106 P.3d 376 (Idaho 2004), 28269, Dunlap v. State

Docket Nº:28269.
Citation:106 P.3d 376, 141 Idaho 50
Opinion Judge:BURDICK, Justice.
Party Name:Timothy A. DUNLAP, Petitioner-Appellant, v. STATE of Idaho, Respondent.
Attorney:Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Mark James Ackley, Deputy State Appellate Public Defender, Boise, argued. Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. L. Lamont Anderson, Deputy Attorney General, Boise, argued.
Judge Panel:BURDICK,
Case Date:November 30, 2004
Court:Supreme Court of Idaho

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106 P.3d 376 (Idaho 2004)

141 Idaho 50

Timothy A. DUNLAP, Petitioner-Appellant,


STATE of Idaho, Respondent.

No. 28269.

Supreme Court of Idaho, Boise.

November 30, 2004

Rehearing Denied Feb. 16, 2005.

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[141 Idaho 54] Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Mark James Ackley, Deputy State Appellate Public Defender, Boise, argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. L. Lamont Anderson, Deputy Attorney General, Boise, argued.

BURDICK, Justice.

The appellant, Timothy A. Dunlap (Dunlap), appeals the district court's order denying his petition for post-conviction relief involving his guilty plea to first-degree murder. The district court denied post-conviction relief and found that Dunlap received effective assistance of counsel. Dunlap appeals, asking this Court to reverse the district court and grant him post-conviction relief. Dunlap raises several issues, including ineffective assistance of counsel, unconscionable plea

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[141 Idaho 55] agreement, and prosecutorial misconduct. Additionally, Dunlap asserts several constitutional issues regarding his guilty plea that were not pled in his post-conviction petition. This Court will not review issues raised for the first time on appeal. We affirm the district court's denial of post-conviction relief.


On October 16, 1991, Dunlap entered and robbed the Security State Bank in Soda Springs, Idaho. Dunlap entered the bank, stood within a few feet of bank teller Tonya Crane, and ordered her to give him all of her money. Without hesitation, Tonya Crane did so. Dunlap immediately and calmly pulled the trigger of his sawed-off shotgun, which was less than two feet from Tonya Crane's chest, literally blowing her out of her shoes. Police officers responded immediately. When the officers arrived at the bank, Tonya Crane had no pulse. When taken to the hospital she was pronounced dead on arrival.

Dunlap fled the scene, but subsequently surrendered to police. After being given his Miranda 1 rights, Dunlap confessed to the murder and to a murder that occurred ten days before in Ohio. The following day, Dunlap again confessed and explained how he planned and completed both murders. Dunlap was charged with first-degree murder and robbery.

Within days of his arrest, Dunlap arranged to be interviewed by Marilyn Young, Associate Editor of the Albany New Tribune in Indiana. During the interviews Dunlap explained to Young how he murdered his girlfriend in Ohio with a crossbow and then traveled west where he subsequently planned to rob the Soda Springs' bank. Dunlap described the bank robbery and Tonya Crane's murder to the editor.

In Idaho on December 30, 1991, Dunlap pled guilty to first-degree murder for shooting Tonya Crane during the course of a robbery. "In the agreement, the State dropped the robbery and use of a firearm in the commission of a robbery charges, and Dunlap pled guilty to first degree murder and use of a firearm in the commission of a murder." State v. Dunlap, 125 Idaho 530, 531, 873 P.2d 784, 785 (1993) ( Dunlap I ). The plea agreement allowed the State to seek the death penalty. Id. The plea agreement recognized that Dunlap had been indicted in an Ohio killing. Id. The agreement also provided that:

[T]he Ohio indictment, information, witness statements, and evidence could be submitted to the district court through the presentence report and could be considered by the district court as evidence in aggravation. Dunlap also agreed not to object to the Ohio information, witness statements, or evidence except on the basis that he had not been convicted of the Ohio crime at the time of the agreement. In return, the State agreed not to call as a witness at sentencing any Ohio state police officer, forensic pathologist, or other Ohio law enforcement official. Nor would the State introduce any pictures of [the Ohio victim] taken by Ohio law enforcement authorities after her death.


During the plea colloquy the court questioned Dunlap and his attorneys about Dunlap's mental history and whether it would have any impact on his ability to plead guilty. Dunlap informed the court he spent time at Madison State Hospital for seizures and other mental illnesses in April and June of that current year. Dunlap's attorneys informed the court they had Dunlap's records from Madison State Hospital, LifeSpring Mental Health Services, and his military records. Dunlap's attorneys reported they did not believe there were any mental health reasons why the court could not accept the defendant's plea. The district court judge requested the records to ensure there were no problems with accepting Dunlap's guilty plea. The district court judge continued with the hearing, but informed the parties he would make his decision about accepting the plea after he had a chance to review the documents. After reviewing the records, the court accepted Dunlap's plea.

