State v. Salary

• Decision Date: 29 March 2019
• Docket Number: No. 116,406,116,406
• Citation: 309 Kan. 479,437 P.3d 953
• Parties: STATE of Kansas, Appellee, v. Mark T. SALARY, Appellant.
• Court: Kansas Supreme Court

309 Kan. 479

437 P.3d 953

STATE of Kansas, Appellee,

v.Mark T. SALARY, Appellant.

No. 116,406

Supreme Court of Kansas.

Opinion filed March 29, 2019.

Mark T. Salary, appellant, was on the brief pro se.

Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by Nuss, C.J.:

We previously upheld Mark T. Salary's convictions but remanded for resentencing of his hard 50 life sentence in State v. Salary , 301 Kan. 586, 343 P.3d 1165 (2015). Following his resentencing, Salary again directly appeals and:

1. challenges the district court's denial of his motion to dismiss;

2. alleges ineffective assistance of trial and appellate counsel;

3. challenges the denial of his motion for exculpatory evidence; and

4. alleges he was denied allocution at resentencing.

We hold the district court did not err and affirm Salary's convictions and sentences.

FACTS AND PROCEDURAL HISTORY

Salary was convicted by a jury of one count of first-degree premeditated murder and one count of arson for shooting and killing his uncle, Joe Estell, and setting fire to Estell's home. Salary was sentenced to life imprisonment without the possibility of parole for 50 years (hard 50) for the murder conviction. On appeal, however, we vacated the hard 50 and remanded for resentencing per Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and this court's later decision in State v. Soto , 299 Kan. 102, 322 P.3d 334 (2014). Salary , 301 Kan. at 608-09, 343 P.3d 1165.

Following our decision, the State chose not to seek the hard 50 for the murder conviction, which would require impaneling a jury and presenting facts to support the requested sentence. Instead, the State chose to seek the hard 25, which the judge could constitutionally impose without a jury. Prior to the resentencing hearing, Salary filed several pro se motions and letters to the court. The court denied all of Salary's motions at the resentencing hearing and sentenced him to the hard 25.

We have jurisdiction over this direct appeal under K.S.A. 2018 Supp. 22-3601(b)(3), (4) (life imprisonment, off-grid crime).

Additional facts will be added as necessary to the analysis.

ANALYSIS

Issue 1: The district court did not err in denying Salary's motion to dismiss.

In between our decision in Salary's first appeal and the resentencing hearing, he filed a motion to dismiss. He described the motion as a "direct appeal from his conviction" and asserted three errors by the district court:

1. in finding that the alleged murder was particularly heinous, atrocious, or cruel;

2. in failing to instruct the jury on self-defense and the lesser included offense of voluntary manslaughter based on the theory of imperfect self-defense; and3. in allowing Salary's statement to the police into evidence when Salary had specifically requested that he be able to speak to an attorney.

In addition, Salary alleged prosecutorial misconduct based on the prosecutor's knowledge of the State's key witness' deliberate omission of material facts.

In denying the motion at the resentencing hearing, the court concluded that Salary was arguing issues he either raised or should have raised in his direct appeal. The court declined to return to those issues. It informed Salary that if he wanted to seek post-conviction relief, he would have to wait until after sentencing.

Salary now argues his motion was properly before the district court and, if not, he is entitled to a second direct appeal. Among other things, the State contends Salary's brief fails to comply with Kansas Supreme Court Rules because he fails to cite to the record or identify any caselaw that supports his positions.

Standard of review

The district court's denial rationale embraced, without naming, the doctrine of res judicata. The doctrine's applicability is a question of law subject to our unlimited review. State v. Parry , 305 Kan. 1189, 1193, 390 P.3d 879 (2017) ; State v. Kingsley , 299 Kan. 896, 899, 326 P.3d 1083 (2014).

Discussion

Under Kansas Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 35), "[e]ach issue must begin with citation to the appropriate standard of appellate review and a pinpoint reference to the location in the record on appeal where the issue was raised and ruled on." Salary's brief fails to pinpoint cite the record—and the State correctly observes he does not cite any authority in support of his positions. Issues not adequately briefed are deemed waived or abandoned. State v. Arnett , 307 Kan. 648, 650, 413 P.3d 787 (2018). And failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v. Pewenofkit , 307 Kan. 730, 731, 415 P.3d 398 (2018).

