Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.gov. 

THE SUPREME COURT OF THE STATE OF ALASKA 

STATE OF ALASKA, 

Petitioner, 

v. 

STACEY GRAHAM, 

Respondent. 

) 

) Supreme Court No. S-17411 

Court of Appeals No. A-12222 

Superior Court No. 3AN-13-08758 CR 

O P I N I O N 

No. 7606 – July 22, 2022 

) 

) 

) 

) 

) 

) 

) 

) 

Petition for Hearing from the Court of Appeals of the State of 

Alaska, on appeal from the Superior Court of the State of 

Alaska, Third Judicial District, Anchorage, Kevin M. Saxby, 

Judge. 

Appearances: Nancy R. Simel, Assistant Attorney General, 

Anchorage, and Kevin G. Clarkson, Attorney General, 

Juneau, for Petitioner. Renee McFarland, Assistant Public 

Defender, Anchorage, and Samantha Cherot, Public 

Defender, Anchorage, for Respondent. 

Before: Bolger, Chief Justice, Winfree, Maassen, Carney, 

and Borghesan, Justices. 

MAASSEN, Justice. 

CARNEY, Justice, concurring in part and dissenting in part. 

I. INTRODUCTION 

A drunk driver lost control of his truck on a wet roadway and struck and 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

killed two teenage girls. The driver pleaded guilty to two counts of second-degree 

murder with a sentencing range of 13 to 20 years for each count. At the sentencing 

hearing, members of both victims’ families and two local law enforcement officers 

spoke, and the sentencing court viewed tribute videos for the two young victims. The 

court imposed a term of 20 years in prison with 4 years suspended on each count, for a 

composite sentence of 32 years to serve, noting that it was the highest sentence imposed 

in Alaska for an unintentional vehicular homicide. 

The court of appeals vacated the sentence based on several perceived errors 

in the sentencing court’s calculation of the appropriate sentence; it also identified 

evidentiary errors which it believed contributed to the emotionally charged sentencing 

hearing and improperly influenced the judge’s decision. The court of appeals directed 

that a different judge preside over resentencing. 

The State filed a petition for hearing, which we granted. We conclude that 

the superior court properly began its sentencing analysis in the benchmark range for 

second-degreemurderandappropriatelyconsidered anaggravator. Wecannot conclude, 

as the court of appeals did, that the superior court gave too much weight to the 

sentencing goals of general deterrence and community condemnation. We do decide, 

however, that it was an abuse of discretion to allow the testimony of two police officers 

as victimimpact evidenceand to admit victimtribute videos without first reviewing them 

for relevance and unfair prejudice. We cannot say that the unusually severe sentence was 

untainted by these errors, but we do not believe that the superior court’s admission of the 

challenged evidence requires recusal on remand. We therefore vacate the sentence and 

remand for re-sentencing by the same judge. 

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II. FACTS AND PROCEEDINGS 

A. Facts 

August 9, 2013, was the day of a golf tournament and barbecue hosted by 

Stacey Graham’s employer. Graham began drinking early that morning, brought a fifth 

of vodka and orange juice to the tournament (where drinks were served to participants), 

and continued drinking throughout the day. He and a friend bought another fifth of 

vodka after the tournament, and Graham had at least one more drink at the friend’s house 

before leaving in his pickup truck. 

Around 6:45 p.m. other motorists saw Graham’s truck “barreling down” 

Dimond Boulevard in Anchorage with its tires squealing. One motorist reported that the 

truck was hydroplaning. Another driver and his wife saw Graham’s truck speed by, 

swerve to avoid another vehicle exiting a parking lot, and then fishtail. Other witnesses 

reported that Graham honked at the vehicle in front of him at a traffic light, sped past 

when the light turned green, and changed lanes repeatedly to pass other cars, causing his 

truck to fishtail again. Another motorist reported that Graham cut in front of him, passed 

a second vehicle at high speed, and cut off an SUV. The driver thought Graham had 

“road rage” and was driving drunk. Graham’s speed was estimated to be between 40 to 

65 miles per hour; the witnesses agreed that Graham was going too fast for the wet road 

conditions. 

At one point, when Graham swerved into the right lane, his truck slid 

sideways on the wet pavement, regained some traction, then veered right and jumped the 

curb. The truck struck Jordyn Durr and Brooke McPheters, two fifteen-year-old girls 

who were walking together on the sidewalk. The truck then hit a sign and came to rest 

on its side. 

Both girls were pronounced dead at the scene. Graham was trapped inside 

his truck; he had to be extricated by the fire department before being taken to the hospital 

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with serious injuries. A test taken three hours after the crash showed a blood-alcohol 

content of .180, more than twice the legal limit. The sample also contained marijuana 

metabolites. 

A grand jury indicted Graham on two counts of second-degree murder 

under AS 11.41.110(a)(2) and two counts of manslaughter under AS 11.41.120(a)(1); 

a charge of driving under the influence under AS 28.35.030(a)(1) was later added by 

information. Graham’s criminal history was negligible; he had one speeding ticket, no 

prior arrests, and no significant issues with alcohol abuse. He was 31 years old at the 

time and had a family and a steady job. 

Grahamagreed to plead guilty to both counts of second-degree murder and 

to a sentencing range of 13 to 20 years on each count, to be served consecutively, for a 

total range of 26 to 40 years. The superior court accepted the plea. 

B. Proceedings 

1. Statements and presentations 

Superior Court Judge Kevin Saxby presided over a sentencing hearing. In 

addition to members of the girls’ families, the State sought to present the testimony of 

two police officers. The court allowed the testimony over a defense objection, reasoning 

that “[v]ictims are permitted to designate people to speak on their behalf” and that “[t]wo 

of the victims can’t speak.” Sergeant John McKinnon testified about his experience at 

the accident scene and breaking the news to the girls’ parents. Chief Mark Mew testified 

about the impact of drunk-driving deaths on the community generally and asked the 

court to impose a sentence severe enough to deter even the worst possible offenders. 

The State then asked to play two tribute videos that the victims’ families 

wanted the court to see; the court allowed them to be played over a defense objection. 

The videos were 14 and 17 minutes long, respectively. They were both in slide-show 

format, displaying a stream of photographs from the victims’ lives beginning in infancy 

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and accompanied by popular and sentimental music.1 One of the videos began with a 

voice mail message one of the victims had left for her parents shortly before her death. 

Members of the girls’ families spoke next. They described the two girls 

killed in “the prime of teenage life” and the grief of knowing they would never 

experience the many milestones their families had looked forward to sharing with them. 

The family members asked that Graham “be held accountable for his actions” and called 

for him to be given the plea agreement’s maximum sentence of 40 years to serve. 

A representative from the Office of Victim’s Rights spoke on behalf of 

other family members. She emphasized that drunk driving is “a stranger crime,” 

tragically entangling the lives of people who had never met before. She testified that it 

was also a “highly preventable” crime that called for a “clear message” from the court 

that the community “will not tolerate it.” 

Graham’s father and stepmother spoke on his behalf, describing Graham 

as “a good man, a good kid, a good father [who] made an awful, terrible, ugly decision 

to drive.” Graham also spoke; he asked the girls’ families to accept that he was 

“completely broken, knowing the pain [he had] caused them.” He testified that he was 

committed to speaking out against drunk driving: he would warn others that “it only 

takes once. It can, it will, it did.” 

2. The parties’ sentencing arguments 

The State acknowledged that Graham was remorseful, had a favorable 

background, and had “high prospects for rehabilitation.” Its sentencing argument 

focused on the issues of general deterrence and community condemnation. It also 

highlighted several past cases that could be read for the proposition that 13 years to serve 

v. State, 440 P.3d 309, 314 n.4 (Alaska App. 2019). 

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1 The court of appeals detailed the musical selections in its opinion. Graham 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

is a common punishment for drunk drivers whose conduct is not extreme — i.e., who 

“merely” drive drunk as opposed to driving drunk and aggressively like Graham — and 

whose conduct results in a single fatality. 

The State discussed the letters the court had received from the victims’ 

friends and families and recognized that “there would not be a dry eye in the courtroom” 

following the day’s presentations. The State asked the court to impose the agreement’s 

maximum sentence of 40 years to serve, which would be “the lengthiest sentence ever 

imposed in a DUI death.” 

Graham began his sentencing argument by asserting that — as reflected in 

reported Alaska cases — the highest penalty for a drunk-driving homicide that did not 

involve intentionally assaultive conduct was 20 years to serve. Graham emphasized the 

difference between retribution and justice, urging the court not to allow emotion to hold 

sway over reason and the law. He argued that a severe sentence would have a limited 

deterrent effect and that his age, lack of criminal record, and lack of a history of alcohol 

abuse all favored a lenient sentence. Regarding the degree of recklessness, he argued 

that his conduct was not significantly more dangerous than that of the typical drunk 

driver. 

3. Graham’s sentence 

The superior court began its sentencing remarks by recognizing that 

because Graham had no prior convictions, the statutory sentencing range was “10 to 99 

years,” though other court-created guidelines would affect the appropriate sentence 

within that range. The court noted that the parties, by agreement, had narrowed this 

range to 26 to 40 years (13 to 20 years per count to be served consecutively). The court 

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next discussed several aggravators proposed by the State.2 The court agreed on the 

applicability of one aggravator — “the defendant’s conduct created a risk of imminent 

physical injury to three or more persons.”3 But it rejected two others. It rejected the 

“dangerous instrument” aggravator,4 reasoning that the “use of a dangerous instrument 

is true in virtually all second degree murder cases” and is thus “not really a 

distinguishing factor in this case.” And it rejected the “most serious conduct” 

aggravator,5 concluding that “reckless driving . . . that leads to the death of another . . . is 

within [the] mainstream” of the crimes that constitute second-degree murder. 

Such“mainstream” second-degreemurder,thecourtconcluded,“ordinarily 

calls for a 20- to 30-year sentence for a first conviction,” citing as support the court of 

appeals’ decision in Felber v. State. 

