State v. AstorgaState v. Astorga
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- Before:
- Moritz
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 caseiaw 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 (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. denied 532 U.S. 932 [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. But we reconsider those portions of our prior decision affirming Astorga’s hard 50 sentence and, consistent with our recent decision in
Factual and Procedural Background
Following Astorga’s conviction of first-degree premeditated murder, die State sought a hard 50 sentence, alleging Astorga knowingly or purposely tolled or created a great risk of death to more than one person (risk of death aggravator). See
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
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. We further determined the district court did not abuse its discretion in weighing the aggravating and mitigating circumstances. 295 Kan. at 353. 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.
Discussion
The statutory procedure used to impose Astorga’s hard SO 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. In Soto, we held that Kansas’ former statutory procedure for imposing a hard 50 sentence, as provided in
While our decision in Soto resolved most of the parties’ arguments, we briefly consider two arguments made by tire State on remand that are specific to the facts of this case. Specifically, the State contends: (1) no Alleyne error occurred here because As-torga’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, because
We need not decide whether the prior conviction aggravating circumstance ofKSA. 21-4636(a) falls within the Almendarez-Torres exception to the ApprendHAlleyne 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 As-torga’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
In Almendarez-Torres, the United States Supreme Court concluded that die 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; see also Apprendi, 530 U.S. at 489-90 (declining to overrule Almendarez-Torres, “treating] the case as a narrow exception to the general rale” 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. 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.
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-Torrez. 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
Under the facts of this case, we need not consider the continued viability of the Almendarez-Torres exception or whether
If we applied a modified harmless error test, the hard 50/Alleyne error in this case would not he harmless.
Alternatively, the State argues if an Alleyne error occurred it was harmless. Astorga disagrees, arguing hard 50/Alleyne errors are not amenable to review for harmless error.
In Soto, we considered but declined to decide whether hard 50/ Alleyne errors may be subject to a modified harmless error review.
Like Soto and Hilt, this is not that rare case. Here, the district court found two aggravating circumstances under
To summarize, we decline to decide whether a hard 50/Alleyne error may be subject to harmless error review because this case, like Soto, does not present the rare circumstances in which such an error could be held harmless. Accordingly, we vacate Astorga’s hard 50 sentence and remand for resentencing.
We decline to issue an advisory opinion as to the appropriate course of action on remand.
Because this case must be remanded for resentencing, we now turn to the parties’ arguments regarding the procedure to be applied on remand. Astorga argues Alleyne requires the district court to impose a hard 25 sentence on remand because that is the only sentence supported by the jury’s verdict. But the State points out that after Alleyne, the Kansas Legislature amended Kansas’ hard 50 sentencing scheme and included express provisions for retroactive application in cases pending on appeal. See L. 2013, ch. 1, sec. 1 (Special Session);
As in Soto, we decline to issue an advisory opinion on these issues. See Soto, 299 Kan. at 128-29 (noting issues related to application of amended hard 50 statute are not ripe unless and until tire State seeks application of statute on remand). Instead, we hold only that because Astorga’s sentence was imposed in violation of his Sixth Amendment right to a jury trial, his sentence must be vacated and the case remanded for resentencing. Our decision does not prevent the parties from presenting their respective arguments regarding application of the amended hard 50 scheme to the district court at resentencing.
The evidence was sufficient to support the risk of death aggravator.
Should tire district court conclude that the retroactive provisions of
Before doing so, we note that Alleyne also impacts our standard of reviewing tire sufficiency of evidence in the hard 50 context. In the past, we have considered whether, after review of all the evidence, viewed in a light most favorable to the prosecution, a rational factfinder could have found the existence of a hard 50 aggravating circumstance by a preponderance of the evidence. See, e.g., State v. McCaslin, 291 Kan. 697, 727, 245 P.3d 1030 (2011). However, in light of Alleyne’s requirement that aggravating factors be found by a jury beyond a reasonable doubt, we will apply the higher standard in considering the sufficiency of evidence to support such factors. See Alleyne, 133 S. Ct. at 2162-63; see also Soto, 299 Kan. at 129 (restating applicable standard for sufficiency challenge in light of Alleyne).
The district court found Astorga “ ‘knowingly or purposely killed or created a great risk of death to more than one person.’ ” Astorga, 295 Kan. at 352; see
We have explained that
The evidence presented at trial established that Astorga shot Rodriguez as Rodriguez stood in the doorway of his home. As Rodriguez was shot, Rodriguez’ girlfriend stood behind and to the side of Rodriguez while her toddler stood directly behind her. The evidence further demonstrated that the .40 caliber bullet from As-torga’s gun fatally wounded Rodriguez before passing through interior walls of the house and exiting through a back window.
Viewing this evidence in the light most favorable to the prosecution, we conclude a rational factfinder could have found beyond a reasonable doubt that Astorga created a great risk of death to more than one person when he shot Rodriguez. See, e.g., State v. Kirtdoll, 281 Kan. 1138, 1152-53, 136 P.3d 417 (2006) (affirming risk of death aggravator finding when defendant fired gun in crowded nightclub); Lopez, 271 Kan. at 139-40 (affirming risk of death aggravator-finding when defendant repeatedly fired gun inside moving vehicle and killed driver, thus creating great risk of death for passenger).
Because we find sufficient evidence to support the risk of death aggravator under