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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STACEY ALLEN GRAHAM,
Court of Appeals No. A-12222
Appellant, Trial Court No. 3AN-13-8758 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2637 - February 22, 2019
Appeal from the Superior Court, Third Judicial District,
Anchorage, Kevin M. Saxby, Judge.
Appearances: Renee McFarland, Assistant Public Defender,
and Quinlan Steiner, Public Defender, Anchorage, for the
Appellant. Nancy R. Simel, Assistant Attorney General, Office
of Criminal Appeals, Anchorage, and Jahna Lindemuth,
Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge.*
Judge MANNHEIMER.
The facts of this case are tragic: Two teenage girls, Brooke McPheters and
Jordyn Durr, were walking along a sidewalk in Anchorage when a vehicle driven by
* Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
----------------------- Page 2-----------------------
Stacey Allen Graham jumped the curb at high speed. Graham's vehicle struck the girls,
mortally injuring both of them.
Graham was heavily intoxicated at the time. Three hours after the collision,
his blood alcohol level was measured at .18 percent. Just prior to the collision, witnesses
observed Graham speeding and driving erratically; he repeatedly tailgated and recklessly
passed other vehicles. Graham finally lost control of his truck when it hydroplaned on
water in the roadway. The truck slid sideways, left the road, and struck the girls at high
speed.
Graham ultimately pleaded guilty to two counts of second-degree murder
under AS 11.41.110(a)(2) - i.e., causing another person's death while engaged in
conduct manifesting extreme indifference to the value of human life.
Under the terms of Graham's plea agreement, Graham was subject to a
sentence of between 13 and 20 years to serve on each count, and it was further agreed
that the active portions of Graham's two sentences (i.e., the "time to serve" portions) had
to be consecutive. Thus, Graham could receive no less than 26 years to serve, and no
more than 40 years to serve.
At the end of a sentencing hearing that lasted several hours, Superior Court
Judge Kevin M. Saxby sentenced Graham to identical sentences on each of the two
murder counts: 20 years' imprisonment with 4 years suspended - i.e., 16 years to serve.
Pursuant to the terms of Graham's plea agreement, the "time to serve" portions of these
two sentences were imposed consecutively, for a total of 32 years to serve.
Graham's composite sentence of 32 years to serve for vehicular homicide
is unprecedented in Alaska. Indeed, Judge Saxby himself acknowledged that this was
"the highest sentence ... in Alaska history for conduct of this type". Now, on appeal,
Graham contends that his 32-year sentence is excessive.
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For the reasons explained in this opinion, we do not resolve the question
of whether Graham's sentence is excessive. Instead, we remand Graham's case to the
superior court for reconsideration of Graham's sentence. We do this because we
conclude that key facets of the judge's sentencing analysis were legally mistaken, and
also because the judge's decision appears to have been influenced by the principle of
retribution - something that Alaska law does not allow.
The statutory sentencing provisions that apply to Graham's case, and the
permitted sentencing range under Graham's plea agreement
As we have explained, Graham pleaded guilty to two counts of second-
degree murder. The maximum sentence for this crime is 99 years' imprisonment. At the
time of Graham's offenses, the mandatory minimum sentence for second-degree murder
1
was 10 years' imprisonment.
When a defendant is being sentenced for two or more counts of second-
degree murder, the mandatory minimum sentence for each count must be imposed
2 Thus, if Graham had simply pleaded guilty to two counts of second-
consecutively.
degree murder without a plea agreement, Graham would have subjected himself to a
mandatory minimum sentence of 20 years to serve. Graham's plea agreement called for
a higher mandatory minimum sentence - 26 years to serve.
1 See AS 12.55.125(b) (the version in effect from 1999 to 2016, enacted by SLA1999,
ch. 65, § 1). As of July 12, 2016, the legislature increased the mandatory minimum sentence
for second-degree murder to 15 years' imprisonment. See SLA 2016, ch. 36, §§ 87 & 179.
2
See AS 12.55.127(c)(2)(B): "If [a] defendant is being sentenced for ... two or more
crimes under AS 11.41, a consecutive term of imprisonment shall be imposed for at least ...
the mandatory minimum term for each additional crime that is an unclassified felony
governed by AS 12.55.125(b)."
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As to Graham's potential maximum sentence, Graham's plea agreement
allowed the sentencing judge to impose a sentence up to 20 years on each of the two
counts. The agreement allowed the judge to suspend a portion of each sentence (any
portion exceeding 13 years), but the agreement stated that Graham's active term of
imprisonment on each count ( i.e., his "time to serve") had to be imposed consecutively.
Thus, if the judge imposed the 20-year maximum sentence on each count,
and if the judge did not suspend any portion of these two 20-year sentences, Graham
could receive a composite sentence of 40 years to serve.
Prior sentencing decisions in cases involving vehicular homicides
In Alaska, sentencing for all crimes is governed by the sentencing goals
first enunciated by our supreme court in State v. Chaney , 477 P.2d 441, 444 (Alaska
1970), and now codified in AS 12.55.005. This statute lists seven criteria that a judge
3
should employ when evaluating the proper sentence in a criminal case.
3 "The purpose of this chapter is to provide the means for determining the appropriate
sentence to be imposed upon conviction of an offense. The legislature finds that the
elimination of unjustified disparity in sentences and the attainment of reasonable uniformity
in sentences can best be achieved through a sentencing framework fixed by statute as
provided in this chapter. In imposing sentence, the court shall consider
(1) the seriousness of the defendant's present offense in relation to other offenses;
(2) the prior criminal history of the defendant and the likelihood of rehabilitation;
(3) the need to confine the defendant to prevent further harm to the public;
(4) the circumstances of the offense and the extent to whichthe offense harmed the victim
or endangered the public safety or order;
(5) the effect of the sentence to be imposed in deterring the defendant or other members
of society from future criminal conduct;
(6) the effect of the sentence to be imposed as a community condemnation of the criminal
act and as a reaffirmation of societal norms; and
(continued...)
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The introductory language of AS 12.55.005 declares that the legislature's
purpose in identifying these sentencing criteria was "the elimination of unjustified
disparity in sentences and the attainment of reasonable uniformity in sentences". The
statute was crafted to further these goals by focusing sentencing judges' attention on the
various things that our society intends to achieve when we sentence wrongdoers - so
that sentencing decisions are based on precedent, deliberation, and reason, rather than
passion or a desire for retribution.
When a court applies these criteria to a sentencing for drunk-driving
homicide (whether charged as second-degree murder or manslaughter), the court should
additionally look to the factors set forth in this Court's decision in Pusich v. State , 907
P.2d 29 (Alaska App. 1995). Those factors are: "the degree of the defendant's
recklessness, the magnitude of the consequences of the defendant's conduct, the age of
the defendant, the defendant's record of past offenses, and the defendant's record of
alcohol abuse." Id. at 38.
When a judge weighs the sentencing factors codified in AS 12.55.005 and
the sentencing factors listed in Pusich, the judge must not weigh these factors in a
vacuum. To insure against unjustified sentencing disparity, the sentencing judge must
take into account the sentences imposed in comparable cases. Past sentencing decisions
"supply an historical record of sentencing practices for specific types of offenses" - a
record that can "provide realistic, experientially based sentencing norms for guidance in
future cases". Pusich, 907 P.2d at 35. See also State v. Bumpus , 820 P.2d 298, 305
(Alaska 1991).
As we have explained, Graham's plea bargain required that he receive a
minimum of 26 years to serve. This minimum sentence was equalto the highest sentence
3 (...continued)
(7) the restoration of the victim and the community."
