Appeal in Wichita first-degree murder case tests precedent on sentencing

TOPEKA — The Kansas Supreme Court affirmed judicial precedent Friday on the inclusion of all jail-time credit in calculating prison sentences, despite courthouse outcomes viewed as “absurd” by some prosecutors.

Sedgwick County District Attorney Marc Bennett and Attorney General Kris Kobach challenged an appeal filed on behalf of Adrian Zongker, who was ordered to serve 50 years in prison for the murder of Wichita restaurant owner Oscar Acosta in 2021.

Kansas Appellate Defender Office attorney Randall Hodgkinson appealed Sedgwick County District Judge Seth Rundle’s order denying Zongker credit for eight months the defendant was held in county jail on a parole violation warrant while the first-degree murder case was pending.

Supreme Court Justice K.J. Wall wrote the opinion stating prosecutors were wrong about jail-time credit owed Zongker and offered unpersuasive arguments the Supreme Court wrongly decided the 2025 precedent-creating case of State v. Ervin. In that case, the Supreme Court overturned four decades of precedent in deciding how law crafted by the Kansas Legislature on jail-time credit should be construed.

The Supreme Court declared precise reading of statute required defendants to receive credit for all time incarcerated in jail pending disposition of his or her case. The decision applied regardless of whether a defendant received credit for some or all of that time against the sentence in a separate case, the Supreme Court said.

At outset of the Supreme Court’s nine-page opinion involving Zongker, Wall noted “the state thinks Ervin was wrong” and that prosecutors asserted Ervin “produces absurd results.” Prosecutors claimed on appeal the Ervin decision encouraged crimes by inmates, probationers and defendants on pretrial release, it granted people two days of credit for one day incarcerated and it conflicted with administrative regulations.

“We are unpersuaded,” said Wall, an appointee of Democratic Gov. Laura Kelly. “Courts do not depart from clear statutory texts to reach outcomes that seem more reasonable, even when drafters failed to anticipate a provision’s effect. Nor can we consult related statutes to apply carveouts the text does not contain. The policy judgments embedded in a statute belong to the Legislature, and we doubt that body would appreciate us substituting our own.”

The Supreme Court remanded the Zongker case to Sedgwick County District Court with directions for applying credit for all days spent in jail prior to conclusion of his murder case, “including any days for which he also received credit” in a prior case. Zongker had been on post-release supervision when he committed the murder, with a remaining obligation of 233 days on the previous case.

This was the second time the Supreme Court was called upon to sort out a sentencing conflict involving Zongker. In 2024, justices affirmed Zongker’s convictions for first-degree murder and criminal possession of a firearm. The appellate court rejected arguments of insufficient evidence of premeditation, improper jury instructions and ineffective assistance of counsel. The Supreme Court identified prosecutorial errors in misstating facts, but it deemed those harmless.

However, the Supreme Court determined the Sedgwick County District Court imposed an illegal sentence by ordering Zongker to serve two months more than state law allowed on the weapon charge.

In 2021, court records show, Zongker walked into the Wichita restaurant owned by Oscar and Amelia Acosta. He carried a diaper bag and a zebra-striped clutch. After finishing his meal, Zongker left the restaurant but soon returned to frantically search for a receipt and container of coins. The Acostas assisted Zongker in his search.

The receipt was found in the trash where Amelia Acosta had placed it, but no coins were recovered. At one point, the court record said, Oscar Acosta carried the trash can outside the business so Zongker could fully inspect it. Zongker dumped the trash on the ground. There was a gunshot. Oscar Acosta staggered into the restaurant and yelled: “Get down to the floor.” Amelia Acosta crawled to her husband, called 911 and grabbed a key to lock the restaurant door. Oscar Acosta died at the scene.

After the shooting, Zongker continued to dig through restaurant trash in the parking lot. He fled to a nearby QuickTrip. When law enforcement approached, Zongker dropped his belongings, held his hands in the air and volunteered: “I did it. I did it. The gun’s in the bag.” Inside the bag, officers found a gun, ammunition and a few silver coins.

Zongker was found competent to stand trial. He rejected a deal to plead guilty to intentional second-degree murder. Instead, he pleaded no contest to criminal possession of a weapon and proceeded to trial on the murder charge. A jury found him guilty.

While in jail, the court record says, Zongker had telephone conversations with family members that were recorded by jail personnel and played for the jury. During the calls, Zongker said he was justified in the killing because he was convinced people in the restaurant had taken gold and silver coins that belonged to him.

Family member: “I just don’t approve of, you know, taking people’s life over stuff like that.”

Zongker: “What if I stole $1,500 … from you?”

Family member: “You don’t kill somebody over $1,500, okay? You just don’t.”

Zongker: “If your property is being stolen, that’s stand your ground right there.”

Family member: “Nobody’s life is worth a billion dollars.”

Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.

Latest state news:

MORE …