- Associated Press - Tuesday, January 21, 2014

WICHITA, Kan. (AP) - Kansas prosecutors cited Tuesday the “overall terroristic nature” of the actions of the killer of a Wichita abortion provider in defending the imposition of a “Hard 50” sentence in the case, while also suggesting the Kansas Supreme Court could send the case back to district court for resentencing if the justices disagreed.

A Sedgwick County Judge sentenced Scott Roeder to life in prison without the possibility of parole for 50 years for the 2009 shooting death of Dr. George Tiller.

But the U.S. Supreme Court since has held that such sentences can only be imposed by juries, prompting Roeder to raise that as an issue on appeal. Roeder’s case is among several pending appeals before the state Supreme Court questioning the constitutionality of the Hard 50 sentencing scheme because a jury did not determine the facts that doubled the penalty from an ordinary life sentence.

In Tuesday’s filing with the Kansas Supreme Court, Sedgwick County prosecutors defended the constitutionality of the sentence as it applies to Roeder’s case in the wake of the U.S. Supreme Court ruling.

Prosecutors contend the sentencing in Roeder’s case does not run afoul of the U.S. Supreme Court decision because it does not automatically impose a mandatory minimum sentence but leaves it up to the sentencing court’s discretion.

They also argued the ruling was not applicable in the case because Kansas law requires a life sentence for premeditated first-degree murder, regardless of whether the court finds aggravating or mitigating factors in the case.

“Given the overall terroristic nature of defendant’s actions in the instant case, a rational jury could have found the existence of the aggravating circumstance that defendant committed his crime in an especially heinous, atrocious or cruel manner beyond a reasonable doubt,” Assistant District Attorney Boyd Isherwood wrote in the filing.

If the court disagrees with their arguments, prosecutors wrote, the proper remedy would be to remand the case to the district court for resentencing under the newly amended Hard 50 sentencing law.

Kansas lawmakers changed that process in September during a two-day special session after the ruling by the nation’s high court.

The sentence is one of several issues raised in Roeder’s appeal. The defense wants the conviction thrown out because the trial court did not include jury instructions for lesser offenses such as voluntary manslaughter or second-degree murder.

But prosecutors argued that any error by the trial judge to give those instructions would be harmless and would not have changed the outcome due to the “tsunami of evidence” presented at trial supporting the conviction of premeditated first-degree murder.

The state’s high court will hear oral arguments Jan. 29.

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