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ever approved by this Court or by the Alaska Supreme Court for a non-assaultive
vehicular homicide (that is, for a vehicular homicide where the defendant did not
deliberately use their vehicle as a weapon). And it was substantially higher than any
sentence approved for a drunk-driving homicide committed by a defendant who (like
Graham) had no prior convictions.
See Tice v. State, 199 P.3d 1175, 1178-79 (Alaska App. 2008), where this
Court affirmed a sentence of 25 years to serve for a third felony offender who drove
while intoxicated, killing a five-year-old child and injuring a three-year-old. And see
Phillips v. State, unpublished, 2014 WL 6608927, *6-9 (Alaska App. 2014), where this
Court upheld a sentence of 20 years to serve for a drunk driver who killed one person
and permanently injured another. Even though the defendant in Phillips had no prior
felony convictions, she had already driven while intoxicated in violation of her probation
from a prior misdemeanor DUI conviction and then, when she was charged with this new
offense and released on bail, she drove drunk again in violation of her bail conditions.
See also Powell v. State, 88 P.3d 532, 539 (Alaska App. 2004), where this
Court affirmed a sentence of 26 years to serve in a drunk-driving case that did not
involve a homicide. Powell's most serious offense was first-degree assault (i.e., reckless
infliction of serious physical injury), but Powell was a fourth felony offender with eleven
prior convictions for driving under the influence.
Until now, the highest sentences ever approved for a drunk-driving
homicide committed by a defendant with no prior felony convictions are the 20-year
sentence imposed in Phillips v. State and the 18-year sentence imposed in Pusich v.
State.
With these principles and past sentencing decisions in mind, we now turn
to a description of Graham's sentencing hearing.
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The tenor of Graham's sentencing hearing, and the presentations at that
hearing
When the superior court convened Graham's sentencing hearing, the
courtroom was full (to overflowing) with family, friends, sympathizers, and representa-
tives of the media.
Under AS 12.55.023(b), a crime victim is entitled to make an oral
presentation to the sentencing court. This same statute also declares that if the victim of
a felony does not wish to present a statement personally, they can ask a victims' rights
advocate to make a presentation at the sentencing hearing on their behalf.
When, as in this case, the victim of an offense is deceased, the victim's
spouse, or one of the victim's parents or other relatives, has the right to make the
presentation to the sentencing court (or to seek the assistance of a victims' advocate).
See AS 12.55.185(19)(C).
In Graham's case, the parents of both Brooke McPheters and Jordyn Durr
presented oralstatements to the court. The parents' statements were preceded by the in-
court presentation of two video collections of photographs of Brooke and Jordyn taken
at various stages of their lives.
These photographic presentations were set to music, and each of them ran
approximately fifteen minutes. These were the type of videos that are designed to evoke
emotion and are commonly played at memorial services. As the prosecutor candidly told
the judge later in the hearing, "I knew that there would not be a dry eye in the courtroom
4
during the presentation of the victims' impact statements."
4 (1) The video of Brooke McPheters began with an audio recording of Brooke's last
phone message to her family, followed by more than fifteen minutes of music and
photographs.
(continued...)
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Graham's defense attorney objected to these video montages, but the judge
overruled the defense attorney's objection. In his ruling, the judge did not address the
4 (...continued)
The first song on the video was "Cups" ("When I'm Gone") by Anna Kendrick.
The refrain of this song is, "When I'm gone, When I'm gone, You're gonna miss me
when I'm gone."
The second song on this video was "Sweet Child o' Mine" by Guns N' Roses.
The third song was Carrie Underwood's "(Till I) See You Again", a meditation
on death and loss. The second verse of this song contains the words,
"I can hear those echoes in the wind at night,
Calling me back in time, back to you. ...
You were my tomorrow."
The repeated refrain of the song contains the words, "I will see you again; this is not
where it ends. I will carry you with me 'til I see you again."
The fourth song on the video was "When I Get Where I'm Going" by Brad Paisley
and Dolly Parton - a song about dying but being joyful in heaven.
(2) The video of Jordyn Durr contained three songs.
The first song was "I Dreamed a Dream", as sung by Anne Hathaway in the movie
version of Les Misérables. The final verse of the song is:
"But there are dreams that cannot be, and there are storms we cannot weather. I had
a dream my life would be so different from this hell I'm living -
So different now from what it seemed.
Now life has killed the dream I dreamed."
The second song in this video was the more upbeat "Just The Way You Are" by
Bruno Mars.
The last song was "You'll Be In My Heart" by Phil Collins. The refrain of this song
is, "You'll be in my heart from this day on, now and forever more."
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----------------------- Page 9-----------------------
emotionalcontent of the proposed presentations. Instead, the judge treated the matter as
simply a question of whether crime victims were entitled to use computer technology
when making their presentations to the court:
The Court: Victims have a constitutional right to be
present at this stage and to be heard. ... We routinely see
presentations from attorneys [who use] PowerPoint ... and
even more frequently use photographs. I don't see any public
policy basis for limiting victims [or] preventing them from ...
making the types of presentation that are routinely made in
courts every day.
So I'm going to allow people to use - we've got
technology set up here to play a DVD, as was requested.
And if people want to show photographs or do something
along those lines, that will be allowed as well.
In addition to the parents' oral and video presentations, an attorney from
the Office of Victims' Rights was allowed to give a separate oral presentation on behalf
of Brooke McPheters's older brother Brody, as well as on behalf of "some of the other
extended family members of the Durrs and McPheters". Although this presentation was
beyond the scope of the statute, there was no objection.
In her presentation to the court, the Victims' Rights attorney urged the court
to impose the maximum sentence allowed by the plea agreement. The attorney argued
that if the court imposed any lesser sentence, the court would "let these girls die in vain":
Victims' Rights Attorney: [Stacey Graham] drove and
killed both Jordyn and Brooke, who were just minding their
own business, like so many of the victims of this type of
crime in our community. Minding their own business when
they're maimed or slain by a drunk driver who's just selfish
and doing what they want to do, drive drunk.
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. . .
And now you can see the pain. ... No one in this
courtroom is going to be left unchanged by what happened to
Jordyn and Brooke. ...
Your Honor, the families, the community ask you to
hold [Stacey Graham] to the highest account and
responsibility as you can - to change what's happening to
our community. To have the community condemnation
within your sentence to say, "This cannot happen again."
Do not let these girls die in vain. Do not let any other
victims who come in the path of a drunk driver be hurt or
killed without ... a clear message from this Court -
[which is] an extension of the community - that we will not
tolerate it.
The prosecutor also announced that the victims' parents wanted the
Anchorage Chief of Police, Mark Mew, and Anchorage Police Sergeant John McKinnon
to make statements to the court. Accordingto the prosecutor's offer of proof, Chief Mew
would provide a brief statement concerning the impact of drunk-driving homicides
"on the rank and file of the Anchorage Police Department". Sergeant McKinnon (who
had already submitted a lengthy letter for inclusion in the pre-sentence report) wished
to testify about "[what] a very emotional, troubling episode [this case was] for him", and
also to describe the anguish felt by him and "other officers who have given, over the
years, ... notifications to families of the dead."
Graham's attorney objected that these additional statements by police
officials went beyond the victim statements authorized by AS 12.55.023(b), and that
these contemplated police statements would only add an element of passion to the
hearing:
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Defense Attorney : [The] State's attorneys advise me
that ... , in addition to inviting the ... statutorily defined
victims to make statements today, they've invited several
members of law enforcement to make statements. We have
a grave concern with that ... .
