People v. Dunlap

Decision Date10 September 2001
Docket NumberNo. 00SA191.,00SA191.
Citation36 P.3d 778
PartiesThe PEOPLE of The State of Colorado, Plaintiff-Appellee, v. Nathan DUNLAP, Defendant-Appellant.
CourtColorado Supreme Court

Ken Salazar, Attorney General, Paul Koehler, Assistant Attorney General, Criminal Justice Section, Appellate Division, Denver, CO, Attorneys for Plaintiff-Appellee.

Philip A. Cherner, Denver, CO, Michael J. Heher, Captain Cook, HI, Attorneys for Defendant-Appellant.

Certiorari Denied January 7, 2002. See 122 S.Ct. 844.

Justice KOURLIS delivered the Opinion of the Court.

In 1996, after deliberation, a jury convicted Defendant Nathan Dunlap of four counts of first degree murder arising out of murders he committed at the Chuck E. Cheese restaurant on December 14, 1993, and sentenced him to death. We affirmed his death sentence on direct appeal in People v. Dunlap, 975 P.2d 723 (Colo.1999). The trial court also sentenced Dunlap to consecutive terms of incarceration in the Department of Corrections totaling 113 years for the related non-capital convictions.1 Dunlap, 975 P.2d at 735. Dunlap filed a motion for reduction both of his death sentence and of his other sentences pursuant to Crim. P. 35(b). The trial court denied that motion without a hearing, and Dunlap now appeals that order, claiming that the trial court abused its discretion. We affirm the trial court's denial of the motion.

We hold that section 16-11-103(2)(c), 6 C.R.S. (Supp.1993)2 defined a trial court's authority to reduce a death sentence imposed by a jury, and Crim. P. 35(b) did not vest a trial court with additional or inconsistent authority. Here, the trial court properly relied upon the standard enunciated in the statute in denying Dunlap's motion. Additionally, we hold that the trial court did not abuse its discretion in declining to reduce Dunlap's additional sentences.


We begin by addressing Dunlap's argument that the trial court abused its discretion by denying his Crim. P. 35(b) motion for reconsideration of his death sentence.

At the sentencing hearing on May 17, 1996, the trial court specifically found that the jury's sentence of death was not clearly erroneous as contrary to the weight of the evidence. Dunlap's Crim. P. 35(b) motion asserts that the sentence was excessive and unnecessary. Dunlap requested a hearing, at which he represented that he would present mitigation evidence and stated that he was "entitled to have the court re-consider the entirety of the sentencing considerations." Lastly, Dunlap requested an extension of time within which to supplement the record on matters of mitigation.

The trial court denied the motion without a hearing, declined to grant an extension of time, and concluded, "it should not disturb the jury's sentence in this case."


Dunlap argues that the trial court confused the requirements of section 16-11-103 with the requirements of a Crim. P. 35(b) motion, thereby violating his due process and equal protection rights by requiring him to prove that his death sentence was clearly erroneous as contrary to the evidence. Dunlap claims that the standards for review of a Crim. P. 35(b) motion cannot be reconciled with the capital sentencing scheme as it existed when his sentencing occurred. We disagree.

Colorado Rule of Criminal Procedure 35(b) provides:

Reduction of Sentence. The court may reduce the sentence provided that a motion for reduction of sentence is filed (1) within 120 days after the sentence is imposed, or (2) within 120 days after receipt by the court of a remittitur issued upon affirmance of the judgment or sentence or dismissal of the appeal, or (3) within 120 days after entry of any order or judgment of the appellate court denying review or having the effect of upholding a judgment of conviction or sentence. The court may, after considering the motion and supporting documents, if any, deny the motion without a hearing. The court may reduce a sentence on its own initiative within any of the above periods of time.

Crim P. 35(b) enables trial courts to review a sentence to ensure that it is proper before making it final. Ghrist v. People, 897 P.2d 809, 812 (Colo.1995). A court's review of a Crim. P. 35(b) motion focuses on the fairness of the sentence in light of the purposes of the sentencing laws. Id. Any decision to reduce a sentence based on a Crim. P. 35(b) motion remains within the sound discretion of the trial court. Id. In its analysis, the trial court may consider all relevant and material factors, including new evidence as well as facts known at the time the court pronounced the original sentence. Spann v. People, 193 Colo. 53, 55, 561 P.2d 1268, 1269 (1977).

At the time Dunlap committed the murders at Chuck E. Cheese, our statutes required the jury in a capital case to determine whether a defendant found guilty of the charged offenses would face life imprisonment or death. See § 16-11-103(1)(a). Here, the jury unanimously found the presence of 28 aggravating factors and insufficient mitigating factors to outweigh the aggravators and thus unanimously determined that death constituted the appropriate sentence. See § 16-11-103(2)(b). Section 16-11-103(2)(c) mandated that a jury's imposition of a death sentence "shall be binding upon the court unless the court determines, and sets forth in writing the basis and reasons for such determination, that the verdict of the jury is clearly erroneous as contrary to the weight of the evidence, in which case the court shall sentence the defendant to life imprisonment." At the time of sentencing, the court specifically addressed the appropriateness of a death sentence for Dunlap. In accordance with section 16-11-103, the trial court found, on the record and in open court, from its review of the evidence presented to the jury throughout trial and the sentencing phase, that the jury's sentence was not clearly erroneous as contrary to the weight of the evidence. Hence, the question this case presents is whether a death sentence imposed and reviewed under section 16-11-103 may then be revisited under Crim. P. 35(b). We note this case does not concern a motion under Crim. P. 35(a) wherein the defendant alleges the sentence to be illegal; or a motion under Crim. P. 35(c) wherein the defendant alleges the sentence to be unconstitutional; or a motion for new trial under Crim. P. 33. Rather, this case involves a motion for reduction of sentence addressed purely to the discretion of the trial court.

