State of West Virginia v. Goff
Annotate this CaseSeptember 1998 Term
_____________
No. 25009
_____________
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee,
v.
DANIEL WILLIAM GOFF,
Defendant Below, Appellant.
____________________________________________________________________
Appeal from the Circuit Court of Jefferson County
Honorable Christopher C. Wilkes, Chief Judge
Criminal Action No. 96-F-70
AFFIRMED
____________________________________________________________________
Submitted: September 9, 1998
Filed: September 25, 1998
Darrell V.
McGraw Vito
Mussomeli
Attorney
General Jefferson
County Public Defender
Dawn E. Warfield
Martinsburg,
West Virginia
Deputy Attorney
General Attorney
for Appellant
Charleston, West
Virginia
Attorneys for the State of West Virginia
The Opinion was delivered PER CURIAM.
JUSTICES WORKMAN and MCCUSKEY concur and reserve the right to file concurring opinions.
JUSTICE STARCHER dissents and reserves the right to file a dissenting
opinion.
SYLLABUS
1. "In
reviewing the findings of fact and conclusions of law of a circuit court concerning an
order on a motion made under Rule 35 of the West Virginia Rules of Criminal Procedure, we
apply a three-pronged standard of review. We review the decision on the Rule 35 motion
under an abuse of discretion standard; the underlying facts are reviewed under a clearly
erroneous standard; and questions of law and interpretations of statutes and rules are
subject to a de novo review." Syl. Pt. 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).
2. "Inmates
incarcerated in West Virginia state prisons have a right to rehabilitation established by
W.Va. Code Secs. 62-13-1 and 62-13-4 [1997], and enforceable through the substantive due
process mandate of article 3, section 10 of the West Virginia Constitution." Syl. Pt.
2, Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1981).
3. "A
sentencing judge, in evaluating a defendant's potential for rehabilitation and in
determining the defendant's sentence, may consider the defendant's false testimony
observed during the trial." Syl. Pt. 2, State v. Finley, 177 W.Va. 554, 355 S.E.2d 47 (1987).
4. "Punishment
may be constitutionally impermissible, although not cruel or unusual in its method, if it
is so disproportionate to the crime for which it is inflicted that it shocks the
conscience and offends fundamental notions of human dignity, thereby violating West
Virginia Constitution, Article III, Section 5 that prohibits a penalty that is not
proportionate to the character and degree of an offense." Syl. Pt. 5, State v.
Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983).
5. "In determining whether a given sentence violates the proportionality principle found in Article III, Section 5 of the West Virginia Constitution, consideration is given to the nature of the offense, the legislative purpose behind the punishment, a comparison of the punishment with what would be inflicted in other jurisdictions, and a comparison with other offenses within the same jurisdiction." Syl. Pt. 5, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981).
Per Curiam:
This criminal appeal was
filed by the defendant, Daniel William Goff (hereinafter Goff), from an order of the
Circuit Court of Jefferson County denying his motion for reconsideration of the court's
sentencing order. Goff was sentenced to 15 to 35 years in the penitentiary after a jury
conviction for sexual assault in the first degree. The motion for reconsideration of
sentence requested the placement of Goff, as a youthful offender, at the Anthony Center.
Upon a review of the parties' arguments and the record, we affirm the circuit court.
I.
FACTUAL BACKGROUND
On March 6, 1996, GoffSee footnote 1 1 met the victim in this case, A.A.,See footnote 2 2 while playing
basketball at a junior high school in Jefferson County. After being told they had to leave
the area, Goff and A.A. agreed to go to a nearby elementary school playground to continue
playing basketball. Goff asked A.A. to ride with him in his car to the elementary school.
A.A. refused. A.A. indicated that he would walk to the school. Goff drove his car to the
school. He parked his car in the yard of a nearby residence. Goff and A.A. played
basketball for a brief period. They then sat down on a bench to talk. No one other than
Goff and A.A. were in the area at the time.
After a brief conversation
A.A. stated he was going home. Goff attempted to trip A.A. as he was leaving. A.A. did not
fall. Goff then grabbed A.A. and dragged him to a grassy area near the basketball court.
Goff forced A.A. to the ground and pulled down A.A.'s pants. A.A. pleaded with Goff to
release him. Goff responded "shut up or else I will kill you." Goff took off a
sock and placed it in A.A.'s mouth to silence him. Goff then began performing oral sex on
A.A.See footnote 3 3 Goff released
A.A., and the child ran. A.A. knocked on the door of several homes in the area and
eventually found a couple at home. The couple contacted A.A.'s mother by phone, and
subsequently drove him home.