Your Honor has an obligation to insure that this is a
fair and impartial hearing that's not swayed by passion or
sentiment or emotion. There is simply no provision ... that
would permit officers to testify. ... They are not victims as
defined by the statute.
I understand that this is an emotional hearing. A lot of
people have been impacted. But this is not a circus. And
allowing members of law enforcement to offer their opinion
and their testimony in hopes of swaying or adding passion or
prejudice to the hearing is inappropriate. And I'd ask Your
Honor to control that.
But the sentencing judge displayed little patience for this objection - and
he then issued a ruling that was based on a misreading of the statute:
The Court: [to the prosecutor] You're telling me that
the participation of APD has been requested by at least one
of the victims' families?
Prosecutor : Yes.
The Court: Okay. Victims are permitted to designate
people to speak on their behalf. I'll allow the statements.
Defense Attorney : I don't believe they're speaking on
[the victims'] behalf. I believe ... they're going to speak in
addition to the victims' families. That's ... a meaningful
difference. That ...
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The Court: Two of the victims can't speak.
Defense Attorney : I understand that, Judge.
The Court: They're allowed to have representatives
speak on their behalf. I'll listen to [the police officials].
Sergeant McKinnon was the on-duty patrol sergeant who responded to the
accident, and who then had to inform the McPheters and Durr families that their
daughters had been killed. McKinnon delivered an emotional statement to the court.
One of the primary focuses of this statement was to describe how McKinnon, too, was
a victim of the accident.
McKinnon told the court:
Sgt. McKinnon: This occurrence has been the most
difficult ... in my life. ... I had no idea how much this
experience was goingto impact me. ... [Q]uestions that could
never be answered began to creep into my head: What were
[the girls] talking about just before Stacey Graham
intervened? Did they suffer? These and many other
questions still remain with me, even today."
McKinnon also told the court that "the process of notifying these families
has been the single most difficult act I have ever had to do in my life," and that "[he]
could not sleep for weeks after this event."
McKinnon ended his statement by asking the judge to impose a retributive
sentence - that is, a sentence whose purpose was to make Graham pay for what he had
done:
Sgt. McKinnon: I was so disgusted at how our
community was, again, being victimized by alcohol. It was
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later that night that I learned Stacey Graham ... was going to
make a full recovery from his injuries. I couldn't stand to
think he was relaxing in a comfortable hospital bed while
these two children had been slain.
. . .
Your Honor, Stacey Graham exceeded the legal limit
of alcohol [by] three times that day. His reckless behavior
caused him to lose control, and [he] took two youthful lives
from our community. All told, I hope he has had time to
reflect and ponder what he has done, and I'm pleased that he
has accepted responsibility for his actions.
Today, he will begin to pay for his actions with your
sentence. His Maker will undoubtedly extend him love
despite his bankrupt life. He is now an outcast from our
community and he will be isolated from our society. ...
Chief Mew then addressed the court, but he did not speak about the topic
described earlier by the prosecutor - the topic of how drunk-driving homicides affect
the rank and file of Anchorage police officers. Instead, Chief Mew's focus was to
convince the judge to impose an extraordinarily severe sentence.
Chief Mew described how, in the early 2000s, drunk-driving homicides
were on the rise in Anchorage, and how - "through relentless effort by a lot of people
and agencies" - that number was reduced to a single drunk-driving fatality in 2012. But
in 2013 (the year of Graham's crimes), five people were killed by drunk drivers, and
then, in 2014 (the year before Graham's sentencing), this number rose to eleven.
After reciting these statistics, Chief Mew told the court that things were
headed the wrong way - and that the time had come for the judiciary to do its part in
eliminating drunk-driving homicides:
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Chief Mew: Your Honor, we are goingthe wrongway.
We are running headlong back into the carnage of 2002.
Now the police department is once again retooling its
response, ... trying to round up the few before they can kill
and maim the many.
. . .
[W]e may have a ... drunk-driving enforcement team
in place soon. There is new officer training in the works.
[And] there may be new legislation. But we need the help of
the courts - and we have an opportunity to get that help
today.
We need to publicize [this] devastating, yet completely
preventable, ... drunk-driving scourge. We can start right
now with Mr. Graham.
No one of our lives is more valuable than another. But
the circumstances of this particular tragedy, the age and
innocence of the girls, what they were doing, and when they
were doing it, have galvanized the city.
All eyes are on the court today, and some of these eyes
belong to people who regularly make the choice to intoxicate
themselves and drive. They will make future decisions based
on what happens here in court today. ...
The sentence you hand down today should be severe
enough to scare the eleven worst drunks in Anchorage into
not driving.
You can't scare a drunk into not drinking. I won't lay
that on the Court. ... But maybe, just maybe, we can scare a
drunk into taking a cab. Let's try. In the name of deterrence,
I urge [you to impose] the maximum sentence allowable to
you today.
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Followingthese presentations, Graham's parents spoke to the court on their
son's behalf. They described their son as a caring father and husband who made one
awful mistake. Graham then addressed the court himself - acknowledging his guilt,
expressing his remorse, and asking the McPheters and Durr families for forgiveness.
At the close of all these presentations, the prosecutor and the defense
attorney made their sentencing arguments to the court.
The attorneys' sentencing arguments, and the judge's decision
The prosecutor began his sentencing argument by acknowledging that
"Stacey Graham is not a monster." The prosecutor told the court that, "by all accounts,
Mr. Graham is a hard worker; he's a loving father; he's been a good friend." The
prosecutor also told the court that Graham "[has taken] full responsibility for his own
conduct," and that Graham "[has] been remorseful since Day One". In addition, the
prosecutor acknowledged that Graham had no prior offenses, that Graham had "high
prospects for rehabilitation," and that Graham's risk of re-offending was "very low -
almost negligible".
Nevertheless, the prosecutor urged the court to sentence Graham to the
maximum sentence allowed under the plea agreement: 40 years to serve.
The prosecutor argued that this sentence was required by the sentencing
goals of general deterrence and community condemnation. He displayed the
photographs of several people who had been killed by drunk drivers in other cases over
the years, as well as photographs of the makeshift memorials that had been erected at the
scenes of those other traffic accidents. The prosecutor then told the judge, "The
community comes to the court and asks, 'What will you do for us?'"
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A few minutes later, the prosecutor expressly urged the judge to make an
example of Graham - to impose a sentence so strikingly severe that it would send a
message to the community at large:
Prosecutor : What the State asks of you, Judge Saxby,
is [to] tell Anchorage ... that these deaths are too much. Tell
all of Alaska that the courts - that you - will do everything
possible to deter other drunk drivers, to reaffirm societal
norms. That drunk driving is a pox on our community, and
that Alaska's collective, continued anger at - [that] those
who choose to drink and drive need to be stopped.
. . .
Use this opportunity, with these cameras in your
courtroom, and the press sitting in front of you, [to tell the
public] that drinking alcohol for an entire day, or just for an
afternoon, and purposely getting behind the wheel, and
speeding down a street, [and killing someone,] is murder.
Tell everyone that the only appropriate sentence for
these murders, for the murders of Brooke McPheters and
Jordyn Durr, is 40 years. The State is asking you to impose
the harshest sentence possible, the lengthiest sentence ever
imposed [for] a DUI death. We are asking you to do this
because we're fed up.
. . .
We have a packed courtroom, and [more] people in the
hallway. I don't know how [much] more community outrage
you can get than in this case.
