Kansas Supreme Court sets aside Hard 50 sentence in Wichita homicide

04/11/2014 12:01 PM

08/08/2014 10:23 AM

The Kansas Supreme Court reversed the Hard 50 murder sentence of a Wichita man on Friday but refused to rule whether changes legislators made to the law last year can be applied.

Justices ruled that the sentence for Rogelio Soto in a 2009 stabbing must be vacated because his rights were violated when a judge, rather than a jury, sentenced him to 50 years in prison with no possibility of parole.

The case is the first to be decided in Kansas after a June 2013 U.S. Supreme Court ruling that found juries, not judges, must impose a mandatory minimum sentence such as the Hard 50. Other Hard 50 cases on appeal will likely require district courts to decide the new sentence on a “case-by-case basis,” Soto attorney Kevin Zolotor said.

Sedgwick County District Attorney Marc Bennett said he would confer with the attorneys involved in the case before deciding whether to continue to pursue a Hard 50 sentence against Soto. He said it’s possible that a sentencing phase of the trial will have to be held so that a jury can decide whether Soto deserves a Hard 50 sentence.

Kansas legislators who rewrote the Hard 50 law last year argued any sentencing changes should be applied only on pending and appealed Hard 50 cases.

Attorney General Derek Schmidt declined to comment on the issue of applying the legislative fix retroactively, but said the ruling confirmed what he and legislators believed when they met in a two-day special session in September: It was correct to make it a priority.

“Our legislature acted quickly in last year’s special session to address this issue, and today’s ruling confirmed the wisdom of their swift action to repair Kansas law,” Schmidt said.

Zolotor said the ruling was expected based on the June U.S. Supreme Court ruling, and he wasn’t surprised that the justices sidestepped the retroactivity issue.

Soto, 21, was 16 at the time of the stabbing and tried as an adult. Prosecutors said the killing was a result of a long-running gang feud. Victim Arturo Moreno, 28, was stabbed 79 times. Soto was one of three people charged in the crime, though the court’s ruling Friday applied only to his conviction and sentence. The two other defendants were sentenced on lesser crimes, including one sentenced to 13 years for second-degree murder.

Defense attorneys in Soto’s case and nearly a dozen appeals filed with the Kansas Supreme Court argued that changes made to the law amount to a new crime and punishment that didn’t exist until September 2013. The attorneys also argued it would be unconstitutional under the ex post facto clause – charging someone for a crime that didn’t exist at the time – and thus couldn’t be applied to Soto or other cases that were decided as much as a decade ago.

Zolotor said the justices could rule in other cases that the sentences were determined by so-called harmless error, meaning the circumstances of the case would have merited a 50-year minimum term regardless, such as the defendant’s criminal history.

If the state court were to rule against imposing the 50-year sentence in cases dating to before the legislative fix was made, defendants then would be eligible to a life sentence without parole for a mandatory 25 years.

Zolotor said the state or defense attorneys could appeal Friday’s ruling for a rehearing with the state’s high court or directly appeal to the U.S. Supreme Court, but such decision wasn’t likely immediately.

In Kansas, the only penalties tougher than the Hard 50 are capital punishment and life without parole – the alternative to death in a capital case and a possible sentence for some habitual sex offenders.

Legislators have considered further changes to the premeditated, first-degree murder statutes, changing it from a life in prison with a minimum 25 years before parole eligibility to the Hard 50. The change would give judges the discretion to reduce the minimum years before parole eligibility, depending on factors in the case.

Contributing: Hurst Laviana of The Eagle

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