Murder sentencing delayed by questions over status of Kansas Hard 50 law

The sentencing of a man convicted of kicking his girlfriend to death with steel-toed boots was delayed for at least a month Thursday so a judge and lawyers in the case can try to determine whether the state’s embattled Hard 50 sentencing law can be applied to the case.

The law came into question in June when the U.S. Supreme Court ruled in a case titled “Alleyne vs. United States” that juries, not judges, must make factual findings that increase the mandatory minimum sentence of a criminal defendant.

The ruling prompted the Kansas Attorney General’s Office to drop plans to seek a Hard 50 sentence last month against former Sedgwick County sheriff’s Deputy Brett Seacat for the murder of his wife. It also prompted Gov. Sam Brownback to call a special session of the Kansas Legislature next month to rewrite the Hard 50 law.

But in a brief filed before Thursday’s hearing, Sedgwick County prosecutors argued that the Alleyne ruling did not invalidate the state’s Hard 50 law. The ruling applies to specific prison sentences, they argue, not to the indeterminate life prison terms handed down in Kansas first-degree murder cases.

“The Hard 50 scheme is constitutional and does not violate Alleyene,” Assistant Sedgwick County District Attorney Matthew Dwyer wrote in the brief. “The Hard 50 scheme only sets out the procedure to determine parole eligibility.

“There is no sentencing range on a conviction for first-degree murder. There is no floor; no ceiling. The sentence is life. Accordingly, Alleyne does not apply.”

The brief was filed in the case of Anson Bernhardt, 42, who was convicted last month of first-degree murder in the Sept. 30 stomping death of his girlfriend, Amber Kostner, 38.

Bernhardt admitted to detectives that he kicked Kostner 20 to 30 times with a 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.

Dwyer argued that parole is distinct from sentencing, and that the Hard 50 law deals only with parole.

“If the defendant in this case ever leaves prison, it will be because the Kansas Prisoner Review Board granted him parole,” he argued in his brief. “Parole is not guaranteed. A defendant may be passed over multiple times before actually, if ever, being paroled from a life sentence.”

Kansas’ Hard 50 law says a judge must weigh aggravating and mitigating factors before deciding whether to grant a prosecutor’s request to impose a Hard 50 sentence. The law lists several aggravating factors that include the commission of a crime in an especially heinous, atrocious or cruel manner.

The law also lists mitigating factors that may include a defendant’s age, a defendant’s lack of criminal history and the fact that a defendant was a minor participant in the crime for which he or she was convicted.

If a judge rules that one or more aggravating factors exist, and decides that the existence of such factors is not outweighed by any mitigating circumstances, the law says the defendant shall be sentenced to life without parole for a minimum of 50 years.

The Supreme Court ruling involved a defendant named Allen Alleyne, who was convicted of taking part in a 2009 robbery in Richmond, Va., in which his partner held a gun to the neck of a convenience store manager. A jury convicted Alleyne of taking part in the robbery but was not asked to determine whether he brandished his gun during the crime.

The sentencing judge, ruling that a weapon was brandished, followed Virginia law and increased Alleyne’s minimum sentence from five to seven years because of the firearm. In overturning that sentencing, the Supreme Court said the brandishing of a weapon – or any element of a crime that can increase a prison sentence – must be proved beyond a reasonable doubt to a jury.

District Judge William Woolley, who will sentence Bernhardt, gave defense lawyer Steve Osburn until Aug. 30 to respond to the prosecution brief, and he scheduled a Sept. 13 hearing when lawyers on both sides will argue the issue. He said a new sentencing date for Bernhardt will be set after that hearing.

Bernhardt’s sentencing marks the second time since the Supreme Court ruling was released that Sedgwick County prosecutors have sought a Hard 50 sentence in a first-degree murder case.

Tyrone Walker received a Hard 50 sentence on Aug. 1 after he was convicted in the June 2011 strangulation death of Janis Sanders. Walker, 48, had been paroled four months before Sanders’ death after serving a 12-year sentence for killing 25-year-old Tamara Baker in Lawrence in October 1989.

District Judge Joseph Bribiesca ruled that the Supreme Court ruling did not apply in Walker's case because Walker stipulated to the jury that he had a prior conviction for second-degree murder. Bribiesca ruled that the earlier conviction was a fact that did not have to be proven to a jury.

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