The opinion of the court was delivered by
Fоllowing his guilty plea, Joaquin DeAnda was convicted of first-degree premeditated murder and sentenced to life without the possibility of parole for 50 years (hard 50). In this direct appeal of his sentence, DeAnda asserts the district court erred in admitting hearsay evidence at his sentencing hearing and in imposing a period of lifetime postrelease supervision. Further, DeAnda contends the district court’s imposition of tire hard 50 sentence violated his rights under the Sixth Amendment to the United States Constitution because a judge rather than a jury found the facts necessary to increase the mandatory minimum sentence.
Following our holding in State v. Soto,
Based on this conclusion, we vacate DeAnda’s hard 50 sentence and remand for resentencing. Therefore, we do not address DeAnda’s claims of error regarding the admission of hearsay evidence at thе sentencing hearing and imposition of an unauthorized lifetime postrelease supervision period. But, for purposes of remand, we consider and reject DeAnda’s claim that tire evidence was insufficient to support the aggravating circumstance.
Factual and Procedural Background
In December 2008, Garden City police discovered the body of 16-year-old J.Q. in a trash dumpster behind the home 17-year-old DeAnda shared with his mother. Following an investigation, the State charged DeAnda as a juvenile with first-degree murder, rape, and aggravated criminal sodomy. After a hearing, the district court certified DeAnda for adult prosecution and bound him over for trial on all charges.
Before trial, DeAnda entered into a plea agreement with the State, agreeing to plead guilty to one count of first-degree premeditated murder in exchange for the State’s agreement to dismiss the remaining charges with prejudice, and the State reserved the right to sеek a hard 50 sentence. At the plea hearing, defense counsel provided the following factual basis for DeAnda’s guilty plea:
“[Ojn December 13th of 2008, [J.Q.] arrived at the home of Joaquin De Anda and his mother, Margie Romero. They went down to his basement bedroom, which is downstairs of the home on Fourth Street here in Garden City, Finney County, Kansas. They watched a movie and visited for a while. At some point Mr. De Anda began to choke [J.Q.]. As he was choiring her, he realized what he wаs doing could lead to her death, but continued to choice anyway until [J.Q.] fell unconscious, and Mr. De Anda believed she was dead.
“He then waited for [his mother and her friend], who were present in the upstairs portion of the home, to leave the home to attend some—a parade and*596 some other festivities in town. After they left, Mr. De Anda moved [J.Q.’s] vehicle from the front of his home to another location here in Garden City, Finney County, Kansas, came back, and then after several—I’m sorry, before—when he came back, before moving her body, he then stepped on her neck to make sure that she was dead. And then proceeded to attempt to get her body up the stairs unsuccessfully, but eventually got her up the upstairs portion to the main level of the house, and then drug her out to the backyard, and then placed her body into a dumpster in the back alleyway behind the house, where her body was later discovеred on or about December 16th of 2008.”
The district court accepted the plea and convicted DeAnda of first-degree premeditated murder. Before sentencing, the State filed notice of its intent to seek a hard 50 sentence, alleging DeAnda committed the murder in an especially heinous, atrocious, or cruel manner. See K.S.A. 21-4636(f).
At the sentencing hearing, the State presented evidence from several witnesses to support the alleged aggravating circumstance. Detective Mark Johnson testified he found J.Q.’s body in a dumpster located behind the DeAnda residence and that J.Q. had bruising on her face and cut marks on her neck just below her chin.
Kathy Gill-Hopple, a sexual assault nurse examiner, examined J.Q.’s body before the autopsy and found three 1-millimeter abrasions on the posterior tissue of J.Q.’s vaginal opening. Gill-Hop-ple testified these abrasions were consistent with a sliding force injuiy. Further, Gill-Hopple testified she found three contusions, or bruises, at the juncture of J.Q.’s hymen and labia minora and that diese contusions were not postmortem injuries.
Over DeAnda’s objection, the State introduced an autopsy report and evidence about the cause and manner of J.Q.’s death through the testimony of Dr. Jamie Oeberst, the Sedgwick County district coroner and chief medical examiner. Another medical examiner, Dr. Bamidele Adeagbo, had performed the autopsy and had testified at DeAnda’s preliminary hearing. But by the time of DeAnda’s sentencing, Dr. Adeagbo was no longer employed by Sedgwick County.
Dr. Oeberst testified the manner of death was homicide and the cause of death was “asphyxia associated with blunt-force injuries.” She described the blunt-force injuries as abrasions and contusions on J.Q.’s face, a contusion on the inside of the scalp on the top of
According to Dr. Oeberst, some of J.Q.’s injuries, including “fingertip contusions” on her thighs, indicated a struggle preceded her death. Dr. Oeberst further testified J.Q. had multiple abrasions, scrapes, and contusions on her face, chest, abdomen, back, and extremities; postmortem incisions on her neck and arms; and postmortem bums on her back. Finally, Dr. Oeberst testified she reviewed microscopic slides of tissue samples from J.Q.’s vaginal contusions and concluded the vaginal contusions occurred “within probably a couple of hours” of J.Q.’s death but not after her death.
