Polk County District Court File No. 60-CR-12-959
Lori Swanson, Attorney General, St. Paul, Minnesota; and Greg Widseth, Polk County Attorney, Crookston, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sean Michael McGuire, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Ross, Judge.
Following his convictions of one count of first-degree criminal sexual conduct and one count of third-degree criminal sexual conduct, appellant argues that the district court abused its discretion by denying his motion for a downward dispositional or durational departure because the district court (1) impermissibly relied on facts supporting dismissed counts in denying his motion and (2) failed to deliberately consider the circumstances for and against departure. We affirm.
Appellant Michael Duane Finn was charged with three counts of first-degree criminal sexual conduct and two counts of third-degree criminal sexual conduct arising from his alleged long-term abuse of B.G., the daughter of his then girlfriend, now wife. The complaint alleges that B.G. was 11 years old when the abuse began, that she became pregnant by Finn at age 14, and that her two children, who were born when she was 19 and 21 years old, were fathered by Finn. Finn agrees that he is the father of B.G.'s two children, but contends that his sexual relationship with B.G. began when B.G. was 17 or 18 years old. After Finn was charged, B.G. wrote a letter recanting the allegations. She later recanted her recantation, stating that she had written the letter under pressure from her family.
Pursuant to a plea agreement, Finn entered an Alford plea to count three (first-degree – penetration by force or coercion resulting in personal injury) and count five (third-degree – penetration by force or coercion). Counts premised on allegations that the victim was under 16 years old at the time of the offense and that Finn had a significant relationship with his victim were dismissed.
Under the plea agreement, the state capped its sentencing recommendation at 156 months (the presumptive sentence for count three) and agreed to a concurrent sentence for count five. The district court accepted Finn's plea and ordered a presentence investigation (PSI).
At the sentencing hearing, the district court acknowledged receipt of a diagnostic assessment, the PSI, B.G.'s victim impact statement, and the memorandum in support of Finn's motion for sentencing departures. The district court noted that it had had a chance to review each submission. Finn's counsel declined a hearing on the factual content of the PSI. The district court then heard from both attorneys on Finn's departure motion.
Finn's counsel argued that the diagnostic assessment indicates that Finn admits culpability, takes responsibility, and wants to change. Finn's counsel further noted that Finn had complied with the terms of his furlough and has the support of his family, and highlighted the victim's support for a dispositional departure. Finn's counsel also urged a downward durational departure, specifically requesting a sentence of approximately 24 months.
B.G. addressed the district court, requesting that Finn be sentenced to probation so that he could assist with caring for their children while she had surgery. Finally, Finn addressed the district court, requesting probation so that he could "take care of my [children], pay [B.G.] child support and, you know, do everything by—by the book where I can show that ...