Background

Jesse Graham Berben, a military veteran, was convicted in 2017 of 20 counts of possession of a sexual performance of a child, which included videos depicting victims as young as toddler age and bestiality, and originally sentenced to 100 years in prison.

In 2019, Berben successfully won a reversal of his sentence in the Fifth District Court of Appeals when Judge John M. Harris, writing for the court and joined by Judge Jay P. Cohen, found, sua sponte, an alleged sentencing error Berben did not raise on appeal.

Harris opined the trial court judge made statements that imply he sentenced Berben based on Berben’s sharing, rather than possession, of the videos. Although Berben used peer-to-peer file-sharing networks to download the videos, he was charged only with possession, not distribution.

Judge Jamie R. Grosshans disagreed with the majority, arguing the issue was not raised on appeal and, therefore, not up for consideration. Furthermore, Grosshans wrote the trial court judge properly considered extensive trial court testimony regarding the file-sharing software Berben used, which allowed videos on his computer to be shared online.

Upon remand, the trial court cut Berben’s sentence in half, lowering it to 50 years.

WARNING: The 83-page transcript of the resentencing hearing includes graphic details describing the content of the 20 videos.

Court Update

Berben now argues in post-conviction proceedings that his trial attorney provided ineffective assistance. During a July 13 evidentiary hearing, the court reviewed allegations his defense counsel failed to object when prosecutors referenced alleged uncharged conduct, failed to request redactions from Berben’s recorded interview where a detective gave an opinion about his guilt and failed to call a computer forensics expert.

The court is expected to issue a written ruling. At this time, no further hearings have been scheduled.