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Judge: High court ruling prevents him from imposing Hard 50 sentence

Updated: 2014-03-08T05:53:25Z

By Hurst Laviana

The Wichita Eagle

A judge ruled Friday that a recent U.S. Supreme Court ruling prevents him from imposing a Hard 50 prison sentence on a Wichita man who was convicted of first-degree murder in the stomping death of his girlfriend.

District Judge William Woolley said the “Alleyne vs. United States” decision – which was issued in June – was in effect when Anson Bernhardt was convicted by a jury of first-degree murder, and therefore had to be applied to Bernhardt’s case.

“This court does not have the ability as a judge under Alleyne to impose a Hard 50 in this case,” Woolley ruled at the end of a hearing in Sedgwick County District Court.

Although prosecutors lost their bid to have a judge impose a Hard 50 in Bernhardt’s case, they said after the hearing that they would move forward with plans to empanel a new jury in the case and ask them to determine whether Bernhardt should receive a sentence of life without the possibility of parole for 50 years.

Bernhardt, 42, was convicted of first-degree murder in the Sept. 30, 2012, stomping death of his girlfriend, Amber Kostner, 38. Bernhardt admitted to detectives that he kicked Kostner 20 to 30 times with steel-toed boots after the two had quarreled in a bar about breaking up.

He said she was still breathing when he left her at the side of the road across from Campus High School in the 2100 block of West 55th Street South.

In their notice that they were seeking a Hard 50 sentence in the case, prosecutors argued that the crime was committed in an “especially heinous, atrocious or cruel manner.”

Under the original Hard 50 law, a judge must weigh such aggravating factors along with mitigating factors before deciding whether to impose a Hard 50 sentence. But the Alleyne decision said that juries, not judges, must make factual findings that increase the mandatory minimum sentence of a criminal defendant.

The decision prompted Gov. Sam Brownback to call a special session of the Kansas Legislature this month to rewrite the Hard 50 law. The revised law, which applies retroactively to cases that are not yet final, calls for new juries to be empaneled to determine whether Hard 50 sentences imposed by judges should stand.

Defense lawyers have argued that the law is unconstitutional because it applies retroactively.

District Attorney Marc Bennett said that without the new law, Bernhardt would have received a standard life sentence, which would have made him eligible for parole in 25 years.

“If we hadn’t had the special session, we would be done right now,” he said after the hearing.

Although Woolley ruled that the Alleyne decision applied to the Bernhardt case, he has not yet been asked to rule on whether it is constitutional. He gave defense lawyer Steve Osburn four weeks to submit a brief arguing why it isn’t.

If Woolley rules that the law is constitutional, Bennett said, a new jury likely will be empaneled to decide whether Bernhardt should receive a Hard 50 sentence.

Bernhardt’s is the only pending Sedgwick County case that has been directly influenced by the Alleyne decision, but there are at least four prison inmates from Sedgwick County whose cases are on appeal and may be entitled to new sentencing trials because of the decision. The most notable is Scott Roeder, who was convicted of murdering abortion doctor George Tiller in 2009.

Reach Hurst Laviana at 316-268-6499 or hlaviana@wichitaeagle.com. Follow him on Twitter: @hlaviana.

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