Trial set for defendant awaiting sentencing for murder

John Richmeier
The Leavenworth Times
Matthew Astorga

A new trial date has been set for a man who is to be resentenced for a 2008 murder in Leavenworth.

A jury is required for the sentencing of Matthew Astorga as prosecutors seek what is known as the Hard 50.

Astorga, 43, was convicted of first-degree murder in 2009. The charge stemmed from the Dec. 26, 2008, shooting death of Ruben Rodriguez in Leavenworth.

Astorga initially was sentenced to the Hard 50, which meant he was required to serve at least 50 years in prison before being eligible for parole.

But Astorga has to be resentenced because the state’s old Hard 50 law was struck down following a U.S. Supreme Court decision.

Following this decision, state lawmakers passed a new Hard 50 law. And prosecutors are once again seeking a Hard 50 sentence for Astorga under the new law.

The new Hard 50 sentencing process requires a jury.

There has not been a jury trial in Leavenworth County District Court for about a year because of the COVID-19 pandemic.

Senior Judge Gunnar Sundby, who is presiding over Astorga’s case, noted during a hearing Monday that there have been a number of continuances as the parties have waited for jury trials to resume.

Sundby said he has been advised a plan for conducting jury trials in Leavenworth County has received approval from the Kansas Supreme Court.

Sundby said he does not know when trials will officially resume. But he said the jury trial for Astorga’s sentencing is July 22.

The judge believes the trial will last only one day.

Monday’s hearing was conducted using the Zoom online videoconferencing service. Zoom is being used for many proceedings in the Leavenworth County District Court because of the pandemic.

Sundby said he would like to have an additional Zoom hearing before the trial.

“I would like to have one last Zoom conference to make sure we’re all squared away with everything,” he said.

He set the pretrial conference for July 19.

Sundby asked Astorga’s attorneys if they had any interest in using a six-person jury instead of a 12-person jury. He said attorneys could agree to a smaller jury.

“I’m not OK with that at all,” said Astorga, who appeared for the hearing by Zoom from the Leavenworth County Jail.

Sundby said he cannot overrule an objection to a six-person jury, so a 12-person jury will be used for the sentencing phase.

Another criminal case is pending against Astorga.

In that case, Astorga is charged with battery on a county corrections officer. This crime is alleged to have occurred July 15, 2014, at the Leavenworth County Jail.

Sundby set a trial date for this case as well during Monday’s Zoom conference.

The trial for the battery charge is scheduled to begin Aug. 9. Sundby believes this trial may take 1.5 days.

Astorga said he has always wanted to have the trial for the battery charge before the sentencing trial in the murder case.

“That’s the way it’s going to work,” he said.

Sundby said Astorga’s attorney in the battery case can file a motion if there is some legal reason why this trial should take place first.

Sundby said he believes it will be easier to conduct a one-day trial for the sentencing in July after Leavenworth County District Court has resumed jury trials. But he expressed concern that dockets may be too full in July to schedule a 1.5-day trial for the battery case.

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