Under Crim. P. 35(b), the court's discretion is constrained by applicable statutory limits. People v. Fuqua, 764 P.2d 56, 60 (Colo.1988). Hence, the trial court must operate within the statutory sentencing construct. Crim. P. 35(b) cannot expand the trial court's authority in resentencing beyond that which it had initially. See People v. Smith, 971 P.2d 1056, 1061 (Colo.1999)

. The same statutes that governed the original sentencing limit the trial court's authority on resentencing. In a jury-imposed death penalty case, the statute provided that the trial court had no authority to reduce that death sentence if the sentence comported with the statutory requirements. See Burch v. State, 358 Md. 278, 747 A.2d 1209, 1212 (2000) (finding that a trial court may not reconsider or modify a death sentence imposed pursuant to a jury determination because that action would conflict with the legislative scheme); State v. Guzman, 102 N.M. 558, 698 P.2d 428, 429 (1985) (holding that when a jury imposes a death sentence the trial court is statutorily bound by it and may not impose a modified sentence that it could not impose at the time of the original sentencing); Hopkinson v. State, 704 P.2d 1323, 1326 (Wyo.1985) (finding that the mandatory language of the capital sentencing scheme prevents a trial judge from reducing the jury's binding sentence of death to life imprisonment).3

Dunlap argues that the statutory exception allowing a judge to reduce a capital defendant's death sentence to life imprisonment articulated in section 16-11-103(2)(c) contradicts the standard set forth in Crim. P. 35(b). To the contrary, we read the statute to set forth specific circumstances under which a trial court may overturn a jury sentence of death. The statute provided that a jury's verdict of death "shall be binding" on a court after the court finds it not contrary to the weight of the evidence. Crim. P. 35(b), on the other hand, is discretionary and contemplates that a court "may" reduce a defendant's sentence. Hence, the statute and the rule together direct that a court may only order post-conviction relief pursuant to Crim. P. 35(b) from a death sentence imposed by a jury if the circumstances delineated in section 16-11-103(2) are met.

Here, the trial court specifically found that the evidence supported the death sentence. Such a finding circumscribed the limits of the court's authority to overturn that sentence under either XX-XX-XXX(2) or to reduce it under Crim. P. 35(b).


Dunlap argues that the trial court erred by refusing to take into consideration the additional materials he sought to present addressing his abusive childhood, his positive personal qualities and the impropriety of the People's presentation of evidence regarding Dunlap's future dangerousness in the penalty phase of his trial. The argument is misplaced in a Crim. P. 35(b) motion as it relates to a death sentence.

As the trial court noted at the sentencing portion of the trial, Dunlap had ample opportunity to present a mitigation case. Dunlap ultimately presented mitigation evidence on only three of the twelve statutory mitigating factors. See Dunlap, 975 P.2d at 737-38

. In Dunlap's direct appeal, we addressed the mitigation evidence he presented:

Dunlap's mitigating evidence centered on the existence of three mitigating factors: his age, his cooperation with the police, and his abusive home environment. With regard to the first two factors,

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8 cases
  • Dunlap v. People
    • United States
    • Colorado Supreme Court
    • May 14, 2007 reduce both the death sentence and the non-capital sentences. We affirmed the trial court's denial of that motion. People v. Dunlap, 36 P.3d 778 (Colo. 2001), cert. denied, 534 U.S. 1095, 122 S.Ct. 844, 151 L.Ed.2d 722 (2002) ("Dunlap Dunlap subsequently filed a Crim. P. 35(c) motion see......
  • People v. Wilder
    • United States
    • Colorado Court of Appeals
    • February 26, 2015 reduce a sentence based on a Crim. P. 35(b) motion generally remains within the sound discretion of the trial court. People v. Dunlap, 36 P.3d 778, 780 (Colo. 2001).¶ 12 The People concede that the Supreme Court's decision in Miller applies retroactively to defendant's sentence and that ......
  • People v. McNeely
    • United States
    • Colorado Court of Appeals
    • May 28, 2009
    ...hearing. Colorado cases recognize such discretion in evaluating the need for hearings in analogous contexts. See, e.g., People v. Dunlap, 36 P.3d 778, 783 (Colo. 2001) (motion to reduce sentence); People v. Mollaun, 194 P.3d 411, 416 (Colo.App.2008) (motion alleging irregularity in jury pro......
  • People v. Shepard
    • United States
    • Colorado Court of Appeals
    • July 13, 2006
    ...with that determination. A motion under Crim. P. 35(b) permits the trial court to reconsider the fairness of the sentence. People v. Dunlap, 36 P.3d 778 (Colo.2001). For purposes of Crim. P. 35(b), a conviction is final 120 days after the imposition of sentence if the conviction is not dire......
  • Request a trial to view additional results
1 books & journal articles
  • Romer party plus one: managing public law in Colorado, 2000-2004.
    • United States
    • Albany Law Review Vol. 68 No. 2, March 2005
    • March 22, 2005
    ...27 P.3d 846 (Colo. 2001); People v. Coleby, 34 P.3d 422 (Colo. 2001); People v. Cooper, 27 P.3d 348 (Colo. 2001); People v. Dunlap, 36 P.3d 778 (Colo. 2001); People v. Farrell, 34 P.3d 401 (Colo. 2001); People v. Gall, 30 P.3d 145 (Colo. 2001); People v. Haley, 41 P.3d 666 (Colo. 2001); Peo......

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