahlon Hutto pled guilty to multiple counts of sexual exploitation of children by knowingly possessing photographic images stored in their respective computers that depicted a minor’s body engaged in sexually explicit conduct. See OCGA § 16-12-100 (b) (8) (“It is unlawful for any person knowingly to possess or control any material which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct.”).
Such a crime is a felony, punishable “by imprisonment for not less than five nor more than 20 years and by a
fine of not more than $100,000.00.” OCGA § 16-12-100 (g) (1).
Under OCGA § 17-10-6.2,
one of the crimes for which a sentence
is to include a minimum time to be served in prison is the sexual exploitation of children as set forth in OCGA § 16-12-100 (b) (8). See OCGA § 17-10-6.2 (a) (10). Under the statutory scheme set forth in OCGA § 17-10-6.2, a trial court is prohibited from probating, suspending, staying, deferring, or withholding any of the mandatory term of imprisonment stated for any of the specified offenses. OCGA § 17-10-6.2 (b). However, if certain factors are found, a sentencing court is given the discretion to deviate from the mandatory minimum prison sentence; all of the factors stated must be present to authorize a court to deviate from the mandatory minimum sentence. OCGA § 17-10-6.2 (c) (1) (A)-(F). One of those factors is that “[t]he
victim was not physically restrained during the commission of the offense.” OCGA § 17-10-6.2 (c) (1) (F). Thus, the possibility of a less stringent sentence is foreclosed if the victim
was
“physically restrained during the commission of the offense.” Id.
Each of the defendants’ computers had at least one picture depicting children being physically restrained during sexually explicit conduct. Based upon the presence of those pictures, the trial court concluded that the defendants were not eligible to be considered for deviation from the mandatory minimum prison sentences, and thus the trial court sentenced each man to multiple concurrent fifteen-year sentences, with five of those years to be served in prison and the balance to be served on probation, without considering any lesser period of confinement. Their appeals were consolidated in the Court of Appeals, and that Court agreed with the trial court, and affirmed the sentences.
Hedden,
supra.
The opinion of the Court of Appeals looked at the factors authorizing deviation from the minimum prison sentences as set forth in OCGA § 17-10-6.2 (c) (1) (A)-(F), and noted that factors (A) through (C) concerned the status and behavior of the defendant, while factors (D) through (F) were phrased in a manner that “focused entirely on the victim.”
Hedden,
supra at 856. From this circumstance, the Court of Appeals concluded that, as children were depicted while physically restrained in materials held by the defendants, factor (F) was not met, and the trial court was correct that it had no discretion to deviate from the mandatory minimum sentencing set forth in OCGA § 17-10-6.2 (b). However, the analysis of the Court of Appeals does not give sufficient regard to all the statutory language; factor (F) precludes the trial court from exercising sentencing discretion when the victim was “physically restrained
during the commission of the
offense.” OCGA § 17-10-6.2 (c) (1) (F) (Emphasis supplied.).
It is a fundamental rule that courts avoid a construction of a statute that makes some language mere surplusage.
Harris v. State,
286 Ga. 245, 251 (5) (686 SE2d 777) (2009). Further, “[c]riminal statutes must be strictly construed against the State. [Cit.]”
Davis v. State,
273 Ga. 14, 15 (537 SE2d 663) (2000). Thus, the use of the words “during the commission of the offense” in OCGA § 17-10-6.2 (c) (1) (F) must be given effect.
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HINES, Justice.
In OCGA § 17-10-6.2, the General Assembly has provided that, as to certain sexual offenses, resulting sentences are to include a minimum time that must be served in prison, although in certain circumstances, the trial court is given discretion to deviate from the minimum prison term. This Court granted a writ of certiorari to the Court of Appeals to consider whether that Court properly held that the factor of possession of a photographic image of a victim being restrained precludes deviation from mandatory minimum sentencing under OCGA § 17-10-6.2 (c) (1) (F).
See Hedden v. State,
301 Ga. App. 854 (690 SE2d 203) (2010). Finding that the Court of Appeals erred, we reverse.
In separate proceedings, Joseph Hedden and George Mahlon Hutto pled guilty to multiple counts of sexual exploitation of children by knowingly possessing photographic images stored in their respective computers that depicted a minor’s body engaged in sexually explicit conduct. See OCGA § 16-12-100 (b) (8) (“It is unlawful for any person knowingly to possess or control any material which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct.”).