The prosecutor acknowledged that the highest sentence ever approved for
a first offender in a drunk-driving homicide case was 20 years to serve - and that there
were several equivalent Alaska cases where defendants convicted of drunk-driving
homicides received sentences of between 10 and 15 years to serve. But the prosecutor
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told the court that all of these prior sentencing decisions were "wrong". The prosecutor
declared that the appellate courts had mistakenly approved sentences that were
improperly lenient under Alaska's sentencing criteria - improperly lenient because the
sentences failed to adequately express community condemnation of the crime.
When it came the defense attorney's turn to speak, Graham's attorney
reiterated what the prosecutor had already acknowledged: that, in Alaska, a first offender
convicted of vehicular homicide had never received a sentence greater than 20 years to
serve (unless the defendant used their vehicle deliberately as a weapon).
Graham's attorney also urged the judge to be "careful to distinguish
between the emotions we all feel and what the law is." The defense attorney noted that
Alaska sentencing law "simply does not support the [prosecutor's sentencing]
recommendation" - a recommendation that the attorney characterized as "retribution
[rather than] justice".
After reviewing the facts of Graham's case, and comparing Graham's case
to the facts of other sentencing cases involving drunk-driving homicides, the defense
attorney urged the judge to impose the minimum sentence allowed by Graham's plea
agreement: 26 years to serve.
At the conclusion of these sentencing arguments, the judge delivered his
sentencing remarks.
The judge's analysis rested, in large measure, on his conclusion that this
Court's decision in Felber v. State, 243 P.3d 1007 (Alaska App. 2010), had
fundamentally changed Alaska sentencing law in vehicular homicide cases. The judge
mistakenly interpreted Felber as endorsing a "benchmark" sentencing range of 20 to 30
years to serve for first offenders convicted of second-degree murder based on a vehicular
homicide.
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(We discuss the judge's error in more detail in the next section of this
opinion.)
The judge acknowledged that his interpretation of Felber seemed to put
Felber directly at odds with all the prior cases involving multiple-death vehicular
homicides where defendants received composite sentences of less than 20 years to serve.
But the judge declared that these other appellate decisions were distinguishable because
(according to the judge) they "pre-date[d] the increased concern and reduced tolerance
our society has now for drunk driving," and because these cases were decided before
1999, when the legislature increased the minimum sentence for second-degree murder
from 5 years' imprisonment to 10 years' imprisonment. 5
The sentencing judge therefore concluded that Alaska law directed him to
begin his sentencing analysis by treating a 20- to 30-year sentence "as the norm", and
then "[to] go down or up from there", depending on the facts of the particular case.
Turning to the facts of Graham's case, the judge declared that it was
"obvious" that Graham was "genuinely remorseful", and that Graham had "a good
potential for rehabilitation". But the judge concluded that Graham's conduct was
aggravated because his drunk driving created a risk to three or more people (i.e., his acts
of erratic driving and tailgating).
The judge also noted that he had to weigh the sentencing goal of deterring
others. In that regard, the judge stated that it was important to impose the kind of
sentence that would make people "weigh the costs and benefits of calling a cab rather
than driving [under the influence]", by making them "realize that lengthy prison terms
[await them] on the other side of the balance sheet."
5 See SLA 1999, ch. 65, § 1 (effective September 20, 1999).
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The judge then turned to the primary focus of his sentencing remarks: the
goal of community condemnation.
The judge declared: "People are right when they say [that drunk-driving
homicide] just has to stop", and the judge expressed his intention to "be a voice" for the
community's condemnation of that crime "[by] what I ... do here today." The judge then
continued:
The Court: Community condemnation is especially
high for drunk driving now. ... [And] it's even higher here,
where two innocent young girls were essentially smashed to
death. ... It would be hard to think of a situation that would
unite people more in their condemnation of the behavior that
led to these [two] deaths. And that demands a substantial
sentence.
However, rather than imposing a sentence that was merely "substantial",
the judge declared that he intended "to render ... the highest sentence ... in Alaska history
for conduct of this type" - "the highest sentence [for a defendant] with no prior criminal
record, and where the vehicle wasn't deliberately used as a weapon in an attempt to harm
others."
The judge then sentenced Graham to 20 years' imprisonment with 4 years
suspended - i.e., 16 years to serve - on each count. In accordance with the plea
agreement, these 16-year active terms of imprisonment were imposed consecutively, for
a total of 32 years to serve.
The specific errors in the superior court's sentencing analysis
There are four legal errors in the sentencing judge's analysis of Graham's
case. We address each of them in turn.
- 19 - 2637
----------------------- Page 20-----------------------
(a) The judge's conclusion that a 20- to 30-year "benchmark"
sentencing range applies to first felony offenders convicted of second-
degree murder arising from a vehicular homicide
In Page v. State, 657 P.2d 850, 855 (Alaska App. 1983), this Court
established a "benchmark" sentencing range of 20 to 30 years to serve in second-degree
murder cases. This benchmark range represents the range of sentences that are presumed
to satisfy the Chaney sentencing criteria in cases where a typical first felony offender is
convicted of second-degree murder based on conduct that is typical within the definition
of that crime. (See also our discussion of this Page benchmark range in Brown v. State,
973 P.2d 1158, 1161-62 (Alaska App. 1999).)
As we just explained, the judge in Graham's case based his sentencing
analysis on the premise that, when a vehicular homicide leads to a conviction for second-
degree murder, and when the defendant is a first felony offender (like Graham), the
defendant should presumably receive a sentence within the Page benchmark range of 20
to 30 years to serve.
The sentencing judge acknowledged that this Court had never applied the
Page benchmark range to second-degree murder cases arising from drunk-driving
homicides, except in those unusual cases where the defendant purposely targeted the
victim. But the sentencing judge interpreted this Court's decision in Felber v. State, 243
P.3d 1007 (Alaska App. 2010), as saying that the 20- to 30-year Page benchmark range
would now be applied to the entire category of drunk-driving second-degree murder
cases.
This was a misinterpretation of Felber - and the judge committed error by
taking the Page benchmark range as the starting point for Graham's sentence.
- 20 - 2637
----------------------- Page 21-----------------------
This Court has never applied the 20- to 30-year Page benchmark range to
a second-degree murder case arising from a drunk-driving homicide, except in cases
where the defendant purposely used their vehicle as a weapon against the victims.
But this is not because the issue was never before us. Rather, our refusal
to apply the Page benchmark range to drunk-driving homicides is based on a broader
principle of law: This Court has repeatedly held that the 20- to 30-year Page benchmark
range applies only to second-degree murders that arise from intentional assaults. See
Gustafson v. State , 854 P.2d 751, 766 (Alaska App. 1993), and Phillips v. State , 70 P.3d
1128, 1144-45 (Alaska App. 2003).
In cases where a second-degree murder defendant did not intentionally
assault their victim (for example, in the typical drunk-driving homicide case), we have
held that the Chaney sentencing criteria can be satisfied by a sentence below the Page
benchmark range - even when the consequences of the defendant's drunk driving are
6
severe.
Our sentencing decision in Felber did not represent a change in these
principles. Rather, our decision in Felber was an application of these principles.
The defendant in Felber was not a first felony offender, but rather a third
7
felony offender. In addition, we concluded that Felber's conduct was among the worst
within the definition of second-degree murder. As we explained in our decision,
Felber was not merely driving recklessly, heedless of
the danger that his driving posed to others. Instead,
beginning from the time when the police stopped Felber on
6 See, for example, Puzewicz v. State , 856 P.2d 1178 (Alaska App. 1993), where we
upheld a sentence of 13 years to serve for a double second-degree murder stemming from a
drunk-driving accident.
