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 Mc Crory Wilson and Senior Assistant Deputy Attorney General William M. Blitch, Jr., both of Columbia, for Appellant.

Chief Appellate Defender R obert Michael Dudek, of Columbia, for Respondent.

THOMAS, J.: The State appealed Ja son Skylar Israel Pogue's sentence following his guilty plea to four counts of third de gree 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 a ppeal is the one count of second degree exploitation of a minor.FACTS

In 2015, Pogue was downl oading 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 th irty-three years old, had no prior record, and had suffered health issues for twelve y ears. On April 6, 2017, the circuit court sentenced Pogue to ten years' imprisonm ent, suspended to four years of home detention and five years of probation, a nd inpatient treatment at Overcomers, a treatment facility at Miracl e Hill Ministries. The Stat e objected, arguing the home detention program was not valid for a c onviction of second-degree exploitation of a minor. The court overruled the obj ection. This appeal follows.

STANDARD OF REVIEW

"In criminal cases, the appellate cour t 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 sexua l 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 besuspended nor is the individual convicted eligible for parole until he has served the minimum sentence.

S.C. Code Ann. § 16-15-4 05 (2015) (emphasis added) . Under South Carolina Code Section 16-1-60, second de gree sexual exploitation of a minor is classified as
a violent crime. S.C. C ode 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 re quires mandatory incarceration , electronic and nonelectronic home detention programs ma y 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 prog ram available in the jurisdiction." S.C. Code Ann. § 24-13-1530(A) (2 007) (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 pl ed 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 a nd 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 th e 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 dete ntion portion of the sentence").

3 We decide this case wit hout oral argument pursuan t to Rule 215, SCACR.