Attorneys for Jordan Linn Graham, 22, of Kalispell filed a motion Tuesday asking that she be allowed to withdraw her plea after a federal sentencing memo argued Graham appeared to plan the July 7 killing of Cody Johnson, 25. Defense attorney Michael Donahoe said the issue of intent was settled when Graham pleaded guilty to second-degree murder based on extreme recklessness.
Donahoe added that once the issue of intent is settled, prosecutors should not be able to raise it as a sentencing factor.
Prosecutors responded Wednesday that they agreed to dismiss the first-degree murder charge but did not agree to ignore other evidence offered at trial in recommending a sentence of 50 years to life.
Assistant U.S. Attorney Kris McLean noted that Graham agreed to plead guilty on Dec. 12 without the benefit of a plea agreement.
At that time, U.S. District Judge Donald Molloy reminded Graham that her plea meant she could face a life sentence in federal prison.
The federal government is not limited by the defendant's description of events in recommending a prison term, McLean wrote in his response Wednesday. He argued the court can consider any information about the background, character and conduct of the defendant when determining a sentence.
The government's sentencing memo recommends the court consider an upward variance to a sentence of life in prison, but no less than 50 years, in part because "the circumstances surrounding Cody's death closely resemble conduct that is often associated with a first-degree murder conviction."
Prosecutors said the fact that Graham was unhappy in her new marriage, that she somehow ended up with the only set of keys to the car Johnson drove into the park on July 7 and the fact that she texted a friend saying if the friend didn't hear from her at all again that night, "something happened," indicated Graham was "planning and considering murder."
Graham is scheduled to be sentenced Thursday by Molloy in Missoula. It was not clear how Graham's motion might affect the sentencing schedule.