7
Felber , 243 P.3d at 1013.
- 21 - 2637
----------------------- Page 22-----------------------
Northern Lights Boulevard and boxed him in, Felber
consciously used his vehicle as a weapon.
In his effort to escape from the police, Felber drove the
stolen truck at the police cars and the police officers
surrounding him. He then turned north onto Lake Otis
Parkway and consciously rammed Stephen Strain'sChevrolet
because it was in his way. According to the evidence, Felber
did not attempt to slow down even after colliding with
Strain's vehicle; instead, he kept the accelerator pedal floored
and tried to push the Chevrolet out of his path, until he
realized that his stolen truck was hopelessly entangled with
the Chevrolet - at which point, Felber fled.
Felber's conduct demonstrates a level of
blameworthiness far exceeding the conduct of the defendants
in our other vehicular homicide decisions. Even if Felber
was not consciously trying to kill the police officers and
civilians in his path, he consciously and callously placed
them in great peril - almost as if he had used a firearm and
had repeatedly fired random shots at a crowd.
Felber, 243 P.3d at 1013.
We accordingly concluded that Felber's conduct was atypically
blameworthy, not just for a vehicular homicide, but even within the entire range of
8 For this reason, we held
conduct encompassed by the second-degree murder statute.
that "the circumstances of Felber's case [supported] a sentence substantially more severe
than the Page benchmark range." 9
8 Ibid.
9 Ibid.
- 22 - 2637
----------------------- Page 23-----------------------
Based on our decision in Felber (our conclusion that a defendant like Felber
could properly receive a sentence substantially more severe than the Page benchmark),
Graham's sentencing judge concluded that defendants like Graham - first felony
offenders who did not intentionally assault their victims - were now covered by the
Page benchmark. This simply does not follow.
Moreover, the sentencing judge's interpretation of Felber is directly at odds
with this Court's decisions in Gustafson and Phillips, which hold that the Page
benchmark sentencing range applies only to second-degree murders that arise from
intentional assaults.
In sum, our decision in Felber did not alter or repudiate any of our prior
decisions in this area of Alaska sentencing law. It was therefore error for the sentencing
judge in this case to begin with the premise that, all else being equal, Graham should
receive a sentence of 20 to 30 years to serve.
(b) The judge's conclusion that Graham's sentence should be
increased because his conduct endangered three or more people
Graham's sentencing judge also committed error when he declared that
Graham's offenses were atypically aggravated because Graham's drunk driving
endangered three or more people. (The evidence showed that Graham had been driving
erratically and tailgating other cars before he collided with the girls.) See
AS 12.55.155(c)(6), stating that a felony offense is aggravated if "the defendant's
conduct created a risk of imminent physical injury to three or more persons, other than
accomplices".
Although it is undisputed that Graham's driving created a risk of injury to
three or more people, this fact does not distinguish Graham's case from the typical
- 23 - 2637
----------------------- Page 24-----------------------
drunk-driving homicide. As our supreme court noted in Jeffries v. State , 169 P.3d 913,
918 (Alaska 2007), a drunk driver's recklessness and his obliviousness to risks "pose[s]
a grave danger at every intersection ... , not just at the place where [the defendant's] luck
happened to run out".
Even when the State proves an aggravatingfactor listed in AS 12.55.155(c),
a sentencing judge should give weight to that aggravating factor only to the extent that
the factor distinguishes the defendant or the defendant's conduct from the typical
10 Even
offender and the typical conduct included within the definition of the crime.
though Graham's drunken driving clearly endangered many people, this level of
endangerment is characteristic of drunk-driving homicides. In the absence of evidence
that Graham's drunk driving created an atypical risk of harm compared to the actions of
other drunk drivers, the judge should have given this factor no weight.
(c) The judge's conclusion that Graham should receive an
extraordinarily severe sentence because of the sentencing goal of
community condemnation
When Judge Saxby sentenced Graham to serve 32 years in prison - a
sentence that he himself acknowledged was unprecedented in its severity - the judge
10 See Ashenfelter v. State , 988 P.2d 120, 124 (Alaska App. 1999); Looney v. State , 826
P.2d 775, 780 (Alaska App. 1992). See also Pusich v. State , 907 P.2d 29, 39 (Alaska App.
1995) ("This Court has cautioned that even when aggravating factors are present, a
sentencing judge must still take the presumptive term as the point of departure. Presumptive
sentencing was established to further the legislative goal of achieving reasonable uniformity
and eliminating unjustified disparity in sentencing. See AS 12.55.005. A significant upward
adjustment of the presumptive term should be made only when the aggravating factors,
judged in light of the Chaney sentencing criteria, show the defendant's case to be
significantly more serious than the typical offense within the definition of the crime for
which the defendant is being sentenced.").
- 24 - 2637
----------------------- Page 25-----------------------
relied primarily on two justifications: the sentencing goal of general deterrence (i.e., the
deterrence of other people from committing the same crime), and the sentencing goal of
"community condemnation" or "re-affirmation of societal norms".
The judge acknowledged that Graham had a negligible criminal history (a
single speeding ticket), that Graham had demonstrated genuine remorse for his actions,
and that Graham had good prospects for rehabilitation. The judge also acknowledged
that Graham's conduct "[fell] within [the] mainstream" of second-degree murder arising
from vehicular homicide.
Nonetheless, the judge concluded that Graham should receive "the highest
sentence ... in Alaska history for conduct of this type" because only a sentence of this
severity would deter others from driving drunk, and only a sentence of this severity
would adequately express our society's condemnation of homicides caused by drunk
drivers.
We will deal with the question of deterrence in the next section of this
opinion. In this section, we will discuss the judge's rationale of community
condemnation.
With regard to the sentencing goal of community condemnation, the
sentencing judge declared that this condemnation was especially strong in a case "where
two innocent young girls" were struck and killed without warning. The judge declared
that the community was right in demanding that "this just has to stop". The judge also
declared that he intended to add his voice to the community's demand - by imposing
a sentence that was unprecedented in its severity.
Both the sentencing goal of general deterrence and the sentencing goal of
community condemnation / re-affirmation of societal norms were first enunciated by our
- 25 - 2637
----------------------- Page 26-----------------------
11
supreme court in State v. Chaney . The concept of deterring others from committing
the same crime in the future is fairly straightforward, but the concept of community
condemnation requires some explanation.
The Chaney decision uses two phrases to describe this concept:
(1) "community condemnation of the individual offender" and (2) "reaffirmation of
12 This dual phrasing has proved problematic, because the two phrases
societal norms".
potentially suggest different things.
"Community condemnation of the individual offender" suggests that it
might be proper for the sentencing judge to consider - and to echo - the visceral
reaction of the community to a particularly disturbing crime. "Reaffirmation of societal
norms", on the other hand, suggests that the judge should engage in a more dispassionate
evaluation of the importance of the societal rule that was broken by the defendant's
conduct.
The Chaney decision itself declares that these two phrases are equivalent.
The supreme court described this sentencing goal as "community condemnation of the
individual offender, or in other words, reaffirmation of societal norms for the purpose
of maintaining respect for the norms themselves."13 (Emphasis added).
As we are about to explain, the supreme court's post-Chaney sentencing
decisions demonstrate that the second phrase - "reaffirmation of societal norms for the
purpose of maintaining respect for the norms themselves" - more accurately describes
what the supreme court was getting at.
