BY THE COURT
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.
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.
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).
from Sedgwick District Court; David J. Kaufman, judge.
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.
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.
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
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.
and Procedural Background
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.
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.
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."
jury also heard testimony that Castro received favorable
treatment from the State in exchange for his cooperation.
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.
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).
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.
court's mandate was signed by the appellate clerk on May
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.
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
"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
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.
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
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."
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
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
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
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
"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