Even if we were to address Salary's arguments in his motion to dismiss, however, the district court noted they were either raised or should have been raised in his first appeal. There, we rejected Salary's arguments that the district court committed reversible error in denying his request for a jury instruction on self-defense or in denying his request for a voluntary manslaughter instruction. Salary , 301 Kan. at 598, 602, 343 P.3d 1165. We additionally rejected his argument that the court committed reversible error in admitting his recorded confession when he invoked his right to counsel during the custodial interrogation. 301 Kan. at 603-07, 343 P.3d 1165. In short, Salary is barred from raising these arguments again. Kingsley , 299 Kan. at 901, 326 P.3d 1083 (Where an appeal is taken from a conviction or sentence imposed, the judgment of the appellate court is res judicata as to all issues actually raised.).

This leaves Salary's claims of prosecutorial misconduct (more properly labeled prosecutorial error)—and court error in finding the murder was particularly heinous, atrocious, or cruel (a basis for imposing the hard 50 under K.S.A. 21-4636 [f] ). Although not raised in his first appeal, they could have been raised. They too are barred by res judicata. Kingsley , 299 Kan. at 901, 326 P.3d 1083 (barring claims that were "or could have been raised"). Finally, we have already vacated Salary's hard 50 sentence. As a result, his argument that the district court erred in finding that the murder was particularly heinous, atrocious, or cruel is moot.

Thus, we conclude the court did not err in denying Salary's motion to dismiss at the resentencing hearing.

Issue 2: Salary is barred from raising ineffective assistance of trial and appellate counsel for the first time on appeal.

Salary alleges that he received ineffective assistance of trial and appellate counsel regarding (1) the admission of certain photographs of the deceased at trial, and (2) for failing to argue his right to counsel was violated when he requested a lawyer during the first hour of the police interrogation.

The State responds Salary is improperly raising these arguments for the first time on appeal. It further argues that Salary's contentions are conclusory, not supported by any citation to the record, and that the record rebuts his allegations. According to the State, at the hearing to determine the admissibility of his statement under Jackson v. Denno , 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), Salary never testified that he had invoked his right to counsel during the first unrecorded hour of the interrogation. Rather, trial was the first time he ever said he had wanted a lawyer during that part of the interrogation.

Standard of review

To prevail on a claim of ineffective assistance of trial counsel, a criminal defendant must establish (1) that the performance of defense counsel was deficient under the totality of the circumstances, and (2) prejudice, i.e., that there is a reasonable probability the jury would have reached a different result absent the deficient performance. Sola-Morales v. State , 300 Kan. 875, 882, 335 P.3d 1162 (2014) (relying on Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 [1984] ).

To establish ineffective assistance of appellate counsel, defendant must show that (1) counsel's performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness, and (2) the defendant was prejudiced to the extent that there is a reasonable probability that, but for counsel's deficient performance, the appeal would have been successful. Miller v. State , 298 Kan. 921, 929-31, 934, 318 P.3d 155 (2014).

As a general rule, an appellate court will not consider an allegation of ineffective assistance of counsel raised for the first time on appeal. State v. Dull , 298 Kan. 832, 839, 317 P.3d 104 (2014). "[G]enerally the factual aspects of a claim of ineffective assistance of counsel require that the matter be resolved through a K.S.A. 60-1507 motion or through a request to remand the issue to the district court for an evidentiary hearing under State v. Van Cleave , 239 Kan. 117, 119-21, 716 P.2d 580 (1986). [Citation omitted.]" State v. Galaviz , 296 Kan. 168, 192, 291 P.3d 62 (2012). Although an appellate court may consider a claim of ineffective assistance of counsel for the first time on appeal, it may do so only when there are no factual issues and the two-prong ineffective assistance of counsel test can be applied as a matter of law based upon the appellate record. Wimbley v. State , 292 Kan. 796, 807, 275 P.3d 35 (2011).

Discussion

For Salary's first contention of ineffectiveness, we observe that in his most recent district court proceeding he failed to raise this argument about trial counsel's deficient performance with the photographs. See Galaviz , 296 Kan. at 192, 291 P.3d 62. And because Salary fails to identify the specific problems, we have insufficient information to analyze this issue for the...