11 State v. Chaney , 477 P.2d 441 (Alaska 1970).
12
Id., 477 P.2d at 444.
13 Ibid.
- 26 - 2637
----------------------- Page 27-----------------------
In the years following the supreme court's decision in Chaney, the court
repeatedly spoke of the sentencing goal of "community condemnation" or "reaffirmation
of societal norms" as a potential justification for imposing a substantial sentence of
imprisonment on a defendant who committed a serious crime, even though the defendant
might have a favorable background and might have good (or even excellent) prospects
for rehabilitation. In other words, no matter how favorable a defendant may appear as
an individual, there are times when the defendant's crime requires a substantial sentence
simply because the crime itself represents such a serious deviation from societal norms.
See, e.g., Newsom v. State , 533 P.2d 904, 911-12 (Alaska 1975); Cleary v.
State, 548 P.2d 952, 955-56 (Alaska 1976); Benefield v. State , 559 P.2d 91, 98-99
(Alaska 1977). See also State v. Wortham , 537 P.2d 1117, 1121 (Alaska 1975), and
State v. Lancaster , 550 P.2d 1257, 1260 (Alaska 1976) (disapproving sentences because
they failed to adequately express community condemnation of the defendants' conduct).
This same understanding of the sentencing goal of community condemna-
tion / re-affirmation of societal norms is found in Alaska sentencing decisions in
vehicular homicide cases. In decisions stretching back to the 1970s, both the supreme
court and this Court have declared that, in vehicular homicide cases, the sentencing goal
of community condemnation will normally call for a substantial sentence of
imprisonment even when the defendant is remorseful, the defendant has an otherwise
good record, and the defendant has good prospects for rehabilitation. 14
14 Rosendahl v. State , 591 P.2d 538, 540 (Alaska 1979); Sandvik v. State , 564 P.2d 20,
25-26 (Alaska 1977); Godwin v. State , 554 P.2d 453, 455 (Alaska 1976); Clemans v. State ,
680 P.2d 1179, 1190 (Alaska App. 1984); Layland v. State , 549 P.2d 1182, 1184 (Alaska
1976); State v. Lamebull , 653 P.2d 1060, 1062 (Alaska App. 1982); State v. Lupro , 630 P.2d
18, 21 (Alaska App. 1981).
- 27 - 2637
----------------------- Page 28-----------------------
But the sentencing goal of community condemnation / re-affirmation of
societal norms was never intended to give sentencing judges a license to ignore prior
appellate sentencing decisions simply because the community has reacted in anger or
outrage to a particularly disturbing offense. Nor was it intended to be a license for a
sentencing judge to ignore the legislature's primary sentencing goals of eliminating
unjustified disparity in criminal sentences and attaining reasonable uniformity in
sentencing.
The supreme court clarified this matter in two cases: Kelly v. State , 622
P.2d 432, 435 (Alaska 1981), and Leuch v. State , 633 P.2d 1006, 1012-13 (Alaska 1981).
In the years immediately following the Chaney decision, individual
sentencing judges began to voice their suspicion that the phrase "community
condemnation" was just a polite term for retribution - the concept of makingdefendants
15 This prompted the supreme court to clarify the sentencing goal
"pay" for their crimes.
of "community condemnation".
In Kelly, the supreme court clarified that "community condemnation" does
not mean retribution - and that the concept behind this sentencing goal is better
expressed by the phrase "re-affirmation of societal norms":
[T]he goal of community condemnation is distinct from
retribution[.] ... The use of retribution as a goal of
sentencing is inconsistent with the mandate of art. I, § 12 of
the Alaska Constitution[.] ... [But] the support of community
expectations that existing norms will be enforced and [that
15 See the entry for "retributivism" in Black's Law Dictionary (8th ed. 2004), p. 1343:
retributivism: The legal theory by which criminal punishments are justified, as long
as the offender is morally accountable, regardless of whether deterrence or other good
consequences would result [from the punishment]. According to retributivism, a criminal
is thought to have a debt to pay to society, which is paid by punishment. The punishment
is also sometimes said to be society's act of paying back the criminal for the wrong done.
- 28 - 2637
----------------------- Page 29-----------------------
offenses] will be punished is separate from retribution. [A
criminal sentence can properly] reflect[] community beliefs
that certain norms are [inviolable] and will be upheld by the
courts.
16
Kelly, 622 P.2d at 435.
Eight months later, in Leuch, the supreme court re-affirmed Kelly and
declared that "judgments as to the extent to which the community condemns a particular
offense are more properly made in the legislative [arena] than by the judiciary." 17
The supreme court's decisions in Kelly and Leuch confirm that a sentencing
judge can justifiably rely on the sentencing goal of community condemnation to reject
a proposed lesser sentence on the ground that it insufficiently reflects society's
expectations that legal and moral norms will be upheld. But Kelly and Leuch also clarify
that a sentencing judge cannot employ the sentencing goal of community condemnation
to give voice to the community's outrage at a particular defendant or at a particularly
disturbing crime. Nor can a sentencing judge employ the sentencing goal of community
condemnation to conduct a one-person re-assessment of the range of penalties that
should apply to the defendant's crime.
In Graham's case, these precepts were violated. The prosecutor explicitly
asked the sentencing judge to use the goal of "community condemnation" in the two
prohibited ways described in the preceding paragraph. As we have already noted, the
prosecutor argued that all of the relevant appellate sentencing decisions were wrongly
decided - that these decisions mistakenly upheld sentences that were too lenient. The
prosecutor then ended his sentencing argument with the following plea:
16 Quoting Smothers v. State , 579 P.2d 1062, 1064 (Alaska 1978).
17
Leuch , 633 P.2d at 1012-13.
- 29 - 2637
----------------------- Page 30-----------------------
Prosecutor : What the State asks of you, Judge Saxby,
is [to] tell ... all of Alaska that the courts - that you - will
do everything possible to deter other drunk drivers, to
reaffirm societal norms. That drunk driving is a pox on our
community, and that Alaska's collective, continued anger at
- [that] those who choose to drink and drive need to be
stopped.
. . .
Use this opportunity, with these cameras in your
courtroom, and the press sitting in front of you, ... [to] tell
everyone that the only appropriate sentence for these murders
... is 40 years. The State is asking you to impose the harshest
sentence possible ... because we're fed up.
. . .
We have a packed courtroom, and [more] people in the
hallway. I don't know how [much] more community outrage
you can get than in this case.
And as we have also explained, the sentencing judge did in fact employ the
concept of community condemnation in the two improper ways suggested by the
prosecutor. The judge declared: "People are right when they say [that drunk-driving
homicide] just has to stop", and the judge expressed his intention to "be a voice" for the
community's condemnation of this crime by imposing an unprecedented, extraordinarily
severe sentence.
This record demonstrates that, when the prosecutor and the judge used the
phrase "community condemnation", they were not referring to the concept that the crime
of vehicular homicide is so serious that Graham should receive a substantial sentence,
no matter how favorable Graham might appear as an individual.
Rather, the prosecutor and the judge used the phrase "community
condemnation" as a justification for incorporating visceral community outrage into the
- 30 - 2637
----------------------- Page 31-----------------------
sentencing decision. They also used this phrase as a rationale for seeking and imposing
ever-increasing sentences for drunk-driving homicides - under the theory that, even
though substantial sentences had been imposed for vehicular homicide in the past, the
community could rightly condemn the fact that people continue to commit this crime.
