State v. Dungan

327 So.3d 634

STATE of Louisiana, Appellee

v.Melinda R. DUNGAN, Appellant

No. 54,031-KA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered September 22, 2021

ROBERT S. NOEL, II, LAVALLE BERNARD SALOMON, Monroe, Counsel for Appellant

MELINDA R. DUNGAN, Pro Se

PENNY WISE DOUCIERE, District Attorney, CAROLINE HEMPHILL, AMANDA MICHELE WILKINS, Assistant District Attorneys, Counsel for Appellee

Before GARRETT, STONE, and ROBINSON, JJ.

GARRETT, J.

Following her guilty plea, the defendant, Melinda R. Dungan, was sentenced to serve 30 years at hard labor for manslaughter and ten years at hard labor for obstruction of justice. The sentences were ordered to be served consecutively. Dungan argues on appeal that the trial court abused its discretion in the imposition of consecutive sentences for convictions arising out of the same course of conduct. She also argues that the imposition of sentences totaling 40 years is excessive, considering her medical condition and lack of criminal history. For the following reasons, we affirm the convictions and sentences.

FACTS

Dungan was in her late 50s at the time of this offense in 2017. Enloe Dean, who was 71 years old, lived with Dungan on her farm for 12 years.¹ Dean had been a welder and pipefitter. He was retired and was drawing Social Security. He did not live extravagantly and had saved a substantial sum of money.

Dean's brother stated that, in June 2017, Dean executed a will naming Dungan as the main beneficiary of his estate. Approximately two weeks later, in July 2017, Dean went missing. Dungan claimed that Dean left to go work in Iowa. Dean's family became suspicious and suspected that Dungan was involved in the disappearance. Law enforcement officers investigated the matter for many months. Their efforts included taking dogs to the property to search for a body. They were not immediately successful.

A friend of Dungan's, Wendy Ford, agreed to cooperate with law enforcement officers in investigating the matter after Dungan made some disturbing statements to her about Dean's disappearance. On May 29, 2018, Ford wore a recording device while talking with Dungan about Dean's disappearance. The women drank wine and discussed the course of the police investigation. Eventually, Dungan admitted that she killed Dean and implied that she hid the body. She said they had been in the barn and Dean was changing a flat tire on their cattle trailer. They were not arguing, but Dungan felt she could not breathe and she had had enough. She hit Dean in the head. She said it was "really quick, like two seconds." She indicated that she buried the body on her property and said that her brother Todd was going to come over and "push hills down and spread the dirt around" when he got vacation.

She said that Todd's wife, Martha, knew what she had done. Dungan said that "it worked out. I guess it was meant to be." Ford said that she hated it happened. Dungan said that she did not regret it. She again said she could not breathe and she was fed up after 12 years.

Dungan said that she previously tried to kill Dean by crushing six Xanax tablets and putting them in a hamburger. Dungan commented that she "knew better" when she was doing that. Dean told her that the burger burned his throat and Dungan threw it in the backyard. She said she just knew there would be dead animals in the backyard the next day.

Dungan also admitted that, in October 2017, she traveled to Georgia with Martha to get some things out of a house belonging to Martha and Todd. The house was in bad shape and was encumbered by a large debt. Dungan purposely turned on a stove burner and put a gallon of cooking oil on it. The house burned down and Dungan told authorities that she was afraid she accidently burned down the house while warming up some chicken. She told authorities that, because she has multiple sclerosis, she cannot remember things. Dungan told Ford that she felt like she had to burn down the house. Dungan also described in detail Dean's retirement funds, investment accounts, and other assets she would be receiving.

Dungan was arrested for Dean's murder and, on May 31, 2018, she gave a statement to law enforcement officers. A video recording of the statement is contained in the record. Prior to giving her statement, she was informed of her Miranda rights and knowingly and intelligently waived those rights. At first, Dungan insisted that Dean simply left and was off working somewhere. Eventually, she admitted killing Dean, burning and burying the body. She said there was a room in the barn that Dean would lock her in for periods of time. On the day of the offense, she claimed that he was threatening to put her in the room and she snapped. She said she couldn't breathe. Dean was changing a tire on a cattle trailer and she hit him in the head with a pipe. She used a tractor and dug a hole near a pond on her property. She had some oil and burned the body. She told the officers where the body was buried. A search of the area resulted in the discovery of a metatarsal bone, a charred pouch of the brand of tobacco used by Dean, and burned cowboy boots. It was determined that DNA from the bone was paternally related to DNA furnished by Dean's brother.

