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Dunlap v. State

Court of Appeals of Missouri, Western District, Second Division

January 13, 2015



Gregory A. Doty, for Appellant.

Shaun Mackelprang, for Respondent.

Before Division Two: Joseph M. Ellis, Presiding Judge, Victor C. Howard, Judge and Mark D. Pfeiffer, Judge. All concur.



Page 258

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

Page 259

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.

Factual and Procedural Background

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 ...

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