- Associated Press - Friday, May 23, 2014

TOPEKA, Kan. (AP) - The Kansas Supreme Court vacated two more “Hard 50” prison sentences Friday and sent them back to the lower courts, including one that was at the heart of a legislative special session last year.

The seven-member court’s rulings dealt only with whether Matthew Astorga and Joaquin DeAnda’s sentences of life without the possibility of parole for 50 years were constitutional. Both convictions were for murder in 2008 - DeAnda in Finney County and Astorga in Leavenworth.

In both cases, the state’s high court says the men must be resentenced because their prison terms were decided by a judge not a jury, a process deemed unconstitutional by the U.S. Supreme Court in June 2013 in an unrelated case from Virginia. Astorga’s case, which was already being reviewed by the federal courts, got sent back to Kansas - a move that put the fate of Kansas’ “Hard 50” sentencing law in question.

Attorney General Derek Schmidt urged Gov. Sam Brownback to call legislators into special session, believing the Kansas law’s language was similar enough to what was written in the Virginia case that it would have to be revised. Legislators rewrote the law during a two-day special session in September to require a jury not a judge to determine whether the factors in a crime warrant a mandatory minimum sentence of life in prison with no chance of parole for 50 years in cases of premeditated, first-degree murder.

The lawmakers also said explicitly in the law that the new legislative fix would apply to all cases on appeal.

The Kansas Supreme Court, in vacating Astorga and DeAnda’s sentences, refused to rule on whether the legislative fix is constitutional, saying the issue wasn’t “ripe” for review. The court has taken the same stance in other “Hard 50” cases it has reviewed since the special session.

“Our decision does not prevent the parties from presenting their respective arguments regarding application of the amended hard 50 scheme to the district court at resentencing,” Justice Nancy Moritz wrote for the state’s high court.

The attorney general’s office did not immediately return messages seeking comment Friday.

Astorga’s defense attorney, Randall Hodgkinson, has argued that the most his client should receive is life in prison without a possibility for parole for 25 years because that was the most severe sentence available at the time of the crime that was constitutional.

Hodgkinson said applying the legislative changes to Astorga would still be unconstitutional.

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