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Graham v. State

Court of Appeals of Alaska

February 22, 2019

STACEY ALLEN GRAHAM, Appellant,
v.
STATE OF ALASKA, Appellee.

          Appeal from the Superior Court, Third Judicial District, Trial Court No. 3AN-13-8758 CR, Anchorage, Kevin M. Saxby, Judge.

          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. [*]

          OPINION

          MANNHEIMER JUDGE.

         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 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.

         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 was 10 years' imprisonment.[1]

         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 consecutively.[2] 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.

         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 should employ when evaluating the proper sentence in a criminal case.[3]

         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 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.

         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.

         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 representatives 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. l85(l9)(C).

         In 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.

         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 during the presentation of the victims' impact statements."[4]

         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 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.

         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.
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. 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."

         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:

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...
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 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."

         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 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:

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 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 ofdeterrence, I urge [you to impose] the maximum sentence allowable to you today.

         Following 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.

         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 ...


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