The Leavenworth Times - Leavenworth, KS
  • Court attempting to resolve murder sentence

  • A man who was convicted in 2009 of murder was back in Leavenworth County District Court on Wednesday after his sentence was overturned by the Kansas Supreme Court.
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  • A man who was convicted in 2009 of murder was back in Leavenworth County District Court on Wednesday after his sentence was overturned by the Kansas Supreme Court.
    Matthew Astorga, 37, was sentenced five years ago to life with no possibility of parole for 50 years under the state's "Hard 50" law.
    He was convicted of first-degree murder for the Dec. 26, 2008 shooting death of Ruben Rodriguez in Leavenworth.
    Last year, the U.S. Supreme Court ruled in a case from Virginia that jurors, not judges, should weigh whether facts of a case warrant minimum sentences such as Kansas' Hard 50.
    Following the decision, the U.S. Supreme Court remanded an appeal from Astorga to the Kanas Supreme Court for review.
    In an opinion released last month, the Kansas Supreme Court vacated Astorga's Hard 50 sentence.
    District Judge Gunnar Sundby reviewed the case when Astorga appeared in court Wednesday.
    "We need to re-sentence you in this case," Sundby said.
    The judge said there are several options for proceeding, including sentencing Astorga under a new Hard 50 process that would include a jury.
    Sundby said the Kansas Supreme Court had not provided guidance regarding how to proceed.
    Sundby asked Astorga if he planned to hire an attorney or wanted one appointed.
    Astorga said he needed a court-appointed attorney.
    Sundby said he planned to appoint KiAnn McBratney, who represented Astorga during his trial in 2009.
    Astorga said he didn't want to be represented by McBratney.
    "You'll have to find another lawyer," he said.
    Sundby asked Astorga why he wished to have another attorney.
    Astorga said he wasn't pleased with the outcome of his trial or his appeal.
    Sundby said McBratney had not handled Astorga's appeal.
    But, Astorga said McBratney filed the initial appeal.
    "I don't want her on my case," Astorga said. "That's the bottom line."
    Sundby said he will appoint another attorney.
    The judge scheduled the next court appearance in the case for July 11.
    Astorga was transferred from the custody of the Kansas Department of Corrections to Leavenworth County Jail before Wednesday's court appearance. He said he would like to be notified in the future before being transferred from the custody of the Department of Corrections.
    "You won't be going back to DOC," Sundby said.
    An officer from the jail said officers planned to return Astorga to DOC custody Thursday.
    But, Sundby questioned how Astorga could return to prison if his sentence had been vacated.
    County Attorney Todd Thompson said the defendant also had been sentenced for two additional crimes in the same case. But, Sundby said Astorga should have already completed the sentences.
    Astorga indicated he would prefer to return to DOC custody, complaining that he didn't want to be locked in his cell all day at Leavenworth County Jail.
    Page 2 of 2 - Undersheriff Jim Sherley said Astorga is being kept in a segregation status at the Leavenworth County Jail because of past behavior while at the jail.
    Sundby told Astorga he will have to find out where the defendant should be held in custody.
    After jail officers escorted Astorga from the courtroom, Assistant County Attorney Michael Jones suggested the Department of Corrections would have to recalculate Astorga's sentence.
    Sundby said he knows Astorga has to be processed out of the DOC system. But, the judge expressed concern that Astorga could be released without being turned over to Leavenworth County.
    "You won't be at that door to pick up I'm afraid," Sundby said.
    After the hearing, Thompson said prosecutors have not decided whether to seek another Hard 50 sentence for Astorga.
    "There's a whole lot of factors we have to take into consideration," Thompson said.
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