Shortly after A.A. was
taken home, Trooper D.D. Forman arrived at A.A.'s home in response to a 911 call that a
child had been sexually assaulted. Trooper Forman obtained a statement from A.A., which
included Goff's first name, a description of him, as well as a description of his car.
Trooper Forman investigated the crime scene and found the white sock that had been stuffed
in A.A.'s mouth by Goff. Further investigation led Trooper Forman to Goff's home.See footnote 4 4 Goff voluntarily
accompanied Trooper Forman to the state police detachment, and Goff gave Trooper Forman a
statement admitting to the sexual assault of A.A.See
footnote 5 5 Subsequently, Goff was indicted for committing the offense
of sexual assault in the first degree.See footnote 6 6
Goff's trial occurred on
March 13, 1997. The State called two witnesses, A.A. and Trooper Forman. Goff testified.
He was the only witness called by the defense. Goff denied having any type of sexual
contact with A.A. Goff argued that his confession to Trooper Forman was false and was a
product of law enforcement intimidation. The jury returned a verdict finding Goff guilty
of sexual assault in the first degree.
Goff was sentenced on May
5, 1997. At the sentencing hearing, Goff chose to exercise his right of allocution. Goff
spoke at length denying he was guilty of any offense against A.A. In sentencing Goff to 15
to 35 years of imprisonment, the trial court stated:
I'm rejecting any motion of probation. I'm
further rejecting any other matters concerning a lesser sentence or referral to the
youthful offenders facility.... You, sir, will not admit the crime you have been convicted
of. Therefore there is no rehabilitation.
On August 4, 1997, Goff filed a motion for
reconsideration of the sentence.See footnote 7 7 The motion requested the trial court suspend the sentence of imprisonment
and commit Goff to the Anthony Center for youth offenders.See footnote 8 8 Goff "fully admit[ted] to his
offense unlike his appearance at his Sentencing Hearing where he continued to deny his
involvement and protest the evidence." An evidentiary hearing was held on November
19, 1997. Goff proffered the testimony of Dr. Allan Scott Muller, a clinical psychologist.
Dr. Muller opined that confinement and treatment at the Anthony Center was appropriate.See footnote 9 9 By order filed
December 2, 1997, the circuit court denied the motion for reconsideration. The following
reasons were given by the court in denying the motion:
1. The defendant is in need of
correctional treatment that can be provided most effectively by his commitment to a
correctional institution.
2. The record in this
matter establishes that there is a substantial risk that the defendant would commit
another crime during any period of probation or conditional discharge.
3. Release, reduction,
probation, or conditional discharge or suspension in placing the defendant at the Anthony
Center would unduly depreciate the seriousness of the defendant's crime.
4. The Court looking at
the age of the victim and the defendant's refusal to admit his crime and show remorse
during the trial, at sentencing, and only reversing his posture for purposes of the
hearing for reconsideration leads the Court to believe that the original sentence imposed
is appropriate.
Goff appeals the order denying his motion
for reconsideration. In this appeal Goff alleges the following: (1) the circuit court's
findings of fact were clearly erroneous, (2) the circuit abused its discretion in denying
the motion, and (3) the sentence imposed was constitutionally impermissible.
II.
STANDARD OF REVIEW
Goff's motion for reconsideration was made
pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure.See footnote 10 10 This Court set out
the standard of review for a trial court's decision on a Rule 35 motion in syllabus point
1 of State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996):
In reviewing the
findings of fact and conclusions of law of a circuit court concerning an order on a motion
made under Rule 35 of the West Virginia Rules of Criminal Procedure, we apply a
three-pronged standard of review. We review the decision on the Rule 35 motion under an
abuse of discretion standard; the underlying facts are reviewed under a clearly
erroneous standard; and questions of law and interpretations of statutes
and rules are subject to a de novo review.
As a general matter, a Rule 35 motion is
not reviewable by this Court absent an abuse of discretion. Head, 198 W.Va. at 301,
480 S.E.2d at 510. We crystallized this principle in syllabus point 4 of State v.
Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982), wherein we held "[s]entences
imposed by the trial court, if within statutory limits and if not based on some
[im]permissible factor, are not subject to appellate review." See Syl. pt. 12,
State v. Broughton, 196 W.Va. 281, 470 S.E.2d 413 (1996); Syl. pt. 9, State v.
Hays, 185 W.Va. 664, 408 S.E.2d 614 (1991).
III.
