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Duncan v. State

Court of Appeals of Missouri, Western District, First Division

January 30, 2018

BRYAN L. DUNCAN, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Patrick W. Campbell, Judge

          Before: Thomas H. Newton, Presiding Judge, and Victor C. Howard and Karen King Mitchell, Judges

          KAREN KING MITCHELL, JUDGE.

         Bryan Duncan appeals the denial, after an evidentiary hearing, of his Rule 24.035[1] motion for post-conviction relief. Duncan raises three claims[2] on appeal: (1) his plea was involuntary because his counsel misled him regarding the sentence he would receive; (2) his counsel was ineffective in failing to call Duncan's treating physician at sentencing in mitigation of a lengthy sentence; and (3) Duncan's concurrent sentences of twelve and three years' imprisonment constituted a de facto death sentence in violation of the Eighth Amendment in light of Duncan's significant health issues. Finding no error, we affirm.

         Background[3]

According to the probable cause statement filed in the underlying criminal matter, on June 24, 2013, Duncan drove to 5650 Norton Avenue in Jackson County, Missouri, to confront Norris Payne. Upon his arrival, Duncan approached Payne and the two argued. When Payne attempted to get back into his vehicle and leave the confrontation, Duncan pulled out a handgun, fatally shot Payne five times, and then fled the scene. Duncan was subsequently charged, as a prior felony offender, with second-degree murder (§ 565.021) and armed criminal action (§ 571.015).[4]

         On the morning of jury selection for Duncan's trial, Duncan decided to withdraw his plea of not guilty and, instead, enter a guilty plea pursuant to an agreement with the State. In exchange for Duncan's guilty pleas, the State agreed to argue for a maximum sentence of twelve years on the second-degree murder charge to run concurrently with the mandatory minimum of three years on the armed criminal action charge. The State further agreed that Duncan would be allowed to argue for a suspended sentence and probation, as well as remain on house arrest pending sentencing. The prosecutor noted that Duncan's case presented "a very unusual situation" and that she had obtained special permission for the terms of the agreement "based on [Duncan's] health." The prosecutor advised the court that Duncan "has some pretty severe health issues. He does dialysis three times a week and that can be done at the Jackson County jail, but it's somewhat problematic."

         During the plea hearing, Duncan advised the court that he was "clear headed" and wished to withdraw his not-guilty plea and enter a guilty plea. The court specifically noted its understanding that Duncan was "in complete renal failure." The court advised Duncan that the range of punishment for the murder charge was ten-to-thirty years or life imprisonment and that it was three years to life for armed criminal action. The court further advised Duncan that both charges contained mandatory minimums for the amount of time he must serve before becoming parole eligible, and Duncan indicated that he understood. The court specifically discussed with Duncan the effect of the plea agreement on sentencing:

THE COURT: And on the date of sentencing, it will be up to me and me alone as the judge-
DEFENDANT DUNCAN: Yes, sir.
THE COURT: -to determine what the sentence will be?
DEFENDANT DUNCAN: Yes, sir.
THE COURT: If-and what we believe right now is that the most the state can ask for in that sentencing hearing is 12 years.
DEFENDANT DUNCAN: Yes, sir.
THE COURT: You may also ask for probation.
DEFENDANT DUNCAN: Yes, sir.
THE COURT: And I could give you probation and then that would mean you wouldn't have to serve that 85 percent.
DEFENDANT DUNCAN: Yes, sir.
THE COURT: That it will ultimately be up to me.
DEFENDANT DUNCAN: Yes, sir.
THE COURT: You will serve-and in the Count 2, the sentence will be 3 years.
DEFENDANT DUNCAN: Yes, sir.
THE COURT: And you know that you've got to go serve that three?
DEFENDANT DUNCAN: Yes, sir. I understand.
THE COURT: All right. On the date of sentencing you should be prepared to go into custody.
DEFENDANT DUNCAN: Yes, sir.

         The court then discussed the various constitutional rights attendant to trial that Duncan was relinquishing through his guilty pleas, and Duncan acknowledged understanding them and that he was waiving them by pleading guilty. The court then returned to the issue of sentencing:

THE COURT: Okay. Now, as it relates to these matters, sir, you understand that the state at the sentencing is going to ask for something different than you want? You understand that?
DEFENDANT DUNCAN: Yes, sir.
THE COURT: Ms. Lundak?
MS. LUNDAK: We're asking for 12 years.
THE COURT: Okay. You understand the state is going to ask for 12?
DEFENDANT DUNCAN: Yes, sir.
THE COURT: Okay. And, of course, you are going to request that I put you on probation on Count 1, I would assume; right?
DEFENDANT DUNCAN: Yes, sir.
THE COURT: But it's my decision ultimately.
DEFENDANT DUNCAN: Yes, sir.
THE COURT: All right. As it relates to this matter, sir, has anyone promised you anything to get you to plead guilty other than what the prosecutor has recommended?
DEFENDANT DUNCAN: No, sir.
THE COURT: Okay. And have you discussed this case fully with your lawyer?
DEFENDANT DUNCAN: Yes, sir.
THE COURT: And you've talked to him about your rights in all this regard?
DEFENDANT DUNCAN: Yes, sir.
THE COURT: And, as it relates to these matters, you understand if you plead guilty you're giving up all the rights ...

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