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The Leavenworth Times - Leavenworth, KS
  • Prosecutors seek jury for defendant's Hard 50 sentence

  • Leavenworth County prosecutors want a jury to decide whether a "Hard 50" sentence should be reimposed for a man who was convicted in 2009 of first-degree murder.
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  • Leavenworth County prosecutors want a jury to decide whether a "Hard 50" sentence should be reimposed for a man who was convicted in 2009 of first-degree murder.
    Matthew Astorga, 37, was sentenced five years ago to a life sentence with no possibility of parole for 50 years under the state's old Hard 50 law. He was convicted of first-degree murder for the shooting death of Ruben Rodriguez. Rodriguez was shot Dec. 26, 2008, in Leavenworth.
    Last year, the U.S. Supreme Court ruled in a case from Virginia that jurors, not judges, should weigh whether the facts of a case warrant mandatory minimum sentences such as Kansas' Hard 50.
    Following this decision, the U.S. Supreme remanded an appeal from Astorga to the Kanas Supreme Court for review.
    In an opinion released in May, the Kansas Supreme Court vacated Astorga's Hard 50 sentence. His conviction still stands, and he remains in custody as he awaits his re-sentencing.
    Kansas lawmakers have updated the state's Hard 50 law to allow jurors to determine if such sentences are warranted.
    Astorga appeared Friday in Leavenworth County District Court.
    Assistant County Attorney Cheryl Marquardt said prosecutors are requesting a jury proceeding to present evidence and argue for another Hard 50 sentence.
    Much of Friday's hearing was conducted without Astorga present.
    The hearing marked the first time Astorga appeared with his new court-appointed attorney, James Colgan.
    "I haven't had time to speak to the lawyer," Astorga said at the start of the hearing.
    Astorga said he filed his own motion since last appearing in court June 25. He said he had not received a response.
    "I did rule on that," District Judge Gunnar Sundby said.
    Astorga said he shouldn't have been brought into court.
    Sundby said Astorga was brought into court because he was scheduled to appear for the hearing.
    Astorga said he wanted to return to his cell. He left the defense table and walked through a door to a holding cell area.
    Officers from the Leavenworth County Jail accompanied Astorga as he left the courtroom.
    Sundby continued the proceeding after Astorga left the courtroom.
    The judge said Astorga filed a motion objecting to having an attorney appointed from a public defender's office.
    Leavenworth County District Court does not have a public defender's office. Colgan was appointed from a list of attorneys approved by a state board for indigent defense services.
    "You are exactly what he asked for," Sundby said to Colgan.
    Sundby said he considered the issue raised by Astorga's motion to be moot. The judge said he filed a response, but Astorga may have not received it.
    Page 2 of 2 - If a jury doesn't feel a Hard 50 sentence is warranted, Astorga could receive a life sentence with a minimum of 25 years before he's eligible for parole.
    But, Sundby said he believes the law also would allow him to impose a sentence ranging from 46-51.5 years.
    No date has been set for the requested jury proceeding. Sundby suggested the prosecution file a motion requesting the proceeding.
    Astorga is scheduled to return to court Aug. 13.
    Colgan said he would try to visit with Astorga immediately following Friday's hearing.
    "But, I doubt it will be terribly friendly," Colgan said.
    The attorney said he also will send a letter to his new client.
    Sundby said he would accommodate Astorga and provide him due process.
    "I can't prevent him from ignoring us," Sundby said.

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