Decision: State v. Bello

July 2nd. The Kansas Supreme Court has issued its decision in State v. Bello, an appeal against a conviction for child abuse. In a unanimous opinion, written by Justice Lee Johnson, the Court affirmed Juan Jose Bello’s conviction for aggravated criminal sodomy and aggravated indecent liberties with a child. However the Court vacated his ‘Jessica’s Law’ 25-years-without-parole sentence on the grounds that the State had not submitted the fact of his being over 18 years old to the jury for consideration. Bello will therefore be re-sentenced under the Kansas Sentencing Guidelines to a shorter sentence. No criminal history score information is included in the opinion to allow a calculation of how long Bello will likely serve.

Bello molested a seven year-old girl who was visiting his home with her parents. After Bello had twice gone to the room in which she and her brother were sleeping and molesting her, the girl told her parents. After a fight, police were called and Bello was arrested and charged.

At trial, Bello procured an expert witness who was to present a theory that the girl had been abused before and that she had mistakenly accused Bello. The “supporting evidence” for this abuse was an affidavit from Bello’s wife that she had seen the girl kiss her brother and that she had seen her climb into Bello’s lap. Bello filed a motion to allow this “evidence” to be introduced under the provisions of the Kansas Rape Shield Law which normally precludes evidence of past sexual activity by the victim unless the trial court allows it. The trial court denied the motion.

On appeal, Bello argued that the Kansas Rape Shield Law did not apply to situations where the prior acts were victimization in a crime and not consensual activity. The Supreme Court opinion indicates that the Justices found this to be an interesting argument but rejected it because Bello had not objected to the Statute at trial and therefore could not bring it up on appeal. Indeed, Bello had filed a motion under the terms of the statute he now challenged. One might also say that the Legislature is on notice to ensure the Rape Shield Law can also be used to protect victims in these situations.

Bello’s appeal of his conviction was thus rejected. However he also appealed his 25 year sentence on the grounds that a different sentence is applied to this crime depending on whether the defendant is over 18 or not. The State had not specified  Bello’s age in the charge, and the Jury was not asked to find that Bello was indeed over 18. Therefore, following the Apprendi rule, the Kansas Supreme Court held that Bello cannot be sentenced to the harsher sentence which applies to those over 18. His case was therefore remanded to the trial court for sentencing under the Sentencing Guidelines and not ‘Jessica’s Law’.

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4 Responses to “Decision: State v. Bello”

  1. Decision: State v. Gonzales « Kansas Supreme Court Blog Says:

    […] citing its recent decision in State v. Bello, the Court vacated  Gonzales’ sentence. It found that under Apprendi, the fact that Gonzales […]

  2. Decision: State v. Morningstar « Kansas Supreme Court Blog Says:

    […] Decision: State v. Morningstar By kscblog August 14th. The Kansas Supreme Court has issued its decision in State v. Morningstar (No. 99,788) an appeal arising from a child abuse prosecution. In a unanimous opinion, written by Justice Dan Biles, the Court upheld the conviction of Gary Morningstar for the rape of his six-month old daughter but vacated his Jessica’s Law sentence, in accordance with the recent precedent in State v. Bello. […]

  3. Pancho Says:

    Derek Schmidt is currently running around the state taking credit for Jessica’s Law in his race for A.G. It was probably paid for by GEO Group, a corporation that wanted to increase the number of inmates in Kansas prisons.

    Derek’s a bright guy and a good attorney who knew what the problems were going to be with the law (i.e., forcing vulnerable minors to testify in open court, leading to frequent dismissals) but used the law as a vehicle to get publicity and to attempt to ram through a for-profit prison bill in Kansas. He was taking campaign money for himself and apparently steering other money from GEO Group (formerly Wackenhut Corrections) the corporation that sought to overturn the Kansas ban on such dangerous prisons, to other Senators. That fundraising burnished his credentials for the post of majority leader.

    Schmidt figured with the bills bundled, no legislator would have the guts to vote against Jessica, which was mom and apple pie legislation. Only two senators did, actually, courageously unwilling to buy into the problems the bill would cause, even at great risk to their future elections. They were David Haley and Marci Francisco.

    In the House, the bill was ironically pushed by Trish Kilpatrick, who was subsequently convicted of criminal offenses and fined for substantial legislative ethics violations.

    She went to work for the non-profit that was pushing the law around the country but was quickly fired when Jessica’s dad realized what a flake she was.

    The worst part of all this is that it’s likely minor offenders will be sent to prison for what are actually low-level offenses. A 25-year sentence will surely cost taxpayers well over a half million in today’s dollars, not accounting for inflation.

    This was some extremely expensive grandstanding.

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