Andrew Barlow v. State of Florida , 238 So. 3d 416 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D16-5042
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ANDREW BARLOW,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Escambia County.
Jennie M. Kinsey, Judge.
February 20, 2018
PER CURIAM.
After Andrew Barlow pleaded no contest to ten counts of
possessing child pornography, the court sentenced him to fifteen
years’ imprisonment and thirty years’ sex-offender probation. On
appeal, Barlow contends the trial court committed fundamental
error in imposing this sentence.
There is no dispute as to whether the sentence was within
statutory limits. Indeed, convicted of ten second-degree felonies,
each with a fifteen-year maximum, see § 775.082(3)(d), Fla. Stat.
(2015), Barlow faced a maximum total sentence of one hundred
fifty years’ imprisonment. But although a sentence within
statutory limits “is generally unassailable on appeal,” there is an
exception when a trial court bases its sentence on impermissible
factors, like unsubstantiated allegations of other crimes. Martinez
v. State, 123 So. 3d 701, 703 (Fla. 1st DCA 2013); accord Yisrael v.
State, 65 So. 3d 1177, 1177 (Fla. 1st DCA 2011) (“Fundamental
error occurs where a trial court considers constitutionally
impermissible factors when imposing a sentence.”), approved sub
nom. Norvil v. State, 191 So. 3d 406 (Fla. 2016).
Barlow contends this exception applies here. He argues that
the trial court relied on unrelated, uncharged, and
unsubstantiated claims in determining his sentence. At the
sentencing hearing, a law-enforcement agent testified that Barlow
indicated during an electronic chat that he would like to have sex
with a fourteen-year-old boy. Barlow was not charged with that
conduct; his charges related only to possessing child
pornography—not directly interacting with children.
Nevertheless, there is no indication that the trial court based its
sentence on this uncharged conduct, so the exception provides no
basis to reverse. See Harvard v. State, 414 So. 2d 1032, 1034 (Fla.
1982) (“[T]rial judges are routinely made aware of information
which may not be properly considered in determining a cause. Our
judicial system is dependent upon the ability of trial judges to
disregard improper information and to adhere to the requirements
of the law in deciding a case or in imposing a sentence.”); Williams
v. State, 193 So. 3d 1017, 1019 (Fla. 1st DCA 2016) (reversing only
after noting “it is clear from the trial judge’s comments at the
sentencing hearing that he accepted as true, and based his
sentencing decision on, the prosecutor’s assertions [of
unsubstantiated conduct]”); Yisrael, 65 So. 3d at 1178 (noting that
sentencing judge’s comments “strongly indicate that the dismissed
and pending charges were a factor in the court’s determination to
impose the maximum allowable sentence”).
Moreover, even if the trial court did consider the uncharged
conduct, it would not have been error. First, evidence that Barlow
expressed interest in sex with a child was not unsubstantiated. At
the sentencing hearing, there was a dispute about the conversation
at issue, and rather than insist the State produce the actual
transcript, Barlow’s counsel accepted as true the agent’s
description of the conversation. Second, the evidence directly
related to Barlow’s request for a downward departure—a request
he based in part on a report indicating he was at low risk to
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reoffend. That report, in turn, reported that Barlow denied having
ever had sexual interest in children. The trial court found no basis
for a downward departure, and to the extent it considered evidence
directly refuting the report (or Barlow’s denial within it), it
committed no error.
We also reject Barlow’s argument that the trial court
committed fundamental error by considering child pornography’s
general societal harm, rather than the specific harm from Barlow’s
crime. Barlow relies on Goldstein v. State, in which the appellate
court found fundamental error in the trial court’s “relying on its
generalized fears of greater future offenses for any similarly
charged [child pornography] defendant and applying a general
policy in sentencing Goldstein contrary to Florida law.” 154 So. 3d
469, 476 (Fla. 2d DCA 2015). But in Barlow’s sentencing, although
the court noted the substantial harm child pornography inflicts, it
did not announce any policy applicable to all child-pornography
cases, and it did not articulate any other impermissible basis for
its sentence. Instead, the trial court considered the individual facts
of Barlow’s case. It considered Barlow’s mental-health evaluation
and letters and testimony presented on Barlow’s behalf. It
considered the fact that Barlow shared child pornography and
sought more images. And it considered the disgusting nature of the
specific images Barlow possessed—images that showed adults
engaging in sexual acts with infants.
AFFIRMED.
WOLF, ROWE, and WINSOR, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Jason Cromey of Jason Cromey Law, P.A., Pensacola, for
Appellant.
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Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez,
Assistant Attorney General, Tallahassee, for Appellee.
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