Salinas v. State

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NOT DESIGNATED FOR PUBLICATION

No. 112,830

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

RUDOLFO SALINAS,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed April 15,
2016. Affirmed.

Michael P. Whalen and Krystle M. S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for
appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before BUSER, P.J., LEBEN and BRUNS, JJ.

BUSER, J.: Rodolfo Salinas appeals the district court's summary denial of his
K.S.A. 60-1507 motion. Salinas filed his motion 3 1/2 years after his direct appeal was
final. The district court summarily dismissed the K.S.A. 60-1507 motion because it was
untimely. Having reviewed the record and the parties' briefs, we find no error and,
therefore, affirm the district court's judgment.


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FACTUAL AND PROCEDURAL BACKGROUND

On September 7, 2007, a jury found Salinas guilty in a consolidated trial on
charges of aggravated kidnapping, aggravated assault, aggravated battery, domestic
battery, and violating a protective order. The Court of Appeals affirmed the convictions
on July 23, 2009, and on May 18, 2010, the Kansas Supreme Court denied review. See
State v. Salinas, No. 99,821, 2009 WL 1911686 (Kan. App. 2009) (unpublished opinion),
rev. denied 290 Kan. 1102 (2010). Salinas did not petition the United States Supreme
Court for a writ of certiorari.

On December 3, 2013, Salinas filed the K.S.A. 60-1507 motion that is the subject
of this appeal. Together with his K.S.A. 60-1507 motion, Salinas submitted a motion to
file out of time. In the latter motion, Salinas asserted that he had only learned the Kansas
Supreme Court had denied review in March 2012. Salinas stated that he had been
"diligently working" on his K.S.A. 60-1507 motion ever since, but he "had great
difficulty grasping the fundamental legal concepts . . . had little research time due to his
prison work detail," and had limited access to computers. As a result, Salinas asked the
district court to permit his untimely filing of the K.S.A. 60-1507 motion to prevent a
manifest injustice.

The record does not indicate that Salinas served either of his motions on the State
of Kansas. However, on January 23, 2014, the district court summarily denied the motion
to file out of time and summarily dismissed the K.S.A. 60-1507 motion, both for failure
to show "any manifest injustice." Salinas appeals.

ANALYSIS

On appeal, Salinas contends he showed manifest injustice under the "corrected and
clarified" standards of Vontress v. State, 299 Kan. 607, 325 P.3d 1114 (2014). The State
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agrees that Vontress applies here, but it maintains that Salinas has failed to show manifest
injustice under the Vontress standards. The parties also agree that since our appellate
court is "as equipped as a district court to decide" the manifest injustice issue, our review
over the summary proceeding below is de novo. Laymon v. State, 280 Kan. 430, 437, 122
P.3d 326 (2005); see Edgar v. State, 294 Kan. 828, 836, 283 P.3d 152 (2012).

In 2003, the legislature imposed time limitations on the filing of K.S.A. 60-1507
motions:

"Time limitations. (1) Any action under this section must be brought within one
year of: (i) The final order of the last appellate court in this state to exercise jurisdiction
on a direct appeal or the termination of such appellate jurisdiction; or (ii) the denial of a
petition for writ of certiorari to the United States supreme court or issuance of such
court's final order following granting such petition.
"(2) The time limitation herein may be extended by the court only to prevent a
manifest injustice." (Emphasis added.) K.S.A. 60-1507(f); see L. 2003, ch. 65, sec. 1.

Salinas' motion to file out of time essentially acknowledged that his K.S.A. 60-
1507 motion was untimely under K.S.A. 60-1507(f)(1). The district court also considered
the motion as untimely and, as a result, ruled on the issue of manifest injustice. Salinas
does not dispute any of this on appeal. Given the undisputed dates and filings at issue, it
is clear that Salinas' K.S.A. 60-1507 motion was filed about 2 1/2 half years after the 1-
year time limitation in K.S.A. 60-1507(f)(1) expired.

The question presented on appeal, therefore, is whether the district court erred in
holding Salinas had not shown manifest injustice under K.S.A. 60-1507(f)(2).

