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State v. Soto

Supreme Court of Kansas

July 26, 2019

State of Kansas, Appellee,
Rogelio Soto, Jr., Appellant.


         1. The mandate rule applies to prevent district court action on remand only when an issue has already been finally settled by earlier proceedings in a case, including issuance of the appellate mandate. If a final settlement of an issue has occurred, the district judge is not free to expand upon or revise that history. The mandate rule does not, however, prevent a district judge from doing whatever else is necessary to dispose of a case. This means the district judge must not only do as the mandate directs; he or she must also do what is needed to settle other outstanding issues that must be decided to complete district court work on the case.

         2. Under K.S.A. 2018 Supp. 22-3501(1) a motion for new trial based on newly discovered evidence may be made within two years after final judgment.

         3. When a conviction or convictions have been affirmed on appeal but at least some part of the sentence has been vacated and remanded to the district court for resentencing, there is no final sentence and, hence, no final judgment under K.S.A. 2018 Supp. 22-3501(1).

          Appeal from Sedgwick District Court; David J. Kaufman, judge.

          Kevin J. Zolotor, of O'Hara & O'Hara, LLC, of Wichita, argued the cause, and Charles A. O'Hara, of the same firm, was on the briefs for appellant.

          Matt J. Maloney, assistant district attorney, argued the cause, and Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

          BEIER, J.

         Defendant Rogelio Soto, Jr., appeals the district court's rejection of his claim that he is entitled to a new trial without holding a hearing on the merits of his claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Soto alleges that vital information undercutting the State's star trial witness came to light for the first time while this case was on remand to the district court for resentencing.

         We hold that neither Kansas' mandate rule nor K.S.A. 2018 Supp. 22-3501(1) prevented the district court from holding the hearing Soto sought. We therefore reverse and remand this case to the district court for that hearing and for any additional proceedings that are necessary once the Brady issue is decided.

         Factual and Procedural Background

         Soto was convicted of first-degree premeditated murder in the March 2009 stabbing death of Arturo Moreno. According to the evidence at trial, Soto had three confederates in the crime and its concealment: Giovanni Gonzalez, Luis Navarrette-Pacheco, and Angel Castro.

         Castro testified in favor of the prosecution at Soto's trial, stating that he saw Soto holding a knife shortly before Moreno was killed, that Castro stepped outside the apartment and was not present for the stabbing, and that Soto later admitted to killing Moreno. Castro also described directing police to the place where he and Soto and the others disposed of evidence from the crime scene.

         During Castro's cross-examination, Soto's counsel highlighted that Castro had been untruthful and less than complete in his initial interview with police-among other things, denying that he had helped to clean up after the crime-and that his story about what happened changed only during his second police interview when he was confronted with conflicting evidence. Castro also said on cross-examination that he had not seen Moreno's body, even though he had testified on direct examination that he did "know what happened."

         Soto's jury also heard testimony that Castro received favorable treatment from the State in exchange for his cooperation.

         The closing arguments from both sides at Soto's trial also featured Castro's testimony. The State emphasized its probative value on the issue of premeditation. Soto's counsel again focused on how Castro's version of events had shifted over time and questioned how Castro's claim that he was not involved in the stabbing was consistent with evidence of Moreno's blood on Castro's clothing.

         The jury convicted Soto of first-degree murder, and the State sought a hard 50 life sentence. Under the statute applicable at the time, District Judge David J. Kaufman imposed a hard 50 sentence after finding the existence of aggravating factors. See State v. Soto, 299 Kan. 102, 108, 322 P.3d 334 (2014).

         While Soto's direct appeal was pending before this court, the United States Supreme Court handed down its decision in Alleyne v. United States, 570 U.S. 99, 111-16, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), which held that fact-finding in support of imposition of mandatory minimum sentences such as Kansas' hard 50 must be done by juries rather than judges. Given this controlling federal constitutional law, this court vacated Soto's hard 50 sentence and remanded for resentencing. 299 Kan. at 124.

         This court's mandate was signed by the appellate clerk on May 6, 2014.

         The Legislature, in a special session, amended the hard 50 statute in response to Alleyne. After the statutory amendment, on remand in this case, the State again sought a hard 50 sentence for Soto. A resentencing hearing before a jury was scheduled to determine whether aggravating circumstances existed to support that mandatory minimum.

         Because Judge Kaufman had ruled that Soto would be allowed to introduce evidence of the sentences the other participants in Moreno's murder received, the State retrieved information about Navarrette-Pacheco's plea arrangement. And, on May 3, 2016, the morning the resentencing hearing was set to begin, Soto's counsel received an email from the State that said:

"I couldn't figure out why the D.A. on the case gave the plea offer, from the file. But after looking at the JE of the judgment closer, he used defendant's lack of participation as a departure factor. Since that wasn't in the plea, I pulled the departure motion. It's attached and includes the results of the two polygraphs administered to Navarrette."

         The referenced attachment reported that Navarrette-Pacheco had said during interviews conducted at the same time as his polygraph examinations that Castro was in the room in the apartment when the stabbing of Moreno began and had seen Gonzalez initiate it and Soto join in, just as Naverrette-Pacheco had. This information contradicted Castro's testimony at Soto's trial that Castro had left the apartment before the attack started.

         When Judge Kaufman learned of the email and its attachment, he delayed Soto's resentencing hearing and directed the parties to address the procedure to be followed and any relief sought as a result of the discovery of the polygraph examination reports.

         Soto filed a written "Statement of Relief Sought" on June 24, 2016, seeking a "new trial based on (1) a Brady violation and (2) newly discovered evidence." He argued that the mandate rule presented no obstacle to his relief because it prohibited only relitigation of issues, and "the issue raised (Brady violation) has never been litigated in this case."

         For its part, the State's written argument did not contend that the mandate rule precluded Judge Kaufman from reaching the merits of Soto's Brady claim; it said the judge was free to employ the rule in his discretion to avoid doing so. It also argued that K.S.A. 2018 Supp. 22-3501(1) on motions for new trial was inapplicable because Soto's motion for a new trial was unrelated to the reason or purpose of the resentencing remand. On the merits of the Brady issue, the State asserted that there had been no violation.

         The State then filed a notice that it no longer intended to seek a hard 50 sentence for Soto. This meant that Soto would instead receive a required hard 25 life sentence. See K.S.A. 21-3401 (first-degree murder off-grid crime); K.S.A. 2018 Supp. 21-6806(c) (formerly cited as K.S.A. 21-4706) (sentence for off-grid crime life imprisonment); K.S.A. 2018 Supp. 22-3717(b)(2)(B) (inmate convicted of premeditated first-degree murder in 2009 eligible for parole after 25 years).

         Next, Soto filed an Amended Motion for Relief and Response in which he advanced an alternative basis for new trial: ineffective assistance of counsel. He alleged that his trial attorney's performance was unconstitutionally and prejudicially deficient because the attorney had failed to discover Navarrette-Pacheco's polygraphs and related statements.

         Judge Kaufman held a hearing on the dueling filings. Among other arguments advanced by the defense, Soto's counsel asserted that the Navarrette-Pacheco statements at the heart of the controversy did not truly qualify as "newly discovered" under K.S.A. 2018 Supp. 22-3501(1) because the State had been aware of them at the time of Soto's trial.

         Judge Kaufman ruled:

"1. Defendant (D) is procedurally barred from litigating th[e alleged Brady violation by the State] at this time. As such, the court does not reach the merits of the ...

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