Judge: Jury can decide whether killer should get Hard 50 sentence

11/18/2013 10:55 AM

08/08/2014 10:19 AM

A special jury will be empaneled to determine whether a Wichita man should receive a Hard 50 prison sentence for the stomping death of his girlfriend, a Sedgwick County judge has ruled.

In the ruling, District Judge William Woolley said a law passed in September by a special session of the Kansas Legislature, known as House Bill 2002, can be applied to a 2012 murder case.

“HB 2002 applies to this case, and the state may seek to impose the Hard 50 minimum term of imprisonment,” he said in his written ruling.

The case is on the jury trial docket for Dec. 16, but Woolley said he doubted that the jury would be empaneled before the end of the year.

The case involves Anson Bernhardt, 42, who was convicted by a jury of first-degree murder in the Sept. 30, 2012, stomping death of Amber Kostner, 38. Bernhardt admitted to detectives that he kicked Kostner 20 to 30 times with steel-toed boots after the two had quarreled in a bar about breaking up.

He said she was still breathing when he left her at the side of the road across from Campus High School in the 2100 block of West 55th Street South.

Prosecutors originally intended to ask Woolley to impose a Hard 50 sentence because the crime was committed in an “especially heinous, atrocious or cruel manner.” But their plans were blocked by a U.S. Supreme Court ruling in June that said juries must make factual findings that increase the mandatory minimum sentence of a criminal defendant.

The decision prompted Gov. Sam Brownback to call a special session of the Kansas Legislature to rewrite the Hard 50 law. The revised law, which was intended to apply retroactively to cases that are not yet final, calls for new juries to be empaneled to determine whether Hard 50 sentences imposed by judges should stand.

During a hearing Friday, Bernhardt’s lawyer argued that despite the new law, the Hard 50 law as it existed at the time of Bernhardt’s crime was unconstitutional.

In his ruling, Woolley said the ex post facto clause of the U.S. Constitution bars the creation of a law that applies to events occurring before its enactment and penalizes a person who is impacted by it. Although the new law clearly applies to earlier events, he ruled, it does not create new penalties.

“HB 2002 did not create or increase any punishments that were not already statutorily in effect at the time of the incident,” he wrote. “A defendant who committed the crime of premeditated murder before the enactment of HB 2002 was on notice that the Hard 50 was a possible quantum of punishment.”

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