6 The court in Felber had affirmed a 66-year 

composite sentence for a defendant who pleaded guilty to “twenty-three criminal 

charges —ranging fromsecond-degreemurder andseveralcounts offirst-degreeassault, 

to vehicle theft, driving under the influence, and driving with a suspended license.”7 The 

second-degree-murder component of the sentence in Felber was 25 years, which the 

court of appeals observed was “in the middle of the 20- to 30-year Page benchmark for 

2 AS 12.55.155(c) lists factors that, if proven, the court must consider and 

that “may allow imposition of a sentence above the [statutory] presumptive range.” 

3 AS 12.55.155(c)(6). 

4 AS 12.55.155(c)(4) (authorizing use of aggravator when “the defendant 

employed a dangerous instrument in furtherance of the offense”). 

5 AS 12.55.155(c)(10) (authorizing use of aggravator when “the conduct 

constituting the offense was among the most serious conduct included in the definition 

of the offense”). 

6 243 P.3d 1007 (Alaska App. 2010). 

7 Id. at 1008. 

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first felony offenders who engage in conduct that is typical for second-degree murder.”8 

In affirming the composite sentence, the Felber court had noted that the defendant “was 

a third felony offender, and his conduct” — which included using his motor vehicle to 

intentionally ram other vehicles and killing a bystander while fleeing from 

police — “was far from typical within the range of conduct encompassed by the seconddegree murder statute.”9 

Thesuperior court in this case, after acknowledging the20- to 30-year Page 

benchmark as reaffirmed in Felber, observed that “the norm” in second-degree murder 

cases reviewed by the court of appeals “for someone who wasn’t using their vehicle 

deliberately as a weapon” was nonetheless “quite a bit less than 20 years.” As an 

example the court cited Phillips v. State, an unreported decision in which the court of 

appeals had recently upheld a composite sentence of 20 years to serve for a defendant 

convicted offiveoffenses,including“second-degreemurder,first-degreeassault, driving 

under the influence, driving with a revoked license, and reckless driving.”10 Thesuperior 

court noted that the murder component of the composite sentence “was obviously less 

than 20 years” and that the case had some similarities to Graham’s case — particularly 

“the level of recklessness” — and also some differences that favored Graham, such as 

the Phillips defendant’s prior convictions and “extremely high . . . blood alcohol 

content,” considerably higher than Graham’s. 

8 Id. at 1013. The court of appeals had previously established a benchmark 

for second-degree murder sentencing in Page v. State, 657 P.2d 850, 855 (Alaska App. 

1983) (“It would appear appropriate . . . that one convicted of [second-degree murder] 

should receive a sentence of from twenty to thirty years.”)). 

9 Felber, 243 P.3d at 1013. 

10 No. A-11269, 2014 WL 6608927, *6 (Alaska App. Nov. 14, 2014) 

(unpublished). 

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The superior court observed that when determining the seriousness of 

Graham’s offense, it was required to consider factors the court of appeals had identified 

in Pusich v. State as “significant in drunk-driving homicides: the degree of the 

defendant’s recklessness, the magnitude oftheconsequences 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.”11 The superior court found Graham’s degree of recklessness 

“extreme” — “aggressive driving akin to road rage.” It found “the magnitude of the 

consequences” to be “on the high end” — “multiple pedestrian deaths.” It found that 

Graham was old enough, at 31, to be no longer subject to the impulsiveness of youth, 

though the age factor was largely “neutral.” The court also found that Graham’s lack of 

a criminal record weighed in his favor and that his history of alcohol abuse was scant but, 

given “some legitimate concerns,” not “something that should just be ignored.” 

Froma discussion of the Pusich factors the court moved on to address other 

factors — often referred to as “the Chaney factors” — made relevant to all criminal 

sentencings by AS 12.55.005.12 The court noted the pre-sentence report’s conclusion 

that Graham“is a very good prospect for rehabilitation”; the court agreed with this, given 

Graham’s genuine remorse and his desire “to make changes and . . . to be a voice for 

sobriety.”13 The court found that confinement was not necessary to protect the public as 

long as Graham pursued and successfully completed the recommended substance abuse 

11 907 P.2d 29, 38 (Alaska App. 1995). 

12 AS 12.55.005 declares the sentencing statutes’ legislative purpose and lists 

the Chaney factors, following State v. Chaney, 477 P.2d 441, 444 (Alaska 1970). 

13 See AS12.55.005(2) (identifying “theprior historyofthedefendant and the 

likelihood of rehabilitation” as factor for consideration in sentencing). 

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treatment.14 Considering “the circumstances of the offense and the extent to which the 

offense harmed the victim or endangered the public safety or order,”15 the court referred 

to its earlier findings that Graham “killed two completely innocent people” and “placed 

multiple others at risk,” and that “[h]is behavior was extremely reckless and showed a 

manifest indifference to human life.” 

The court then considered the Chaney factor of deterrence, “of both 

[Graham] himself and of other people.”16 The court found that Graham was probably 

already sufficiently deterred from re-offending but that “it’s also important to deter 

others,” and that “this is one type of crime where general deterrence can sometimes be 

effective.” The court reasoned that people who are considering whether to drink and 

drive, as well as “their loved ones [and] their friends, are likely to weigh the costs and 

benefits of calling a cab rather than driving as they realize that lengthy prison terms are 

[on] the other side of the balance.” 

The court then turned to consideration of “community condemnation and 

reaffirmation of societal norms.”17 The court remarked that it had “heard [a] lot of 

community condemnation here today, appropriately so,” and that “[t]he community and 

people are right when they say this just has to stop.” The court said that “[c]ommunity 

14 See AS 12.55.005(3) (identifying “the need to confine the defendant to 

prevent further harm to the public” as factor for consideration in sentencing). 

15 See AS 12.55.005(4). 

16 See AS 12.55.005(5) (identifying “the effect of the sentence to be imposed 

in deterring the defendant or other members of society from future criminal conduct” as 

factor for consideration in sentencing). 

17 See AS 12.55.005(6) (identifying “the effect of the sentence to be imposed 

as a community condemnation of the criminal act and as a reaffirmation of societal 

norms”). 

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condemnation is especially high for drunk driving now” and “even higher here, where 

two innocent young girls were essentially smashed to death.” The court concluded that 

“it would be hard to think of a situation that would unite people more in their 

condemnation of the behavior that led to these deaths, and that demands a substantial 

sentence.” The court added, however, that an important societal norm was “the principle 

that our penal system exists for the purpose of reforming criminal behavior, when that’s 

possible to do.” 

Summarizing these factors, the court decided it was “very important to 

recognize community condemnation here and to provide as much general deterrence” as 

it could while at the same time “rendering the lowest sentence that meets all of the 

sentencing goals.” While not rendering “a sentence that is the maximum possible, under 

the circumstances,” the court acknowledged that the sentence it intended to impose 

would “be the highest sentence rendered in Alaska history for conduct of this type.” 

That sentence was 20 years with four suspended on each count of second-degree murder, 

to be served consecutively, for a total of 32 years to serve — a sentence near the midpoint of the 26- to 40-year range to which the parties had agreed. 

4. Disqualification request 

After sentencing, Graham moved to disqualify Judge Saxby, contending 

that his sentencing remarks had shown bias in favor of the victims. Judge Saxby denied 

Graham’s motion, explaining that one comment Graham had cited as evidence of 

bias — that the judge wished he could do more for “the families that have lost so 

much” — referred not just to the victims’ families but to Graham’s as well. The chief 

judge of the court of appeals assigned another superior court judge to review Judge 

Saxby’s recusal decision, and he affirmed it. 

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5. The decision of the court of appeals 

Graham appealed to the court of appeals, arguing that his sentence was 

excessive.18 The court of appeals vacated the sentence, identifying what it found to be 

four errors in the superior court’s decision.19 First, it concluded that the superior court 

erred by applying the 20- to 30-year Page benchmark in a case of a vehicular homicide 

that did not result from intentionally assaultive conduct.20 Second, it concluded that the 

superior court erred by deciding that Graham’s conduct was atypically dangerous 

because it endangered three or more people.21 Third, it concluded that the superior court 

improperly relied on general deterrence as a sentencing goal in the absence of evidence 

that a more severe sentence would actually have any salutary effect.22 And finally, the 

court of appeals concluded that the superior court improperly allowed the concept of 

retribution to color its discussion ofthe sentencinggoalof “community condemnation.”23 

The court of appeals remanded for re-sentencing before adifferent judge, concluding that 

Judge Saxby’s sentencing decision indicated that he must have allowed himself to be 

affected by the weight of prejudicial, emotionally laden material presented at the 

sentencing hearing.24 

The State filed a petition for hearing, which we granted. 

18 Graham v. State, 440 P.3d 309, 312 (Alaska App. 2019).
 

19 Id. at 319.
 

20 Id. at 319-20.
 

21 Id. at 321. 

22 Id. at 326-27. 

23 Id. at 324. 

24 Id. at 328. 

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III. STANDARD OF REVIEW
 

We review questions of law de novo.25 Whether a sentencing court 

appropriately applied an aggravating factor is a mixed question of fact and law.26 

“Determining whether the factor applies ‘involves a two-step process: the court must 

(1) assess the nature of the defendant’s conduct, a factual finding, and then (2) make the 

legal determination of whether that conduct falls within the statutory standard.’ ”27 We 

review the factual findings about the defendant’s conduct for clear error, and we review 

de novo the legal determination about the factor’s applicability.28 For issues involving 

sentencing discretion — such as “whether and how much a defendant’s sentence should 

be adjusted on account of an aggravating or mitigating factor — we will employ the 

‘clearly mistaken’ standard of review.”29 

“We review a trial court’s decision to admit or exclude evidence for an 

abuse of discretion.”30 Also reviewed for an abuse of discretion is a judge’s decision on 

a recusal motion.31 

25 

26 State v. Tofelogo, 444 P.3d 151, 154 (Alaska 2019). 

27 Id. (quoting Michael v. State, 115 P.3d 517, 519 (Alaska 2005)). 

28 Id. 

29 Id. at 154-55 (quoting Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska 

App. 1991)). 

30 Jones v. Bowie Indus., Inc., 282 P.3d 316, 324 (Alaska 2012). 

31 Griswold v. Homer Advisory Planning Comm., 484 P.3d 120, 126 (Alaska 

2021). 

Ebli v. State, Dep’t of Corr., 451 P.3d 382, 387 (Alaska 2019). 

