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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-6522
Appellant, ) Trial Court No. 4FA-S96-1702CR
)
v. ) O P I N I O N
)
MICHAEL W. MCKINNEY, )
)
Appellee. ) [No. 1554 - October 31, 1997]
______________________________)
Appeal from the Superior Court, Ralph R.
Beistline, Walter L. Carpeneti, and Jay Hodges, Judges.
Appearances: Douglas H. Kossler, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellant. Dick L. Madson, Law Offices of Dick L. Madson,
Fairbanks, for Appellee.
Before: Coats, Chief Judge, Mannheimer and
Stewart, Judges.
STEWART, Judge.
Michael W. McKinney pled no contest to a single count of
sexual abuse of a minor in the first degree, AS 11.41.434, that
charged him with engaging in fellatio with his daughter, S.M. The
other counts in his indictment were dismissed upon that plea. He
entered his plea before Superior Court Judge Mary E. Greene.
McKinney's daughter was twelve years old during his sexual
contacts with her. McKinney started his sexual contacts with S.M.
by fondling her breasts outside her clothing. Over time, he
progressed to touching her vagina outside her clothing, and then
inside her clothing. The sexual abuse escalated to digital
penetration of S.M.'s vagina. Ultimately, McKinney engaged in oral
sex with her, first cunnilingus, and then, fellatio. According to
S.M., he attempted sexual intercourse at least once. The abuse
lasted for seven months.
Despite McKinney's repeated promises to S.M. that he would
cease the abuse, he did not stop until he was confronted by his
wife. McKinney's wife was alerted to the abuse by S.M.'s brother,
who suspected that something did not "seem right" between McKinney
and S.M.
McKinney admitted the abuse when confronted. The family
made a collective decision to seek counseling and report the abuse
to law enforcement. McKinney made a full confession to state
troopers. Prior to his sentencing, McKinney began sex-offender
counseling. McKinney had no criminal history.
In spite of the seriousness of the conduct, the family,
including S.M., desired reunification. The counseling coordinator
for the family considered reunification to be a workable option.
The coordinator urged the court to promote reunification and
minimize the delay prior to reunification.
Judge Greene concluded that the presumptive eight-year
sentence was not manifestly unjust considering the aggravating
factors that she found, [Fn. 1] the duration of the abuse, and the
frequency of the abuse. However, she concluded that manifest
injustice would result from her inability to consider a non-
statutory mitigating factor exemplary post-disclosure conduct.
Judge Greene stressed the beneficial results of that conduct. In
the context of intra-family abuse, Judge Greene concluded that
conduct like McKinney's would foster a victim's recovery.
[I]n the instance before the court, the offender's post-
crime conduct legitimately sets him apart from other
offenders who commit the same offense. Society should value actions
which help a victim of intra-family abuse to recover from the
devastation of sexual abuse. There are things which will help a
victim's recovery: an offender publicly and privately accepting
responsibility for the conduct; an offender assuming blame and
communicating the blamelessness of the victim; and support from the
non-offending parent (which is more forthcoming when the offending
parent accepts responsibility and does not minimize his or her
conduct or blame the victim). Yet the current sentencing scheme
precludes the court's consideration of these factors. It treats an
offender who engages in further post-disclosure conduct which hurts
a victim in the same way that it treats an offender who behaves
responsibly post-disclosure to help a victim's recovery. The court
concludes this is manifestly unjust.
Order of Referral to Three Judge Sentencing Panel, pp. 4-5.
The three-judge panel agreed with Judge Greene that
McKinney's post-offense conduct constituted a non-statutory
mitigating factor that should be considered when sentencing
McKinney. The panel concluded that it would be manifestly unjust
not to consider this factor. See AS 12.55.175(b). After
considering the relevant sentencing criteria, see AS 12.55.005, the
panel sentenced McKinney to a non-presumptive eight-year term.
However, the panel decided to restrict McKinney's eligibility for
parole until he completed a sex-offender treatment program approved
by the Department of Corrections.
The State appeals McKinney's sentence, arguing that the
three-judge panel erred when it treated McKinney's post-offense
conduct as a mitigating factor. Essentially, the State's argument
is that AS 12.55.165(b) precluded the three-judge panel from
recognizing McKinney's post-offense conduct as a mitigator.
The State argues that, to the extent that McKinney's post-
offense conduct could validly be viewed as mitigating his offense,
this mitigating factor is completely incorporated within the
already-recognized mitigating factor of exceptional potential for
rehabilitation. See generally Smith v. State, 711 P.2d 561 (Alaska
App. 1985). The State then notes that, under AS 12.55.165(b), a
sentencing judge is precluded from referring a case to the three-
judge sentencing panel based on the defendant's potential for
rehabilitation if the sentencing judge finds that the state has
proved one or more of the aggravating factors listed in that
statute. The listed aggravators include AS 12.55.155(c)(18)(B)
that the defendant stands convicted of sexual assault, or sexual
abuse or unlawful exploitation of a minor, and that the defendant
has engaged in sexual offenses with the same or another victim; in
McKinney's case, Judge Greene found this aggravator. Thus, the
State concludes, Judge Greene was prohibited from referring
McKinney's case to the three-judge panel based on his favorable
post-offense conduct.
We disagree with the State's contention that McKinney's
post-offense conduct is simply a facet of his potential for
rehabilitation. In explanation of her decision to refer McKinney's
case to the three-judge panel, Judge Greene noted McKinney's
forthright admission of culpability for the sexual abuse, his
assurances to his daughter that she was blameless, his willingness
to engage in sex-offender therapy, and his willingness to obtain
(and participate in) therapy for his daughter. While these facts
may reflect favorably on McKinney's potential for rehabilitation,
the focus of Judge Greene's decision was that McKinney's post-
offense conduct had significant potential to ameliorate the impact
of the sexual abuse on S.M. and to enhance her prospects for
emotional recovery considerations that are separate and logically
distinct from McKinney's potential for rehabilitation.
We therefore uphold the three-judge panel's decision to
mitigate McKinney's presumptive term based on this non-statutory
factor. The sentence is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 12.55.155(c)(18)(A),(B)