Kelly Edison, a psychologist formerly employed by Larned State Hospital, conducted a court-ordered mental evaluation of DeAnda and testified about DeAnda’s statements to her during that еvaluation. According to Edison, DeAnda said that on the night of J.Q.’s death, he and J.Q. were cuddling, listening to music, and making out when he began choking J.Q. because he wanted to be “Nick Gonzo.” DeAnda explained to Edison that “Nick Gonzo” was not a real person but “ The person [he] aim[ed] to be.’ ” J.Q. fought back but was unable to scream because DeAnda was choking her. After choking J.Q., DeAnda placed his hands on the ceiling to brace himself and stood on J.Q.’s neck to make sure she was dead. Then, before going upstairs to eat, he placed J.Q. in the bed to look as if she was sleeping. After his mother left the house, DeAnda returned to the basement and had sex with J.Q.’s dead body.
DeAnda also told Edison he hid J.Q.’s body under the bed and then took her bag and cell phone and drove her car to the zoo. After parking J.Q.’s car at tíre zoo, DeAnda walked back to his home, dragged J.Q.’s body across the floor, and dumped it in a trash dumpster.
Testifying for the defense, Dr. Corrie May, a forensic pathologist, identified numerous errors she found in the autopsy report, including the incorrect use of anatomic and technical pathology terms; multiple diagnoses of the same wound beneath the left col
Dr. May agreed that J.Q.’s death resulted from asphyxiation and that sharp cuts across J.Q.’s throat were inflicted postmortem. According to Dr. May, she could not determine whether a sexual assault occurred, but she agreed that if DeAnda claimed he sexually assaulted J.Q., she had “no evidence to the contrary.” Dr. May also testified she did not havе all of the investigative lab reports, but she admitted that if the reports indicated the presence of DeAnda’s semen in the vaginal wall, “common sense would tell you there must have been some sexual assault.”
Dr. William Logan, a psychiatrist, testified for the defense that he reviewed DeAnda’s mental health files, examined him on three occasions, and diagnosed DeAnda with major depressive disorder and schizophrenia. Dr. Logan testified DeAnda had been hosрitalized on several occasions for mental health issues, including a hospitalization for a drug overdose 1 month before the murder.
According to Dr. Logan, at tire time of sentencing DeAnda was taking several medications for depression, but Dr. Logan could not say whether DeAnda was taking any medications when he killed J.Q. However, Dr. Logan testified DeAnda was under the influence of extreme mental or emotional disturbances when he committed the crime and his capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law was substantially impaired.
Specifically, Dr. Logan testified that at the time of the murder, DeAnda suffered from depression and struggled “with some psychotic thoughts about something that he needed to do to achieve what he called enlightenment. . . [and was] experiencing the idea that people could read his thoughts.” Regarding DeAnda’s capacity to understand the criminality of his actions, Dr. Logan testified that although DeAnda had a diminished capacity to “[understand it from a moral standpoint, I think he understood that what he did was legally wrong.” However, Dr. Logan also clarified he was un
Ultimately, the district court found DeAnda’s conduct demonstrated beyond a reasonable doubt that DeAnda desecrated “the victim’s body in a manner indicating a particular depravity of mind either during or following the killing.” See K.S.A. 21-4636(f)(6) (providing State may demonstrate conduct that is “especially heinous, atrocious or cruel” by showing “desecration of the victim’s body in a manner indicating a pаrticular depravity of mind, either during or following the killing”). In its written findings, the court found DeAnda attacked J.Q. without warning and J.Q. either died as a result of the initial attack or she was “rendered insensible and never regained noticeable consciousness prior to her death.” The court noted inconclusive evidence regarding whether J.Q. was alive at the time of the sexual assault but found “no evidence that [J.Q.] was in any way cognoscente [sic] of the assault and the likelihood wаs that she was at that time already dead.” The court further found DeAnda “made three conscious attempts” on J.Q.’s life or body to insure she was in fact dead.
In mitigation, the court found beyond a reasonable doubt that DeAnda was 17 at the time of the crime and found by a preponderance of the evidence that DeAnda committed the crime while he was under the influence of extreme mental or emotional disturbances. The court ultimately imposed a hard 50 sentence after concluding the aggravating circumstance was not outweighed by the mitigating circumstances.
Our jurisdiction over DeAnda’s direct appeal arises under K.S.A. 2013 Supp. 22-3601(b)(3) (life sentence imposed); see also State v. Hall,
The hard 50 sentencing scheme is unconstitutional.
When DeAnda filed his appellate brief, he argued in part that Kansas’ hard 50 sentencing scheme is unconstitutional under Ring v. Arizona,
But, as DeAnda’s appellate counsel declared at oral argument, the “legal landscape” сhanged while DeAnda’s appeal was pending. In June 2013, the United States Supreme Court held that any fact that increases a mandatory minimum sentence increases the penalty for a crime and therefore is an element that must be submitted to a jury and proved beyond a reasonable doubt. Alleyne,
After oral argument in this case, this court in another case held Kаnsas’ 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 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 reasonаble doubt. Soto,
Based on Soto and its application of Alleyne, we conclude the district court violated DeAnda’s Sixth Amendment right to a jury trial in imposing the hard 50 sentence using the K.S.A. 21-4635 statutory procedure.