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IV. DISCUSSION 

This petition raises issues in two distinct areas of sentencing: (1) the 

standards that apply to sentencing in vehicular homicide cases and (2) the admissibility 

of different types of victim impact evidence. In the first category are the four points the 

court of appeals identified as errors in the superior court’s sentencing decision: its 

application of the 20- to 30-year Page benchmark, its application of the statutory 

aggravator for “conduct [that] created a risk of imminent physical injury to three or more 

persons,” its consideration of the general deterrence factor, and its consideration of the 

community condemnation factor.32 

The court of appeals addressed the evidentiary issues in the context of its 

decision that the case should be assigned to a different judge for re-sentencing.33 The 

court of appeals characterized the victim tribute videos as “lengthy presentations whose 

primary purpose and effect [was] to engender emotions that [would] improperly 

influence the judge’s sentencing decision,” and it described the testimony of the police 

officers and Victims’ Rights attorney as having been admitted “under the mistaken 

rationale that these statements qualified as ‘victim impact’ statements under 

AS 12.55.023(b).”34 

We disagree with the court of appeals’ decision on the sentencing 

standards. We conclude that the superior court did not err by anchoring its analysis in 

the Page benchmark. We further conclude that the superior court was not clearly 

mistaken in its decision that the statutory aggravator applied or in its discussion of the 

factors of community condemnation and general deterrence. We agree with the court of 

32 Graham v. State, 440 P.3d 309, 319-27 (Alaska App. 2019). 

33 Id. at 327-28. 

34 Id. at 328. 

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appeals that the police officers’ testimony was admitted under a “mistaken rationale.”35 

As for the victim tribute videos, we conclude it was an abuse of discretion to admit them 

without first reviewing themfor unfairly prejudicial effect and editing themas necessary, 

and we identify factors to be considered in such a review. Finally, we disagree with the 

court of appeals’ conclusion that the case should be reassigned on remand. We discuss 

each of these issues in turn. 

A.	 The Superior Court Appropriately Applied The Page Benchmark As 

The Starting Point for Sentencing. 

The Page benchmark has its origins in a 1983 decision of the court of 

appeals.36 Page was convicted of second-degree murder and given the maximum 

allowable sentence for that crime of 99 years.37 Reviewing the sentence for 

excessiveness, the court of appeals first observed that maximum sentences are 

appropriate only for “worst offenders.”38 The court next recognized that Page’s 99-year 

sentence “exceed[ed] any sentence previously approved by” Alaska’s appellate courts 

for second-degree murder.39 A review of all sentences for second-degree murder 

considered on appeal “since 1970 indicate[d] that the typical sentence was twenty to 

twenty-five years.”40 From this survey the court of appeals concluded that “[i]t would 

35 Id. The parties have not briefed whether the superior court properly 

admitted the testimony of the Victims’ Rights attorney, and we therefore do not address 

it. 

36 Page v. State, 657 P.2d 850 (Alaska App. 1983). 

37 Id. at 854. 

38 Id. 

39 Id. 

40 Id. at 855. 

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appear appropriate . . . that one convicted of [second-degree murder] should receive a 

sentence of fromtwenty to thirtyyears,”and “[a]ny sentence substantially exceeding that 

amount would appear at least provisionally suspect.”41 

The court in Page cautioned that the “benchmark sentence can only be a 

guide, not a rule, since the legislature clearly could have made presumptive sentencing 

applicable to second-degree murderers and elected not to do so.”42 The court explained: 

“Naturally, mitigating circumstances could reduce the sentence down to the five-year 

minimum[43] and aggravating circumstances could enhance it up to the ninety-nine year 

maximum.”44 But a benchmark “helps to focus the attention of the trial court and the 

parties on individual cases and ensure that typical cases would receive a typical 

sentence.”45 Because Page was a worst offender his case was atypical; the court 

concluded, therefore, that his 99-year sentence“whileseverewas not clearly mistaken.”46 

In this case, the court of appeals decided it was error for the superior court 

to have “tak[en] the Page benchmark range as the starting point for Graham’s 

41 Id. 

42 Id. 

43 The statutory minimum was later increased to ten years, then to 15 years. 

rmer AS 12.55.125(b) (2013) (ten-year minimum); AS 12.55.125(b) (2020) (15­

inimum). 

44 Page, 657 P.2d at 855. 

See fo

year m

45 Id. 

46 Id. Thecourtofappeals nonethelessvacated Page’s sentenceandremanded 

for resentencing because the superior court had erred by making the sentences for 

second-degree murder and first-degree robbery consecutive. Id. at 855-56. 

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sentence.”47 It explained that “the 20- to 30-year Page benchmark range applies only to 

second-degree murders that arise from intentional assaults,” and the benchmark would 

thus apply to a drunk-driving homicide only “where the defendant purposely used their 

vehicle as a weapon against the victims.”48 The court of appeals asserted that it had 

never retreated from this principle, rejecting the superior court’s reliance on Felber for 

the proposition that “reckless driving that leads to the death of another is within [the] 

mainstream” of second-degree murder cases and therefore subject to the benchmark.49 

The court of appeals explained that because the defendant in Felber intentionally used 

his vehicle as a weapon, his conduct “was atypically blameworthy, not just for a 

vehicular homicide, but even within the entire range of conduct encompassed by the 

second-degree murder statute”; therefore, according to the court of appeals, Felber did 

not mark a change of direction for second-degree murder cases like Graham’s that did 

not involve intentionally assaultive conduct.50 

The court of appeals pointed to two other second-degree murder cases to 

illustrate this rule: Gustafson v. State51 and Phillips v. State. 

52 Gustafson did not involve 

a drunk-driving homicide, but rather an intentional shooting from one motor vehicle into 

47 Graham v. State, 440 P.3d 309, 319 (Alaska App. 2019).
 

48 Id. at 320 (emphasis in original).
 

49 Id.
 

50 Id.
 

51 854 P.2d 751, 766 (Alaska App. 1993). 

52 70 P.3d 1128, 1144-45 (Alaska App. 2003). 

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another.53 The defendant, Gustafson, was given a 65-year sentence for the homicide.54 

Reviewing the sentence for excessiveness, the court of appeals noted that it could exceed 

the Page benchmark for second-degree murder “only if there are articulable reasons 

either to view Gustafson as an atypically dangerous offender or to view his offense as 

atypically serious.”55 The court found both these reasons in the record. While not 

intending to kill, Gustafson had fired the gun knowing “that he was firing toward 

unprotected and unsuspecting people”; he suffered from a personality disorder that 

continued to make him a danger to others; and his “prospects for rehabilitation [were] 

guarded.”56 A sentence well above the Page benchmark range was therefore not clearly 

mistaken.57 

Phillips involved the death of a police officer during a struggle with the 

defendant, Phillips, following a series of assaults and robberies.58 The trial court 

concluded that Phillips was a worst offender and sentenced him for the second-degree 

murder to the allowable maximum of 99 years.59 The court of appeals rejected Phillips’ 

argument that he should have been sentenced within the Page benchmark range, noting 

that Page applies to “a typical first felony offender convicted of a typical second-degree 

53 854 P.2d at 754.
 

54 Id.
 

55 Id. at 763.
 

56 Id. at 766. 

57 Id. at 766-67. 

58 70 P.3d 1128, 1132, 1142 (Alaska App. 2003). 

59 Id. at 1143. 

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murder.”60 Phillips was a third felony offender, “and his status [was] further aggravated 

by the fact that he committed this murder just two days after being released from prison 

on felony parole.”61 In addition, his crime was worse than the typical second-degree 

murder “because the victim was a law enforcement officer engaged in his duties.”62 The 

court of appeals nonetheless vacated the sentence and remanded for resentencing, 

concluding that the trial court had misinterpreted Gustafson as meaning that an 

intentional assault that leads to death is necessarily above the Page benchmark.63 

According to the court of appeals, this reading of Gustafson stood the decision “on its 

head”: “Gustafson acknowledges that second-degree murders stemming from nonassaultive conduct are typically among the least serious; but Gustafson does not say that 

second-degree murders stemming from intentional assaults are necessarily among the 

most serious.”64 If that were the case, “the category of ‘typical’ second-degree murders 

[would be] a null set — for this category would include neither intentional nor 

unintentional assaults.”65 

In sum, citing Gustafson, Phillips, and Felber —all involving intentionally 

assaultive conduct, and two involving sentences above the Page benchmark 

60 Id. 

61 Id. 

62 Id. 

63 Id. at 1144-45. 

64 Id. at 1145. 

65 Id. 

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range66 — the court of appeals in this case reiterated the proposition that “the Page 

benchmark sentencing range applies only to second-degree murders that arise from 

intentional assaults,” and it held that the superior court therefore erred by beginning with 

the premise that the benchmark applied.67 

The notion that vehicular homicides are not typical second-degree murders 

for purposes of the Page benchmark found support in our decision in Pears v. State. 

68 

In Pears we analyzed whether sentences imposed for vehicular homicide under the 

newly expanded second-degree murder statute should be compared to previous seconddegree murder sentences or to previous manslaughter sentences involving reckless 

driving.69 We decided that “a comparison with prior manslaughter sentences [was] 

appropriate.”70 But Pears had a unique historical context. The Alaska legislature had 

recently redefined second-degree murder to include conduct that showed “an extreme 

66 Gustafson v. State, 854 P.2d 751, 754 (Alaska App. 1993) (affirming 65­

year sentence); Phillips, 70 P.3d at 1143 (vacating 99-year sentence and remanding for 

resentencing); Felber v. State, 243 P.3d 1007, 1011, 1014 (Alaska App. 2010) (affirming 

40-year sentence with 15 years suspended). 

67 Graham v. State, 440 P.3d 309, 320-21 (Alaska App. 2019) (emphasis 

added). 

68 698 P.2d 1198, 1203 (Alaska 1985); see McPherson v. State, 800 P.2d 928, 

933 (Alaska App. 1990) (Bryner, C.J., dissenting) (noting holding of Pears that “the 

differences in conduct between traditional second-degree murder cases and cases 

involving drunken driving homicides were sufficient to preclude application of the same 

benchmark in both types of cases”), rev’d in part, McPherson v. State, 855 P.2d 420 

(Alaska 1993). 

