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Kansas Supreme Court hears ‘Hard 50' appeal

Updated: 2013-12-10T02:24:35Z

The Associated Press

— The Kansas Supreme Court heard arguments Monday about whether a convicted murderer’s minimum 50-year prison term should stand, given recent court-ordered changes to the sentencing law.

The court heard the appeal of Matthew Astorga, who was sentenced to a minimum of 50 years behind bars before he would be eligible for parole in a 2008 shooting death in Leavenworth County. Astorga’s is the second appeal of a so-called “Hard 50” sentence that the state’s high court has heard since legislators rewrote the law this fall.

Kansas previously allowed judges to sentence those convicted of premeditated first-degree murder to 50 years before they could seek parole. But the U.S. Supreme Court ruled in June that juries, not judges, should decide on such sentences.

Astorga’s attorney, Randall Hodgkinson, contends that Astorga should face only 25 years in prison without the possibility of parole.

He told the court that when legislators rewrote the law in September, they effectively created a new crime of aggravated premeditated first-degree murder. Hodgkinson said Astorga was never charged with that crime because it didn’t exist at the time of the shooting, and therefore, he can’t be sentenced to the Hard 50.

Justice Lee Johnson asked what was disclosed at Astorga’s trial about his 1996 conviction in New Mexico for second-degree murder. He said the particulars of that case – for example, whether Astorga was merely present when someone was killed or whether he killed someone himself – would have a significant bearing on his Kansas sentence.

But Kristafer Ailslieger, deputy solicitor general for the state, said Astorga’s New Mexico conviction was factor enough in determining the Kansas sentence, noting that no objection was made at trial about it being offered as a fact. Prior felony convictions for causing the death or bodily harm of another can make a defendant eligible for the stiffer penalty.

Attorneys from both sides urged the court to issue a ruling soon.

“The decision you make on a remedy determines the rights of real people right now,” Hodgkinson told the court.

Ailslieger said it was important for the justices to rule on the legality of applying the law retroactively so that prosecutors would know how to proceed.

If the justices decide that the changes made to the law can’t be applied retroactively, then the maximum mandatory sentence the defendants can receive is 25 years to life.

Defendants could still appeal their convictions on other grounds but would otherwise be eligible for parole after 25 years. More than a dozen cases are on appeal and more than two dozen others were initiated before legislators changed the law in September that are either still in the trial or sentencing phase.

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