Vontress provides important guidance in answering this question. In Vontress, our
Supreme Court noted precedent which defined manifest injustice as something obviously
unfair or shocking to the conscience. 299 Kan. at 614. Our Supreme Court then went on
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to hold: "Manifest injustice under K.S.A. 60-1507 must be determined under the totality
of the circumstances." 299 Kan. 607, Syl. ¶ 7. To assist courts in this determination, our
Supreme Court identified three nonexclusive factors for consideration:

"(1) whether the prisoner provides persuasive reasons or circumstances that prevented
him or her from filing the K.S.A. 60-1507 motion within the 1-year time limitation; (2)
whether the merits of the prisoner's claim raise substantial issues of law or fact deserving
of the district court's consideration; and (3) whether the prisoner sets forth a colorable
claim of actual innocence." 299 Kan. 607, Syl. ¶ 8.

We will consider each of the three Vontress factors individually.

The Reasons or Circumstances that Prevented Timely Filing

Salinas reprises the reasons and circumstances he asserted in the district court that
prevented his timely filing of the K.S.A. 60-1507 motion. First, Salinas claims he was not
informed when the Kansas Supreme Court denied his petition for review on May 18,
2010. But Salinas admits that he did not file the motion for more than 20 months after
learning of the Supreme Court's ruling. Salinas justifies the delay because he was a pro se
litigant but, as the State correctly argues, pro se litigants should also comply with
procedural rules. See Guillory v. State, 285 Kan. 223, 229, 170 P.3d 403 (2007).

Second, Salinas claims his counsel on direct appeal was ineffective for failing to
inform him when the Kansas Supreme Court denied review. Salinas did not raise this
issue in the district court, however, and we generally do not consider constitutional issues
for the first time on appeal. See State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014).
Our Supreme Court has recognized exceptions, however, State v. Phillips, 299 Kan. 479,
493, 325 P.3d 1095 (2014), and Salinas invokes two exceptions here—that his claim
"involves only a question of law arising on a fully developed record of the facts at the
district court level," and it "is necessary to serve the ends of justice."
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To the contrary, Salinas' ineffective assistance of appellate counsel claim requires
factual support which is missing from the record on appeal. Moreover, Salinas does not
claim he would have filed his K.S.A. 60-1507 motion within 1 year of the date our
Supreme Court denied review if his counsel had contemporaneously informed him of the
fact. Without such a claim, Salinas does not allege prejudice under Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S.
1267 (1984). Since Salinas does not allege prejudice, he is unable to show consideration
of this issue is necessary to serve the ends of justice. See K.S.A. 60-2105 (appellate
courts should ignore errors which "do not affirmatively appear to have prejudicially
affected the substantial rights of the party complaining").

In summary, Salinas has not shown persuasive reasons or circumstances that
prevented him from filing his K.S.A. 60-1507 motion within the 1-year time limitation of
K.S.A. 60-1507(f)(1).

Whether the Merits of the Claim Raise Substantial Issues of Law or Fact

Under this factor, we review whether the merits of Salinas' ineffective assistance
of counsel claim raised substantial issues of law or fact deserving of the district court's
consideration. Salinas does not brief such substantial issues of law or fact, however.
Instead he briefs what he calls, "legitimate claims of ineffective assistance of counsel."

Salinas describes a "legitimate" claim as one warranting an evidentiary hearing on
the merits. According to Salinas, the "issue here is not whether [he] should prevail on his
[K.S.A.] 60-1507 [mo]tion but whether he ought to be given an evidentiary hearing to
make his case for relief. That is a significantly narrower issue."

As a result, Salinas briefs the legal standard applied to timely K.S.A. 60-1507
claims. See K.S.A. 60-1507(b); Supreme Court Rule 183(f) (2015 Kan. Ct. R. Annot.
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271); Edgar, 294 Kan. at 836. Yet, it is uncontroverted on appeal that Salinas' K.S.A. 60-
1507 motion was untimely. To apply the same standard to both situations would
eliminate the time limitations imposed by our legislature in 2003.

In Toney v. State, 39 Kan. App. 2d 944, 947, 187 P.3d 122, rev. denied 287 Kan.
769 (2008), for example, the movant argued "manifest injustice will result if this court
does not remand for an evidentiary hearing because the trial court will never consider his
ineffective assistance of counsel claim." This court rejected the argument because, if
accepted, "we would have to remand for an evidentiary hearing every time the trial court
dismisses a K.S.A. 60-1507 motion as untimely. This cannot be done as it would render
the 1-year time limitation under K.S.A. 60-1507(f)(1) essentially meaningless." 39 Kan.
App. 2d at 947.

Our Supreme Court in Vontress approved this passage from Toney. Vontress, 299
Kan. at 618. The Court then commented: "The time limitation in section (f)(1)
necessarily prevents the consideration of the merits in some circumstances, i.e., when
there is no manifest injustice. To hold otherwise would effectively make meaningless the
statute's time limit." 299 Kan. at 618.