Thus, the prosecutor and the judge lost sight of the supreme court's original
concept of re-affirming societal norms. By adopting the sentencing goal of "community
condemnation" or "re-affirmation of societal norms", the supreme court was instructing
judges that, even when an individual defendant has a clean history and favorable
prospects for rehabilitation, a judge must nevertheless consider that one of the aims of
sentencing is to uphold legal and moral standards by ensuring that people who commit
serious crimes will normally receive substantial sentences.
The supreme court was not instructing judges to calibrate individual
defendants' sentences by gauging the degree of the community's condemnation of, or
the community's emotional reaction to, the defendant's particular crime. But this is
precisely what the prosecutor argued for in Graham's case - and this is exactly what
Graham's sentencing judge did.
Thus, the prosecutor and the sentencing judge both explicitly relied on an
improper interpretation of "community condemnation" - an interpretation that
incorporated raw emotion and notions of retribution.
(d) The judge's conclusion that Graham should receive an
extraordinarily severe sentence under the theory that this sentence
would deter other people from ever committing another drunk-driving
homicide
We now come to the sentencing judge's remaining justification for
sentencing Graham to 32 years' imprisonment: deterrence of others.
- 31 - 2637
----------------------- Page 32-----------------------
Graham's sentencingjudge concluded that the time had come for the courts
to declare that drunk-driving homicide "just has to stop" - and that it was time to make
an example of someone, by imposing an unprecedentedly severe sentence.
Legislatures and courts have long operated under the assumption that
statutory penalty ranges and judicial sentencing decisions do make a difference - not
just for the individual defendant, but for the community as a whole. One of the
sentencing factors listed in AS 12.55.005 is "the effect of the sentence to be imposed in
deterring ... other members of society from future criminal conduct". This sentencing
goal (which lawyers and judges call "general deterrence") rests on the premise that the
lenity or severity of sentences can affect not only the defendant's future behavior, but
also other people's future behavior too - and that severe sentences can deter people
from engaging in crime.
But there are limits to what sentencing judges can achieve in terms of
deterring others from committing similar crimes.
This Court is unaware of any instance where a particular type of criminal
activity has disappeared because of the community condemnation attached to it, or
because of the severity of the sentences imposed for it. And ultimately, there is no
practical way to know whether increasing the penalty for a crime by 1 year or 5 years or
10 years will achieve any further reduction in the incidence of that crime.
As our supreme court noted in Pears v. State, 698 P.2d 1198 (Alaska 1985):
The easy assumption that the benefits of deterrence
will continue to increase with the severity of a sentence is not
necessarily true: "Our understanding of general deterrence
is incomplete, but the fragmentary evidence available tends
not to conform to any simple model under which sentences of
high severity can always be justified on the grounds that they
yield greater preventive benefits."
- 32 - 2637
----------------------- Page 33-----------------------
Pears, 698 P.2d at 1205, quotingthe American Bar Association's Standards for Criminal
Justice, "Sentencing Alternatives and Procedures" (Approved Draft 1979), § 18-2.5,
commentary at page 18.120.
The uncertain effect of longer sentences is illustrated by the statement that
was given at Graham's sentencing by Anchorage Police Chief Mark Mew.
As we have already explained, Chief Mew's statement to the court focused
on the overall need to deter drunk-driving. He described how, in the early 2000s, drunk-
driving fatalities were on the rise in Anchorage; then, "through a relentless effort", the
number of drunk-driving fatalities was reduced "down to one [death] in 2012." But then,
in 2013, Anchorage experienced five drunk-driving deaths (including the deaths of
Brooke McPheters and Jordyn Durr), and the number rose again in 2014.
Based on these statistics, Chief Mew declared that Anchorage was "going
the wrong way", and he urged Graham's sentencing judge to impose the maximum
sentence authorized in Graham's case - to "hand down [a sentence] severe enough to
scare the eleven worst drunks in Anchorage into not driving".
When Chief Mew asked the judge to impose a historically unprecedented
sentence, his request rested on the implicit premise that something had changed since
2012 - that the sentences which deterred drunk drivers so well in the years leading up
to 2012 had somehow lost their deterrent power in 2013 and 2014.
The police chief offered no explanation as to what he thought had changed.
But his request for a sentence "severe enough to scare the ... worst drunks in Anchorage"
hinged on the same assumption that our supreme court rejected in Pears : the
- 33 - 2637
----------------------- Page 34-----------------------
unwarranted assumption that "sentences of high severity can always be justified on the
18
grounds that they yield greater preventive benefits."
Chief Mew - and, later, Graham's sentencing judge - appear to have
accepted the idea that (1) many drunken people will decide to drive, and will knowingly
risk killing someone, if they know that they are facing "only" 10 to 20 years in prison if
they kill someone, but (2) these same drunken people will decide not to drive if they
know that they are facing 30 to 40 years in prison. On its face, this assumption appears
dubious.
In fact, the latest statistics available from the Alaska Department of Public
Safety and the National Highway Traffic Safety Administration (NHTSA) fail to support
the assumption that Graham's unprecedented sentence would "scare the worst drunks"
and lead to a reduction in drunk driving and drunk-driving homicides.
According to the impaired driving statistics compiled by the Alaska
Department of Public Safety, and available through the Alaska Department of
Transportation's website, the number of arrests for impaired driving in Alaska peaked
at 5484 in the year 2008, then gradually fell to 2687 in the year 2013 (the year of
Graham's crimes), then fell again to 2420 in 2014 (while Graham was awaiting
19
disposition of his charges).
Graham was sentenced in February 2015. That year, despite Graham's
unprecedented sentence of 32 years to serve, the number of impaired driving arrests
18 Pears , 698 at 1205.
19
See AlaskaDepartmentof Public Safety, Impaired Driving Arrests by Driver Gender
and Age, Alaska: 2007-2016:
http://www.dot.state.ak.us/stwdplng/hwysafety/assets/pdf/DUI_Arrest_Data_
07_16.pdf
- 34 - 2637
----------------------- Page 35-----------------------
20
jumped to 3161 - an increase of 30 percent. And in the following year of 2016 (the
last year listed in the Department of Transportation's chart), the number of impaired
driving arrests remained almost equally high, at 3063. 21
A similar trend is reflected in the NHTSA's statistics on drunk-driving
fatalities in Alaska. In 2013 (the year of Graham's crimes), Alaska suffered 15 fatalities
in traffic accidents where at least one driver had a blood alcohol reading of .08 percent
22 23
In 2014, that number rose to 22 fatalities. In 2015, after Graham received
or higher.
24
his unprecedented sentence, that number rose to 23. The following year, 2016, the
25 Then, in 2017 (the last full year for which NHTSA
number rose again, this time to 30.
statistics are available), the number of Alaska traffic fatalities where at least one driver
26
was impaired fell back to 22.
20 Id.
21 Id.
22 See National Highway Traffic Safety Administration, State Alcohol-Impaired Driving
Statistics for 2013 :
https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812188 .
23
See NationalHighway Traffic Safety Administration, State Alcohol-Impaired Driving
Statistics for 2014 :
https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812231 .
24
See National Highway Traffic Safety Administration, State Alcohol-Impaired Driving
Statistics for 2015 :
https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812350 .
25
See National Highway Traffic SafetyAdministration, State Alcohol-Impaired Driving
Statistics for 2016 :
https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812450 .
26 See National Highway Traffic Safety Administration, State Alcohol-Impaired Driving
Statistics for 2017 :
(continued...)
- 35 - 2637
----------------------- Page 36-----------------------
These statistics show that our supreme court was properly skeptical about
the assumption that harsher sentences will predictably lead to a reduction in crime.
