Dunn v. Colleran, No. 99-1030

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBARRY; On the other hand; I think that all of these parties have spoken from the heart, Judge, and I wouldn't want to be in your shoes for all the tea in China. But I think that something has to be done. It's unfortunate that I didn't hear remorse. I
Citation247 F.3d 450
Parties(3rd Cir. 2001) JOHN WILLIAM DUNN, Appellant v. RAYMOND J. COLLERAN (Acting Superintendent); THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; THE DISTRICT ATTORNEY OF ALLENTOWN, PA
Docket NumberNo. 99-1030
Decision Date20 April 2001

Page 450

247 F.3d 450 (3rd Cir. 2001)
JOHN WILLIAM DUNN, Appellant
v.
RAYMOND J. COLLERAN (Acting Superintendent); THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; THE DISTRICT ATTORNEY OF ALLENTOWN, PA.
No. 99-1030
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Argued December 7, 2000
Filed April 20, 2001

Page 451

Arthur John Kyriazis, Esquire (Argued), Kyriazis and Associates, Lansdowne, Pennsylvania, Attorney for Appellant.

Kelly B. Waldron, Esquire (Argued), Douglas G. Reichley, Esquire, Deputy District Attorney, Office of the District Attorney, Allentown, Pennsylvania, Attorney for Appellee.

Before: BARRY and COWEN, Circuit Judges, and WARD,* District Judge.

OPINION OF THE COURT

BARRY, Circuit Judge:

Our criminal justice system is bottomed on several unwavering principles. One of those principles was recognized long ago by Justice Sutherland when he stated that a prosecuting attorney

is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor--indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88-89, 79 L. Ed. 1314, 55 S. Ct. 629 (1935), overruled on other grounds, Stirone v. United States, 361 U.S. 212, 4 L. Ed. 2d 252, 80 S. Ct. 270 (1960). Justice Sutherland's words continue to guide us.

I.

John William Dunn inflicted grievous injuries on his infant son. In exchange for his plea of nolo contendere, the prosecutor promised, among other things, to recommend a minimum sentence within the standard guideline range of 36-60 months. At sentencing, however, the prosecutor did not mention the standard guideline range, much less a minimum sentence within that range, arguing instead that while she could not ask the Court to impose the "maximum possible penalty," "a lengthy term of incarceration is necessary" -- a "penalty that's considerable." Dunn was sentenced to seven and one-half to twenty years imprisonment. He argues, and we agree, that the prosecutor did not adhere to the terms of the bargain she struck with him. We further find that the state court unreasonably applied clearly established Supreme Court caselaw, and that the District Court erred in concluding otherwise. Accordingly, we will reverse.

Dunn was charged with aggravated assault, simple assault, reckless endangerment and endangering the welfare of a child stemming from his February 10, 1992 assault on his two month-old son, John. On that day, Dunn was left to care for his son while his wife was at work. When Mrs. Dunn returned home in the evening, she found her son moaning, rigid and non-responsive. The infant's head was limply hanging down and to the right, and his eyes were half-closed. When pressed as to what happened, Dunn became angry

Page 452

and when he learned his wife had called the pediatrician, he became enraged and shattered a living room window. He initially refused to drive Mrs. Dunn and his son to the pediatrician's office, acquiescing only when she threatened to call a lawyer.

After examining the infant, the pediatrician immediately admitted him to the hospital. The next day, Dunn admitted to Detective Dean Schwartz that his son had been crying and that Dunn had "lost it," became frustrated, and "started to strike the child harder and harder and harder." A471. He said that after he struck his son, he wrapped him in a blanket, put him in his crib, let him cry for hours, and never sought medical treatment. In what can only be described as a massive understatement, he posited that perhaps he was not the best person to watch a sick infant because he was a recovering alcoholic.