Vontress and Toney establish that manifest injustice is not shown simply because
an evidentiary hearing would have been warranted if the K.S.A. 60-1507 motion were
timely filed. Since that is the position Salinas briefs, he does not show manifest injustice.

Salinas mentions several allegations of ineffective assistance of trial counsel but,
upon our review, we conclude that none of them present substantial issues of law or fact.
First, Salinas claims his attorney was ineffective in failing to strike a juror because the
juror had "quite a few employees and friends who were victims of abuse." In a related
complaint, Salinas states his attorney failed to conduct a meaningful voir dire because he
"asked the entire jury panel only three questions."
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If counsel has made a strategic decision after making a thorough investigation of
the law and the facts relevant to the realistically available options, then counsel's decision
is virtually unchallengeable. State v. Cheatham, 296 Kan. 417, 437, 292 P.3d 318 (2013)
(quoting Strickland v. Washington, 466 U.S. 668, 690-91, 104 S. Ct. 2052, 80 L. Ed. 2d
674, reh. denied 467 U.S. 1267 [1984]). Voir dire presents a trial attorney with
innumerable opportunities for making strategic decisions. Salinas has failed to show how
his attorney's strategic decision with regard to the individual juror is constitutionally
infirm or that prejudice occurred as a result. With regard to Salinas' claim that his
attorney only asked three questions of the jury panel, our review of the voir dire shows
that defense counsel extensively questioned the jury panel about both legal concepts and
biographical matters. In this regard, Salinas' claim is without a factual basis.

Second, Salinas asserts his counsel "was ineffective when he failed to [investigate
or] present the defense of involuntary intoxication" and did not present an expert witness
in support of this defense. Yet, Salinas wholly fails to explain why this defense was
factually or legally appropriate, let alone a substantial issue. A point incidentally raised in
a brief and not argued therein is deemed waived or abandoned. State v. Llamas, 298 Kan.
246, 264, 311 P.3d 399 (2013).

Third, on appeal, Salinas claims ineffectiveness because his attorney "failed to
investigate and subpoena the EMT who aided Ms. Lawrence," the victim. Salinas states
that "Lawrence informed the EMT that her black eye occurred prior to the incident as
opposed to during the incident as she later claimed." As noted by the State, "[a] review of
the motion, however, shows that [Salinas] merely noted that the EMT speculated that the
injury occurred before the incident with movant; in other words, there was no allegation
that the victim herself said that the injury was not caused by [Salinas]." Once again, we
question the factual basis for Salinas' claim on appeal. We also note that in his K.S.A. 60-
1507 motion, Salinas candidly acknowledged that the lack of testimony from the EMT
"may not show enough prejudice to warrant a new trial."
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Finally, Salinas complains that his trial attorney "failed to discredit [Lawrence] on
cross-examination regarding her inconsistent statements, utilize past criminal history to
impeach her credibility, and inquire about her alcohol and drug use." Upon our review,
however, defense counsel's cross-examination of Lawrence was lengthy, thorough, and
effective, including questions regarding her alcohol use. Moreover, Salinas has not
provided us with any of Lawrence's prior convictions or shown how they were admissible
at trial to impeach her credibility.

In summary, Salinas has failed to make a sufficient showing that the merits of the
claims made in his K.S.A. 60-1507 motion are substantial in law or fact.

Colorable Claim of Actual Innocence

Salinas identifies two assertions from the K.S.A. 60-1507 motion which he says,
"would support claims that [he] was factually innocent [of] some of his crimes of
conviction." The first assertion relates to the EMT testimony previously discussed. The
second relates to Salinas' testimony at trial that Lawrence taped her own wrists and feet.
But, Salinas does not explain his assertions, identify the crimes in question, cite authority
on actual innocence, or explain how his assertions meet that standard. We conclude
Salinas has waived or abandoned this factor as well. See Llamas, 298 Kan. at 264 (points
raised incidentally are waived or abandoned); State v. Tague, 296 Kan. 993, 1001, 298
P.3d 273 (2013) (points raised without supporting authority are waived or abandoned).

In conclusion, having considered the Vontress factors in light of the totality of
circumstances, we hold the district court did not err in summarily denying the motion to
file out of time and summarily dismissing the K.S.A. 60-1507 motion. Salinas does not
show anything obviously unfair or shocking to the conscience. He therefore does not
show manifest injustice as required to extend the 1-year time limitation of K.S.A. 60-
1507(f)(2).
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Affirmed.