- Associated Press - Tuesday, November 3, 2015

A Montana woman who is serving a 30-year prison sentence for pushing her husband to his death from a cliff in Glacier National Park asked an appeals court to allow her to withdraw her guilty plea to second-degree murder.

Appellate defender Michael Donahoe argued Tuesday that federal prosecutors unfairly recommended that Jordan Graham of Kalispell be sentenced to 50 years to life in prison for the July 2013 death of Cody Johnson, 25, just eight days after he married Graham. Donahoe also argued a federal judge unfairly rejected her motion to withdraw her guilty plea after prosecutors filed their sentencing recommendation.

Donahoe and Assistant U.S. Attorney Zeno Baucus presented oral arguments before a three-justice panel of the 9th U.S. Circuit Court of Appeals in Portland, Oregon.

“It seems to me that you violated the spirit if not the letter of the agreement,” Justice Paul Watford told Baucus. Implicit in the agreement, Watford said, is a sentencing recommendation consistent with a second-degree murder conviction “and that’s not what you did.”

Baucus disagreed.

“We entered into this agreement to give the District Court discretion in sentencing,” Baucus said. “Something a first-degree murder conviction would not do.”

Donahoe argued a second-degree murder plea should have removed the premeditation factor and that prosecutors should have recommended a lesser sentence.

“I don’t know why I would have to have in a plea agreement of this nature, in this context, something that said the government couldn’t argue premeditation at sentencing,” Donahoe said.

Justice Raymond Fisher said Donahoe should have gotten it in writing.

The plea agreement was reached in December 2013, after jurors heard the evidence in Graham’s trial but before closing arguments were made.

Fisher and Justice Marsha Berzon also pointed out that U.S. District Judge Donald Molloy didn’t appear to give that much emphasis to premeditation in sentencing Graham, and that he didn’t even sentence her to the low end of the time prosecutors recommended.

Had Graham been convicted of second-degree murder prosecutors could have still made the same sentencing recommendation that they did, Berzon told Donahoe.

At a minimum, Donahoe asked the justices to send the case back to Molloy to have him re-evaluate the reason he denied Graham’s motion to withdraw her guilty plea.

The justices took the case under advisement.

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