State v. Astorga

• Decision Date: 23 May 2014
• Docket Number: No. 103,083.,103,083.
• Citation: 324 P.3d 1046,299 Kan. 395
• Parties: STATE of Kansas, Appellee, v. Matthew ASTORGA, Appellant.
• Court: Kansas Supreme Court

299 Kan. 395

324 P.3d 1046

STATE of Kansas, Appellee,

v.Matthew ASTORGA, Appellant.

No. 103,083.

Supreme Court of Kansas.

May 23, 2014.

Recognized as Unconstitutional

West's K.S.A. 21–4635

Syllabus by the Court

Kansas' former statutory procedure for imposing a hard 50 sentence, as provided in K.S.A. 21–4635, violated the Sixth Amendment to the United States Constitution as interpreted in Alleyne v. United States, 570 U.S. ––––, 133 S.Ct. 2151, 2155, 2160–63, 186 L.Ed.2d 314 (2013), because it permitted a judge to find by a preponderance of the evidence the existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating factors beyond a reasonable doubt.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause, and Theresa L. Barr, of the same office, was with him on the briefs for appellant.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and John Bryant, deputy county attorney, Steve Six, former attorney general, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by MORITZ, J.:

In State v. Astorga, 295 Kan. 339, 284 P.3d 279 (2012), this court affirmed Matthew Astorga's jury conviction of first-degree premeditated murder and his sentence of life in prison with no possibility of parole for 50 years (hard 50). In that decision, we relied on well-established caselaw to reject Astorga's argument that Kansas' hard 50 sentencing scheme was unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because it does not require a jury to find beyond a reasonable doubt the facts necessary to support an increased mandatory minimum sentence of 50 years. See Astorga, 295 Kan. at 354, 284 P.3d 279 (citing State v. McCaslin, 291 Kan. 697, 729–30, 245 P.3d 1030 [2011], and State v. Conley, 270 Kan. 18, 35–36, 11 P.3d 1147 [2000],cert. denied532 U.S. 932, 121 S.Ct. 1383, 149 L.Ed.2d 308 [2001] ). Astorga filed a petition for writ of certiorari to the United States Supreme Court.

In Alleyne v. United States, 570 U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), the Supreme Court overruled the caselaw upon which this court indirectly based its decision in Astorga. Following Alleyne, the Supreme Court granted Astorga's petition for writ of certiorari, vacated our judgment in Astorga, and remanded the case for reconsideration in light of Alleyne.Astorga v. Kansas, 570 U.S. ––––, 133 S.Ct. 2877, 186 L.Ed.2d 902 (2013).

On remand, we affirm Astorga's first-degree murder conviction and dismiss his challenge to the imposition of aggravated presumptive sentences for two related plea convictions for the same reasons stated in our prior decision. See Astorga, 295 Kan. at 344–51, 354, 284 P.3d 279. But we reconsider those portions of our prior decision affirming Astorga's hard 50 sentence and, consistent with our recent decision in State v. Soto, 299 Kan. 102, 322 P.3d 334 (2014), we conclude the district court violated Astorga's right to a jury trial as provided in the Sixth Amendment to the United States Constitution when it imposed the hard 50 sentence. Consequently, we vacate his hard 50 sentence and remand for resentencing.

Factual and Procedural Background

Following Astorga's conviction of first-degree premeditated murder, the State sought a hard 50 sentence, alleging Astorga knowingly or purposely killed or created a great risk of death to more than one person (risk of death aggravator). See K.S.A. 21–4636(b). The evidence presented at trial established that Astorga drove to the home of Ruben Rodriguez and then shot and killed Rodriguez as Rodriguez stood in the doorway. Rodriguez' girlfriend and her toddler were standing near Rodriguez when he was shot, and more than one bullet passed through the interior walls of the house. Citing this evidence, the district court found Astorga risked the lives of more than one person when he shot Rodriguez.

Additionally, the district court found Astorga previously had been convicted of a felony in which he inflicted great bodily harm, disfigurement, dismemberment, or death on another (prior conviction aggravator). See K.S.A. 21–4636(a). To support this finding, the district court relied on a certified copy of a journal entry received from the New Mexico Department of Corrections and submitted by the State at sentencing, reflecting Astorga previously had been convicted of second-degree murder.

