A Sedgwick County judge will decide this week whether a Wichita man who was convicted of kicking his girlfriend to death should receive a Hard 50 prison sentence.
Anson Bernhardt, 43, was convicted last year of first-degree murder in the Sept. 30, 2012, death of Amber Kostner, 38. Prosecutors have argued that Bernhardt deserves a Hard 50 sentence because the crime was committed in an “especially heinous, atrocious or cruel manner.”
But a U.S. Supreme Court ruling that came as prosecutors were preparing to take the case to trial has stalled the proceedings. The ruling prompted the Kansas Legislature to hold a special session last fall to rewrite the state’s Hard 50 law, and it left a handful of defendants, Bernhard among them, in limbo as state courts tried to figure out how to comply with the ruling.
The ruling, which said juries, not judges, should decide whether there are factors that justify increasing a defendant’s minimum prison sentence, prompted the Kansas Attorney General’s Office to drop plans to seek a Hard 50 sentence against Brett Seacat, convicted of killing his wife. Defense lawyers said it also could invalidate the Hard 50 sentence given to Scott Roeder, who was convicted of murdering George Tiller, a doctor who performed abortions.
Prosecutors in Bernhardt’s case are now operating under the new law, which says new juries can be empaneled to determine whether the Hard 50 should be applied in cases that already were in the pipeline when the Supreme Court ruling was issued.
Such a jury was scheduled to be empaneled in Bernhardt’s case on Monday, but he elected last week to waive his right to a trial by jury. That means that what amounts to the penalty phase of his case will be a bench trial before District Judge William Woolley.
Woolley was the presiding judge in July when a jury deliberated 1 1/2 hours before convicting Bernhardt of first-degree murder.
During the trial, prosecutors showed a video that showed him admitting 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. Bernhardt said she was still breathing when he left her at the side of the road across from Campus High School.
During the penalty phase, prosecutors must prove that there are one or more aggravating factors in the case, and the defense is allowed to put on evidence showing there are mitigating factors in the case. Only if the aggravating factors are not outweighed by the mitigating factors can a Hard 50 sentence be imposed.