In July 2018, Dungan was charged by grand jury indictment with the first degree murder of Dean, which occurred on July 10, 2017.² On December 10, 2018, Dungan filed a motion to suppress statements made to law enforcement officers, claiming the statements were not freely and voluntarily made. She asserted that an adequate waiver of the right to remain silent and the right to counsel was not obtained, and her statements were the result of pressure and coercion. On May 17, 2019, the state filed an opposition to the motion to suppress. The opposition was set for hearing on November 5, 2019, and the motion to suppress was to be heard on November 14, 2019.

On November 5, 2019, Dungan filed a motion to suppress statements she made to Ford, who assisted the sheriff's office in obtaining incriminating statements from her. She claimed that Ford "plied her with intoxicating beverages" and induced her to give an inculpatory statement. She claimed that her constitutional rights were violated because Ford was acting as an agent of the state. The record indicates that there was a hearing on one or both of the motions to suppress. The minutes do not reflect when the motions were considered by the court or how the court ruled. Defense counsel did not designate the hearings as part of the record on appeal.³

On January 7, 2020, the indictment was amended to charge Dungan with manslaughter and obstruction of justice. On that date, Dungan, the state, and the trial court entered into a plea agreement providing that the charge of first degree murder would be reduced to manslaughter, with no sentencing cap, and the charge of obstruction of justice would be added, with a sentencing cap of ten years. The agreement also specified that the court might order the sentences to be served consecutively. Dungan entered her plea of guilty to the charges on that same date. The state used the testimony from a motion to suppress as the factual basis for the plea.⁴ The trial court properly Boykinized Dungan and found that the plea was freely and voluntarily entered and the plea was accepted. The trial court ordered a presentence investigation ("PSI") report.

A sentencing hearing was held on March 10, 2020. Dungan was sentenced to 30 years at hard labor for the offense of manslaughter and ten years at hard labor for the offense of obstruction of justice. Due to the fact that the obstruction of justice continued for ten months after the killing of Dean, the court viewed it as a separate offense, and ordered that the sentences be served consecutively. Dungan was given credit for time served and was properly informed of the time limits for appealing the sentences and for applying for post conviction relief.

A motion to reconsider sentences was filed by Dungan on March 19, 2020, and was denied by the trial court on August 27, 2020.

CONSECUTIVE SENTENCES

Dungan appealed. In her counseled arguments, she contends that her sentences are excessive. She urges that the trial court erred in imposing consecutive sentences for offenses arising out of the same course of conduct. This argument is without merit.

Legal Principles

Regarding concurrent and consecutive sentences, La. C. Cr. P. art. 883 provides:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

Concurrent sentences arising out of a single course of conduct are not mandatory, and consecutive sentences under those circumstances are not necessarily excessive. State v. Sandifer , 53,276 (La. App. 2 Cir. 1/15/20), 289 So. 3d 212 ; State v. Butler , 51,922 (La. App. 2 Cir. 4/11/18), 247 So. 3d 1006 ; State v. Hebert , 50,163 (La. App. 2 Cir. 11/18/15), 181 So. 3d 795. In cases involving multiple offenses and sentences, the trial court has limited discretion to order that the multiple sentences are to be served concurrently or consecutively. State v. Heath , 53,559 (La. App. 2 Cir. 11/10/20), 304 So. 3d 1105, writ denied , 20-01422 (La. 4/7/21), 313 So. 3d 981 ; State v. Sandifer , supra ; State v. Dale , 53,736 (La. App. 2 Cir. 1/13/21), 309 So. 3d 1031 ; State v. Nixon , 51,319 (La. App. 2 Cir. 5/19/17), 222 So. 3d 123, writ denied , 17-0966 (La. 4/27/18), 239 So. 3d 836 ; State v. Robinson , 49,677 (La. App. 2 Cir. 4/15/15), 163 So. 3d 829, writ denied , 15-0924 (L...