from the Superior Court, Third Judicial District, Trial Court
No. 3AN-13-8758 CR, Anchorage, Kevin M. Saxby, Judge.
McFarland, Assistant Public Defender, and Quinlan Steiner,
Public Defender, Anchorage, for the Appellant.
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. [*]
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 Stacey Allen Graham jumped
the curb at high speed. Graham's vehicle struck the
girls, mortally injuring both of them.
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.
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.
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.
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.
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
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
statutory sentencing provisions that apply to Graham's
case, and the permitted sentencing range under Graham's
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 was 10 years' imprisonment.
defendant is being sentenced for two or more counts of
second-degree murder, the mandatory minimum sentence for each
count must be imposed consecutively. Thus, if Graham had simply
pleaded guilty to two counts of second-degree murder without
a plea agreement, Graham would have subjected himself to a
mandatory minimum sentence of20 years to serve. Graham's
plea agreement called for a higher mandatory minimum sentence
- 26 years to serve.
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
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.
sentencing decisions in cases involving vehicular
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 should employ when evaluating the
proper sentence in a criminal case.
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.
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.
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
have explained, Graham's plea bargain required that he
receive a minimum of 26 years to serve. This minimum sentence
was equal to the highest sentence 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.
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.
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
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
these principles and past sentencing decisions in mind, we
now turn to a description of Graham's sentencing hearing.
tenor of Graham's sentencing hearing, and the
presentations at that hearing
the superior court convened Graham's sentencing hearing,
the courtroom was full (to overflowing) with family, friends,
sympathizers, and representatives of the media.
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.
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. l85(l9)(C).
Graham's case, the parents of both Brooke McPheters and
Jordyn Durr presented oral statements 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.
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 during the presentation of
the victims' impact statements."
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 emotional content 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.
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.
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.
And now you can see the pain. ... No one in this courtroom is
going to be left unchanged by what happened to Jordyn and
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
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. According to the prosecutor's offer ofproof,
ChiefMew 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."
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:
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.
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?
The Court: Okay. Victims are permitted to designate
people to speak on their behalf. I'll allow the
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...
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].
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.
told the court:
Sgt. McKinnon: This occurrence has been the most
difficult ... in my life. ... I had no idea how much this
experience was going to 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."
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."
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
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. ...
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
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.
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
Chief Mew. Your Honor, we are goingthe wrong way. 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
[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
ofdeterrence, I urge [you to impose] the maximum sentence
allowable to you today.
these 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.
close of all these presentations, the prosecutor and the
defense attorney made their sentencing arguments to the
attorneys' sentencing arguments, and the ...