The infant was diagnosed with shaken baby syndrome and remains severely disabled to this day. At the time of sentencing, Mrs. Dunn testified that her then-fifteen month old son requires continual nursing care at home because he suffers seizures, cannot see, is in tremendous pain, is fed through a gastrointestinal tube, vomits all the time, is at constant risk of aspirating on his own mucous, has his blood drawn constantly, cries for several hours at a time, and is unable to grab for a toy, sit up, roll-over or even reach for his mother. At that time, it was expected that death was imminent. Despite the grave prognosis, John Dunn is now 8 years old, with permanent brain damage and facing numerous surgeries.

Dunn was released on bail shortly after his arrest and filed a motion to suppress his incriminating statement. Pursuant to an unwritten plea agreement and, coincidentally, on the one-year anniversary of the assault, Dunn withdrew that motion and pleaded nolo contendere to aggravated assault and endangering the welfare of a child. That agreement was described at the plea hearing in the following colloquy between the prosecutor and the Court:

[Prosecutor] . . . There is an agreement of sorts in this case, Judge.

The Commonwealth is going to be requesting the Court impose consecutive sentences on the two counts, as they do not merge. However, I'd like for the sentencing in the endangering to be a consecutive term of probation, so that after any parol [sic] supervision is terminated, we have an extra period of supervision on this defendant.

Court: All right. It's my understanding, Mr. Dunn --

[Prosecutor] Judge, there's one more thing. The Commonwealth is recommending a minimum in this case on Count 1 within the standard range, standard guidelines range, but that is not binding on the Court.

A460-A461. The Court later explained to Dunn:

Court: Now, what is not binding on the Court and is left totally to the discretion of the Court as far as sentencing, the Commonwealth indicates that they will recommend consecutive sentences. There will be a recommendation of a sentence of a minimum which would be in the standard range, and that the second, the endangering the welfare of children, would be a sentence of probation. However, that is not binding on the Court in any way. That is something which is entirely up to the Court, that your counsel has indicated --

Page 453

[Defense Attorney]: Judge, if I could just interrupt. That isn't what the plea bargain is. The probation on the consecutive on the endangering is binding.

Court: Is that binding?

[Prosecutor] Yes, Judge, I'd like to see some extended supervision of this defendant after any kind of jail and parole supervision.

Court: What you're saying is that the Commonwealth is requesting, but you said it wasn't binding.

[Prosecutor] Judge, the sentence as to Count 1, aggravated assault, is there -- there is a non-binding recommendation. As to Count 4, I'd like to see [a] binding recommendation to probation because I would like to ensure extended supervision.

* * *

Court: All right. Now, let's go through that again so there's no misunderstanding here. As I indicated, a plea of nolo contendere to Count 1 and count 4. The aggravated assault and the endangering the welfare of children, that the other two counts would be withdrawn. Likewise, binding on the Court would be that it would be a consecutive sentence, the second sentence being the endangering the welfare of children, and binding on the court would be that it be a sentence of probation on that charge. Now, if we were not to accept that binding agreement which we have not participated in, then you would have a right to withdraw your plea of guilty.

Now, the Commonwealth has recommended, but it is not binding on the Court, that on the charge of aggravated assault that the sentence be -- that the minimum sentence be in the standard range of sentencing. However, as your counsel indicated, it's not binding, and the sentence could be less than that and likewise, it could be even more. Do you understand that?

Dunn: Yes, Your Honor.

A462-A464.

Dunn was sentenced on April 8, 1993. At the beginning of the sentencing proceeding, the contours of the plea agreement were again articulated by the sentencing judge who clearly understood what -- at least at that point in time -- the Commonwealth's recommendation was expected to be.

Court: At the time of the entry of the plea, there was a plea bargain arrangement that the counts of recklessly endangering another person and the simple assault would be withdrawn. The Commonwealth also indicated that they would recommend a minimum sentence in the standard range, although this was not binding on the Court. In this instance, the range would be 36 to 60 months. So it was the Commonwealth's recommendation that the minimum sentence be in that range, but that it was not, as I indicated, not binding on the Court. There was a binding agreement that the sentence on Count 4 run consecutive. However, that was to be a sentence of probation which was binding on this Court if the Court would accept the plea bargain arrangement.