Notably, following Alleyne and before oral argument in this case, the Kansas Legislature conducted a special session to amend Kansas’ hard 50 sentencing scheme. See L. 2013, ch. 1, sec. 1 (Special Session). The amended version of 21-6620 expressly provides for retroactive application in cases pending on appeаl. K.S.A. 2013 Supp. 21-6620(c).
Although neither party briefed the issue, at oral argument the State suggested that if this court finds Kansas’ former hard 50 statute unconstitutional under Alleyne, we should remand the case for resentencing under the amended statute, K.S.A. 2013 Supp. 21-6620. DeAnda’s appellate counsel disagreed, suggesting the amended statute could not be applied retroactively.
We considered several questions related to the appropriate remedy for a hard 50/Alleyne error in Soto, and those considerations guide us here.
1. The hard S0/Alleynе error in this case could not be held harmless.
In Soto, we first considered whether hard 50/Alleyne errors can be subject to harmless error review, and we reasoned that if we were to apply a harmless error analysis, it would be a modified, stringent harmless error test. Specifically, we concluded a hard 50/ Alleyne error could be harmless only if we conclude (1) beyond a reasonable doubt that uncontroverted and overwhelming evidence supported the aggravating circumstance such that the juiy would have found the existence of the aggravating circumstance beyond a reasonable doubt, and (2) beyond a reasonable doubt that no rational jury would have determined that mitigating circumstances outweighed the aggravating circumstance. Soto,
Ultimately, we declined in Soto to decide whether hard 50/Al-leyne errors are subject to harmless error review because Soto did not present the rare circumstance in which an error could be held harmless. Soto,
In this case, unlike Soto, the district court did find “beyond a reasonable doubt” that DeAnda’s сonduct demonstrated “[djese-
DeAnda presented evidence of two strong mitigating circumstances—his young age, 17, and his history of significant mental illness. While the district court ultimately found these two factors did not outweigh the aggravating circumstance, we cannot say with any degree оf certainty that a jury of 12 would have reached the same conclusion. See Soto,
Thus, as in Soto, we decline to decide whether a hard 50/Alleyne error may be subject to harmless error review because this case does not present the rare instance in which such an error could be held harmless. Consequently, we vacate DeAnda’s sentеnce and remand for resentencing.
2. The appropriate course of action on remand remains an open question.
Soto provides additional guidance as to whether the State may seek imposition of a hard 50 sentence on remand under K.S.A. 2013 Supp. 21-6620. There, we held that issues related to application of the amended hard 50 statute will not ripen unless and until the State seeks application of the amended statute on remand, and we thus declined to issue an advisory opinion. See Soto,
Finally, because we cannot predict whether the State will seek a hard 50 sentence under the amended statute on remand, we will assume as much and address DeAnda’s claim that the evidence is insufficient to support the aggravating circumstance found by the district court. See Soto,
In light of Alleyne, our task is to consider whether, after review of all the evidence in a light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance beyоnd a reasonable doubt. Soto,
In his plea, DeAnda admitted that after he killed J.Q. by choking her, he hid her body in his room for an unspecified amount of time, waited for his family to leave the house, stepped on J.Q.’s neck to make sure she was dead, drug J.Q.’s body up the stairs and through his backyard, and placed it in a trash dumpster behind his house. DeAnda did not contest this evidence at the sentencing hearing, and DeAnda’s psychologist corroborated the evidence with her testimony about DeAnda’s statements during a court-ordered mental evaluation.
As DeAnda suggests in his brief, the manner in which he disposed of J.Q.’s body after the murder is insufficient, standing аlone,
But as the State points out, the evidence supporting the aggravating circumstance here was not limited to the manner in which DeAnda disposed of J.Q.’s body. Rather, thе evidence presented at the sentencing hearing established DeAnda inflicted several postmortem injuries—specifically three incisions on J.Q.’s neck, incisions on her arms, and burns on her back. Further, DeAnda told Edison and Dr. Logan that he had sexual intercourse with J.Q.’s dead body.
DeAnda concedes in his brief that having sexual intercourse with a dead body likely constitutes “desecration” of a victim’s body. But relying on Buehler-May,
But this court in Buehler-May did not append an intent requirement to K.S.A. 21-4636(f)(6). Instead, the court held “a defendant’s actions must be heinous to a great degree to meet the threshold for this factor to apply.”
We need not fully address DeAnda’s remaining issues.
Finally, because we are vacating DeAnda’s hard 50 sentence, we necessarily vacate the unauthorized order of lifetime postrelease supervision imposed as part of his off-grid indeterminate life sentence. See State v. Cash,
Sentence vacated and case remanded for resentencing.