69 Pears, 698 P.2d at 1201-02. 

70 Id. at 1202. 

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indifference to the value of human life”;71 for the first time, this allowed accidental but 

reckless homicides to be prosecuted as second-degree murder.72 The defendant in Pears 

was “the first person in this state to be convicted of murder for an accidental motor 

vehicle homicide.”73 This meant that the only second-degree murder sentences we had 

previously reviewed on appeal involved conduct with a specific intent to kill.74 To find 

cases involving comparable conduct for sentencing purposes, therefore, we had to look 

to manslaughter convictions (which involvedaless culpablelevel ofintent —“conscious 

disregard of a substantial and unjustifiable risk” as opposed to “extreme indifference to 

the value of human life”).75 We limited Pears six years after deciding it; we wrote that 

its holding “was based upon the particular facts before us therein, and . . . attempts to 

extend either the holding or the dicta of the Pears decision beyond the facts of that case 

would be in error.”76 

The historical vacuum on which Pears turned has since been filled with 

over 35 more years of sentencing for vehicular homicides — some charged as 

manslaughter but others as second-degree murder. Although a vehicular homicide could 

not be a typical second-degree murder when Page and Pears were decided, the calculus 

has changed. “Benchmarks must be based on ‘past sentencing decisions dealing with 

71 AS 11.41.110(a)(2); ch. 166, § 3, SLA 1978. 

72 Pears, 698 P.2d at 1201 n.5. 

73 Id. 

74 Id. at 1202. 

75 Id. at 1201 n.5, 1202-03; see also id. at 1205 (Compton, J., dissenting) 

(contending that comparisons between the two standards are not useful because of their 

qualitative differences). 

76 State v. Wentz, 805 P.2d 962, 966 n.5 (Alaska 1991). 

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similarly situated offenders.’ ”77 Similarly situated offenders are those convicted of the 

same crime. The range of sentences for manslaughter should no longer be used to define 

the appropriate rangeofsentences for acrimethe legislature has decided amounts instead 

to second-degree murder. 

The legislative prerogative bears emphasis. “In general, the comparative 

gravity of offenses and their classification and resultant punishments [are] for legislative 

determination.”78 As the court of appeals has observed, “It is well established that all of 

the categories of conduct classified within a single statutory provision must, in the 

abstract, be presumed equally serious; differences in seriousness between similarly 

classified offenses must thus be evaluated on a case-by-case basis.”79 When the 

legislature expanded the definition of second-degree murder in 1978 to include instances 

when “the person knowingly engages in conduct that results in the death of another 

person under circumstances manifesting an extreme indifference to the value of human 

life,”80 it reflected a legislative judgment that this sort of unintentional assaultive conduct 

bears a level of culpability similar to that of other offenses within the ambit of the same 

statute. A sentencing court therefore does not err if it begins its analysis by assuming 

that all second-degree murders — including vehicular homicides committed under 

“circumstances manifesting an extreme indifference to the value of human life” — are 

77 State v. McPherson, 855 P.2d 420, 422 n.3 (Alaska 1993) (quoting 

McPherson v. State, 800 P.2d 928, 933 (Alaska App. 1990) (Bryner, C.J., dissenting)). 

78 Alex v. State, 484 P.2d 677, 685 (Alaska 1971); see also Leuch v. State, 633 

P.2d 1006, 1012-13 (Alaska 1981) (“[J]udgments as to the extent to which the 

community condemns a particular offense are more properly made in the legislative area 

than by the judiciary.”). 

79 State v. Jackson, 776 P.2d 320, 328 (Alaska App. 1989). 

80 AS 11.41.110(a)(2); ch. 166, § 3, SLA 1978. 

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“equally serious” and fall within the same benchmark range. From this starting point, 

thedefendant’s mental state —whether thesecond-degreemurder involved intentionally 

assaultive conduct —may compel movement up or down within the statutory sentencing 

range.81 But as a starting point, the superior court’s reliance on the Page benchmark 

range in this case was not error.82 

Benchmarks “are not to be used as inflexible rules but rather as historicallybased starting points for analysis in individual cases.”83 And we necessarily agree with 

the court of appeals that “[t]o insure against unjustified sentencing disparity,” this 

analysis “must take into account the sentences imposed in comparable cases. Past 

sentencing decisions ‘supply an historical record of sentencing practices for specific 

types of cases’ — a record that can ‘provide realistic, experientially based sentencing 

norms for guidance in future cases.’ ”84 

The superior court observed that although there were many cases for 

comparison purposes, “there’s never been one yet . . . for which a 20-year sentence for 

81 See State v. Hodari, 996 P.2d 1230, 1234-36 (Alaska 2000) (explaining 

why benchmarks are “starting points” rather than “rigid rules which ‘can only be 

deviated from when certain specific, limited exceptions are established’ ” (quoting 

Williams v. State, 809 P.2d 931, 933 (Alaska App. 1991))). 

82 The superior court explained, “[T]he court decisions that control my 

decision making say that you should start with 20 to 30 years as the norm. That’s your 

basis, and then you go down or up from there.” 

83 Hodari, 996 P.2d at 1237. 

84 Graham v. State, 440 P.3d 309, 313 (Alaska App. 2019) (quoting Pusich 

v. State, 907 P.2d 29, 35 (Alaska App. 1995)); see also State v. Bumpus, 820 P.2d 298, 

305 (Alaska 1991) (“Although ‘permissible range of reasonable sentences’ has never 

been precisely defined, it is obviously a function in any particular case of such 

consideration[s] as thepresence of aggravating factors, the psychological make-up of the 

defendant, the need for isolation, and the sentences imposed in comparable cases.”). 

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second-degree murder for someone who wasn’t using their vehicle deliberately as a 

weapon has been approved by [an] appellate court.” The court continued: “In fact, the 

ones that have been approved, the norm is quite a bit less than 20 years.” The court 

discussed one case for comparison purposes: Phillips v. State, in which the court of 

appeals approved a composite sentence of 20 years for a defendant convicted of one 

second-degree murder as well as “first-degree assault, driving under the influence, 

driving with a revoked license, and reckless driving.”85 The superior court 

acknowledged that the murder component of the composite sentence in Phillips “was 

obviously less than 20 years,” and, further, that a comparison favored Graham in some 

respects but not others; in short, the case was not particularly useful as a guide. 

In addition, Phillips involved one death, not two. In the superior court’s 

view, the starting point within the benchmark range “would have to be for each count 

because it would be nonsensical to have the benchmark remain at 20 to 30 years when 

there are multiple victims.” The court was correct that a sentence must take into account 

the number of victims. As the court of appeals explained in Pusich v. State, 

86 following 

our decision in Dunlop v. State, 

87 a vehicular homicide with two victims justifies two 

separatehomicideconvictions and acorrespondinglyincreasedsentence: “After Dunlop, 

in the context of determining the proper sentence for vehicular homicide, the act of 

killing several people and injuring others can no longer be deemed ‘generally 

85 No. A-11269, 2014 WL 6608927, *6 (Alaska App. Nov. 14, 2014) 

(unpublished). The court also mentioned a sentencing it had participated in a few months 

earlier, involving one death and injury to four other people and resulting in an 18-year 

sentence, including “15 years for the murder.” 

86 907 P.2d 29. 

87 721 P.2d 604 (Alaska 1986). 

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comparable’ to [the] act of killing one person”; the number of victims necessarily goes 

to “the seriousness of the consequences of the defendant’s actions.”88 

We recognize that the superior court in this case was deciding a sentence 

not only bounded by statute and case law but also guided by the parties’ agreement that 

an appropriate sentence was 13 to 20 years per count, to be served consecutively, with 

an “agreed upon range [of] 26 to 40 years.” The sentence given was near the middle of 

the agreed range and consistent with the Page benchmark. We conclude, therefore, that 

the superior court did not err in this aspect of its analysis. 

B	 The Superior Court Appropriately Relied On An Aggravating Factor, . 

General Deterrence, And Community CondemnationTo IncreaseThe 

Sentence. 

Having determined that Graham was given “an extraordinarily severe 

sentence,” the court of appeals attributed the excessiveness in part to the superior court’s 

improper reliance on an aggravator — for conduct endangering three or more 

persons — and its misapplication of the Chaney factors of general deterrence and 

community condemnation.89 While we agree that the sentence must be reconsidered on 

remand, we do not agree that the superior court erred in its consideration of the 

aggravator, nor do we agree that the superior court’s remarks showed an improper 

reliance on the two Chaney factors. 

1.	 The superior court did not err in applying the “risk to three or 

more persons” aggravator. 

The aggravating and mitigating factors codified in AS 12.55.155(c) and 

(d) do not apply to sentencings for first- or second-degree murder, but the factors may 

be considered “by analogy in murder sentencings as points of reference when the parties 

88 Pusich, 907 P.2d at 36. 

89 Graham, 440 P.3d at 321-27. 

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argue how a particular defendant’s crime should be viewed in comparison to a typical 

murder.”90 The superior court accordingly applied the aggravator for conduct that 

“created a risk of imminent physical injury to three or more persons,” which the court 

of appeals decided was error.91 According to the court of appeals, “[a]lthough 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 fromthe typical drunk-driving homicide.”92 The 

court quoted our decision in Jeffries v. State: “[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.’ ”93 

In Jeffries, however, we were deciding not whether the driver’s conduct 

justified an aggravator, but rather whether the evidence supported a conviction of 

second-degree murder under AS 11.41.110(a)(2), which requires proof of “extreme 

indifference to the value of human life.”94 We observed that “the question whether an 

actor’s conduct demonstrates extreme indifference to the value of human life is primarily 

90 Allen v. State, 56 P.3d 683, 684 (Alaska App. 2002); see Hinson v. State, 

199 P.3d 1166, 1172 (Alaska App. 2008) (Because “second-degree murder is an 

unclassified felony to which presumptive sentencing does not apply[,] aggravating 

factors apply only by analogy.”); AS 11.41.110(b) (“Murder in the second degree is an 

unclassified felony and is punishable as provided in AS 12.55.”). 

91 Graham, 440 P.3d at 321 (quoting AS 12.55.155(c)(6)). 

92 Id. 

93 Id. (alterations in original) (q

(Alaska 2007)). 

