State v. Pogue

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Appellant,
v.
Jason Skyler Israel Pogue, Respondent.
Appellate Case No. 2017-000890
Appeal From Greenville County
Edward W. Miller, Circuit Court Judge
Opinion No. 5720
Submitted March 2, 2020 – Filed April 29, 2020
REVERSED AND REMANDED
Attorney General Alan McCrory Wilson and Senior
Assistant Deputy Attorney General William M. Blitch,
Jr., both of Columbia, for Appellant.
Chief Appellate Defender Robert Michael Dudek, of
Columbia, for Respondent.
THOMAS, J.: The State appealed Jason Skylar Israel Pogue's sentence following
his guilty plea to four counts of third degree sexual exploitation of a minor and one
count of second degree exploitation of a minor.1 We reverse and remand for
resentencing.
1
The only conviction relevant to this appeal is the one count of second degree
exploitation of a minor.
FACTS
In 2015, Pogue was downloading and sharing child pornography. After an
investigation and a forensic examination of his computer, investigators found fifty
sexually-explicit videos and dozens of still photos, including videos and
photographs of female children as young as four years old being orally and
vaginally raped.
At the time of sentencing, Pogue was thirty-three years old, had no prior record,
and had suffered health issues for twelve years. On April 6, 2017, the circuit court
sentenced Pogue to ten years' imprisonment, suspended to four years of home
detention and five years of probation, and inpatient treatment at Overcomers, a
treatment facility at Miracle Hill Ministries. The State objected, arguing the home
detention program was not valid for a conviction of second-degree exploitation of
a minor. The court overruled the objection. This appeal follows.
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).
LAW/ANALYSIS
The State argues the circuit court erred in sentencing Pogue to home detention.
We agree.
Pogue pled guilty to one count of sexual exploitation of a minor in the second
degree under section 16-15-405 of the South Carolina Code. Section 16-15-405
mandates in part:
(D) A person who violates the provisions of this section
is guilty of a felony and, upon conviction, 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 (2015) (emphasis added). Under South Carolina
Code Section 16-1-60, second degree sexual exploitation of a minor is classified as
a violent crime. S.C. Code Ann. § 16-1-60 (Supp. 2019). As to home detention,
South Carolina Code Section 24-13-1530 states in relevant part: "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." S.C.
Code Ann. § 24-13-1530(A) (2007) (emphasis added). In State v. Simpson, 429
S.C. 83, 91-92, 837 S.E.2d 669, 673 (Ct. App. 2020), this court reversed the home
detention sentence of a defendant who pled guilty to four counts of second degree
sexual exploitation of a minor, finding the statutory scheme did not authorize home
detention for offenses classified as "violent."2
Under Simpson and the statutory scheme, we find the home detention program
applies only to nonviolent offenders and second degree sexual exploitation of a
minor is defined as a violent crime by statute. Compare § 16-1-60 (defining
violent crimes) with § 16-1-70 (2015) (defining nonviolent crimes as "all offenses
not specifically enumerated in Section 16-1-60"). Accordingly, we reverse and
remand for a new sentencing hearing.
REVERSED AND REMANDED.3
HUFF and MCDONALD, JJ., concur.
2
Unlike in Simpson, Pogue has not yet completed the home detention portion of
his sentence; thus, we need not address mootness. Simpson, 429 S.C. at 89, 837
S.E.2d at 672 (finding "the question of Simpson's own sentence moot due to his
completion of the determinate home detention portion of the sentence").
3
We decide this case without oral argument pursuant to Rule 215, SCACR.