DISCUSSION
A. The Circuit Court's Findings of Fact
The circuit court's order set out four
specific findings, each of which Goff challenges. First, the circuit court determined that
Goff needed correctional treatment most effectively provided by his commitment to a
correctional institution. Goff argues that his placement at the Anthony Center is
appropriate as he will not receive rehabilitative treatment while incarcerated in prison.
Also, Goff asserts that upon release he will be "more prone to violence than he
presently is" if he remains in the prison system. The State takes the position that
rehabilitative services are provided by the prison system to all inmates. This Court noted
in syllabus point 2 of Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1981), that
"[i]nmates incarcerated in West Virginia State prisons have a right
to rehabilitation established by W.Va. Code Secs. 62-13-1 and 62-13-4 [1997], and
enforceable through the substantive due process mandate of article 3, section 10 of the
West Virginia Constitution." Goff's argument is flawed. No evidence was presented to
the trial court, (nor proffered to this Court), to demonstrate that rehabilitative
services are not being provided to prison inmates. The State correctly argues that Goff
failed to show that the Anthony Center offers some unique sexual oriented rehabilitative
service not being offered by the prison system.See
footnote 11 11 In fact, during the hearing on the reconsideration motion,
Dr. Muller was unable to inform the court of any unique services that the Anthony Center
would provide to Goff:
Q. I wanted to ask the doctor if he's aware of what services
Anthony provides?
A. As far as I know that they do provide
counseling, social skills, there's vocational training as well. All of these training and
treatments play into what is needed for somebody who suffers---
Q. Have you talked with the Anthony Center
specifically about what they might have that would be appropriate?
A. No, I have not.
The second finding made by the circuit court was that the record in the case
established that there is a substantial risk that Goff would commit
another crime during any period of probation or conditional discharge. Goff asserts there
was no evidence suggesting he would commit another crime. However, Dr. Muller testified,
in response to questioning by the circuit court, that if Goff "doesn't learn any
other ways of dealing with what's going on inside of him and his unstable personality ...
I think its [sic] just as likely that he will act out again." Dr. Muller's report
characterized Goff as "impulsive, unpredictable and nonconformist." Dr. Muller
wrote that "[a]lthough [Goff] does not appear to be a fixated pedophile, he does have
the obsessive fantasy and masturbation cycle which is often characteristic of the
disorder." Dr. Muller opined when Goff is released from confinement, Goff should not
be allowed unsupervised contact with children of any age or be in a position of authority
over or have responsibility for children of any age.
The third finding made by the circuit court was that placing Goff at the Anthony Center would unduly depreciate the seriousness of Goff's crime. Goff's brief argues that this finding is erroneous because "[t]he facts of this case do not bear out overly tragic circumstances. This was one lick on an 11 year old boy's penis." The State counters that the "[d]efense completely ignores the fact that an eleven-year-old boy was forcefully subjected to an emotionally disturbing homosexual act." There can be little debate that sexual assault of a minor is profoundly tragic. "Children are the most vulnerable of victims,
suffering traumatic and frequently life-long physical and emotional
damage."See footnote 12 12 Commentators
have suggested that an alarmingly large number of male children are victims of sexual
assault. However, because of under-reporting, a true picture of this class of victims is
not known.See footnote 13 13 Researchers
have found that it is a "common clinical experience for boys to feel that because
they responded [to the sexual assault], it must mean that whoever victimized them knew
they would react and had therefore picked them out because of some 'sign' of
homosexuality."See footnote 14 14
Moreover, "[s]exually abused boys experience sexual identity confusion and fears
about homosexuality ..., as well as fears that they may become child sexual abusers
themselves."See footnote 15 15
The fourth finding made by the circuit court was that the original sentence imposed was appropriate in view of the age of the victim, and Goff's refusal to admit his crime and show remorse during the trial and at sentencing. The order further observed that Goff again admitted his crime for the sole purpose of the reconsideration hearing. Goff challenges this finding with an argument that the trial court penalized him for refusing to give up his right against self-incrimination during the trial. Goff contends that this finding presents a due process violation under Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 668, 54 L. Ed. 2d 604 (1978). Bordenkircher held that "[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort[.]" The State correctly points out that the sound principle announced in Bordenkircher is inapplicable to this case. Bordenkircher was concerned with prosecutorial misconduct by threatening a defendant with reindictment on a more serious charge should the defendant not plead guilty to the charge presented. Moreover, in syllabus point 2 of State v. Finley, 177 W.Va. 554, 355 S.E.2d 47 (1987), Justice McHugh clearly announced that "[a] sentencing judge, in evaluating a defendant's potential for rehabilitation and in determining the defendant's sentence, may consider the defendant's false testimony observed during the trial." In United States v. Grayson, 438 U.S. 41, 54, 98 S. Ct. 2610, 2617, 57 L. Ed. 2d 582 (1978), the court held that "[t]here is no protected right to commit perjury." Grayson also indicated that "[a] defendant's truthfulness or mendacity while testifying on his own behalf, almost without exception, has been deemed probative of his attitudes toward society and prospects for rehabilitation and hence relevant to sentencing." Id., 438 U.S. at 50, 57 S. Ct. at 2616.