94 Jeffries, 169 P.3d at 915-24. 

uoting Jeffries v. State, 169 P.3d 913, 918 

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one for the factfinder,”95 specifically rejecting the argument that “prolonged driving 

misconduct over an extended period of time [was] inherently necessary for an extremeindifference murder conviction.”96 Accordingly, in thequotationfromJeffries excerpted 

by the court of appeals, we were not making an observation about drunk drivers 

generally, but rather describing the defendant Jeffries, who the evidence showed was so 

extremely intoxicated “that he was literally ‘blind’ drunk to oncoming cars, not merely 

distracted or somewhat slowed down.”97 That is why, as a factual matter, he posed such 

“a grave danger at every intersection.”98 

Jeffries thus does not support a conclusion that a drunk-driving homicide 

may not be viewed as more serious under the “risk to three or more persons” aggravator 

because such a risk is inherent in the crime as defined. A drunk driver who runs a red 

light and kills another person may be charged with second-degree murder even in the 

absence of evidence that thedefendant wasdriving recklessly beforereaching that fateful 

intersection. Here, in contrast, the superior court found that “[a] number of people 

observed [Graham] lose control,” describing him as “fishtailing or drifting . . . at least 

three times before the collision.” Witnesses described Graham as “either tailgating or 

engaged in dangerous passing,” “nearly collid[ing] with another vehicle,” and “honking 

at slower vehicles” — conduct one witness described as “road rage.” The court 

concluded that Graham’s conduct was “far more serious . . . than merely running a red 

light,” “add[ing] up to aggressive driving, extremely reckless driving behavior.” 

95 Id. at 917. 

96 Id. at 918. 

97 Id. 

98 Id. 

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When deciding whether an aggravating factor applies, a court must 

(1) make a factual finding assessing the nature of the defendant’s conduct, and 

(2) determine as a legal matter whether that conduct falls within the statutory standard.99 

“Once the sentencing court has concluded that the facts bring the case within the 

aggravator’s literal language,” it is then a matter for the court’s discretion to determine 

how much weight the aggravator should have.100 

Graham does not challenge the superior court’s factual findings; as the 

court of appeals acknowledged, it is undisputed that Graham’s conduct “created a risk 

of injury to three or more people.”101 And we disagree with the court of appeals’ 

conclusion that the type of conduct Graham exhibited — “aggressive driving” involving 

tailgating and a number of near collisions, described by at least one witness as “road 

rage” — is typical of a drunk driving homicide, which may as easily result from a drunk 

driver’s failed attempt to drive normally. In Jeffries we rejected the defendant’s 

argument that second-degree murder convictions required “prolonged driving 

misconduct over an extended period of time” to satisfy the statutory standard of “extreme 

indifference.”102 We cited two cases in which intoxicated drivers were convicted of 

second-degree murder after crossing the center line and, as in this case, killing two 

people; we noted that “neither case involved prolonged or overtly ‘egregious’ driving 

misconduct apart from erratic driving resulting from each defendant’s severe 

99 Michael v. State, 115 P.3d 517, 519 (Alaska 2005). 

100 State v. Tofelogo, 444 P.3d 151, 158 (Alaska 2019). 

101 Graham v. State, 440 P.3d 309, 321 (Alaska App. 2019). 

102 Jeffries, 169 P.3d at 918. 

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intoxication.”103 

Weconcludethat thesuperior court’s findingsregardingGraham’s conduct 

are not clearly mistaken and that it did not err when it decided that his conduct was more 

serious because it “created a risk of imminent physical injury to three or more persons.” 

2.	 The superior court did not abuse its discretion in applying the 

Chaney sentencing factor of deterrence. 

By statute, a sentencing court is required to consider “the effect of the 

sentence to be imposed in deterring the defendant or other members of society from 

future criminal conduct.”104 The superior court in this case concluded that the goal of 

specific deterrence had already been met; Graham was “likely to take very seriously, for 

the rest of his life, the act of drinking and driving.” But the court also recognized the 

importance of general deterrence and the effect a long sentence could have on others 

when considering whether to get behind the wheel, as well as the friends and family 

members who might dissuade them from doing so. The court recognized that “we never 

get the deterrent effect we hope to get but any deterrent effect is an improvement over 

the situation, and . . . we’re likely to get some.” 

The court of appeals concluded that it was error for the superior court to 

rely on this factor to justify an “extraordinarily severe” sentence despite having “no 

verified reason to believe that imposing such a sentence . . . will achieve the societal goal 

of preventing drunk-driving.”105 The court of appeals acknowledged the historical 

assumption by both legislatures and courts “that statutory penalty ranges and judicial 

103 Id. (citing Richardson v. State, 47 P.3d 660, 661 (Alaska App. 2002); 

Puzewicz v. State, 856 P.2d 1178, 1179 (Alaska App. 1993)). 

104	 AS 12.55.005(5). 

105	 Graham, 440 P.3d at 327. 

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sentencing decisions do make a difference — not just for the individual defendant, but 

for the community as a whole.”106 But it further observed that “there are limits to what 

sentencing judges can hope to achieve in terms of deterring others from committing 

similar crimes,” and that whether longer sentences have a greater deterrent effect is 

essentially unknowable.107 The court of appeals cited the testimony of Chief Mew to 

show that drunk driving arrests had increased in the years leading up to Graham’s crime 

despite no significant change in sentencing standards, and it cited statistics compiled by 

state and federal agencies to show that Graham’s “unprecedentedly harsh sentence” had 

not had any apparent impact on drunk-driving fatalities in the four years since his 

sentencing.108 With this background, the court queried “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. . . . If not, 

then the added years in Graham’s case simply create an unjustified disparity in 

sentencing.”109 

We disagree with this analysis in several respects. First, the superior court 

clearly did not expect that the sentence it imposed would “put a stop to drunk-driving 

homicides”; it never implied such an unrealistic goal. The superior court said that “we 

never get the deterrent effect we hope to get but any deterrent effect is an improvement,” 

and “I think we’re likely to get some.” And the court of appeals’ statistical analysis 

purporting to show that Graham’s sentence had no generally deterrent effect is 

106 Id. at 324 (emphasis in original).
 

107 Id. at 325.
 

108 Id. at 325-26.
 

109 Id. at 326.
 

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unconvincing. The court points to increases in drunk-driving arrests since 2015,110 but 

whether that number reflects more drunk driving, stricter enforcement, or some 

combination of factors is open to question. And the numbers of Alaska’s drunk-drivingrelated homicides, varying from 15 in 2013 to 30 in 2016 and back down to 22 in 2017, 

are too small a set to prove much of anything statistically. 

We acknowledge the debate about whether increased sentences actually 

have a greater deterrent effect.111 But the legislature requires sentencing courts to 

consider “the effect of the sentence to be imposed in deterring . . . other members of 

society from future criminal conduct,”112 and our case law has long viewed general 

deterrence as an especially important consideration in drunk-driving cases.113 A 

110 Id. 

111 See Michael Tonry, The Functions of Sentencing and Sentencing Reform, 

58 STAN.L.REV. 37, 52 (2005) (concluding that “increases in severity of punishment do 

not yield significant (if any) marginal deterrent effects”); Anthony N. Doob, Cheryl 

Marie Webster, Sentence Severity and Crime: Accepting the Null Hypothesis, 30 CRIME 

& JUST. 143, 143 (2003) (concluding that “sentence severity has no effect on the level 

of crime in society”); cf. Daniel S. Nagin, Criminal Deterrence Research at the Outset 

of the Twenty-First Century, 23 CRIME & JUST. 1, 36 (1998) (expressing “confiden[ce] 

. . . that our legal enforcement apparatus exerts a substantial deterrent effect” but 

acknowledging gaps in empirical understanding); Raymond Paternoster, How Much Do 

We Really KnowAbout Criminal Deterrence?, 100 J.CRIM.L. & CRIMINOLOGY 765, 765 

(2010) (concluding that there is a “marginal deterrent effect for legal sanctions” but 

acknowledging “agreatasymmetry between what is expectedofthelegal systemthrough 

deterrence and what the system delivers”). 

112 AS 12.55.005(5). 

113 See Godwin v. State, 554 P.2d 453, 455 (Alaska 1976) (“In any case 

involving loss of life, . . . and particularly in an offense involving driving while under the 

influence of alcohol, major considerations are the goals of deterrence of other members 

of the community and community condemnation of the offender and the offense so as 

(continued...) 

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sentencing judge has broad discretion in determining the priority and relative weights of 

the sentencing goals.114 We do not believe the court abused its discretion by giving some 

weight to this statutory goal. 

3.	 The superior court did not abuse its discretion in its 

consideration of the Chaney sentencing factor of community 

condemnation. 

The superior court also emphasized another Chaney factor: “the effect of 

the sentence to be imposed as a community condemnation of the criminal act and as a 

reaffirmation ofsocietal norms.”115 Thecourtobservedthat“[c]ommunity condemnation 

is especially high for drunk driving now” and “even higher” in this case involving “two 

innocent young girls [who] were essentially smashed to death.” But the court saw 

societal norms as something of a counterbalance, noting “the principle that our penal 

system exists for the purpose of reforming criminal behavior when that’s possible to 

do. . . . [R]ehabilitation does . . . remain an important sentencing goal in this case.” 

The court of appeals concluded that the superior court misinterpreted the 

community condemnation factor, improperly infusing it with “raw emotion and notions 

of retribution.”116 The court of appeals explained that community condemnation is not 

“just a polite term for retribution — the concept of making defendants ‘pay’ for their 

113 (...continued) 

to reaffirm societal norms and to maintain respect for those norms.”); Clemans v. State, 

680 P.2d 1179, 1189-90 (Alaska App. 1984) (“Both the supreme court and this court 

have consistently underscored the seriousness of homicides committed by drunken 

drivers” and “have repeatedly held that deterrence of others and reaffirmation of societal 

norms should be given a prominent role in sentencing.”). 