There appears to be no correlation between these statistics and the sentencing decision
in Graham's case. It likewise appears that Graham's sentencing judge placed too much
faith in Chief Mew's prediction that an unprecedentedly harsh sentence in Graham's case
would substantially reduce the number of drunk-driving homicides.
As we have explained, our prior cases in this area have upheld sentences
of 15 to 20 years for vehicular homicide when the case was especially aggravated under
the Pusich factors. Even a sentence in the 15- to 20-year range is substantial; it is
approximately one-third of a person's adult life. It is unclear what deterrent value, if
any, can be achieved by sentencing these offenders to 30-plus years in prison.
No sentence will bring back a family member, loved one, or friend. But the
question here is whether sentencing judges can realistically hope to put a stop to drunk-
driving homicides by imposing an additional 10 or 12 years on top of the sentencing
range that already applies to this crime under this Court's prior decisions. If not, then
the added years in Graham's case simply create an unjustified disparity in sentencing.
Here, the judge sentenced Graham to serve a term of imprisonment that is
a decade more than any other similarly situated offender has ever received. But there is
no verified reason to believe that imposing such a sentence on Graham has achieved, or
will achieve, the societal goal of preventing drunk-driving homicide, or that it will even
significantly reduce the incidence of this crime.
Accordingly, the judge's sentencing decision in Graham's case violates the
twin aims codified in AS 12.55.005: "the elimination of unjustified disparity in
sentences and the attainment of reasonable uniformity in sentences". It also violates the
26 (...continued)
https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812630 .
- 36 - 2637
----------------------- Page 37-----------------------
principle of parsimony - the principle that "[a] defendant's liberty should be restrained
only to the minimum extent necessary to achieve the objectives of sentencing." Pears,
698 P.2d at 1205.
(e) Because of these various errors, we conclude that Graham must
be re-sentenced
We have described several ways in which the superior court's sentencing
analysis was legally flawed. Because of these errors, we conclude that Graham must be
re-sentenced. We therefore remand Graham's case to the superior court for this purpose.
Why we conclude that Judge Saxby should not preside over the
proceedings on remand
As we have already described, there are several troubling aspects to
Graham's sentencing hearing.
First, the sentencing judge allowed the victims' parents to deliver their
victim impact statements in a manner that was almost guaranteed to heighten the
emotions of everyone in the courtroom - including the judge.
Under our law, a homicide victim's family is entitled to speak to the
sentencing judge, and this includes speaking about their pain and their loss, telling the
court about the victim's character and accomplishments, and describing how much the
victim will be missed.
But in the present case, the McPheters family and the Durr family
supplemented their oral statements by playing DVDs that contained photographic
montages of Brooke's and Jordyn's lives, from their infancy to their teenage years,
displayed to the accompaniment of music. These videos were the type of photo montage
- 37 - 2637
----------------------- Page 38-----------------------
that would be displayed at a memorial service - and, together, the two videos ran more
than half an hour.
When Graham's attorney objected to the presentation of these videos, the
sentencing judge ruled that the playing of these memorial videos was simply an aspect
of the families' right to make a victim impact statement. The judge declared:
We routinely see ... PowerPoint presentations or, ...
even more frequently, ... photographs. I don't see any public
policy basis for limiting victims [by] preventing them from
using the types of - or making the types of presentation that
are routinely made in courts every day.
But the judge's ruling missed the point of the defense attorney's objection.
It is true that litigants now routinely use technology to aid them in
presentingtheir cases - computer slide shows, videos, computer re-enactments, and the
like. But the memorial videos in this case differed from the norm in two respects.
First, it is unclear how the content of these videos was relevant to the
judge's evaluation of the proper sentence in Graham's case.
As Chief Mew noted when he addressed the court at the sentencinghearing,
"no one of our lives is more valuable than another" in the eyes of the law. The severity
of a murder sentence is not supposed to depend on the judge's conclusions about how
good a person the victim was, or how much they will be missed by their family and
friends. Our society does not let a homicide victim's survivors determine the defendant's
punishment, nor does our society allow a judge's sentencing decision to be based on
27
retribution.
27 Karr v. State , 686 P.2d 1192, 1194 n. 4 (Alaska 1984),citing Leuch v. State , 633 P.2d
1006, 1012 (Alaska 1981).
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It is the family's right to express their grief and loss. But when a sentencing
judge listens to a family's victim impact statement in a murder case, the judge is duty-
bound to maintain a distance from the emotions expressed by the victim's survivors -
to make sure that the sentencing goal of "community condemnation" does not shift subtly
into a veiled substitute for retribution. 28
Sentencing hearings are often fraught with emotion, and we ask judges to
put aside the emotions on display at the hearing so that the defendant's sentence can be
the result of reason and law. But, like all human beings, judges are susceptible to the
emotions engendered by childhood photographs. And those emotions are significantly
enhanced by the playing of music - as can be attested by anyone who has ever watched
theatrical movie clips without the musical accompaniment.
We cannot know whether, or how much, Graham's sentencing judge was
influenced by 32 minutes of memorial videos. But judges should not carelessly subject
themselves to lengthy presentations whose primary purpose and effect is to engender
emotions that will improperly influence the judge's sentencing decision.
The same is true with respect to the judge's decision to allow two police
officials (Chief Mew and Sergeant McKinnon), as well as the Victims' Rights Attorney,
to deliver statements to the court under the mistaken rationale that these statements
qualified as "victim impact" statements under AS 12.55.023(b).
(When Graham's attorney objected that the only apparent purpose of the
police officers' statements was to inject further passion into the proceedings, the judge
declared, "Two of the victims can't speak[, and] they're allowed to have representatives
speak on their behalf[, so] I'll listen to [the police officers].")
28 Karr v. State , 686 P.2d at 1194 n.4.
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As we have already described, Chief Mew told the judge that "all eyes are
on the court today". He asked the judge, "in the name of deterrence", to "hand down [a
sentence] ... severe enough to scare the eleven worst drunks in Anchorage into not
driving."
Sergeant McKinnon, for his part, delivered a statement that was designed
to highlight the grief, emotional distress, and anger that McKinnon himself experienced
as a result of the performance of his duties in this case. McKinnon ended his statement
by openly asking the judge to make Graham pay for his crimes.
When the judge ultimately announced Graham's sentence, the judge
declared that community condemnation of Graham's conduct was "especially high",
"even higher [than normal] here", because Graham had caused the death of "two
innocent young girls". The judge also declared that he intended to give voice to the
outrage of the community by imposing a sentence of unprecedented severity.
Thus, rather than attempting to structure the sentencing proceedings so as
to minimize the improper emotional pressures on his decision-making, the judge made
a series of rulings which had the effect of subjecting him to an hours-long drumbeat of
grief and outrage. To be sure, these emotions were justified, given the facts of Graham's
case. But the sentencing judge had a duty to structure the proceedings so as to dampen
the effect of these natural emotions - so that the judge could render a reasoned
sentencing decision that comported with the law and did not rest on retribution.
Here, the record shows that the judge gave free rein to speaker after speaker
who played to the judge's emotions, and the judge's sentencing remarks suggest that
retribution was indeed one of the judge's motivations for imposing an unprecedented
sentence in Graham's case. Based on this record, we conclude that Graham's re-
sentencing should be handled by a different judge. See Alaska Judicial Canon 3(E)(1).
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Conclusion
Because of the legal errors in this case, we VACATE Graham's sentence
and we REMAND this case to the superior court for a re-sentencing to be conducted by
a different judge.
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