Prosecutors won’t seek second Hard 50 against man in gang stabbing

Prosecutors have abandoned their plan to seek a second Hard 50 sentence against a man who took part in a brutal gang-related stabbing more than seven years ago.

Sedgwick County District Attorney Marc Bennett said two key witnesses needed to testify in Rogelio Soto Jr.'s re-sentencing hearing are no longer in the United States, potentially making it more difficult to secure another 50-year-to-life prison term against the 24-year-old.

His office is instead asking the court to impose a 25-to-life prison term, which was the mandatory minimum sentence written into Kansas law for first-degree premeditated murder at the time Soto attacked and killed 28-year-old Arturo Moreno.

Bennett’s office notified the court of its intent to abandon the Hard 50 on July 19, according to court records.

Bennett said last week that difficulties with witnesses are fairly common with cases overturned on appeal.

Soto’s case was remanded for re-sentencing after his original Hard 50 was thrown out by the Kansas Supreme Court in 2014. He was originally sentenced in 2011.

“Trying to get a case back into trial shape years after the fact is difficult,” Bennett said, adding that prosecutors could opt to have witness testimony from Soto’s trial read at his re-sentencing hearing but doing so would not allow jurors to assess its credibility.

“Moving forward without the same case we had … years ago was really the deciding factor for me when I said, ‘OK. I don’t think we can get it (the Hard 50),’ ” he said.

Questions of whether 50-to-life was a just sentence for Soto also played into the decision, Bennett said. Soto’s co-defendants received significantly shorter prison terms.

A re-sentencing date has not yet been set.

Defense attorney, Charles O’Hara, meanwhile, is asking Sedgwick County District Court to grant Soto a new trial or a dismissal of the case on the grounds that prosecutors withheld evidence favorable to Soto when the case was tried, according to court records.

District Judge David Kaufman will hear arguments related to the matter Sept. 16, according to court records.

O’Hara – who was not involved in the original case – would not comment Friday on the developments.

Soto was 16 when he took part in the March 17, 2009, stabbing death of Moreno over a longstanding gang dispute, according to The Eagle’s news archives. Moreno was stabbed 79 times.

Prosecuted as an adult, Soto was ordered to serve 50 years before he was parole eligible after his sentencing judge found the killing to be especially heinous, violent and depraved.

Usually, an inmate with Soto’s conviction would have been eligible for parole in half that time.

Soto's case was remanded to Sedgwick County District Court after a 2013 U.S. Supreme Court ruling essentially voided Kansas Hard 50 sentences. The ruling –known as the Alleyne decision – said juries, not judges, must be the ones to weigh evidence for and against increasing a mandatory minimum sentence.

A jury had been empaneled in May for Soto’s re-sentencing but attorneys were granted a last-minute continuance and jurors released. Soto is currently in the Sedgwick County Jail awaiting re-sentencing in Moreno’s killing, as well as the adjudication of other criminal cases.

After the Alleyne decision, Kansas legislators rewrote the Hard 50 law to address issues raised by the nation’s high court. Currently, the presumptive sentence for a first-degree premeditated murder conviction like Soto’s is life imprisonment with parole eligibility after 50 years. The only other harsher penalties are capital punishment and life in prison without parole.

Soto was one of two convicted killers still awaiting re-sentencing in Sedgwick County District Court after their Hard 50 prison terms were voided on appeal. The other case still pending is that of Scott Roeder, who shot and killed Wichita abortion doctor George Tiller at Reformation Lutheran Church in 2009.

At this point there is no plan to stop seeking a second Hard 50 sentence against him, Bennett said this week.

Roeder’s re-sentencing date has not been set.

This story was originally published August 6, 2016 at 11:09 AM with the headline "Prosecutors won’t seek second Hard 50 against man in gang stabbing."