Judge wrestles with Supreme Court opinion

Decision casts doubt on how to sentence offenders

By JOEL DAVIDSON-Frontiersman reporter

PALMER -- One day after the U.S. Supreme Court issued a controversial opinion restricting the power of judges to increase sentences of convicted criminals, a Palmer Superior Court judge and attorneys scrambled to make sense of the ruling during Friday's sentencing of a Palmer man convicted of sexually abusing and videotaping a 4-year-old girl and a 9-year-old girl.

Judge Eric Smith sentenced Kelly R. Carr, 38, to 14 years in prison after hearing arguments Friday from Palmer Public Defender George Davenport and Palmer Assistant District Attorney Rachel Gernat about whether the U.S. Supreme Court's Blakely v. Washington opinion applied to Carr, who had been convicted by a jury earlier this year of first-degree and second-degree sexual abuse of a minor, possession of child pornography and unlawful exploitation of a minor.

Smith decided Friday that the opinion did not apply retroactively, but on Wednesday, the judge notified attorneys in the case that Blakely could apply to cases involving people who had been convicted but not yet sentenced. Smith set another sentencing date for 2 p.m. on July 6, but did not invalidate the sentence he gave Carr on Friday.

A 5-4 majority of the U.S. Supreme Court decided June 24 in Blakely v. Washington that Ralph Howard Blakely Jr. was denied his right to a trial by jury when a Washington state judge increased his sentence from 53 months to 90 months after the judge found Blakely had acted with "deliberate cruelty." Blakely had pleaded guilty to kidnapping his estranged wife.

Since a jury did not determine that Blakely acted with deliberate cruelty, the Supreme Court ruled that the increased sentence was unconstitutional.

In the Palmer courthouse Carr waited, along with one of the victims he sexually abused, the victim's family and others on hand in the courtroom while Smith, Davenport and Gernat discussed previous case law and Alaska state law as they wrestled with how to apply the U.S. Supreme Court's decision. The high court's decision required that all factors that increase the penalty for a crime beyond the prescribed statutory maximum be submitted to a jury and proved beyond a reasonable doubt, before a judge can use them to increase someone's sentence.

The controversy in the Carr case centered on whether Smith could determine that the counts against Carr were "aggravated." If Smith no longer had the authority to determine aggravators alone, without a jury, then Smith could not increase Carr's sentence based on his criminal counts being aggravated. If Smith still had the authority to find the crimes aggravated, however, then he could increase Carr's sentence beyond the presumptive, or average, sentence for the crime.

Davenport asked Smith to postpone the sentencing a few days so he could read the Supreme Court decision and process the repercussions for Carr's case. Gernat objected, and Smith had each attorney present their cases as to whether the court should or should not continue with the sentencing.

Davenport argued that while one of Carr's victims was a 4-year-old girl, the jury did not find that the victim was "particularly vulnerable," which could be used as an aggravator. The fact that the jury may have found the girl particularly vulnerable did not give Smith the right to assume that they would, Davenport argued.

Gernat argued that Carr was convicted before the Supreme Court ruling and therefore the Blakely ruling did not apply to the Carr case.

After a five-minute recess, Smith determined that the Blakely case did not apply retroactively to the Carr case and that it was proper to move ahead with Carr's sentencing, with all the aggravators being applicable. Smith said he realized that the Alaska Court of Appeals would likely have to make a further ruling on the sentencing before the case is ultimately over.

Smith later reconsidered his decision and scheduled the July 6 sentencing hearing.

Carr had no criminal record in Alaska prior to being charged in November 2001 with the sexual abuse of the two girls. He became a quadriplegic with limited use of his arms after he was involved in a vehicle-moose collision while moving back to Palmer from Outside several years ago.

Before his sentencing Friday, Carr addressed the court.

"I have no intention or desire to go back to jail at all," Carr said. "You can construct constraints on my freedom to protect everyone in the public without sentencing me to serve such a long sentence."

Carr's final words were an apology to the victims.

"I wish I could go back and change, but I can't, so I just have to apologize," he said.

One of the victims addressed the court briefly before sitting back down, visibly distressed.

"I wish rehabilitation was possible but I don't think it will happen," she said.

Upon sentencing, Smith said Carr's case was one of the most disturbing he has ever had to sit through. At one point during the trial Smith had to view pornographic photos Carr was charged with viewing.

"These pictures made me want to scream," Smith said. "They were awful."

The abuse of the 4-year-old occurred in 2002 and the abuse of the 9-year-old began in 1997.

Carr is currently lodged at the Anchorage Jail.

Contact Joel Davidson at joel.davidson@frontiersman.com.