Goff confessed to Trooper Forman that he
sexually assaulted A.A. Goff then recanted his confession. Then, while under oath, Goff
told the jury and court that he did not sexually assault A.A. During sentencing Goff again
denied sexually assaulting A.A. Only after sentencing did Goff once again admit to
sexually assaulting A.A. Goff now asks this Court to find erroneous the trial court's
consideration of his pattern of deception and lies during the hearing for reconsideration
of sentencing. We find no merit in Goff's first assignment of error.See footnote 16 16
B. The Sentence Imposed
Goff's final argument is that the sentence
imposed was constitutionally impermissible. This Court held in syllabus point 8 of State
v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980), that "Article III, Section 5 of
the West Virginia Constitution, which contains the cruel and unusual punishment
counterpart to the Eighth Amendment of the United States Constitution, has an express
statement of the proportionality principle: 'Penalties shall be proportioned to the
character and degree of the offence.'" In syllabus point 5 of State v. Cooper,
172 W.Va. 266, 304 S.E.2d 851 (1983), we indicated that
[p]unishment may be
constitutionally impermissible, although not cruel or unusual in its method, if it is so
disproportionate to the crime for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity, thereby violating West Virginia
Constitution, Article III, Section 5 that prohibits a penalty that is not proportionate to
the character and degree of an offense.
Two tests are applied to
determine whether a sentence is so disproportionate to a crime that it violates the State
Constitution. Under the first test this Court must determine whether the sentence for the
particular crime shocks the conscience of the Court and society. If a sentence is so
offensive that it is found to shock the conscience, the inquiry need not further proceed.
Such a sentence must be vacated. See Cooper, 172 W.Va. at 272, 304 S.E.2d at
857. However, when it cannot be said that a sentence shocks the conscience, the second
test is triggered. The second test was established in syllabus point 5 of Wanstreet v.
Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981):
In determining
whether a given sentence violates the proportionality principle found in Article III,
Section 5 of the West Virginia Constitution, consideration is given to the nature of the
offense, the legislative purpose behind the punishment, a comparison of the punishment
with what would be inflicted in other jurisdictions, and a comparison with other offenses
within the same jurisdiction.
Goff contends that his sentence shocks the
conscience. Among the allegations Goff offers to support his position, is that he and A.A.
"had a chance meeting on a basketball court which resulted in the [defendant] pushing
the victim on the ground and licking his penis once[.]" Goff noted that no weapon was
used and no physical injury resulted.See footnote
17 17 Ultimately, Goff's rendition of the surrounding circumstances of
his offense omits the fact that the psychological injuries sustained by A.A. are quite
severe. Without hesitation, this Court concludes that the act of using a child to gratify
one's perverse sexual appetite "shocks the conscience." Therefore, we conclude
that the trial court's sentence for such a crime does not shock the conscience.
The second part of our
analysis requires this Court to consider the nature of the offense, the legislative
purpose behind the punishment, a comparison of the punishment with what would be inflicted
in other jurisdictions, and a comparison with other offenses within our same jurisdiction.
As to the nature of the offense, Goff argues that it "is serious and emotionally
violent, though not physically violent." The State counters, correctly so, that this
offense involved physical force on the part of Goff against a child of tender years.
"This compounded by the fact that it involved a homosexual act." As to the
legislative purpose, Goff contends that while the legislature intended to be tough on
sexual offenders, a door for probation was left open, as well as treatment under the youth
offender statute. The point missing in Goff's argument is that lesser punishment for
sexual assault is not to be indiscriminately awarded. A defendant receiving probation or
Anthony Center treatment for sexual assault in the first degree must, at a minimum,
display honest remorse.
