St. Louis County District Court File No. 69DU-CR-11-2791.
Lori A. Swanson, Attorney General, St. Paul, Minnesota; and Mark S. Rubin, St. Louis County Attorney, Nathaniel Todd Stumme, Assistant County Attorney, Duluth, Minnesota (for respondent).
David W. Merchant, Chief Appellate Public Defender, Richard Schmitz, Assistant Public Defender, St. Paul, Minnesota (for appellant).
Considered and decided by Smith, Presiding Judge; Worke, Judge; and Rodenberg, Judge.
Appellant challenges his 144-month prison sentence following conviction for first-degree criminal sexual conduct, arguing that the district court abused its discretion by denying his requests for a downward dispositional or durational sentencing departure. We affirm.
In 2011, appellant Albert George Goerdt confessed to law enforcement that he had sexually molested his then-13-year-old step-daughter, G.L.E., in 2006. Although originally charged with six counts of first-degree criminal sexual conduct, appellant pleaded guilty to only one count of first-degree criminal sexual conduct in exchange for dismissal of all other counts.
Before imposing sentence, the district court ordered a psychosexual evaluation and presentence investigation (PSI). The PSI report noted that appellant gave differing accounts of the sexual assault and at times stated that he did not recall committing the crime. The PSI recommended that the court impose the presumptive sentence of 144 months. The psychologist who completed the psychosexual evaluation administered five tests and conducted a clinical interview. During the interview, appellant "denied ever having sexual contact with his step-daughter." The psychologist noted that appellant's test results were inconsistent, ruled out a neurological reason for this, and suggested that appellant was being defensive or deceptive, or was in denial.
Before sentencing, appellant, a military veteran, obtained documents from the United States Department of Veterans Affairs (VA) that could bear upon his sentence. The VA submitted 224 pages of confidential documents that include medical and psychological treatment notes. The documents establish that appellant served in active duty. He was deployed to Iraq in 1990-1991, and in 2010. He sustained a traumatic brain injury in 1987 or 1988 when he was involved in a traffic accident and hit the windshield of a vehicle, and during his military service he was injured by mortar and roadside bomb detonations. Appellant was diagnosed with post-traumatic stress disorder (PTSD) in August 2008, and has a history of depression. Appellant reported seeing his "best friend crushed to death" while serving in the military. The VA documents do not make a recommendation as to any particular type of treatment that appellant should receive as a sex offender due to his mental-health conditions related to his military service.
G.L.E. submitted a victim-impact statement describing how she suffers from lack of trust and feels worthless because of appellant's conduct, how she was diagnosed with depression and PTSD after appellant's sexual assaults, and how she lost her family because of appellant's conduct, as they now refuse to speak with her. She also stated that she wants appellant to serve a prison sentence so that he can understand how he hurt her.
Appellant sought a downward dispositional sentencing departure. He argued that factors favoring his being placed on probation included his extensive cooperation with law enforcement, amenability to probation, lack of prior criminal record, remorse, extensive military career, attitude in court, support of family and friends, and particular suitability to treatment. The state strongly opposed a dispositional departure, but stated at sentencing that "[i]f the court wanted to grant a modest durational departure of . . . 12 months, the State would not oppose that." The probation officer noted that this was a "tough case, " but did not alter his recommendation to impose the presumptive sentence after reviewing the VA documents, because to do so would ignore the impact on G.L.E.
The district court also noted the difficulty of the case but found that there were not substantial and compelling circumstances to support a dispositional departure, and imposed the 144-month presumptive sentence. The court referenced appellant's "exemplary" military record but found that it did not ...