KHOUZAM, Judge.
On January 20, 2012, Jay Goldstein was charged with one hundred counts of possession of child pornography. Though his Criminal Punishment Code Scoresheet indicated a lowest permissible sentence of 1342.5 months (111.875 years) in prison, the State offered Goldstein an open plea that would cap his sentence at ten years and that allowed for an unlimited amount of supervision. But the court rejected the plea negotiations. Goldstein entered an open plea, and the court sentenced him to fifteen years on count one and five years on the remaining counts, to run consecutively to the sentence on count one but concurrent to each other. These sentences are a significant downward departure.
Goldstein appeals, relying on this court's decision in Barnhill v. State, 140 So.3d 1055 (Fla. 2d DCA 2014), to argue that the trial judge's explanation of the sentence revealed that he committed fundamental error by applying a general policy and lumping Goldstein with all other similarly charged defendants regardless of the evidence about his individual case presented at sentencing. Ultimately, Goldstein seeks resentencing before a different judge, which may or may not result in a shorter overall sentence for him. We conclude that Goldstein is entitled to the relief he requests. As we will discuss below, explanations at sentencing can lend legitimacy to the court's decisions and foster a public confidence in our judicial system. But the problem in this case, much like in Barnhill, is that the trial judge had established a general policy — personal to himself and at odds with the law of Florida — that caused him to sentence Goldstein, not for the crimes he had committed and for his circumstances at the time of sentencing, but rather for the crimes the judge feared Goldstein might commit in the future based on the nature of the crimes for which he was convicted.
The State offered Goldstein a plea that would have capped his sentence at ten years. Goldstein had been collecting child pornography via the internet since 2007, but there was no evidence that he had used the internet to meet children or, most importantly, that he had ever had any sexual contact with any child. Indeed, Goldstein had taken a polygraph examination that indicated that he had never inappropriately touched a child. In offering the sentencing cap, the State had also considered the psychological evaluation prepared by Dr. Imhof, who had concluded as follows:
Goldstein was receiving treatment as recommended in the psychological evaluation.
The court rejected the plea negotiations, and Goldstein entered an open guilty plea on April 23, 2013. After accepting the plea, the judge took testimony to consider before imposing sentence. Goldstein's attorney presented numerous letters, video recorded statements, and testimony from people who knew Goldstein in an effort to show that he was not a danger to the community. As a diving coach, Goldstein was constantly interacting with minors, and yet there was no evidence whatsoever that he ever acted inappropriately toward them. To the contrary, the evidence affirmatively suggested that no such contact had ever taken or would ever take place. Several of Goldstein's diving students, who had trained with him for years, stated that they had never felt uncomfortable around him. They trusted him, describing him not only as a friend but as a member of their families and a role model. One young woman stated that Goldstein was "an inspiration." Another attested, "Jay is one of my best friends. He still is."
Several parents asserted that even in light of Goldstein's conviction they would still want him to coach their children. They described him as a wonderful coach and friend. One mother wrote that the worst thing about this case was that her granddaughter would not be able to train with Goldstein as her daughter had. The father of two girls who were Goldstein's students testified that Goldstein was a leader, that he had the utmost respect for Goldstein, and that his girls and society would be missing out if Goldstein were put in prison. Another father of two children Goldstein had coached testified that his children had been taught to look out for inappropriate behavior by coaches, and they told him that Goldstein had never done anything inappropriate. The man stated, "frankly, knowing my kids are the single most important thing in my life, given the opportunity I would have no apprehension to allow Jay to be their coach again."
Goldstein's neighbors, including two young men who had grown up living next door to him, testified that they were close to Goldstein and that nothing inappropriate had ever happened between them. One of the young men described Goldstein as "the brother I never had." The young men's mothers also testified they allowed their children to spend time with Goldstein and nothing inappropriate ever happened. One explained, "I believe in my heart that Jay would never, ever do anything inappropriate to a child." The other mother testified that she had five children who grew up living next door to Goldstein and that he had been a mentor to her boys when her husband left. She stated, "to this moment I would allow my children to be with him. He has been nothing but wonderful to my children. We are all human." She also noted that she is vigilant
Many of Goldstein's friends and colleagues, who had known him for years and even decades, testified as well. They maintained that Goldstein was not a threat. They noted the numerous opportunities that Goldstein had working with children and that there was never any indication that he had acted inappropriately in any way. For example, a fellow swim coach testified that as an educator, coach, and Boy Scout leader, he had been trained to look for child predation and he had never seen such behavior with Goldstein during the fifteen years that they had known each other. A friend who had been close to Goldstein for about thirty years described him as "the kind of person that I want to be."
Members of Goldstein's family also testified. Goldstein's former brother-in-law described Goldstein as "an outstanding individual" and a "pillar of the community." Several witnesses mentioned that Goldstein had been taking care of his ill mother for years and that recently he had been visiting her on a daily basis. Goldstein's cousin, a physician, stated that Goldstein would often contact him with questions about how to best care for his mother. "It's incredible, I can tell you," the cousin stated, "[b]etter than any nurse I've ... worked with." All of the witnesses asked the court to show mercy on Goldstein.
