Opinion
NUMBER 2016 KA 0187
09-20-2016
STATE of Louisiana v. Ronald DUNNAGAN
Hillar C. Moore, III, District Attorney, Allison Miller Rutzen, Assistant District Attorney, Baton Rouge, LA, Counsel for Appellee, State of Louisiana Frederick Kroenke, Louisiana Appellate Project, Baton Rouge, LA, Counsel for Defendant/Appellant, Ronald Dunnagan
Hillar C. Moore, III, District Attorney, Allison Miller Rutzen, Assistant District Attorney, Baton Rouge, LA, Counsel for Appellee, State of Louisiana
Frederick Kroenke, Louisiana Appellate Project, Baton Rouge, LA, Counsel for Defendant/Appellant, Ronald Dunnagan
BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ.
GUIDRY, J.
The defendant, Ronald Dunnagan, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. He entered a plea of not guilty and, following a jury trial, was found guilty as charged by unanimous verdict. The defendant was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. He now appeals, arguing that the district court imposed an unconstitutionally excessive sentence, and his trial counsel's failure to file a motion to reconsider the sentence constitutes ineffective assistance of counsel. For the following reasons, we affirm the defendant's conviction and sentence.
FACTS
On November 29, 1984, Theodore Kergan reported that his brother, Gary Kergan, the victim, was missing. Investigations led to the Nightspot Lounge, which was a strip club on Plank Road in Baton Rouge, where Leila Mulla, the defendant's girlfriend, had been working for approximately one month. On November 28, 1984, the victim arrived at the lounge between 11:00 p.m. and midnight, had a drink, and left with Mulla around 2:00 a.m. The victim had frequented the lounge once or twice a week during the past year and had left with Mulla around three times.
After the victim was reported missing, his vehicle was located in Metairie, and a large coagulation of blood was found inside of the trunk. The property owner where the vehicle was parked told police officers that he noticed the vehicle on November 29, 1984, around 9:00 a.m.
Detectives went to the apartment Mulla shared with the defendant and learned from the landlord that the two moved out of the apartment on November 30, 1984, around noon. Their neighbors confirmed that the defendant and Mulla "moved out suddenly."
Officers obtained a material witness warrant for Mulla and were contacted by the Las Vegas Metropolitan Police Department on December 9, 1984, when Mulla attempted to apply for an escort license there. Mulla and the defendant, who had an outstanding city court warrant, were taken into custody. Mulla, who worked as a stripper and prostitute at the lounge in Baton Rouge, told officers that she knew the victim and had brought him to her Baton Rouge apartment twice for sex. She explained that on November 29, 1984, she had sex with the victim during the early morning hours, and although it was not "intentional," the defendant killed the victim. An arrest warrant was obtained for the defendant, and he and Mulla were returned to Baton Rouge. The defendant told the detectives in Baton Rouge that Mulla brought the victim to the apartment for sex, but there were "issues back in the back bedroom," so he forced the victim out of the house. He claimed that the victim left around 3:15 a.m. Near the end of his statement, the defendant said, "How do you know he just didn't leave town or drive off? You know, how do you know? You don't have a body, do you?" Both the defendant and Mulla were charged with first degree murder, but the district attorney did not proceed to trial because the victim's body could not be located.
In her initial statement to the officers, Mulla stated that the victim tried to "force things on her that she didn't particularly care for," and the officer taking the defendant's statement clarified that his report indicated that the defendant "basically followed" Mulla's statement "in that the issues would have been that, supposedly, [the victim] was trying to force some type of strange sex on [Mulla]."
A cold case homicide detective with the Baton Rouge Police Department began investigating the file in 2012. The blood found in the trunk of the victim's vehicle was compared to a DNA sample of the victim's son, Wade Kergan. A "kinship analysis" was performed, and the results indicated that the donor of the blood found in the trunk of the victim's vehicle and Wade Kergan "are parent and offspring as opposed to them being unrelated random individuals." Pursuant to that discovery, the detective arranged for the defendant, who was living in Bossier City, and Mulla, who was living in Astoria, New York, to be arrested.
A kinship analysis was performed, because at the time the evidence was collected from the trunk of the victim's vehicle, the police did not have a blood sample of the victim to which to compare the blood found in the vehicle.
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Mulla was subsequently indicted and in May 2014, pled guilty to manslaughter and armed robbery. She was sentenced to thirty years imprisonment and agreed to testify against the defendant as part of her plea agreement.
In an audio and video recorded statement, the defendant admitted that he was present at the apartment when Mulla returned from the lounge with the victim, but claimed that Mulla and the victim did not have sex and that the victim left around 3:30 or 4:00 a.m. alone in his vehicle. The defendant denied any involvement in the murder of the victim.
Mulla testified at the defendant's trial that the defendant developed the plan to rob and kill the victim. On November 29, 1984, she, the defendant, and the victim were at the apartment. The defendant hid in the closet while Mulla and the victim drank wine and had sex. After they had sex, Mulla exited the bedroom and retrieved more wine. The glass that she gave to the victim contained poison. When the victim began to choke, Mulla ran out of the bedroom. The defendant exited the closet where he was hiding, took a pillow from the bed, and held it over the victim's face. The defendant then moved the victim into the bathroom, put him inside of the bathtub, and dismembered his body. The defendant put his clothes, the wine bottle, wine glasses, the poison, and the victim's clothes inside a black plastic bag. He and Mulla put the dismembered body in plastic bags, which they then placed in the trunk of the victim's car, and the defendant drove to different dumpsters in Baton Rouge to discard the bags. Then, the defendant drove "over a long bridge" and parked the car. The two returned to their Baton Rouge apartment in a cab. The defendant cleaned the apartment with bleach. Using money taken from the victim, the defendant and Mulla drove to Las Vegas and rented an apartment.
ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO
In his first assignment of error, the defendant argues that his sentence of life imprisonment, without benefit of parole, probation, or suspension of sentence, is unconstitutionally excessive. In his second assignment of error, the defendant argues that his trial counsel's failure to file a motion to reconsider sentence constitutes ineffective assistance of counsel and should not preclude this Court from reviewing his sentence for excessiveness.
The record does not contain an oral or written motion to reconsider sentence. Louisiana Code of Criminal Procedure article 881.1E provides that the failure to file or make a motion to reconsider sentence precludes a defendant from raising an excessive sentence argument on appeal. Ordinarily, pursuant to the provisions of this article and the decision of State v. Duncan, 94–1563 (La.App.1 Cir.1995), 667 So.2d 1141, 1143 (en banc per curiam), we would not consider an excessive sentence argument. However, in the interest of judicial economy, we will consider the defendant's argument that his sentence is excessive, even in the absence of a motion to reconsider sentence, in order to address his claim of ineffective assistance of counsel. See State v. Wilkinson, 99–0803 (La.App.1 Cir.2000), 754 So.2d 301, 303, writ denied, 00–2336 (La.2001), 790 So.2d 631. Failure to file a motion to reconsider sentence in itself does not constitute ineffective assistance of counsel. Nevertheless, if the defendant can show a reasonable probability that, but for counsel's error, his sentence would have been different, a basis for an ineffective assistance claim may be found. See State v. Felder, 00–2887 (La.App.1 Cir.2001), 809 So.2d 360, 370, writ denied, 01–3027 (La.2002), 827 So.2d 1173.
Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. See State v. Hurst, 99–2868 (La.App.1 Cir.2000), 797 So.2d 75, 83, writ denied, 00–3053 (La.2001), 798 So.2d 962. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La.1985). A district court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Lobato, 603 So.2d 739, 751 (La.1992).
The Louisiana Code of Criminal Procedure sets forth items that must be considered by the district court before imposing sentence. See La. C. Cr. P. art. 894.1. The district court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the guidelines. State v. Herrin, 562 So.2d 1, 11 (La.App.1st Cir.1990), writ denied, 565 So.2d 942 (La.1990). In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the district court's stated reasons and factual basis for its sentencing decision. State v. Watkins, 532 So.2d 1182, 1186 (La.App.1st Cir.1988).
The defendant argues that his sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence, is excessive. He complains that the district court failed to take "into consideration either the factors for consideration when imposing a sentence, or the factors surrounding both the offense and the offender." He cites as a mitigating factor that he has "no criminal history since this event in 1984." The defendant, who was sixty-eight years old at the time of the filing of his brief on appeal, argues that he "has only a few years of life left" and a sentence with a determinate term "would give him at least the hope of being able to get out of prison at a date certain." We note, however, that the sentence imposed is the mandatory sentence for the offense of second degree murder. See La. R.S. 14:30.1B. Even though a sentence is the mandatory minimum sentence, it may still be excessive if it makes no "measurable contribution to acceptable goals of punishment" or amounts to nothing more than the "purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime." State v. Dorthey, 623 So.2d 1276, 1280–81 (La.1993). In order for a defendant to rebut the presumption that a mandatory minimum sentence is constitutional, he must "clearly and convincingly" show that:
[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.
State v. Johnson, 97–1906 (La.1998), 709 So.2d 672, 676. Departures downward from the minimum sentence should only occur in rare situations. See Johnson, 97–1906 at p. 9, 709 So.2d at 677.
Based on our review of the record, we find that the district court did not err or abuse its discretion in imposing the defendant's sentence in accordance with the mandatory penalty provided for in La. R.S. 14:30.1B. At his sentencing hearing, the defendant did not attempt to make any clear and convincing showing to the district court that he is exceptional and a victim of the legislature's failure to assign a sentence that was meaningfully tailored to his culpability, to the gravity of the offense, and to the circumstances of the case. Theodore Kergan testified at the sentencing hearing and stated that his mother had spent the last ten years of her life trying to find out what happened to the victim. Kergan also pointed out that the defendant had "tossed [the victim's] remains away like a piece of trash" and denied his mother burial of her son.
While the record does not contradict the defendant's claim that he had "no criminal history" following the offense in 1984, we note that it was in the defendant's self-interest not to draw attention to himself after fleeing from Baton Rouge. We also note the defendant's flight from justice denied the victim's family closure for over thirty years. See State v. Jones, 00–2009 (La.App.1 Cir.2001), 808 So.2d 609, 614 writ denied, 01–1698 (La.2002), 815 So.2d 93. On these facts, the district court had no reason to deviate downward from the mandatory sentence of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. We also note that a remand for full compliance with Article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown. See State v. Harper, 07–0299 (La.App.1 Cir.2007), 970 So.2d 592, 602, writ denied, 07–1921 (La.2008), 976 So.2d 173. The defendant has shown no reasonable probability that his sentence would have been different in the event counsel had filed a motion to reconsider sentence. Accordingly, these assignments of error are without merit.