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State v. Salary

Supreme Court of Kansas

March 29, 2019

State of Kansas, Appellee,
v.
Mark T. Salary, Appellant.

         SYLLABUS BY THE COURT

         1. Under Kansas Supreme Court Rule 6.02(a)(5), "[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." (2019 Kan. S.Ct. R. 35).

         2. 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.

         3. 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 and those that could have been raised.

         4. Allocution errors, including denial of allocution, are reviewed under the statutory harmless error standard.

          Appeal from Wyandotte District Court; J. Dexter Burdette, judge.

          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.

          OPINION

          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.

         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 ...


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