Monday, July 01, 2013

Tenacity is a virtue

Randall Hodgkinson and Joanna Labastida won in Astorga v. Kansas, Case No. 12-7568 (U.S. June 24, 2013), obtaining a GVR (certiorari granted, judgment vacated, and case remanded) from the U.S. Supreme Court based on the recent case of Alleyne v. United States, 570 U.S. ___ (2013).  The Court's order will require reconsideration of the Hard-50 sentence imposed in a Leavenworth County murder case.  Here is coverage of the case by Doug Berman's Sentencing Law and Policy blog.  Teri Barr (now tribal judge) wrote the Kansas Supreme Court brief and raised the Apprendi issue, even in the face of repeated previous rejections.

In Alleyne, the SCOTUS held that mandatory minimum sentences increase the penalty for a crime, so any fact that increases the mandatory minimum is an “element” of the crime that must be submitted to the jury and proven beyond a reasonable doubt.  The case involved a conviction under 18 U.S.C. 924(c) for possession of a firearm during a crime of violence, where the mandatory minimum sentence was increased from 5 years to 7 years based on a judge's finding at sentencing that a firearm was brandished during the offense.  The issue in the case was whether jury trial rights applied such that brandishing had to be found beyond a reasonable doubt by a unanimous jury before the 7-year minimum could be imposed by the sentencing court.

 In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court held that Sixth Amendment rights applied to any factual findings that increased a maximum punishment.  Finding Apprendi applicable, the Alleyne Court held: “Any fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt. . . .  Mandatory minimum sentences increase the penalty for a crime.  It follows, then, that any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.”  Thus, the fact of whether a firearm was "brandished" during a 924(c) offense was an element of the offense that needed to be found by a jury beyond a reasonable doubt (or waived).

As blogged about here, here, and here (and as is evident in the Astorga GVR), the decision in Alleyne will require the KSC to reconsider the constitutionality of Kansas' Hard-50 sentencing scheme.  Under K.S.A. 21-6620 and K.S.A. 21-6623 (and under the prior versions of the statute), a sentencing judge imposing a life sentence in a first-degree murder case has to make factual findings of aggravating factors in order to increase a defendant's sentence from the hard 25 to a hard 50. Numerous defendants have challenged the Hard-40 and Hard-50 sentencing schemes, arguing that the judicial findings of aggravating factors increase the penalty for the offense (by increasing the mandatory minimum or, conversely, denying parole eligibility) and should be found by a jury beyond a reasonable doubt. See State v. Conley, 270 Kan. 18 (2000), cert. denied, 532 U.S. 932 (2001), State v. Ellmaker, 289 Kan. 1132, 1155-56 (2009) (listing several of the numerous challenges to the constitutionality of the Hard-50 statutory scheme).

This case demonstrates why some issues need to be preserved and litigated even if the appellate courts have consistently rejected them (in district court and on appeal).  This fact was noted in SCOTUSblog's coverage of Alleyne: "the criminal defense bar may take some comfort in the knowledge that repeating an oft-denied request to overrule one of the Court’s precedents is not always a dead end."  To use a Seinfeld analogy- "[overturning case law] is like knocking over a coke machine.  You can't do it in one push. You gotta rock it back and forth a few times, and then it goes over."  Randall has been litigating this issue for as long as I can remember (as have other appellate defenders).

[Update: here is coverage in the Hutchinson News evincing that this Alleyne may have quick impact in some Hard-50 cases.]

[Further update: here is further coverage in the Kansas City Star detailing some other cases possibly impacted by Alleyne.  Hat tip to Sentencing Law and Policy.]

[Further update: here is an article in the Lawrence Journal World reporting that the Governor is calling a special session to address the potential Alleyne issue in connection with Hard-50 sentences.  And here is another article talking about the costs of such a session.]

[Further update: here is a link to the Governor's press release regarding the special session.]

[Further update: here is an article in the Topeka Capital-Journal regarding the Special Judiciary Committee meeting in advance of the special session; here is an article from the Lawrence Journal World; here is an article (including some audio) on Kansas Public Radio.]

[Further update:  in State v. Astorga, No. 103,083 (Kan. May 23, 2014), following its precedent (blogged about here), the KSC reversed Mr. Astorga's hard-50 sentence and remanded for further proceedings.)



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