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[141 Idaho 56] On January 21, 1992, the State disclosed a statement by Danny Gillette, Dunlap's cellmate, and an interview with Gillette by Lieutenant Joe Rice. Both the interview and the statement were obtained by law enforcement on December 30, 1991. One of Dunlap's attorneys represented Gillette on an unrelated charge. Once the court discovered the conflict it inquired about the situation. The attorney explained he would not feel limited in cross-examining Gillette.

After the aggravation-mitigation hearing the district court imposed the death penalty. Dunlap appealed his conviction and sentence, but this Court affirmed both. Id.

On May 12, 1994, Dunlap filed a petition for post-conviction relief. The district court dismissed the petition because it was not filed within forty-two days of entry of judgment. This Court reversed the district court's decision and remanded Dunlap's case for further proceedings. Dunlap v. State, 131 Idaho 576, 961 P.2d 1179 (1998) ( Dunlap II ).

Prior to the commencement of the evidentiary hearing, the State conceded that error occurred during Dunlap's sentencing proceeding and he would have to be resentenced. On January 11, 2002, based on the State's concession, the district court ordered a new sentencing hearing be held, but denied Dunlap's guilt-phase post-conviction relief. Dunlap timely appealed from the denial of the post-conviction application.

Upon the State's motion the district court stayed Dunlap's resentencing. Dunlap did not file a notice of appeal challenging the stay.


Post-conviction proceedings are civil in nature and therefore the applicant must prove the allegations by a preponderance of the evidence. McKinney v. State, 133 Idaho 695, 699-700, 992 P.2d 144, 148-49 (1999). On review, the appellate court will not disturb the lower court's factual findings unless the factual findings are clearly erroneous. Id. at 700, 992 P.2d at 149. The credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence are all matters solely within the province of the district court. Peterson v. State, 139 Idaho 95, 97, 73 P.3d 108, 110 (Ct.App.2003) (citing Larkin v. State, 115 Idaho 72, 764 P.2d 439 (Ct.App.1988)). When reviewing mixed questions of law and fact, this Court will defer to the factual findings of the district judge unless those findings are clearly erroneous. Roberts v. State, 132 Idaho 494, 496, 975 P.2d 782, 784 (1999). This Court exercises free review of the district court's application of the relevant law to the facts. Id.



The State argues that a number of the issues presented on appeal were not raised in Dunlap's post-conviction application, and thus are being raised for the first time on appeal. Dunlap claims that the parties expressly or impliedly tried the appealed issues and pursuant to I.R.C.P. 15(b) the pleadings were deemed amended. Therefore, he contends the issues are properly before this Court. The question we must first decide is whether the parties expressly or impliedly consented to try issues not raised in the post-conviction application.

Generally, the Uniform Post-Conviction Procedure Act (UPCPA), I.C.§§ 19-4901 to -4911, applies to post-conviction proceedings. McKinney v. State, 133 Idaho 695, 700, 992 P.2d 144, 149 (1999). Idaho Code section 19-4903 mandates that the application for post-conviction relief "specifically set forth the grounds upon which the application is based, and clearly state the relief desired." "All grounds for relief ... must be raised in [the defendant's] original, supplemental, or amended application." I.C. § 19-4908. "An application for post-conviction relief differs from a complaint in an ordinary civil action[.]" Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct.App.2002). The "application must contain much more than 'a short and plain statement of the claim' that would suffice for a complaint under I.R.C.P. 8(a)(1)." Id.

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[141 Idaho 57] In capital cases, I.C. § 19-2719 modifies and supersedes the UPCPA. McKinney, 133 Idaho at 700, 992 P.2d at 149. The purpose of I.C. § 19-2719 is to eliminate "unnecessary delay in carrying out a valid death sentence." Rhoades v. State, 135 Idaho 299, 301, 17 P.3d 243, 245 (2000) (quoting McKinney v. State, 133 Idaho at 705, 992 P.2d at 154). The procedures and time limits of I.C. § 19-2719 must be followed in capital cases. McKinney, 133 Idaho at 700, 992 P.2d at 149. Generally, in a capital case, a claimant for post-conviction relief will have only one...

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