Facts: Defendant pled guilty to several counts of aggravated sexual exploitation, and additional counts of aggravated sexual exploitation of a minor where the number of exploitive materials exceeded twenty-five. The trial court ordered partial consecutive sentencing on the basis that Defendant had an extensive record of criminal activity.
Appellate Decision: The intermediate court affirmed in a single, but divided, opinion. Two members of the panel held that the trial court did not abuse its discretion in finding Defendant had an extensive record of criminal activity based almost exclusively on the number of illegal images, which were prosecuted in multiple counts in the indictment. State v. Cummings, 868 S.W. 2d 661, 667 (Tenn. Crim. App. 1992).
Judge McMullen disagreed, writing: “The record shows the trial court justified consecutive sentencing based solely upon the number of convictions to which the Defendant pleaded guilty without consideration of the pervasiveness of the Defendant’s illegal behavior. There is no question that the Defendant knowingly transferred or exchanged 174 images of child pornography as charged in the multiple count indictment. While this conduct was repulsive and repugnant, there was no proof in the record that the Defendant engaged in a continuous course of downloading or uploading the materials for the year long period alleged in each of the twenty-four counts of the indictment.”
Review Granted: November 18, 2021.
Prediction: Ben thinks the Supreme Court will reverse for the reasons stated by Judge McMullen. The mere existence of multiple illegal images charged in multiple counts does not necessarily constitute extensive criminal activity. There are ample ways the law already punishes larger amounts of illegal images, such as the enhanced offense level which was already applied in this case.