*1
STATE
Below, Appellee, GOFF, Defendant
Daniel William
Below, Appellant.
No. 25009.
Supreme Appeals of Court of Virginia. Sept. 1998.
Submitted Sept.
Decided 1998.
Concurring Opinion of Justice Dec.
Workman
Dissenting Opinion of Justice Dec.
Starcher
Workman, J., concurring opinion. filed
Starcher, J., dissenting opinion. filed
I. BACKGROUND FACTUAL 6, 1996, met the victim March Goff1 On case, A.A.,2 at a playing basketball while *3 County. Af- junior high school Jefferson area, they to leave the ter told had go nearby agreed A.A. to a Goff elementary playground to continue school ride playing Goff asked A.A. to basketball. elementary school. him in his car to the A.A. indicated that he would A.A. refused. car to the to the school. Goff drove his walk yard of a parked He his car school. played nearby Goff and A.A. bas- residence. They period. a then sat for brief ketball than on a to talk. No one other down bench area at the time. and A.A. were Goff he a conversation A.A. stated After brief attempted trip A.A. going home. Goff was fall. leaving. was A.A. did not Goff as he grabbed dragged him to a A.A. and then General, McGraw, Attorney V. grassy Darrell area near the basketball court. Goff General, Warfield, Deputy Attorney ground pulled Dawn E. A.A. down forced Charleston, Attorneys Virginia, for the West pants. pleaded A.A. with Goff to re- A.A.’s Virginia. responded up State of West “shut or else I lease him. Goff you.” kill Goff took off a sock and will Mussomeli, County Public Vito Jefferson him. Goff placed it in A.A.’smouth to silence Defender, Martinsburg, Virginia, Attor- began performing oral sex on A.A.3Goff then ney Appellant. A.A., A.A. and the child ran. released in the on the door of several homes knocked PER CURIAM: eventually couple at home. area and found by appeal filed the de- This criminal was by couple A.A.’s mother The contacted (hereinafter fendant, Goff Daniel William subsequently drove him home. phone, and Goff), of the Circuit Court of from order home, Troop- Shortly A.A. taken County denying motion for re- after was his Jefferson D.D. Forman arrived at A.A.’s home sentencing court’s order. er consideration of the to a call that a child had been years response 15 to 35 sentenced to sexually Trooper Forman ob- jury assaulted. penitentiary after a conviction for sexual A.A., which included degree. motion for tained a statement from assault the first name, him, description requested first the Goffs reconsideration of offender, Trooper Goff, youthful description of his car. placement as a well as investigated the Forman the crime scene Upon a review of Center. record, been affirm found the white sock that had stuffed parties’ arguments and the we investigation by mouth Further A.A’s Goff. the circuit court. years put tongue my penis 3.A.A. testified: "He the incident Goff was 18 At time of touching.... old. it felt his teeth He licked and I go.... begging kept him to let me He twice. practice, identify prior we 2. Consistent with our go.” again licked it and let me due to the sensitive nature of infant initials P., W.Va. this case. See In re Jonathan (1989). At the 303 n. 538 n. years old. time of the incident A.A.was 11 5,May sentenced on 1997. At Goff was home.4 Goff Trooper Forman Goffs led sentencing hearing, chose to exer- Trooper Forman to accompanied voluntarily right spoke at of allocution. Goff cise detachment, gave and Goff police the state length denying guilty he was offense admitting to a statement Trooper Forman 15 to 35 against A.A. In Goff to Subsequently, A.A.5 the sexual assault imprisonment, the trial court stated: committing the offense was indicted rejecting any probation. I’m I’m motion degree.6 in the first assault of sexual rejecting any con- further other matters 13, 1997. trial on March occurred cerning a or referral to the lesser sentence witnesses, You, sir, A.A. and facility.... called two The State offenders you testified. He was will not admit the crime have been Trooper Forman. Goff of. Therefore there is no reha- convicted called the defense. Goff only witness *4 bilitation. contact with having any type of sexual denied confession to argued that his