114	 State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970). 

115	 AS 12.55.005(6). 

116	 Graham v. State, 440 P.3d 309, 324 (Alaska App. 2019). 

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crimes,” but rather “reflects society’s expectations that legal and moral norms will be 

upheld.”117 The factor should not be used “to give voice to the community’s outrage at 

a particular defendant or at a particularly disturbing crime,” or as a justification for a 

sentencing judge’s “one-person re-assessment of the range of penalties that should apply 

to the defendant’s crime.”118 Concluding that Judge Saxby had misused the factor in 

these ways, the court of appeals pointed to his statements that “[p]eople are right when 

they say [that drunk-driving homicide] just has to stop” and that he could “be a voice” 

for the community by imposing a severe sentence.119 

We disagree with the court of appeals’ reading of the superior court’s 

remarks about community condemnation, which we believe takes them out of context. 

The court’s remarks that it could “be a voice” for the community in saying that drunk 

driving “has to stop” are consistent with our own admonition that “[t]he unique nature 

of [drunk driving related homicide] mandates that the trial court, in fashioning a 

sentence, place heavy emphasis on societal condemnation of the conduct.”120 And 

moments after this remark the court expressly recognized the mitigating nature of other 

societal norms, particularly “the principle that our penal system exists for the purpose of 

reforming criminal behavior, when that’s possible to do”; the court had already 

acknowledged that Graham had “good potential for rehabilitation.” And ultimately, 

while rendering a sentence that it believed to be “the highest sentence rendered in Alaska 

history for conduct of this type,” it also recognized that it was bound by the principle that 

117 Id. at 323.
 

118 Id.
 

119 Id. at 324 (second alteration in original). 

120 Sandvik v. State, 564 P.2d 20, 25 (Alaska 1977) (quoting Layland v. State, 

549 P.2d 1182, 1184 (Alaska 1976)). 

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it was “supposed to be rendering the lowest sentence that meets all of the sentencing 

goals.” 

In sum, we cannot say that the superior court abused its discretion when 

weighing the sentencing factors. 

C.	 It Was An Abuse Of Discretion To Allow Police Witnesses To Testify 

As Victim Representatives. 

The State challenges the court of appeals’ conclusion that the superior 

court’s handling of evidence at the sentencing, along with comments the superior court 

made at that time, require Judge Saxby’s recusal on remand. Though we do not agree 

that the case needs to be reassigned for resentencing, we agree that there were 

evidentiary errors, as explained below. 

1.	 The victim’s rights statute does not authorize the police officers 

to speak on behalf of the victims. 

The Alaska Constitution guarantees the rights of crime victims to be heard 

at sentencing.121 The legislature has defined “victim” for these purposes as “a person 

against whom an offense has been perpetrated.”122 In a homicide case victims include 

“(i) a person living in a spousal relationship with the deceased before the deceased died; 

(ii) an adult child, parent, brother, sister, grandparent, or grandchild of the deceased; or 

(iii) any other interested person, as may be designated by a person having authority in 

law to do so.”123 The legislature has prescribed the process by which a victim’s rights 

at sentencing are protected: “A victim may submit to the sentencing court a written 

121 Alaska Const. art I, § 24; see also AS 12.61.010(a)(9); AS 12.55.023(b) 

(providing victim the right to give sworn testimony or make an unsworn oral 

presentation at sentencing). 

122	 AS 12.55.185(19)(A). 

123	 AS 12.55.185(19)(C). 

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statement that the victim believes is relevant to the sentencing decision and may give 

sworn testimony or make an unsworn oral presentation to the court at the sentencing 

hearing.”124 In cases involving felonies and certain types of misdemeanors, “when the 

victim does not submit a statement, give testimony, or make an oral presentation, the 

victims’ advocate may submit a written statement or make an oral presentation at the 

sentencing hearing on behalf of the victim.”125 

At the beginning of Graham’s sentencing hearing, the State informed the 

superior court of its intent to present the testimony of Chief Mew and Sergeant 

McKinnon of the Anchorage Police Department. The prosecutor explained that Chief 

Mew “had been asked by the families to provide a brief statement” and would talk about 

“the impact of DUI murders and DUI manslaughters on the rank and file of the 

Anchorage Police Department.” Sergeant McKinnon would speak “for himself and . . . 

for the other officers who have given, over the years, the victim notifications to families 

of the dead.” Over a defense objection, the court allowed the testimony, reasoning that 

the victims’ families were “allowed to have representatives speak on their behalf.” 

Sergeant McKinnon testified about going to the scene of the accident and 

later notifying the families that the two girls were dead. He testified that the experience 

was “the single-most difficult” in his life; that he struggled for the strength to carry out 

the duty of “delivering the worst possible news to these parents”; that he “can still hear 

the unique sounds and wails from that day”; and that he “could not sleep for weeks” 

afterward. Chief Mew testified that he could not “add a single word to” the stories of the 

families or the effect the deaths had on them; instead, he talked about the impact of drunk 

driving generally and the rise of drinking-related accidents. He told the court that drivers 

124 AS 12.55.023(b). 

125 Id. 

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would make decisions based on the outcome of Graham’s case and asked the court to 

impose a sentence “severe enough” to prevent future drunk-driving fatalities. 

We do not exclude the possibility that police officers’ testimony may be 

relevant at sentencings. But these officers’ testimony was not relevant as victim impact 

evidence, and we agree with the court of appeals that it was not admissible on the ground 

articulated by the superior court: that the victims’ families had authorized the officers 

to “speak on their behalf.”126 

Victims are not parties to a criminal prosecution; they do not have the right 

to call witnesses.127 Victims’ right to be heard at sentencing and to have a victim’s 

advocate speak for them if they cannot speak are not grants of speaking privileges to 

members of the public at large, even if asked to speak by the victims themselves. Alaska 

Statute 12.55.023(b) allows the victim’s advocate to speak on victims’ behalf only when 

the victims themselves do not “submit a statement, give testimony, or make an oral 

presentation.” Here the victims presented testimony and other victim-impact evidence, 

and the statutory authorization for a designated spokesperson does not apply. 

Victim testimony at sentencing has a legitimate constitutional purpose: to 

remind the sentencing authority that “the victim is an individual whose death represents 

a unique loss to society and in particular to his family.”128 Sergeant McKinnon gave 

126 See Graham v. State, 440 P.3d 309, 328 (Alaska App. 2019) (noting “the 

mistaken rationale that these statements qualified as ‘victim impact’ statements under 

AS 12.55.023(b)”). 

127 See Cooper v. District Court, 133 P.3d 692, 697-99, 709 (Alaska App. 

2006) (tracing evolution of criminal law from individual pursuit of redress to societal 

pursuit of justice, and noting legislature’s purposeful failure to make victims parties to 

criminal cases with right to appeal sentencing decisions). 

128 Payne v. Tennessee, 501 U.S. 808, 825 (1991) (quoting Booth v. Maryland, 

(continued...) 

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testimony for himself and other officers who performed the difficult duty of notifying 

families of a loved one’s death. Chief Mew’s testimony began with an admission that 

he could not speak on behalf of the deceased victims or their families; he used his 

testimony to appeal for a sentence that would make Graham an example to deter other 

similar crimes in the future. The police officers’ testimony did not serve the allowable 

constitutional purpose of humanizing the victims or describing the impact of their loss 

on their families, and it should not have been admitted as victim impact evidence. 

D.	 It Was An Abuse Of Discretion To Admit The Tribute Videos Without 

First Reviewing Them For Relevance And Prejudicial Impact. 

The superior court interpreted Graham’s objection to the two victim tribute 

videos as an objection to the audio-visual format; it concluded that there was no public 

policy basis for limiting victims to live testimony, as visual presentations “are routinely 

made in courts every day.” Graham then clarified his objection as not based on public 

policy but rather on the lack of statutory authority. The judge permitted the videos to be 

played over the objection. 

The court of appeals discussed the tribute videos extensively, deciding that 

they crossed some line of admissibility and supported the conclusion that the case should 

be reassigned on remand to a judge who had not allowed himself to be swayed by “an 

hours-long drumbeat of grief and outrage.”129 The court of appeals did not, however, 

128 (...continued) 

482 U.S. 496, 517 (1987) (White, J., dissenting)); id. (“Victimimpact evidence is simply 

another form or method of informing the sentencing authority about the specific harm 

caused by the crime in question.”). 

129 Graham, 440 P.3d at 314-15 n.4 (describing content of videos); id. at 328 

(stating that “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”). 

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elaborate on the appropriate standards for the admission of such evidence or instruct the 

superior court how to consider it on remand. But the parties have briefed the issue 

thoroughly and well on this petition. Like the court of appeals, we have viewed the 

videos in their entirety, but we do not decide whether they were admissible in whole or 

in part. Rather, we conclude that it was an abuse of discretion to allow them to be played 

at sentencing without firstpreviewing themandeditingthem, asnecessary, for relevance, 

cumulativeness, and prejudicial effect. This is consistent with the goal of avoiding 

sentencing disparities that may be attributed to the community’s attachment to, and 

affection for, the particular victims of a crime. Recognizing that there can be no brightline rules for the admissibility of victim tribute evidence, we highlight the concerns that 

should factor into a sentencing court’s analysis.130 

In Payne v. Tennessee, the United States Supreme Court held that the only 

constitutional limitation on the presentation of this type of evidence is the Fourteenth 

Amendment’s Due Process Clause, which requires only that victim impact evidence not 

be “so unduly prejudicial that it renders the trial fundamentally unfair.”131 The Court 

identified two purposes of victim impact evidence that would ordinarily satisfy this test: 

showing the“victim’s uniqueness asan individual human being”and showing theimpact 

the victim’s death had on the community.132 Within these constitutional parameters, the 

130 Neither party disputes that victim impact evidence in video form is 

admissible as an “unsworn oral presentation” under AS 12.55.023(b). We therefore 

assume for purposes of discussion that video presentations are authorized by the 

sentencing statutes. 

131 501 U.S. at 825. 