With respect to a comparison of the punishment with what would be inflicted in other jurisdictions, Goff has cited law from Pennsylvania, Maryland and Virginia. We are not persuaded by Goff's arguments. Goff concedes that all three jurisdictions have sexual offense statutes that distinguish sexual conduct, for punishment purposes, differently than West Virginia. All three jurisdictions provide optional statutes that have lesser charges and punishments. The State points to Nevada, Georgia, Utah and Washington as representative of jurisdictions with tough penalties for sexual assault like West Virginia. In the final analysis, the State is correct in noting that jurisdictions vary widely in their classification and punishment for the type of assault occurring in the instant case. West Virginia is not alone in the severity of its punishment. The final consideration requires comparison of the challenged sentence with the punishment for other offenses within the State. Goff, unconvincingly, has attempted to compare his punishment with the punishment for first degree murder. Goff notes that if a jury convicts a defendant for first degree murder with mercy, such a defendant is eligible for parole in 15 years. Nevertheless, Goff's punishment does not make him eligible for parole until after 15 years. The State points out that eligibility for parole and obtaining parole are different. That is, the murderer may not be released from prison. In contrast, Goff's sentence automatically terminates after 35 years.
As such, we find that the sentence in this case does not violate the
proportionality principle found in Article III, Section 5 of the State Constitution.
IV.
CONCLUSION
In view of the foregoing, we affirm the
circuit court's sentencing order of 15 to 35 years in the penitentiary.
Affirmed.
Footnote: 1 1 At the time of the incident Goff was 18 years old.
Footnote: 2 2 Consistent with our prior practice, we identify the infant by initials due to the sensitive nature of this case. See In re Jonathon P., 182 W.Va. 302, 303 n.1, 387 S.E.2d 537, 538 n.1 (1989). At the time of the incident A.A. was 11 years old.
Footnote: 3 3 A.A. testified: "He put his tongue on my penis and I felt his teeth touching.... He licked it twice. I kept begging him to let me go.... He licked it again and let me go."
Footnote: 4 4 The owner of the residence near the elementary school, where Goff had earlier parked his car, contacted the police complaining about the vehicle parked at the residence. The resident gave police the license plate number and description of the car. The police matched the description of the car given by the resident with A.A.'s description of the car driven by Goff. Using the license plate number, the police were able to obtain Goff's address.
Footnote: 5 5 Goff was informed of his Miranda rights, which he waived, prior to being questioned.
Footnote: 6 6 The statute
Goff was indicted under was W.Va. Code § 61-8B-3 (1991), which reads:
(a) A person is guilty of sexual
assault in the first degree when:
(1) Such person engages in sexual
intercourse or sexual intrusion with another person and, in so doing:
(i) Inflicts serious bodily injury upon
anyone; or
(ii) Employs a deadly weapon in the
commission of the act; or
(2) Such person, being fourteen years
old or more, engages in sexual intercourse or sexual intrusion with another person who is
eleven years old or less.
(b) Any person who violates the provisions
of this section shall be guilty of a felony, and, upon conviction thereof, shall be
imprisoned in the penitentiary not less than fifteen nor more than thirty-five years, or
fined not less than one thousand dollars nor more than ten thousand dollars and imprisoned
in the penitentiary not less than fifteen nor more than thirty-five years.
(Italics added).
Footnote: 7 7 Goff also filed a petition for appeal of his conviction. His petition was denied by this Court on November 14, 1997.
Footnote: 8 8 The youth
offender treatment sought by Goff is governed by W.Va. Code § 25-4-6 (1975), which
provides:
The judge of any court with original
criminal jurisdiction may suspend the imposition of sentence of any male youth convicted
of or pleading guilty to a criminal offense, other than an offense punishable by life
imprisonment, who has attained his sixteenth birthday but has not reached his twenty-first
birthday at the time of the commission of the crime, and commit him to the custody of the
West Virginia commissioner of public institutions to be assigned to a center. The period
of confinement in the center shall be for a period of six months, or longer if it is
deemed advisable by the center superintendent, but in any event such period of confinement
shall not exceed two years. If, in the opinion of the superintendent, such male
offender proves to be an unfit person
to remain in such a center, he shall be returned to the court which
committed him to be dealt with further according to law. In such event, the court may
place him on probation or sentence him for the crime for which he has been convicted. In
his discretion, the judge may allow the defendant credit on his sentence for time he has
spent in the center.
When, in the opinion of the
superintendent, any boy has satisfactorily completed the center training program, such
male offender shall be returned to the jurisdiction of the court which originally
committed him. He shall be eligible for probation for the offense with which he is
charged, and the judge of the court shall immediately place him on probation. In the event
his probation is subsequently revoked by the judge, he shall be given the sentence he
would have originally received had he not been committed to the center and subsequently
placed on probation. The court shall, however, give the defendant credit on his sentence
for the time he spent in the center.
