Palmer man sentenced -- again

PALMER -- Eleven days after sentencing a Palmer man to 14 years in prison, Palmer Superior Court Judge Eric Smith sentenced him again, Tuesday, after reconsidering how a recent U.S. Supreme Court decision affected how judges can sentence convicted criminals.

Thirty-eight-year-old Kelly Carr was 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.

Carr, who sexually abused and videotaped a 4-year-old girl and a 9-year-old girl, was first sentenced on June 25 to 29 years in prison with 14 years to serve before a chance of parole. The sentencing Tuesday resulted in the same number or years as the first, but the justifications were different.

In the first sentencing, Smith held a lengthy courtroom discussion with both the defense and prosecuting attorneys, debating whether or not a recent U.S. Supreme Court decision influenced how Carr should be sentenced. In the U.S. Supreme Court's Blakely v. Washington opinion, the court ruled with a narrow 5-4 majority 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" in the kidnapping of his estranged wife.

Since a jury did not determine that Blakely acted with deliberate cruelty, the Supreme Court ruled the increased sentence was unconstitutional stating that it denied Blakely his right to a trial by jury.

Smith originally concluded that the Blakely opinion did not apply retroactively to Carr's case, and he sentenced Carr using multiple aggravators as justification for increasing the sentence beyond the presumptive, or average, sentence for Carr's crimes. On Tuesday, Smith reversed his decision and said the Supreme Court's opinion could apply to cases such as Carr's involving people who had been convicted but not yet sentenced. In this case, Smith concluded, he could not rule that the counts against Carr were aggravated unless a jury first found them aggravated. Since the jury only found one aggravator against Carr, Smith could only use that one aggravator for his justification in the resentencing.

Originally Smith merged several of Carr's counts for sentencing purposes, but with four aggravators initially applicable, the number of years totaled 29 with 14 to serve. On Tuesday, with Smith able to use only one aggravator, "multiple events, multiple victims," he decided not to merge any of Carr's counts and to sentence them separately in order to justify giving Carr the same sentence.

Palmer Assistant District Attorney Rachel Gernat argued on Tuesday that since the sexual abuse counts against Carr were separate instances, which just happened to occur on the same day, they should not be merged. Likewise Gernat argued that each pornography count against Carr was a separate event and should be approached accordingly with separate, consecutive sentences, not merged together for a single sentence that runs concurrently.

Gernat said she did not originally argue for consecutive sentencing because the state was counting on the judge being able to use multiple aggravators in his sentencing decision. Since Smith was no longer able to use three of the four aggravators, Gernat argued for consecutive sentencing to ensure that the second sentence remained equal to the first.

Carr's attorney, Palmer Public Defender George Davenport, argued that the pornography charges were similar enough to warrant merging for sentencing purposes, and that the timeline for the sexual abuse counts was so "murky" that the counts should be merged for sentencing also.

Carr had one last opportunity to address the court before the resentencing.

"I would like to thank those who came here to support me," he said. Carr also mentioned that he did not think his comments to Smith had had much effect in his previous decision and therefore he didn't think his words would have much effect the second time. He did ask the court, however, to consider what effect the sentence would have on him.

Before resentencing, Smith said he took some exception to Carr's comments. Smith said he always takes into consideration what defendants have to say in court.

Ultimately Smith agreed with Gernat that the counts against Carr should not have been merged in the original sentence. Smith said he put a lot of weight on the one aggravator, multiple events, multiple victims, especially as it applied to isolation. Smith found the four counts against Carr of sexual abuse of a minor to be aggravated.

"This is a serious case and needs to be treated seriously," Smith said.

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. The abuse of the 4-year-old occurred in 2002 and the abuse of the 9-year-old began in 1997, according to court documents.

Smith said the Alaska Court of Appeals will likely have to review his decision and decide whether the sentencing was constitutional or in need of modification.

Carr is currently being held at the Anchorage Jail.

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