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No new sentencing hearing for prison guard killer

In this April 13 photo, Rodney Berget, accused of killing a South Dakota prison guard during an unsuccessful escape in 2011, is escorted to court in Sioux Falls. A judge on Monday sentenced Berget to death for his part in the murder. (AP Photo/The Argus Leader, Elisha Page)

SIOUX FALLS (AP) -- A South Dakota judge has denied a new sentencing hearing before a jury for a man sentenced to death for his role in the killing of a prison guard.

Rodney Berget was convicted last year in the slaying of Ronald "RJ" Johnson in April 2011 during a bungled escape from the State Penitentiary. State Circuit Judge Brad Zell sentenced Berget to death, but the state Supreme Court overturned that sentence earlier this year and ruled that Zell improperly considered a statement Berget had made to a psychiatrist.

Berget then sought a new sentencing hearing in front of a jury.

Zell denied that request Tuesday, saying he will re-sentence Berget.

Berget and Eric Robert both pleaded guilty in the slaying of Johnson. Prosecutors said the two bashed Johnson with a pipe and covered his mouth with plastic wrap during a failed escape on Johnson's 63rd birthday.

Robert asked Zell to sentence him to death, and Zell found there was at least one aggravating factor to warrant the death penalty. A few months later, Berget appeared before Zell to be sentenced after waiving his right to a jury trial.

Berget was serving life sentences for attempted murder and kidnapping when he tried to escape with Robert, who was serving 80 years for a kidnapping conviction. The two men attacked and killed Johnson, who was alone in a part of the prison where inmates work on upholstery, signs, custom furniture and other projects. Robert put on Johnson's uniform and tried to move a large box toward the prison gate with Berget inside. The inmates were caught before leaving the prison. A third inmate has been sentenced to life in prison for his involvement in the escape attempt.

The prison made more than a dozen procedural changes after Johnson's death to improve security and safety. Johnson's widow, Lynette Johnson, has filed a wrongful death lawsuit against the state of South Dakota, the Department of Corrections and several DOC officials.

Robert did not appeal his death sentence, and he was executed in October of last year.