132 Id. at 823-25. 

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Court left the states free to set their own rules governing the use of victim impact 

evidence in criminal sentencings.133 

Since then, state courts considering the admissibility of victim tribute 

videos, like those at issue here, have usually relied on the two acceptable aims of victim 

impact evidence articulated in Payne —demonstrating thevictim’s uniquehumanity and 

the impact of the victim’s death on the community. In People v. Brady, involving the 

murder of a police officer, the California Supreme Court considered the admissibility of 

a variety of victim impact evidence, including two videos.134 The court first commented 

on the videos’ length, cautioning courts against admitting “lengthy” videos but noting 

that those at issue — totaling approximately 10 minutes — were shorter than some the 

court had approved in other cases.135 

Thefirstvideo showed thevictimcelebrating Christmas withhis family just 

a few days before his death.136 The court found no abuse of discretion in its admission, 

explaining: 

This videotape depicted a rather ordinary event — a family 

holiday celebration. It is a brief “home movie” that depicted 

real events; it was not enhanced by narration, background 

music, or visual techniques designed to generate emotion; 

and it did not convey outrage or call for vengeance or 

sympathy. . . . [I]t humanized [the officer] and provided 

133 Id. at 825.
 

134 236 P.3d 312, 320, 334 (Cal. 2010).
 

135 Id. at 337-39.
 

136 Id. at 337-38.
 

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some sense of the loss suffered by his family, and it 

supplemented but did not duplicate their testimony.[137] 

The second video showed portions of the officer’s memorial and funeral 

services, including images of the flag-draped casket, the police honor guard, and 

mourning family members.138 The footage was shot by a television station but “not 

professionally edited”; the only audio was the sounds of the rifle salute, a bagpiper 

marching in the procession, and “brief periods of church bells tolling and a woman 

singing.”139 The court again highlighted the considerations that favored the video’s 

admissibility, beginning with its brevity, at six minutes.140 It was also significant that the 

video 

did not include images of [the officer] as a child, was not a 

eulogy (as all actual eulogies from the ceremony were edited 

out), was not enhanced by narration or visual imagery, and 

was not accompanied by an extensive audio track playing 

sentimental music. Although the videotape was prepared for 

the penalty phase, it depicted actual events and was not of 

professional quality.[141] 

The court observed that certain aspects of the video — “[t]he flag ceremony, the rifle 

salute, and the bagpipes [—] were not particularly relevant to the effect of [the officer’s] 

murder on his family and friends, and tended to produce an emotional response from the 

137 Id. 

138 Id. at 338. 

139 Id. 

140 Id. at 339. 

141 Id. 

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viewer.”142 But “[e]motional evidence of how a community mourns the loss of a beloved 

citizen . . . does not necessarily violate the federal or the state Constitution”; victim 

impact evidence need not merely imply “loss, grief, and anguish; it may also demonstrate 

it.”143 Admission of this video, too, was not an abuse of discretion. 

In People v. Prince, the California Supreme Court approved the admission 

at sentencing of a 25-minute interview of one of the defendant’s victims, taped by her 

hometown television station a few months before her murder.144 The interview 

highlighted the young woman’s high school accomplishments and plans for college and 

career.145 The court recognized the power of victim impact evidence: “Particularly if the 

presentation lasts beyond a few moments, or emphasizes the childhood of an adult 

victim, or is accompanied by stirring music, the medium itself may assist in creating an 

emotional impact upon the jury that goes beyond what the jury might experience” from 

other types of evidence.146 Noting the absence of “bright-line rules by which to 

determine when such evidence may . . . be used,” the court acknowledged the “general 

understanding” that victim impact evidence could appropriately be used to remind the 

judge or jury that “the victim[was] an individual whose death represent[ed] a unique loss 

to society.”147 The taped interview satisfied these flexible standards: it was not “an 

emotional memorial tribute to the victim,” accompanied by an emotional musical 

142 Id.
 

143 Id.
 

144 156 P.3d 1015, 1038 (Cal. 2007).
 

145 Id.
 

146 Id. at 1093.
 

147 Id. at 1092 (quoting Payne v. Tennessee, 501 U.S. 808, 825 (1991)).
 

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soundtrack, or focused on her childhood, and in sum “was not of the nature to stir strong 

emotions that might overcome the restraints of reason.”148 

In State v. Addison, the New Hampshire Supreme Court allowed the use of 

three short video clips, totaling less than three minutes in length, and 36 family 

photographs of a slain police officer that included some from his infancy and 

childhood.149 After determining that the state sentencing statute allowed this type of 

evidence, the court held that the evidence was also constitutionally permissible under 

Payne, as it followed the twin aims laid out by the Supreme Court.150 The court affirmed 

the trial court’s conclusion that evidence of the victim as a child was relevant to convey 

the magnitude of the loss to the victim’s family.151 The videos of the victim with his 

children were short and “very relevant to the harm done to these boys by not having their 

father any longer.”152 

The New Jersey Supreme Court reached a different conclusion in State v. 

Hess, disapproving the admission of a 17-minute tribute video at the sentencing for the 

murder of a police officer.153 The video included childhood photos, pictures of the 

officer’s gravestone, television coverage of his funeral, and poems, all “scored to 

148 Id. at 1093.
 

149 87 A.3d 1, 105-106, 111-12, 115 (N.H. 2013).
 

150 Id. at 115.
 

151 Id. at 114.
 

152 Id. 

153 23 A.3d 373, 381 (N.J. 2011). 

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popular, holiday, country, religious, and military music.”154 The court concluded that the 

video did “not project anything meaningful about the victim’s life as it related to his 

family and others at the time of his death” but rather tended to provoke an emotional 

response and should have been significantly redacted.155 

In Salazar v. State, the Texas Court of Criminal Appeals reviewed the 

admissibility of a 17-minute tribute video featuring over 140 photographs of the victim 

set to emotional music.156 The court held that the video should have been excluded, 

though relatives’ testimony about the victim, and photographs of him from around the 

time of his death, were probative and admissible.157 The court concluded that the video 

was of low probative value because half the photographs were of the adult victim as a 

child; the court observed that the crime “extinguished [the victim’s] future, not his past,” 

and that childhood photos may be particularly prejudicial because they imply a crime 

against the “angelic infant.”158 The risk of prejudice was heightened by the “sheer 

volume” of photographs.159 The court stated the general principles that there is no 

bright-line rule for the admissibility of victim impact evidence but courts “must guard 

against the potential prejudice of ‘sheer volume,’ barely relevant evidence, and overly 

154 Id. at 393-94.
 

155 Id.
 

156 Salazar v. State, 90 S.W.3d 330, 333 (Tex. Crim. App. 2002).
 

157 Id. at 337-38.
 

158 Id. at 337.
 

159 Id. 

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emotional evidence.”160 “[B]oth defendants and juries must [] know that the homicide 

victim is not a faceless, fungible stranger. . . . [But] the punishment phase of a criminal 

trial is not a memorial service for the victim.”161 

Thesecourtsagreeon someofthefactorssentencing courts should consider 

when deciding whether a victim tribute video is consistent with the Supreme Court’s 

analysis in Payne: demonstrating the victim’s unique humanity and the impact of the 

victim’s death on the community while not undermining the defendant’s constitutional 

right to a sentencing based on a reasoned analysis of relevant information. Videos tend 

to be admissible if they are short, unedited views of the victim’s life near the time of the 

loss or of the community’s actual mourning.162 Factors weighing against admissibility 

include heavy editing, dramatizations, enhanced sound or visual effects, and a failure to 

focus on the victim at the time of the loss. Sentimental music should be used sparingly, 

as its purpose can often be to appeal to the emotions.163 

160 Id. at 336. 

161 Id. at 335-36; see also State v. Bixby, 

lding that seven-minute video of police officer’

act evidence under Payne as it “showed the

orcement officer’s funeral, demonstrating the gen

owed footage of actual mourners, displaying for 

698 S.E.2d 572, 587 (S.C. 2010) 

(ho s funeral was permissible victim 

imp traditional trappings of a law 

enf eral loss suffered by society,” and 

“sh the jury the specific impact of the 

murder on particular members of society”). 

162 People v. Brady, 236 P.3d 312, 337-39 (Cal. 2010). 

163 See Graham v. State, 440 P.3d 309, 314 & n.4 (Alaska App. 2019) (aptly 

describing video montages at issue as “the type of videos that are designed to evoke 

emotion and are commonly played at memorial services” and reciting playlist for each 

video). 

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Different jurisdictions have drawn the line of admissibility differently.164 

A common thread, however, is the necessity that the trial court review any video 

evidence before it is presented at the sentencing hearing so that the court has the 

opportunity to exclude irrelevant, cumulative, or overly prejudicial material.165 The 

sentencing judge has the duty to ensure that the defendant’s due process rights are not 

violated by the court’s consideration of evidence “so unduly prejudicial that it renders 

the trial fundamentally unfair.”166 This requires careful review of video evidence by the 

sentencing judge before the evidence is introduced at the hearing. 

We recognize that the calculus of emotional impact is different in 

jurisdictions like ours where it is the judge, not a jury, who determines the appropriate 

sentence. Our case law has long assumed that judges are able to review potentially 

prejudicial material prior to sentencing and still rule in accordance with the law, 

reasoning that “[o]ur trial judges, as a group, are more knowledgeable and experienced 

164 CompareHicks v. State, 940S.W.2d 855, 856-57 (Ark. 1997), withSalazar 

v. State, 90 S.W.3d 330, 332-33 (Tex. Crim. App. 2002) (reaching opposite conclusions 

on admissability of similar victim tribute videos). 

165 Hicks, 940 S.W.2d at 856-57 (noting that “the trial judge viewed the 

videotape before allowing it to be played to the jury, and he ruled portions of the tape 

inadmissible,” and affirming given trial judge’s “expressed and careful consideration of 

the videotape’s relevancy and purpose”); Brady, 236 P.3d at 337 (“The trial court 

properly informed its exercise of discretion by viewing the videotapes before allowing 

the jury to view them.”); People v. Prince, 156 P.3d 1015, 1093 (Cal. 2002) (“In order 

to combat th[e] strong possibility [of grave prejudice from emotional victim tributes], 

courts must strictly analyze evidence of this type.”); State v. Addison, 87 A.3d 1, 114 

(N.H. 2013) (noting with approval that trial court held hearing, reviewed proposed 

evidence, and considered specific objections before allowing photographs and video 

recordings to be presented at sentencing). 