Goldstein's attorney also made reference to two studies prepared for the United States Sentencing Commission that show how child pornographers who do not commit contact offenses are far less likely to commit any contact offenses in the future. He argued that the studies support a claim that online offenders have a lower recidivism rate, suggesting that Goldstein would be unlikely to reoffend.
On the other side, the State presented evidence that a search of Goldstein's computers uncovered 272 images of child pornography. Forty-eight "known notable child victims as characterized by the National Center for Missing and Exploited Children" were depicted. There were approximately eight videos located on Goldstein's computers. Various other images of child pornography were on discs categorized and labeled with titles such as PTHC, standing for "Preteen Hard Core." Some showed young children between the ages of eight and fifteen. All showed children engaging in almost any imaginable sex act. An investigating detective testified that Goldstein admitted downloading the child pornography and that he knew what it was.
In imposing sentence, the trial judge made the following statements:
(Emphasis added.)
The judge's statements in this case are remarkably similar — in fact, almost identical — to the statements that this court
Id. at 1058-59 (some alteration in original).
In Barnhill, we held that the trial judge's statements indicated that he was applying a general policy in child pornography cases and that the application of such a general policy amounted to fundamental error:
Id. at 1061 (emphasis added) (citations omitted).
By the same token, the statements made by the judge in the instant case reveal that he lumped Goldstein with all other similarly charged defendants and applied a general policy, regardless of the evidence presented at sentencing. As we read the trial court's comments, the policy he explains is one of denying probation to all defendants convicted of possession of child pornography because science has not proven they will not become sexual predators in the future. It is true that the purpose of uniform sentencing laws is to create "general policies" for the sentencing of defendants, but here the judge applied a personalized general policy that was at odds with Florida law.
Additionally, in both Barnhill and the instant case, the judge apparently feared that the defendants would commit new criminal acts of abuse that they were never accused of committing and took this speculation into account when imposing sentence. As in Barnhill, this fear was not based on the evidence before the trial court as to this defendant. In a different context, this court has stated: "A sentencing court may not rely on `unsubstantiated allegations of misconduct or speculation that the defendant probably committed other crimes' when it imposes sentence." Craun v. State, 124 So.3d 1027, 1030 (Fla. 2d DCA 2013) (quoting Nusspickel v. State, 966 So.2d 441, 445 (Fla. 2d DCA 2007)); see also Martinez v. State, 123 So.3d 701, 704 (Fla. 1st DCA 2013) ("[A] sentence based on mere allegation or surmise violates the fundamental constitutional rights of the defendant."). It seems even more evident to us that a court cannot
However, we must emphasize that the holding in this case, much like the holding in Barnhill, is narrow. This opinion does not disturb trial judges' wide discretion in sentencing criminal defendants. See Bracero v. State, 10 So.3d 664, 665 (Fla. 2d DCA 2009) ("A sentencing court has wide discretion regarding the factors it may consider when imposing a sentence."); Stano v. State, 473 So.2d 1282, 1286 (Fla. 1985) ("A trial court's discretion extends to determining what is relevant evidence at sentencing."). A court has the discretion to reject a negotiated plea, to reject the testimony presented at sentencing hearings, and to impose departure sentences as permitted by law. The court's discretion also encompasses providing explanations at sentencing to support the reasonableness and legitimacy of its decision to both the public and to the reviewing court. Although a trial court is often free to impose a sentence with no public explanation, a thoughtful explanation can foster a public confidence in our judicial system. Explaining to the public that possession of pornography is not a victimless crime, for example, is a completely appropriate role for the trial judge and for this court.
Likewise, we do not intend to suggest that trial judges cannot learn from experience or consider prior cases when seeking to impose a proper sentence. See In re Inquiry Concerning a Judge, J.Q.C. No. 77-16, 357 So.2d 172, 178 (Fla.1978) ("Every judicial officer is the sum of his past. When he dons his robe and ascends to the bench, he is not divested of the effects of his previous training, education and real life experiences. He takes his official office as a human being, not as a judicial robot."); Nateman v. Greenbaum, 582 So.2d 643, 644 (Fla. 3d DCA 1991) (recognizing that judges are "expected to be influenced by real life experiences"). On the contrary, we recognize that all good judges attempt to improve their skills and sensitivities from their prior experience on the bench. So the fact that the trial judge in this case may have relied on his previous training, education, and experience in imposing sentence is not problematic in and of itself — indeed, judges can and should learn from experience in order to reach a just result.
The problem here is that the trial court expressly considered and relied upon its own generalized fears of greater future offenses for any person who possesses child pornography. Such fear is simply a factor that the court, as a matter of law, had no authority to use when exercising its wide discretion or drawing from personal experience. Accordingly, we conclude that the court fundamentally erred in relying on its generalized fears of greater future offenses for any similarly charged defendant and applying a general policy in sentencing Goldstein contrary to Florida law. We reverse Goldstein's sentences and remand for sentencing before a different judge.
Judgment affirmed; sentences reversed; and remanded with instructions.
WALLACE, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.
