State v. Astorga

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 103,083

STATE OF KANSAS,
Appellee,

v.

MATTHEW ASTORGA,
Appellant.


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.

On remand from the Supreme Court of the United States. Appeal from Leavenworth District
Court; GUNNAR A. SUNDBY, judge. Opinion filed May 23, 2014. Affirmed in part, dismissed in part,
vacated in part, and remanded for resentencing.

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.

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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 (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 State v. Soto, 299 Kan. 102,
322 P.3d 334 (2014), we conclude the district court violated Astorga's right to a jury trial
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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
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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 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. 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.

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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,
because the 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; see also Apprendi, 530 U.S. at 489-90 (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."
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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 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 entry of his prior conviction for second-degree
murder did not indicate whether he personally inflicted the harm that resulted in the
victim's death. Therefore, he suggests some additional factfinding was necessary, placing
this factor within the purview of Alleyne.

Under the facts of this case, we need not consider the continued viability of the
Almendarez-Torres exception or whether K.S.A. 21-4636(a)'s prior conviction aggravator
falls within that exception. Here, even if the district court could find the existence of the
prior conviction aggravator, under our rationale in Soto the court erred in finding the
other aggravating factor, i.e., the risk of death aggravator, by a preponderance of the
evidence. See Soto, 299 Kan. at 124 (holding statutory procedure for imposing hard 50
sentence unconstitutional "because it permits 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"); see also State v. Hilt, 299 Kan.
176, 203, 322 P.3d 367 (2014) (applying Soto to conclude that judge's finding of four
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aggravating circumstances by preponderance-of-the-evidence standard constituted
Alleyne error).

If we applied a modified harmless error test, the hard 50/Alleyne error in this case would
not be 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. Soto, 299 Kan. at 124-28. We concluded
that if we were to consider harmless error, we would apply a modified, more stringent
harmless error analysis that required us to determine beyond a reasonable doubt that (1)
uncontroverted and overwhelming evidence supported each aggravating circumstance
such that the jury would have found the existence of each aggravating circumstance
beyond a reasonable doubt, and (2) no rational jury would have determined that
mitigating circumstances outweighed the aggravating circumstance. Soto, 299 Kan. at
126-27. We pointed out that only rarely would an error meet this exacting test, and we
deferred any decision regarding application of this test in the hard 50/Alleyne context
until that rare case presents itself. Soto, 299 Kan. at 127-28; see also Hilt, 299 Kan. at 205
(assuming without deciding that harmlessness applies but concluding case did not present
"one of the rare instances when a hard 50 Alleyne error can be declared harmless").

Like Soto and Hilt, this is not that rare case. Here, the district court found two
aggravating circumstances under K.S.A. 21-4636(a) and (b), respectively: (1) Astorga
previously had been convicted of a felony in which he inflicted great bodily harm,
disfigurement, dismemberment, or death on another, namely, second-degree murder, and
(2) Astorga knowingly or purposely created a great risk of death to more than one person.
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Further, Astorga urged the district court to consider two nonstatutory mitigating
circumstances: (1) the victim, Rodriguez, had committed prior acts of violence toward
Astorga, i.e., stabbing Astorga and participating in a drive-by shooting of Astorga's
home, and (2) Astorga testified he acted in self-defense in shooting Rodriguez. Even if
we assume uncontroverted and overwhelming evidence supported both aggravating
circumstances such that the jury would have found their existence beyond a reasonable
doubt, we simply do not know whether a jury of Astorga's peers would have found the
two mitigating circumstances asserted by Astorga. Nor could we conclude beyond a
reasonable doubt that no rational jury would have determined that any mitigating
circumstances, if found, outweighed the aggravating circumstances. See Soto, 299 Kan. at
127.

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); K.S.A. 2013 Supp. 21-6620. Consequently, the State contends the
district court must resentence Astorga under the amended hard 50 statute. Astorga
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responds that retroactive application of the amended hard 50 scheme would violate the
Ex Post Facto Clause of the United States Constitution.

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 the 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 the district court conclude that the retroactive provisions of K.S.A. 2013
Supp. 21-6620 apply on remand, section (e) of that statute suggests the State would be
precluded from pursuing a hard 50 sentence if we were to vacate Astorga's sentence for
lack of sufficient evidence to support the aggravating circumstances. While we decline to
decide at this juncture whether Astorga could be resentenced under the amended statute,
we find it necessary to address Astorga's claim that the evidence was insufficient to
support the risk of death aggravator.

Before doing so, we note that Alleyne also impacts our standard of reviewing the
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
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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 K.S.A. 21-4636(b).
The district court also found Astorga previously was convicted of a felony in which he
inflicted death on another, namely, second-degree murder. See K.S.A. 21-4636(a). In his
direct appeal, Astorga challenged the sufficiency of the evidence to support the risk of
death aggravator, but he did not challenge the sufficiency of evidence to support the prior
conviction aggravator. At oral argument, Astorga conceded he did not dispute the
existence of his prior conviction at sentencing or in his direct appeal. Accordingly, we
consider only the sufficiency of evidence to support the risk of death aggravator.

We have explained that K.S.A. 21-4636(b) requires "'a direct relationship between
creating the great risk of death to another and the homicide. The risk need not be
contemporaneous with the homicide, but it must occur in the course of committing the
charged murder.'" State v. Brown, 272 Kan. 809, 818, 37 P.3d 31 (2001) (quoting State v.
Spain, 263 Kan. 708, 718, 953 P.2d 1004 [1998]). However, "[i]t is not necessary that the
defendant caused another person life-threatening injuries; it is necessary only that the
defendant knowingly created a great risk of death to more than one person." State v.
Vontress, 266 Kan. 248, 258, 970 P.2d 42 (1998), disapproved on other grounds by State
v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006); see also State v. Lopez, 271 Kan. 119,
139-40, 22 P.3d 1040 (2001) (rejecting defendant's attempt to transform term "risk" from
"creation of a possibility of an occurrence to causation of an occurrence").

The evidence presented at trial established that Astorga shot Rodriguez as
Rodriguez stood in the doorway of his home. As Rodriguez was shot, Rodriguez'
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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 Astorga'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
K.S.A. 21-4636(b), we vacate Astorga's hard 50 sentence for the sole reason that it was
imposed using a statutory procedure that violated his Sixth Amendment right to a jury
trial.

In conclusion, in accord with the judgment of the United States Supreme Court we
affirm in part, dismiss in part, vacate in part, and remand for resentencing.