It is unclear when a man will be resentenced for a 2008 murder in Leavenworth.
Matthew Astorga is awaiting resentencing for a first-degree murder conviction. But his sentencing will require a jury. And jury trials remain suspended in Leavenworth County District Court because of the coronavirus pandemic.
Astorga, 43, was convicted of the murder charge in 2009. The charge stemmed from the Dec. 26, 2008, shooting death of Ruben Rodriguez in Leavenworth.
Astorga initially was sentenced to what is known as the Hard 50, which meant he was required to serve at least 50 years in prison before being eligible for parole.
However, Astorga now has to be resentenced because the state’s old Hard 50 law was struck down following a U.S. Supreme Court decision.
In a 2013 decision in a case from Virginia, Alleyne v. United States, the U.S. Supreme Court ruled that facts that increase mandatory minimum sentences should be submitted to a jury.
In Astorga’s case, a judge had determined that the Hard 50 sentence should be imposed.
Following the Alleyne v. United States decision, the U.S. Supreme Court remanded an appeal from Astorga to the Kansas Supreme Court for review. In 2014, the Kansas Supreme Court vacated Astorga’s Hard 50 sentence and remanded the case back to the district court level for resentencing.
A trial for Astorga’s sentencing had been scheduled for earlier this year but was continued because of the pandemic.
Astorga also is awaiting a jury trial for a case in which he is accused of battery on a county corrections officer. This crime is alleged to have occurred July 15, 2014, at the Leavenworth County Jail.
Senior Judge Gunnar Sundby conducted a hearing Monday to make sure the parties in both cases were aware of the status.
The hearing was conducted through the use of the Zoom online videoconferencing service. Zoom is being used for many Leavenworth County District Court proceedings because of the pandemic.
Sundby said the Kansas Supreme has issued an order asking district courts to develop plans for safely resuming jury trials. But he said the 1st Judicial District, which comprises Leavenworth and Atchison counties, has not received approval for jury trials.
"I don’t think there is a plan at this moment," County Attorney Todd Thompson said.
Rex Lane, one of two attorneys representing Astorga in the murder case, said defense lawyers are not in a hurry to conduct the resentencing proceeding.
Even without a Hard 50 sentence, Astorga would have to serve a minimum of 25 years in prison for the murder conviction. Lane said Astorga still has 12 or 13 years to go before he will have spent 25 years in custody.
"We’re not in any big hurry," Lane said.
He suggested the battery case could go to trial before the resentencing for the murder conviction.
Defense attorney Judd Herbster, who is representing Astorga in the battery case, said the defense had filed a motion asserting the defendant’s right to a speedy trial.
Sundby said he has taken up this issue for a case in another jurisdiction. The judge said he could not find case law that would suggest the Kansas Supreme Court has erred in postponing jury trials under the circumstances.
But Sundby said he would be glad to take up the issue in Astorga’s case.
Sundby scheduled a Dec. 7 hearing for the two cases. He said the parties will discuss the status of jury trials at that time.
Astorga remains in custody at the Leavenworth County Jail.