Any male youth between the ages of ten and
eighteen committed by the judge of any court of competent jurisdiction for any of the
causes, and in the manner prescribed in article five, chapter forty-nine of this code,
may, if such youth is or has attained the age of sixteen, be placed in a center or
transferred from the industrial school or like facility to a center and back to such
facility by the commissioner of public institutions, if he deems it proper for the youth's
detention and rehabilitation.
(Italics added)
Footnote: 9 9 Dr. Muller
generated a report based, in part, upon two interviews with Goff. The report was
introduced into evidence at the reconsideration hearing. In the report Dr. Muller
indicated the following:
I endorse the Anthony Center for youthful offenders as an
appropriate placement for Mr. Goff, with the understanding that while at the program
and/or upon release, he be ordered to seek treatment services from an appropriately
credentialed provider. Hopefully, this would occur as a condition of probation/parole.
Additionally, in order to protect the community and family
members, it is
recommended that when released from confinement:
1) Mr. Goff should refrain from all behaviors with his family and
in the community which could be interpreted as or could lead to molestation. These include
but are not limited to, wrestling, tickling, holding on his lap, bathing, dressing,
putting to bed, attending to bathroom or hygiene functions, or taking photographs of
children or adolescents.
2) Mr. Goff should not be allowed unsupervised contact with
children of any age, of either gender or sexual orientation. Supervision should consist of
eye contact whenever he is in physical proximity to a child or adolescent. The supervisor
should be an adult.
3) Mr. Goff should not be in a position of authority over or have
responsibility for children of any age or either gender. This includes, but is not limited
to, work, recreational, or social settings.
Footnote: 10 10 Rule 35(b)
provides:
(b) Reduction of Sentence--A motion to
reduce a sentence may be made, or the court may reduce a sentence without motion within
120 days after the sentence is imposed or probation is revoked, or within 120 days after
the entry of a mandate by the supreme court of appeals upon affirmance of a judgment of a
conviction or probation revocation or the entry of an order by the supreme court of
appeals dismissing or rejecting a petition for appeal of a judgment of a conviction or
probation revocation. The court shall determine the motion within a reasonable time.
Changing a sentence from a sentence of incarceration to a grant of probation shall
constitute a permissible reduction of sentence under this subdivision.
Footnote: 11 11 The most troubling fact noted by the State is that: "The Anthony Center's population consists of boys as young as sixteen years of age. This becomes significant when considering that Dr. Muller reported that [Goff] possessed characteristics of a pedophile. Dr. Muller also reported that [Goff] is subject to '[s]elf-defeating asocial actions ... which can include sexual and homosexual assault.'"
Footnote: 12 12 William Winslade, T. Howard Stone, Michele Smith-Bell & Denise M. Webb, "Castrating Pedophiles Convicted of Sex Offenses Against Children: New Treatment or Old Punishment?" 51 SMU L. Rev. 349, 351 (1998).
Footnote: 13 13 Id., at 358.
Footnote: 14 14 Bill Watkins & Arnon Bentovim, The Sexual Abuse of Male Children and Adolescents: A Review of Current Research, 33 J. Child Psychol. & Psychiatry 197, 202 (1992).
Footnote: 15 15 Winslade, Stone, Smith-Bell & Webb, supra note 12, at 355 n.20. The authors observed that "[s]ome differences between sexually abused boys and girls have been noted, the most apparent being that girls tend to exhibit sexually reactive behavior that may place them at further risk of sexual abuse, while boys have a greater tendency towards sexual aggression and engaging in coercive sexual behavior with other children[.]" Id.
Footnote: 16 16 Goff's second assignment of error is equally without merit. It essentially repeats previous contentions and argues that the circuit court failed to consider the rehabilitation goal of the criminal justice system. The initial finding by the trial court clearly recognized the goal of rehabilitation. The trial court's first finding stated without ambiguity that "[t]he defendant is in need of correctional treatment that can be provided most effectively by his commitment to a correctional institution."
Footnote: 17 17 Additionally, Goff argued that he had no prior criminal record. He believes he is a good candidate for rehabilitation. He now has empathy for the victim. Goff also argues that the presentence report recommended that he be committed to the Anthony Center. Finally, Goff argues that if he had been five weeks younger, the matter would have been governed by the juvenile laws.
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