Dunlap v. State
| Decision Date | 13 January 2015 |
| Docket Number | WD 76751 |
| Citation | 452 S.W.3d 257 |
| Parties | Clayton R. Dunlap, Appellant, v. State of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Gregory A. Doty, for Appellant.
Shaun Mackelprang, Jefferson City, for Respondent.
Before Division Two: Joseph M. Ellis, Presiding Judge, Victor C. Howard, Judge and Mark D. Pfeiffer, Judge
Clayton Dunlap appeals from the denial of his Rule 24.035 motion for postconviction relief after an evidentiary hearing. Dunlap's motion alleged that counsel was ineffective for failing to investigate and present mitigation evidence at sentencing and failing to investigate the allegedly unconstitutional collection of his blood. On appeal, Dunlap argues that the motion court applied the incorrect standard to determine prejudice to his claim of ineffective assistance of counsel at sentencing and also that the motion court erroneously failed to make findings on his claim of ineffective assistance of counsel based on counsel's failure to investigate and move to suppress evidence obtained as a result of the warrantless, nonconsensual seizure and search of Dunlap's blood. The judgment is reversed and remanded in part and affirmed in part.
In December of 2010, Dunlap pleaded guilty to charges in three separate cases for conduct committed on three separate occasions in 2009 and 2010. The charges were for three separate incidents of class D felony driving while revoked in violation of section 302.321, one class D felony resisting a lawful stop in violation of section 575.150, one class B misdemeanor driving while intoxicated in violation of section 577.010, one class A felony murder in the second degree in violation of section 565.021, and one class C felony assault in the second degree in violation of section 565.060. Dunlap pleaded up to the court, that is, there was no agreement as to what the sentence would be. Dunlap was informed of the range of punishment, the court inquired to ensure that his plea was knowing, voluntary, and intelligent, and a factual basis was established for the pleas. The court then accepted Dunlap's guilty pleas and ordered a sentencing assessment report.
The sentencing hearing was held on January 14, 2011. The State presented testimony from several witnesses. Detective Tommy Woods testified that on March 27, 2010, he went to the scene of a fatal car crash in which five cars had been involved, one person died, and six people were injured. He testified that Dunlap's vehicle had been traveling between 62.8 and 65.9 miles per hour, and the posted speed limit was 35 miles per hour. Detective Woods testified that Dunlap had collided with four vehicles, killing one young man and injuring others. He testified that Dunlap was under the influence of benzodiazepine, PCP, and cannabis. Dunlap's vehicle hit a median, crashed into a pole, and then flipped over and struck the other vehicles.
Members of the family of the young man who was killed in the crash testified about the young man, their relationships with him, and the effect his death had on them. The witnesses urged a long sentence for Dunlap, because he was “too dangerous with no intention of stopping,” he “should pay separately for all his crimes,” he was “a true menace to society and should not be allowed to return,” he shouldn't be “give[n] ... a chance to do this to another family,” he needed to be prevented from “hurt[ing] another family,” and because “the parents and citizens of Kansas City” needed to be protected from his “maliciousness and carelessness.” The State also submitted letters from additional witnesses close to the fatal crash victim.
Dunlap, his niece, his sister, and another witness who had known Dunlap for at least sixteen years testified for the defense. Dunlap apologized to the victim's family, said he did not expect their forgiveness, but that he hoped they would find some measure of peace. Dunlap's niece, sister, and the other witness testified about Dunlap's good qualities, his embarrassment about his addiction and remorse about the death of the crash victim, and urged eventual forgiveness for Dunlap from the victim's family. Defense counsel provided the sentencing court with examples of other cases where similar crimes had resulted in ten– and eleven-year sentences.
The State recommended thirty years, four years, and four years respectively for the three separate incidents of class D felony driving while revoked, four years for the class D felony resisting a lawful stop, 180 days for the class B misdemeanor driving while intoxicated, thirty years for the class A felony murder in the second degree, and seven years for the class C felony assault in the second degree. The State recommended all the sentences to run consecutively. In addition to reiterating the loss suffered by the families involved in the crash, the State argued for its recommendation by emphasizing Dunlap's extensive criminal history, the egregious facts of Dunlap's crime in the instant case, and that a long sentence was “the only way to protect society after [Dunlap's] long history of terrible driving and conscious choices he made to violate the law[.]”
Defense counsel then argued that Dunlap had not intended to cause a death and that the underlying felony, driving while revoked, was not a violent crime, and therefore should not receive the maximum sentence, which counsel argued should be reserved for intentional crimes. Defense counsel encouraged the court to give Dunlap the opportunity to learn and become a contributing member of the community and not to sentence him based on “a public outcry for revenge,” but rather to sentence him based on his intent to “drive when he knew he shouldn't.” Defense counsel urged a fair sentence.
The court explained that its sentence was not directed solely toward punishment, but rather primarily toward the protection of the community from a known threat, and secondarily as a deterrent to Dunlap in the future and others in the meantime to show that conduct like that to which Dunlap pled guilty would not be tolerated. The court then pronounced its sentences of (1) thirty years for the class A felony murder in the second degree, four years for one count of the class D felony driving while revoked, and seven years for the class C felony assault in the second degree, to run concurrently; (2) four years for the class D felony resisting a lawful stop, four years for another count of the class D felony driving while revoked, and 180 days in county jail for the class B misdemeanor driving while intoxicated; the sentences for (1) and (2) to run consecutively; and (3) four years for the other count of the class D felony driving while revoked, to be served concurrently with the other two sentences.
Subsequently, Dunlap filed a pro se and then an amended Rule 24.035 motion, alleging counsel was ineffective. He first alleged that counsel was ineffective for failing to investigate and present mitigation evidence at sentencing regarding the possibility of brake malfunction as a cause of the collision, possible errors in the speed calculation by the State's accident reconstruction expert, and a computer generated report indicating the average sentence for the class B felony of involuntary manslaughter, section 565.024(3). The motion also alleged ineffective assistance for failing to investigate the allegedly unconstitutional collection of Dunlap's blood.
An evidentiary hearing was held on Dunlap's motion. It was stipulated that Dunlap's vehicle had been at a tow lot available for inspection until April 17, 2012, at which time it was sold at auction. Defense counsel testified that Dunlap told her there may have been something wrong with the brake system in his car. Dunlap testified that he told counsel he had problems with his brakes, saying that he “started hitting [the] brakes, it was making like a uh-uh-uh-uh, bouncing back to me, wouldn't stop[.]” He testified that counsel told him that she “looked and found out something about the brakes was 50–50,” but that he did not know what she meant, and that she never would say whether she was going to present evidence about the brakes. Defense counsel did not investigate that possibility because it would not have provided a defense and she believed it would not provide mitigating evidence. She also stated that the faulty brakes did not change the main issue of Dunlap's operating the car at all.
Regarding the sentencing report claim, counsel said yes when asked if it would have been relevant to determine what the sentencing recommendations might have been for involuntary manslaughter arising out of driving while intoxicated. She agreed when asked if it would have been beneficial to the court to have calculated that the recommended mitigating sentence for that crime was shock probation or drug treatment, the average sentence was seven years in prison, and the aggravated sentence was nine years. She agreed that the...
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