Page 454

[To the Prosecutor] is that your understanding of the plea agreement?

[Prosecutor] Yes, your Honor.

Court: [To Defense Attorney] is that your understanding of the plea agreement?

[Defense Attorney] Yes, your Honor.

A87-A88.

The Court then heard testimony from a number of witnesses. For the Commonwealth, Mrs. Dunn testified that Dunn had a drug problem before they were married, had a drinking problem throughout their marriage, and was often physically abusive towards her. She also confirmed that prior to the February 10th incident, she told...

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67 practice notes
  • Thomas v. Crosby, No. 01-11314.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • May 26, 2004
    ...to the effective assistance of counsel."), rev'd on other grounds 537 U.S. 522, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003); Dunn v. Colleran, 247 F.3d 450, 456 (3d Cir.2001) ("Finding, however, that [its] conclusion was `by no means free of doubt,' the District Court sua sponte granted a certifi......
  • McKeever v. Warden Sci-Graterford, No. 05-2492.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 10, 2007
    ...of the respondent official." Barry v. Brower, 864 F.2d 294, 300-01 (3d Cir.1988) (internal citation omitted); see also, Dunn v. Colleran, 247 F.3d 450, 462 (3d Cir.2001); Dickerson v. Vaughn, 90 F.3d 87, 92 (3d Cir.1996)("[A] state should be given the opportunity to correct its own errors a......
  • Fischetti v. Johnson, No. 02-4026.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 22, 2004
    ...Page 150 rely" in a habeas case to Supreme Court decisions. Lewis v. Johnson, 359 F.3d 646, 652 (3d Cir.2004); see also Dunn v. Colleran, 247 F.3d 450, 457 (3d Cir.2001); Hameen v. Delaware, 212 F.3d 226, 234-43 (3d Cir.2000) (analyzing Supreme Court With these general principles in mind, w......
  • Hackett v. Price, No. 01-9008.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 26, 2004
    ...v. Taylor, 529 U.S. 362, 402-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (interpreting 28 U.S.C. § 2254(d)(1)). See also Dunn v. Colleran, 247 F.3d 450, 456-57 (3d Cir.2001) (explaining Williams). More specifically, AEDPA "placed a new restriction on the power of federal courts to grant writ......
  • Request a trial to view additional results
67 cases
  • Thomas v. Crosby, No. 01-11314.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • May 26, 2004
    ...the effective assistance of counsel."), rev'd on other grounds 537 U.S. 522, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003); Dunn v. Colleran, 247 F.3d 450, 456 (3d Cir.2001) ("Finding, however, that [its] conclusion was `by no means free of doubt,' the District Court sua sponte granted a ......
  • Hackett v. Price, No. 01-9008.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 26, 2004
    ...v. Taylor, 529 U.S. 362, 402-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (interpreting 28 U.S.C. § 2254(d)(1)). See also Dunn v. Colleran, 247 F.3d 450, 456-57 (3d Cir.2001) (explaining Williams). More specifically, AEDPA "placed a new restriction on the power of federal courts to grant......
  • McKeever v. Warden Sci-Graterford, No. 05-2492.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 10, 2007
    ...respondent official." Barry v. Brower, 864 F.2d 294, 300-01 (3d Cir.1988) (internal citation omitted); see also, Dunn v. Colleran, 247 F.3d 450, 462 (3d Cir.2001); Dickerson v. Vaughn, 90 F.3d 87, 92 (3d Cir.1996)("[A] state should be given the opportunity to correct its own error......
  • Locust v. Ricci, Civil Action No. 08-2713 (SRC)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • December 12, 2011
    ...courts must give deference to the factual findings and legal determinations of the state trial and appellate courts. Dunn v. Colleran, 247 F.3d 450, 457 (3d Cir. 2001). Moreover, the record clearly shows chat Locust had been advised of his Miranda rights and understood that he had the right......
  • Request a trial to view additional results

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