State v. Salary
309 Kan. 479
Kan.2019Background
- Mark T. Salary was convicted of first-degree premeditated murder and arson for killing his uncle and burning the house; originally sentenced to a "hard 50" life term.
- This court vacated the hard 50 and remanded for resentencing under Alleyne; at resentencing the State declined to pursue hard 50 and sought the mandatory "hard 25."
- Salary filed multiple pro se motions before resentencing (motion to dismiss, Brady-type/exculpatory requests, claims of ineffective assistance, and allocution complaints); the district court denied them and imposed the hard 25.
- On appeal Salary raised four categories of claims: denial of his motion to dismiss, ineffective assistance of trial and appellate counsel, denial of exculpatory evidence, and denial of allocution.
- The Supreme Court addressed procedural default/res judicata and briefing deficiencies, evaluated whether ineffective-assistance claims could be raised on direct appeal, considered the Brady/exculpatory claim, and reviewed allocution under statutory harmless-error principles.
Issues
| Issue | Salary's Argument | State's Argument | Held |
|---|---|---|---|
| 1. Motion to dismiss / relitigation of issues decided on prior appeal | District court wrongly refused to consider issues (jury instructions, admission of statement, prosecutorial misconduct) at resentencing | Issues were raised or could have been raised on first appeal; Salary's brief fails to comply with briefing rules | Denied — res judicata and briefing defects bar relitigation; moot as to hard 50 already vacated |
| 2. Ineffective assistance (trial & appellate) | Counsel ineffective for admitting victim photos and for failing to press right-to-counsel issue about the unrecorded first hour | Claims raised for first time on appeal; record contradicts Salary’s assertions; arguments conclusory and unbriefed | Denied — cannot consider on direct appeal where factual issues exist; record does not support Salary |
| 3. Denial of exculpatory evidence (Brady) | Autopsy and other medical materials were withheld and are exculpatory; court should have ordered disclosure or relief | Discovery provided to counsel; Salary’s filings fail to identify specific withheld exculpatory material; untimely and unbriefed | Denied — claim waived/abandoned for inadequate briefing and no showing of withheld material |
| 4. Denial of allocution / judicial bias | Judge prevented Salary from presenting evidence/argument at allocution, violating statutory right and canons | Court afforded opportunity to speak; judge curtailed reargument of trial facts; any error harmless because sentence limited to hard 25 | Denied — court asked Salary to speak; limiting reargument was proper; any allocution error harmless |
Key Cases Cited
- Alleyne v. United States, 570 U.S. 99 (holding that facts increasing mandatory minimums must be submitted to a jury)
- State v. Soto, 299 Kan. 102 (applying Alleyne to Kansas sentencing)
- State v. Salary, 301 Kan. 586 (prior appeal resolving trial errors and vacating hard 50)
- State v. Kingsley, 299 Kan. 896 (res judicata bars issues raised or that could have been raised on direct appeal)
- State v. Arnett, 307 Kan. 648 (issues not adequately briefed are deemed waived)
- State v. Pewenofkit, 307 Kan. 730 (failure to support a point with authority is akin to failing to brief)
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
- State v. Wimbley, 292 Kan. 796 (appellate consideration of ineffective-assistance claims only when no factual disputes remain)