Friday, April 11, 2014

Hard-50 statute ruled unconstitutional under Alleyne

In State v. Soto, No. 106,306 (Kan. April 11, 2014), the KSC today ruled that Kansas' statutory procedure for imposing a hard-50 sentence as provided in K.S.A. 21-4635 violates the Sixth Amendment to the U.S. Constitution as described in Alleyne v. United States, 133 S. Ct. 2151 (2013).  The court held that because the statute permits an increase in the mandatory minimum life sentence from 25 to 50 years based on a judge's finding a of aggravating factors by a preponderance of the evidence, the statute violates the constitutional right to a jury trial.  Kevin Zolotor and Charles A. O'Hara represented Mr. Soto in the appeal.

As blogged about here, here, here, and most recently - here, this is an issue that has been litigated by Kansas defenders for many years.  The Soto court explained some of the history of the issue and described what it called the "[t]he changed landscape after Alleyne v. United States."  Ultimately, the court held that "under the combined force of Ring and Alleyne, the statutory procedure for imposing a hard 50 sentence violates the Sixth Amendment because it permits a judge to find by a preponderance of the evidence the existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating factors beyond a reasonable doubt."

The court also held that "we need not decide here whether a harmlessness analysis applies to a hard 50/Alleyne error, because even assuming the application of Reyna's modified harmless error analysis, the error here does not come close to meeting that test."  The court further stated that, "because Kansas' hard 50 scheme requires the sentencing court to not only find aggravating and mitigating circumstances, but to weigh any mitigating circumstances against aggravating circumstances, only in a rare instance could a hard 50/Alleyne error be harmless."  (But it should be noted that the application of a harmlessness test to Apprendi error is another issue that may be reversed by SCOTUS in the future.  After all, it does not make much sense that a trial judge's factual findings would violate a defendant's right to a jury trial under Apprendi, but an appellate court's factual findings of harmlessness would not similarly violate that right.) 

The Soto decision, of course, overturned a now-repealed statute, K.S.A. 21-4635.  But it will undoubtedly affect the version of the hard-50 statute (K.S.A. 2011 Supp. 21-6620) that was in effect until September 6, 2013 (when the Legislature attempted to "fix" the hard-50 statute after Alleyne).

In the end, the Soto opinion also refused to address the remedy on remand.  The State argued that the newest version of K.S.A. 21-6620 (which retroactively requires jury findings for any non-final hard-50 sentence) should apply to any remand proceedings.  Mr. Soto argued that such a remedy would violation the Ex Post Facto Clause of the U.S. Constitution.  The court refused to address the issue, noting that it does not issue advisory opinions.  So in other words, stay tuned. 

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