A.A. Goff 4, 1997, August filed a motion for On Goff product false and was a Trooper Forman was The of the sentence.7 motion reconsideration jury The intimidation. suspend of law enforcement court the sen- requested the trial finding guilty of sex- imprisonment a verdict Goff of and commit Goff returned tence youth for offenders.8 the Center degree. in the first ual assault sought by youth Goff is offender treatment near the elementa- 8.The 4. owner of the residence The (1975), car, school, governed by § which parked W.Va.Code 25-4-6 ry earlier his where Goff had provides: police complaining about the vehi- contacted the gave parked resident cle at the residence. The judge any original court with criminal The of description police plate number and the license jurisdiction may suspend imposition the sen- police description the car. The matched of the pleading any youth tence male convicted orof given by with A.A.'s de- car the resident of the offense, guilty than an to a criminal other by Using scription Goff. the of the car driven punishable by imprisonment, has who life fense number, police plate the were able license birthday attained his sixteenth but has address. obtain Goffs birthday twenty-first at time reached his the crime, the and commit him the commission of rights, of his Miranda which 5. Goff was informed custody commission- to the the West waived, being questioned. prior he assigned public be to a er institutions to period in the center center. The of confinement W.Va. Goff was indicted under was 6. The statute months, longer period six or shall be a if for § which reads: Code 61-8B-3 by superinten- deemed advisable the center it is dent, any period in event such but (a) person guilty sexual assault in the A is of confine- If, years. the exceed two ment shall not degreewhen: first opinion superintendent, such male of- of the (1) person engages in sexual intercourse Such person and, proves an unfit to remain fender to be person another or sexual intrusion with center, returned to the he shall be in such doing: so committed him to be dealt court which (1) bodily injury upon any- Inflicts serious event, according law. In further such one; or probation may place or sentence him on court (ii) Employs deadly weapon in the com- been con- crime for which he has act; him for the of the or mission discretion, judge may allow In his victed. (2) person, old or Such fourteen time on his sentence for more, the defendant credit engages or sexual in sexual intercourse spent in the center. he has person eleven who is intrusion with another When, opinion superintendent, of the in the years old or less. completed satisfactorily center boy has (b) provisions Any person who violates the training program, and, male offender shall such guilty felony, of a section shall be of this jurisdiction of the court which thereof, returned to the imprisoned upon conviction shall be eligible originally He shall be committed him. penitentiary not less than fifteen nor more probation he is for the offense with which thirty-five years, or fined not less than one than judge im- charged, of the court shall and than ten thousand dollars nor more thousand probation. mediately place In the him on penitentiary imprisoned dollars subsequently revoked event his thirty-five fifteen nor more than less than judge, given the sentence he he shall be years. originally been had he not would have received added). (Italics subsequently to the center and committed shall, placed probation. court howev- appeal The petition of his 7. also filed a Goff er, give sentence defendant credit on his petition was denied this conviction. His spent in the center. for the time he on November Court unduly depreciate the seriousness of unlike would “fully to his offense admitted] Goff Sentencing Hearing his crime. at the defendant’s appearance deny his involvement he continued where looking age of the 4.The Court evidentiary An protest the evidence.”' to admit victim and the defendant’s refusal 19, 1997. hearing was held on November during remorse his crime show testimony Dr. Allan proffered trial, sentencing, only reversing his Muller, Dr. psychologist. a clinical Scott purposes hearing for posture for and treat- opined that confinement Muller leads the Court to believe reconsideration appropri- at the ment imposed ap- original 2, 1997, December By ate.9 order filed propriate. court denied the motion for reconsid- circuit appeals denying the order his motion given following reasons were eration. appeal al- for reconsideration. denying the motion: by the court (1) following: leges the the circuit court’s The defendant is in need of correction- (2) erroneous, findings clearly fact were provided al treatment that can be most denying the circuit abused its discretion effectively by commitment to a correc- (3) motion, imposed was the sentence