Such a crime is a felony, punishable “by imprisonment for not less than five nor more than 20 years and by a
fine of not more than $100,000.00.” OCGA § 16-12-100 (g) (1).
Under OCGA § 17-10-6.2,
one of the crimes for which a sentence
is to include a minimum time to be served in prison is the sexual exploitation of children as set forth in OCGA § 16-12-100 (b) (8). See OCGA § 17-10-6.2 (a) (10). Under the statutory scheme set forth in OCGA § 17-10-6.2, a trial court is prohibited from probating, suspending, staying, deferring, or withholding any of the mandatory term of imprisonment stated for any of the specified offenses. OCGA § 17-10-6.2 (b). However, if certain factors are found, a sentencing court is given the discretion to deviate from the mandatory minimum prison sentence; all of the factors stated must be present to authorize a court to deviate from the mandatory minimum sentence. OCGA § 17-10-6.2 (c) (1) (A)-(F). One of those factors is that “[t]he
victim was not physically restrained during the commission of the offense.” OCGA § 17-10-6.2 (c) (1) (F). Thus, the possibility of a less stringent sentence is foreclosed if the victim
was
“physically restrained during the commission of the offense.” Id.
Each of the defendants’ computers had at least one picture depicting children being physically restrained during sexually explicit conduct. Based upon the presence of those pictures, the trial court concluded that the defendants were not eligible to be considered for deviation from the mandatory minimum prison sentences, and thus the trial court sentenced each man to multiple concurrent fifteen-year sentences, with five of those years to be served in prison and the balance to be served on probation, without considering any lesser period of confinement. Their appeals were consolidated in the Court of Appeals, and that Court agreed with the trial court, and affirmed the sentences.
Hedden,
supra.
The opinion of the Court of Appeals looked at the factors authorizing deviation from the minimum prison sentences as set forth in OCGA § 17-10-6.2 (c) (1) (A)-(F), and noted that factors (A) through (C) concerned the status and behavior of the defendant, while factors (D) through (F) were phrased in a manner that “focused entirely on the victim.”
Hedden,
supra at 856. From this circumstance, the Court of Appeals concluded that, as children were depicted while physically restrained in materials held by the defendants, factor (F) was not met, and the trial court was correct that it had no discretion to deviate from the mandatory minimum sentencing set forth in OCGA § 17-10-6.2 (b). However, the analysis of the Court of Appeals does not give sufficient regard to all the statutory language; factor (F) precludes the trial court from exercising sentencing discretion when the victim was “physically restrained
during the commission of the
offense.” OCGA § 17-10-6.2 (c) (1) (F) (Emphasis supplied.).
It is a fundamental rule that courts avoid a construction of a statute that makes some language mere surplusage.
Harris v. State,
286 Ga. 245, 251 (5) (686 SE2d 777) (2009). Further, “[c]riminal statutes must be strictly construed against the State. [Cit.]”
Davis v. State,
273 Ga. 14, 15 (537 SE2d 663) (2000). Thus, the use of the words “during the commission of the offense” in OCGA § 17-10-6.2 (c) (1) (F) must be given effect.
The appellants were charged with possession of material in violation of OCGA § 16-12-100 (b) (8). Therefore, it would have to be
shown that the child victims in the images were physically restrained at the same time that the appellants possessed the offending material in order for OCGA § 17-10-6.2 (c) (1) (F) to exclude the trial court from having the sentencing discretion set forth in OCGA § 17-10-6.2 (c) (l).
It is uncontroverted that no such evidence exists. Accordingly, the trial court erred in determining that it was without discretion to deviate from the minimum sentencing requirements of OCGA § 17-10-6.2 (b), and the Court of Appeals erred in affirming that ruling.
Decided March 18, 2011.
H. Maddox Kilgore,
for appellants.
Garry T. Moss, District Attorney, Lara A. Snow, Cliff Head, Assistant District Attorneys,
for appellee.
Judgments reversed.
All the Justices concur.