Thomas Edvalson v. State ( 2021 )

FOURTH DIVISION
DOYLE, P. J.,
MARKLE, J., and SENIOR APPELLATE JUDGE PHIPPS.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
May 12, 2021
In the Court of Appeals of Georgia
A19A0442. EDVALSON v. THE STATE.
MARKLE, Judge.
Following a jury trial, Thomas Edvalson was convicted of 22 counts of sexual
exploitation of children (OCGA § 16-12-100 (2012)), for possessing 11 digital
images depicting a minor engaged in sexually explicit behavior. Edvalson v. State,
310 Ga. 7 (849 SE2d 204) (2020). For each digital image, Edvalson was found guilty
of both possession, pursuant to OCGA § 16-12-100 (b) (8), and possession with
intent distribute, under OCGA § 16-12-100 (b) (5). Edvalson, 310 Ga. at 7. At
sentencing, the trial court merged all the possession counts into the possession with
intent to distribute counts and sentenced him only on the possession with intent to
distribute counts. Id.
Edvalson appealed from the sentence imposed, and we affirmed, holding that
OCGA § 16-12-100 (b) (5) allowed Edvalson to be separately convicted and
sentenced for each image in his possession. Edvalson v. State, (Case No. A19A0442),
351 Ga. App. XXIV (June 28, 2019) (unpublished). The Supreme Court of Georgia
granted certiorari and reversed our decision, holding that the plain language of OCGA
§ 16-12-100 (b) (5) permits only one prosecution and conviction for a single act of
possession of child pornography, regardless of the number of images. Edvalson, 310
Ga. at 7-11, citing Coates v. State, 304 Ga. 329, 331-332 (818 SE2d 622) (2018).
Thus, the Supreme Court found that we erred in affirming the trial court’s sentence
as to each individual possession count. Id., 310 Ga. at 7-11. The Court then remanded
the case to this Court to vacate Edvalson’s convictions and sentences, and to remand
the case to the trial court for re-sentencing.1 Id. at 11.
1
“When the Supreme Court considers only a portion of a Court of Appeals’
opinion and reverses, it is for [this Court] to determine on remand whether the
portions of its earlier opinion that were not considered by [the Supreme Court] are
consistent with [its] ruling.” (Citations and punctuation omitted.) Agnes Scott
College, Inc. v. Hartley, 330 Ga. App. 575, 576 (2) (768 SE2d 767) (2015). Edvalson
raised an ineffective assistance claim with regard to trial counsel’s failure to request
that the trial court merge the possession with intent to distribute counts into a single
count. Edvalson, 351 Ga. App. XXIV. However, the Supreme Court’s opinion moots
Edvalson’s argument in this regard.
2
Accordingly, we adopt the Supreme Court’s decision as our own, vacate
Edvalson’s convictions and sentences for the 11 counts under OCGA § 16-12-100 (b)
(5), and remand the case to the trial court for resentencing consistent with the
Supreme Court’s decision.2
Judgment vacated and case remanded with direction. Doyle, P. J., and Senior
Appellate Judge Herbert E. Phipps concur.
2
In a footnote, the Supreme Court indicated that we “rejected” its decision in
Coates v. State, 304 Ga. 329, 331-332 (818 SE2d 622) (2018), and instead relied
heavily on our own decision in State v. Williams, 347 Ga. App. 183, 186 (818 SE2d
256) (2018), in evaluating the unit-of-prosecution issue, and it concluded that our
reliance thereon “was not well-founded.” Edvalson, 310 Ga. at 8, n. 6. We take this
opportunity to note that the Supreme Court’s decision in Williams v. State, 307 Ga.
778 (838 SE2d 235) (2020) was issued after our original decision in Edvalson. Thus,
our holding in Edvalson was based on existing precedent at the time. Additionally,
we did not reject or otherwise ignore Coates; we acknowledged it as precedent and
relied on the analysis therein to reach a different conclusion.
3