tional institution. constitutionally impermissible. matter establishes 2. The record there is substantial risk *5 II. would commit another crime defendant during any period probation or condi- of STANDARD OF REVIEW discharge. tional reduction, was Release, Goffs motion for reconsideration probation, or condi- 35(b) pursuant to Rule of the West discharge suspension placing made tional or Anthony Virginia at Rules of Criminal Procedure.10 This the defendant Center bed, attending Any youth ages dressing, putting male of ten and to bathroom between functions, hygiene taking photographs eighteen by judge any or of committed of court or causes, competent jurisdiction or adolescents. children 2) five, unsuper- prescribed Mr. Goff should not be allowed and in the manner in article code, any age, chapter forty-nine may, of this if such vised contact with children of of ei- sixteen, age gender Supervision youth sexual orientation. is or has attained the be ther or placed eye center or from the should consist of contact whenever he is in in a transferred physical proximity facility a to a or adolescent. industrial school or like to center and child facility by supervisor should be an adult. back to such the commissioner institutions, 3) public proper position a if he deems it for the Mr. Goff should not be in authority responsibility youth’s for chil- detention and rehabilitation. over or have (Italics added) any age gender. dren of cludes, or either This in- to, work, but is not limited recreation- based, al, part, generated report settings. 9. Dr. Muller a social or report upon two interviews with Goff. The 35(b) provides: introduced into evidence at the reconsideration Rule hearing. report In the Dr. Muller indicated the (b) Reduction of Sentence—A motion to re- following: made, may duce a sentence or court Anthony may I reduce a sentence without motion within endorse Center for days imposed pro- placement fenders as an for Mr. 120 after the sentence is or appropriate Goff, revoked, days understanding with the that while at the bation is or within 120 after the release, by supreme program upon entry he be ordered to of a mandate court of and/or upon appropriately appeals judgment seek treatment services from an affirmance of a of a entry provider. Hopefully, probation credentialed this would conviction or revocation or the probation/parole. by supreme appeals an court of occur as a condition of order dismissing petition Additionally, protect rejecting appeal the communi- or a order members, probation ty family judgment it recommended that a of a conviction or revo- when confinement: cation. The court shall determine the motion released from 1)Mr. Changing a time. a sen- Goff should refrain from all behaviors within reasonable community family to a with his and in the tence from sentence incarceration which permissi- interpreted grant could be or lead to moles- shall constitute a could to, ble reduction of sentence under this subdivi- tation. These include but are not limited wrestling, tickling, holding lap, bathing, on his sion.
521
by
provided
are
rehabilitative services
of review for a
the standard
set out
Court
prison system to all inmates. This Court
motion in
a Rule 35
decision on
trial court’s
Gwinn,
Head,
point
Cooper
2 of
v.
syllabus
noted in
198 W.Va.
1 of
syllabus point
State
(1981),
245,
(1996):
523
applied
to deter
Two tests
attitudes to-
probative of his
deemed
been
disproportion
a sentence is so
mine whether
prospects for rehabilitation
society and
ward
Id.,
it violates the State
sentencing.”
438 ate to a crime
relevant
and hence
Under the first test
Court
at
Constitution.
98
S.Ct.
U.S.
the sentence for the
must determine whether
that he
Trooper Forman
confessed
Goff
the conscience of the
particular crime shocks
recanted
A.A. Goff then
sexually assaulted
society.
If a sentence is so offen
Court
oath,
Then, while under
his confession.
conscience,
sive that it is found
shock
sexu-
that he did not
jury and court
told the
proceed.
further
inquiry
need not
Such
sentencing Goff
During
A.A.
ally assault
Cooper, 172
be vacated. See
a sentence must
Only
sexually assaulting A.A.
again denied
However,
at 857.
W.Va.
304 S.E.2d
again admit to
sentencing did Goff once
after
that a
shocks
when it cannot be said
sentence
assaulting A.A.
now asks
sexually
conscience,
triggered.
the second test is
the trial court’s con-
find erroneous
Court to
syllabus
was established
The second test
lies
pattern
deception
of his
sideration
Bordenkircher, 166
point 5 of
v.