Astorga urged the district court to consider two nonstatutory mitigating factors: (1) Astorga's testimony that Rodriguez had committed prior acts of violence toward Astorga, and (2) Astorga's testimony that he acted in self-defense when he shot Rodriguez. The district court imposed a hard 50 sentence but made no on-the-record findings as to whether it found any mitigating circumstances or whether it determined any mitigating circumstances outweighed the two aggravating circumstances found to exist.

Astorga challenged his hard 50 sentence on direct appeal, claiming the district court erred in finding the risk of death aggravator, both as a matter of law and under the facts of the case, and in weighing the aggravating and mitigating circumstances. Noting that Astorga failed to challenge the court's finding on the prior conviction aggravator and that a hard 50 sentence could be imposed upon finding one or more aggravating circumstances, this court declined to consider whether the district court erred in finding the risk of death aggravator. Astorga, 295 Kan. at 352, 284 P.3d 279. We further determined the district court did not abuse its discretion in weighing the aggravating and mitigating circumstances. 295 Kan. at 353, 284 P.3d 279. Finally, as discussed, based on prior caselaw we rejected Astorga's challenge to the constitutionality of the hard 50 sentencing scheme. 295 Kan. at 354, 284 P.3d 279.

Discussion

The statutory procedure used to impose Astorga's hard 50 sentence is unconstitutional.

This court recently considered the constitutionality of Kansas' hard 50 sentencing scheme in light of Alleyne and decided that issue in Astorga's favor, effectively overruling the caselaw we relied upon in Astorga.Soto, 299 Kan. at 124, 322 P.3d 334. In Soto, we held that Kansas' former statutory procedure for imposing a hard 50 sentence, as provided in K.S.A. 21–4635, violated the Sixth Amendment to the United States Constitution as interpreted in Alleyne because it permitted a judge to find by a preponderance of the evidence the existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating factors beyond a reasonable doubt. 299 Kan. at 103–04, 124, 322 P.3d 334.

While our decision in Soto resolved most of the parties' arguments, we briefly consider two arguments made by the State on remand that are specific to the facts of this case. Specifically, the State contends: (1) no Alleyne error occurred here because Astorga's sentence rests in part on a prior conviction, and (2) alternatively, if an Alleyne error occurred, it was harmless. Ultimately, we reject both arguments and conclude that, becausethe district court's imposition of a hard 50 sentence violated Astorga's Sixth Amendment right to a jury trial, we must vacate his hard 50 sentence and remand for resentencing.

We need not decide whether the prior conviction aggravating circumstance of K.S.A. 21–4636(a) falls within the Almendarez–Torres exception to the Apprendi/Alleyne rule.

Relying on Almendarez–Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the State contends that even after Alleyne, a jury was not required to find the fact of Astorga's prior conviction for second-degree murder beyond a reasonable doubt. And because Astorga's prior conviction constituted one of the two aggravating circumstances found by the district court as supporting imposition of the hard 50 sentence, the State contends the district court properly applied the hard 50 sentencing scheme in this case. See K.S.A. 21–4636(a) (“The defendant was previously convicted of a felony in which the defendant inflicted great bodily harm, disfigurement, dismemberment or death on another.”).

In Almendarez–Torres, the United States Supreme Court concluded that the Constitution does not require the prosecution to submit the fact of a prior conviction to a jury and prove that fact beyond a reasonable doubt. Almendarez–Torres, 523 U.S. at 226–27, 118 S.Ct. 1219; see also Apprendi, 530 U.S. at 489–90, 120 S.Ct. 2348 (declining to overrule Almendarez–Torres, “treat[ing] the case as a narrow exception to the general rule” of Apprendi ). Significantly, the Court noted “the sentencing factor at issue here—recidivism—is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence.” Almendarez–Torres, 523 U.S. at 243, 118 S.Ct. 1219. The Court further held: “[T]o hold that the Constitution requires that recidivism be deemed an ‘element’ of petitioner's offense would mark an abrupt departure from a longstanding tradition of treating recidivism as ‘go[ing] to the punishment only.’ [Citation omitted.]” 523 U.S. at 244, 118 S.Ct. 1219.

Because the prior conviction exception to Apprendi was not at issue in Alleyne, the Supreme Court in Alleyne declined to revisit its decision in Almendarez–Torres. See Alleyne, 133 S.Ct. at 2160 n. 1. Nevertheless, Astorga contends the Almendarez–Torres exception does not apply to the prior conviction aggravator defined in K.S.A. 21–4636(a), because that statutory language requires a factual finding as to whether the defendant personally “inflicted great bodily harm, disfigurement, dismemberment or death on another.” Astorga contends the journal...