Edvalson v. The State

Court vacates its earlier opinion and remands for resentencing, with merging of eleven convictions for possession of child pornography into a single conviction.

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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 XXIV (June 28, 2019) (unpublished).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. 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.

Edvalson v. The State

Court vacates its earlier opinion and remands for resentencing, with merging of eleven convictions for possession of child pornography into a single conviction.

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