Wanstreet
hearing
during
for reconsideration
(1981):
W.Va.
merit in Goffs first
sentencing. We find no
error.16
assignment of
given
determining
In
whether a
sen-
principle
proportionality
tence violates
Imposed
B.
Sentence
III,
in Article
Section 5 of the West
found
argument is that the sen
final
Goffs
Constitution,
giv-
consideration is
Virginia
constitutionally impermis
imposed was
tence
offense,
legisla-
en to the nature of
syllabus point
held in
This Court
sible.
punishment, a
purpose behind the
tive
Vance,
216,
open, youth as well as treatment under the CONCLUSION point missing in offender statute. The Goffs foregoing, view of the we affirm the argument punishment is that lesser for sexu circuit court’s order of 15 to 35 indiscriminately al assault is not to be award years penitentiary. receiving probation ed. A defendant or An thony Center treatment for sexual assault Affirmed. must, minimum, degree display the first at a honest remorse. WORKMAN, Justice, concurring: respect comparison pun- With to a of the (Filed 1998) Dec. ishment with what would be inflicted in other jurisdictions, has cited law from Penn- I concur with the ultimate conclusion of sylvania, Maryland Virginia. We are not majority. Appellant The was found persuaded by arguments. Goff con- guilty degree of sexual assault in the first jurisdictions cedes that all three have sexual imprison- and sentenced to 15 to 35 distinguish offense statutes that sexual con- agree majority’s finding ment. with the duct, punishment purposes, differently constitutionally per- this sentence was jurisdictions All Virginia. than West three unduly light missible and not harsh in provide optional statutes that have lesser purpose my nature of Goffs crime. The charges punishments. points State emphasize concurrence is to the need for Nevada, Georgia, Washington Utah and rehabilitative treatment for sex offenders representative jurisdictions tough prison system in order to reduce recidi- penalties Virgi- for sexual assault like West among vism rates sex offenders. Research- analysis, nia. In the final the State is correct ers have found recidivism rates for child noting jurisdictions vary widely alarmingly high.1 sex offenders are punishment their classification for the type occurring primary goal managing assault the instant case. “The sex severity protect society [espe- is not alone in the fenders should be to *9 punishment. cially its The final children] consideration re- from new sexual assaults [hjowever, quires comparison challenged goal protecting society of the ... punishment with the requires popular providing for other offenses with- the less task of Goff, in unconvincingly, the State. at- they may has assistance to offenders so learn Peters-Baker, 1. Jean 66 UMKCL.Rev. Challenging Management, 646 Traditional No- Lifetime (1998). Managing Prognosis tions Sex Offenders: reason, imperative it is that our Ac- For this their deviant behavior.”2 manage system place greater empha- ac- prison methods for current cordingly, one the best society goal protecting pro- designing the rehabilitative treatment complishing sis the offenders, treatment for sex providing grams, especially includes for sex so that “[cjorrec- suggests that Evidence fender.3 there that the offender will be less likelihood up kept have with the facilities tional will re-offend. for sex offender treat- increasing demand say I am authorized to that Justice challenge in ment.”4 Courts face a difficult joins me in McCUSKEY this concurrence. the us because re- one before situations have that “courts cannot searchers found Justice, STARCHER, dissenting: pro- treatment yet rely on sexual offender 1998) (Filed Dec. grams recidivism.”5 to reduce placed be in ease, contends that he should In the instant record shows that Anthony imprisoned Center instead young man who defendant is troubled to receive the penitentiary a state order had a childhood. He neglectful abusive treatment. How- appropriate rehabilitative impulsive performed an criminal act that was found, ever, majority Goff has not as the deeply wrong. But the record also indicates Anthony to the demonstrated Court that he never been in trouble with the had rehabilitative provides particular law before. that he cannot receive the cor- treatment Despite raising, his troubled the defendant is incarcerat- institution in which he rectional had real success in overcom- achieved some specific to link Goffs ed. The defense failed completed He ing background. had programs needs offered rehabilitative at had ful- goals age educational he —and presented no at Center. Goff enlisting filled in the United his dream that rehabilitative evidence to demonstrate just Army. completed had