166 Payne v. Tennessee, 501 U.S. 808, 825 (1991). 

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than is the ordinary juror in regard to homicide prosecutions.”167 But judges as well as 

jurors may be affected by the emotional tenor of a court proceeding, as the court of 

appeals recognized in this case.168 We agree with these observations of the New Jersey 

Supreme Court: 

Undoubtedly, concerns over prejudicial victim-impact 

statements, including photographs and videos, are less 

pronounced when a judge rather than a jury is imposing 

sentence. Nevertheless, judges, no less than jurors, are 

susceptible to the wide range of human emotions that may be 

affected by irrelevant and unduly prejudicial materials. We 

are fully aware that judges, who are the gatekeepers of what 

is admissible at sentencing, will have viewed materials that 

they may deem non-probative or unduly prejudicial. We 

have faith that our judges have the ability to put aside that 

which is ruled inadmissible. However, both the bar and [the] 

bench should know the general contours of what falls within 

the realm of an appropriate video of a victim’s life for 

sentencing purposes.[169] 

While recognizing judges’ human susceptibility to emotional appeals, we 

assume that a judge who reviews potentially prejudicial material well in advance of a 

public proceeding will be better able to compartmentalize the emotional response than 

167 Egelak v. State, 438 P.2d 712, 715 (Alaska 1968) (declining to “presume 

that trial judges would permit themselves to become unduly prejudiced against 

defendants by virtue of having viewed photographs such as the ones at bar” (showing 

body of spouse beaten to death by defendant)). 

168 Graham, 440 P.3d at 327-28 (observing that the victim impact statements 

were delivered “in a manner that was almost guaranteed to heighten the emotions of 

everyone in the courtroom — including the judge” and cautioning that “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”). 

169 State v. Hess, 23 A.3d 373, 392 (N.J. 2011) (citation omitted). 

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if viewing the material for the first time in open court, immediately before having to 

make a difficult sentencing decision in the public eye. In the present case the superior 

court failed to review the tributes before playing them at sentencing. It was an abuse of 

discretion to admit the videos over objection without reviewing them beforehand to 

ensure that their contents comport with the constitutional limits and the twin purposes 

of victimimpact evidence laid out in Payne. We instruct the sentencing judge on remand 

to review any video tribute evidence for relevance, prejudice, and cumulativeness under 

the guidelines laid out here. 

E.	 The Judge Did Not Abuse His Discretion By Declining To Recuse 

Himself. 

The court of appeals concluded that Judge Saxby’s admission of the 

officers’ testimony and the tribute videos required that the re-sentencing be done before 

a different judge because he had allowed himself to be exposed to overly prejudicial 

evidence.170 We disagree. 

Alaska Judicial Canon 3(E)(1) requires a judge to “disqualify himself or 

herself in a proceeding in which the judge’s impartiality might reasonably be 

questioned.” But we “will not overturn a judge’s decision [not to recuse] unless it is 

plain that a fair-minded person could not rationally come to that conclusion on the basis 

of the known facts.”171 And “a judge has an obligation not to order disqualification 

‘when there is no occasion to do so.’ ”172 

170	 Graham, 440 P.3d at 328. 

171 Amidon v. State, 604 P.2d 575, 577 (Alaska 1979) (“When the judge does 

not recuse himself, the decision should be reviewable on appeal only if it amounted to 

an abuse of discretion.”). 

172 See Grace L. v. State, Dep’t of Health &Soc. Servs., Off. of Child’s Servs., 

(continued...) 

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“A showing of actual bias in the decision rendered . . . or the appearance 

of partiality might be sufficient grounds for us to reverse in an appropriate case. Where 

only the appearance of partiality is involved, however, we will require a greater showing 

for reversal.”173 A judge’s “belief that he could be impartial deserves great deference.”174 

“A judge’s exposure to inadmissible evidence does not necessarily result in prejudice 

warranting recusal. Likewise, the fact that a judge commits error in the course of a 

proceeding does not automatically give rise to an inference of actual bias.”175 In other 

words, “[m]ere evidence that a judge has exercised his judicial discretion in a particular 

way is not sufficient to require disqualification.”176 

Judge Saxby’s evidentiary decisions do not warrant recusal from further 

proceedings. While the sentencing hearing was indeed emotionally charged, we 

regularlytrusttrialjudgesto ruleimpartially in emotionally charged proceedings; indeed, 

as our discussion of the victim tribute videos demonstrates, judges are sometimes 

required to consider such evidence carefully even if it is ultimately so prejudicial as to 

be inadmissible. And we have no reason to doubt that Judge Saxby can set aside the 

charged atmosphere of a hearing held in 2015 — now seven years ago — as he 

172 (...continued) 

329 P.3d 980, 988-89 (Alaska 2014) (quoting Amidon, 604 P.3d at 577). 

173 Perotti v. State, 806 P.2d 325, 328 (Alaska App. 1991) (alterations in 

original) (quoting Amidon, 604 P.2d at 577). 

174 Id. 

175 Id. (citations omitted). 

176 Sagersv. Sackinger, 318 P.3d 860, 867 (Alaska2014) (quoting Statev. City 

of Anchorage, 513 P.2d 1104, 1112 (Alaska 1973), overruled on other grounds by State 

v. Alex, 646 P.2d 203, 208 n.4 (Alaska 1982)). 

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reconsiders sentencing while disregarding evidence that has been determined to be 

irrelevant or unfairly prejudicial.177 

V. CONCLUSION 

We REVERSE the decision of the court of appeals. We VACATE 

Graham’s sentence and REMAND for further proceedings necessary for resentencing 

consistent with this opinion. 

177 See Grace L., 329 P.3d at 988-89 (noting that trial court judges must often 

“compartmentalize their decisions — to review evidence that is later declared to be 

inadmissable or to rule on similar legal issues at different stages of a contested case”). 

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CARNEY, Justice, both concurring and dissenting. 

I generally agree with the court’s resolution of this tragic case. The 

superior court properly considered Page, 

1 and appropriately analyzed the aggravating 

factor of endangering more than three people.2 And because any judge assigned to this 

case would be required to review the memorial videos, I agree that it is not necessary for 

the sentencing judge to be replaced on remand.3 Finally, I agree with the court that the 

superior court abused its discretion when it allowed police officers4 to testify in addition 

to the statutorily authorized victims, the girls’ parents.5 

I concur with the court’s holding that the superior court abused its 

discretion by admitting the lengthy and emotional videos “without first previewing them 

and editing them.”6 But I believe the court’s discussion of the “concerns that should 

factor into a sentencing court’s analysis” of such videos is insufficient7

 — particularly 

in light of the superior court’s stated intention to “be a voice” of the community and to 

1 Page v. State, 657 P.2d 850 (Alaska App. 1983); see also Opinion at 15-25 

(holding superior court appropriately applied Page benchmark). 

2 Opinion at 25-29. 

3 Opinion at 47-49. 

4 The superior court also permitted an attorney with the Office of Victims’ 

Rights. Although the court does not address the attorney’s testimony because the parties 

did not brief the issue, that testimony, too, clearly violates the statute. Opinion at 15 

n.35. 

5 Opinion at 34-37. 

6 Opinion at 38. 

7 Opinion at 38. 

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impose “the highest sentence rendered in Alaska history for conduct of this type.”8 

While there is no denying the overwhelming tragedy of the facts of this case or the 

horrific loss of two innocent girls, the court’s statements raise questions about the 

disproportionate impact these videos can have on sentencing courts and the potential for 

such presentations to fundamentally undermine the fairness of the criminal justice 

system.9 

Thememorial videoswereofprofessional quality, accompanied by moving 

musical soundtracks, and were supplemented by dozens of letters10 — as well as the 

erroneously permitted testimony of the chief of police, another officer, and a victims’ 

rights attorney. To compile these presentations required time, resources, and access to 

influential community members. 

This situation raises troubling questions. What if the families had limited 

means and less access to community leaders and local authorities? Would the court have 

imposed the most severe sentence in Alaskan history if the victims had come from 

impoverished families unable to create or commission professional quality videos or to 

call upon the police chief to testify? What if the victims were being raised by single 

parents unable to take time away from work to attend every hearing? What if the victims 

had been struggling in school rather than academically successful? The superior court 

asserted it was the voice of the community, but what about those segments of the 

community that have no voice? 

8 Opinion at 33 (quoting Graham v. State, 440 P.3d 309, 324 (Alaska App. 

2019)). 

9 Opinion at 32 (citing Graham, 440 P.3d at 324). 

10 SeeGraham, 440 P.3d at 314-15 n.4, 327-28 (describingcontentofvideos). 

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Today’s opinion highlights sentencing factors that seek to balance a 

“victim’s unique humanity” against a “defendant’s constitutional right” to fair 

sentencing. But our system of criminal sentencing fundamentally recognizes that every 

criminal case invokes institutional concerns as well. The fairness of any sentence must 

be considered in relation to those imposed in similar circumstances to ensure that the 

criminal justice system serves its intended purposes.11 Allowing a sentencing court to 

consider polished video presentations without first previewing and editing themto avoid 

disproportionate impacts ignores these institutional concerns and risks valuing victims 

in proportion to their access to resources and their position in the community. 

These concerns lead me to disagree with the court and conclude that the 

superior court abused its discretion when it considered the videos along with the 

improper witnesses as “community condemnation” when it fashioned Graham’s 

sentence.12 By proclaiming its intention to “ ‘be a voice’ for the community” the superior 

court demonstrated that its sentencing decision had been improperly influenced by the 

lengthy presentations designed to engender emotions.13 The court abdicated its duty “to 

provide an accessible and impartial forum for the just resolution”14 of this case and 

11 See Opinion at 13-34 (judging the fairness of Graham’s sentence in relation 

to other cases). 

12 Opinion at 33-34. 

13 See Opinion at 33, 37 n.130. 

14 Mission Statement, ALASKA COURT SYSTEM, https://courts.alaska.gov/ 

home.htm (last visited Mar. 21, 2022). 

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allowed itself to be swayed by what the court of appeals described as “an hours-long 

drumbeat of grief and outrage.”15 

Sentencing courts are obligated to carefully consider the facts and 

circumstances of each case and each offender and to guard against sentencing disparities 

“that may be attributed to the community’s attachment to, and affection for, particular 

victims of a crime.”16 That obligation was not observed here. For that reason, I 

respectfully dissent. 

15 Graham, 440 P.3d at 328 (Alaska App. 2019); Opinion at 37. 

16 Opinion at 38. 

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