his ba- States He provided prison services are not the time of the instant offense. training sic at Further, is not in a inmates. this Court disappointed I am note —and position provide specialized rehabilitation —that key majority evi- opinion does not mention to individual convicts. services are in dence facts that the record correctly Tragically, as Goff asserted in his instant ease. brief, system prison enter at the he will and, release, eighteen upon young age of will opinion, example, majority The does presently “prone to than he be more violence initial that at defendant’s disclose prison, he is.” is released from When hearing, pre-sentence evaluat- very likely again he will to offend unless Jr., M.S., ing psychologist, Slaughter, Harold counseling proper rehabilitative receives placement recommended explained syllabus This treatment. Court Center. Gwinn, Cooper W.Va. point two majority also not disclose that does “[ijnmates incar stated, with re- probation the court officer prisons have cerated West state sentencing, spect initial to the defendant’s rehabilitation!;.]” psy right The clinical office not believe “does found that he chologist who examined Goff is a to the commu- that the defendant threat he potential for rehabilitation and had the more nity, offense is and the instant viewed right clearly has a to such rehabilitation. pattern than a as an incident rather isolated Unfortunately, reality will by the defendant.” of behavior exhibited not be rehabilitated prison and most of Moreover, citing appellant’s are incarcerated will be released fenders who record,” prior criminal society. age and “lack of back into Finn, Pro- 4.Peter Do Sex Treatment 2. at 667. Id. Offender Judicature, Work?, March-April grams Id. 5. Id. *10 office ... likely recommended ... that this would occur Hit’s penal system’s diag- again given defendant be sent to our presentation pre- his he doesn’t — complete psychological nostic unit for “a young eval- fer quite children and that’s clear. problems that;” “if history
uation” and no substantial long There’s no subject ... uncovered be committed (e) exceptionally the defendant exhibits to the Correctional Center for not high empathy for the victim and this is than less six months nor more than two “something characteristically prevents years,” probation. followed with somebody reoffending;” from Additionally, at the defendant’s (f) the exceptionally good defendant is an hearing, professional reconsideration candidate for incarceration joined by psycholo- consensus was a second facility, therapeutic fender with counseling to gist, Dr. Allan Dr. S. Muller. Mueller problems, address his by supervised followed years Virginia penal worked for appropriate. release if system. experience He has extensive The circuit decision in the judge’s sexual offenders. Dr. Mueller has recom- proceeding premised reconsideration was penitentiary mended incarceration for sex of- having any defendant’s not admitted many occasions, many fenders times —and on wrongdoing or shown remorse. Howev- (The prosecutor present- for first offenders. er, at the hearing, time of the reconsideration ed no witnesses or evidence at this reconsid- the defendant had in fact admitted his acts hearing.) eration beginning and was to show remorse and Mueller, nearly Dr. based on 8 hours of shame. defendant, interviews with the and the re- admitting Was defendant his offense to tests, psychological sults of 17 established try to avoid prison? a minimum of 15 following:1 expect so. But it was genu- nevertheless a (a) the defendant suffers from borderline admission, ine helpful which is a beginning to (BPD) personality disorder due to the rehabilitation. And there was substantial ex- youth; learned violent behavior of his a bor- pert shame, evidence that the defendant’s personality derline protective disorder is “a remorse and awareness of the harm he had way world;” interacting caused the victim genuine, was also even (b) although he has sexual though fantasies and expressed it was for the first time masturbates, the defendant does not have the after the defendant was convicted. justifications appetites fixed pedo- of a Yes, the vociferously defendant had denied phile. definitely He pedophile not a the facts of his crime at his trial highly unlikely child;2 he is to harm another initial sentencing although the defendant — (c) the defendant is not an per- initially anti-social had police confessed to a officer. sonality; The defendant claimed at trial that he had (d) unlikely the defendant is to commit a frightened been confessing by into police violent given proper crime the future if absurd, officer. This claim was prose- as the counseling and setting rehabilitative ably argued since he cution jury. Why to the would history lacks a of antisocial and violent be- the defendant confess to something that haviors; further, though potential “[t]he career, would cause him to military lose his always impulsive there for further thing actions the one cared he about most? Validity facts, employed scales were report all 17 tests Dr. Mueller's documents that the appellant "forthright, open was and hon- appellant by physically sexually was raised tests, est” possible exception on all 17 with the parents, abusive alcoholic as well as in several operate self-esteem measures which on "a foster homes. kind of conscious level of belief.” Dr. Mueller stated honesty the defendant's consistent pointed 2. Dr. Mueller out that he had a child of throughout any thought his tests belied that he own, and that he evaluated the likelihood of manipulating good the tests to “create (as impression do) an offender’s further somebody sexual misconduct from the would so that ' somebody get jail.” Among perspective protective can let out of parent. other of a *11 (3) years; diagnosis if not show that defendant’s the does explained the Dr. Mueller already attempt problems disclosed about only an serious not of his offense was denial defendant, the of accountability suspension for of execution avoid by the defendant to to crime,3 penitentiary and commitment part a of the shell but also his Center, self-image Anthony required sexual offend- that the de- positive and bravado counseling, 2-year peri- to mask a 6-month had over the er for fendant created —to court; confusion, od, following to the circuit personal insecuri- a return a core of bitter (4) self-esteem, Anthony if the term the pain arising out of and Center ty, and low — successfully completed, execution of the childhood. the defendant’s troubled or, Anthony if penitentiary sentence — Thus, I denial believe that defendant’s completed successfully, term is then Center trial initial sen- responsibility at his proba- placement the defendant strict tencing substantially to the sen- contributed years. for the maximum of Probation tion imposed case. tence this drugs include: no or alco- conditions should to judge circuit did seek I believe that the hol; employment; obtain and maintain con- sentencing deci- his best use discretion counseling sexual and treat- tinued offender that in the case. But I think sions instant ment; restitution to the victim and victim’s may have judge circuit let the defen- service; family; community and weekends stupid and denial obscure dant’s bravado jail period. for a substantial preclude a full consideration of the evidence undisputed pro- Based on consensus offi- and recommendations record, opinion light fessional put psychologists cer and two before whole, good as a there is reason to the record court. defendant, subject to condi- believe this majority Additionally, I must note that the produc- live foregoing, like the can as a tions Anthony opinion’s suggestion that Center reoffending. That is a tive citizen without young appropriate placement for this not an goal justice pre-eminent system, of our when me, man, to be based on misinfor- to seems ac- have the where it can be we conditions youthful of- I dozens of mation. have sent case, appears it that we complished. this Center, Anthony including people fenders try. do. It’s worth a problems as defendant. with the same Finally, I and re- completely understand very have well there. Most done family the child spect feelings of the Moreover, majority contrary to what children, appel- I have too. At the victim. suggests, Anthony in fact Center is opinion sentencing, child’s mother wanted lant’s strictly adult offenders— limited possible I strongest penalty. understand juveniles housed there. This is based no are respect feeling. The circuit court part departmental policy that is on a written Center; send defendant could instant That rec- of the record case. bring him back with full record and then definite- ord also shows progress or thereof —and then see lack offense-specific group and indi- ly provides family say. has to Hard the victim’s what Thus, two therapy for sex offenders. vidual feelings time. often moderate somewhat over postulates majority opinion key factual reasons, respectfully foregoing For the wrong. simply dissent. record, appears It me that based on the appropriate approach for one (1) 60-day
defendant would be follows: diagnostic classification
stint at adult facility, jail final return
penal then (2)
sentencing; imposition a sentence imprisonment for a term of 15-
penitentiary “baby-raper.” noted that the defendant had 3. Dr. Mueller also reported already being jail beaten in