People of Michigan v. Donquize Demar Dunbar ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 28, 2017
Plaintiff-Appellee,
v No. 333510
Wayne Circuit Court
DONQUIZE DEMAR DUNBAR, LC No. 15-005249-01-FC
Defendant-Appellant.
Before: METER, P.J., and BORRELLO and RIORDAN, JJ.
PER CURIAM.
Defendant appeals by leave granted1 an order denying his motions to withdraw his guilty
plea and for resentencing, and granting his motion to change the scoring of offense variable (OV)
3 from 10 to 0 points. Defendant pleaded guilty, pursuant to a plea agreement, to carjacking,
MCL 750.529a; armed robbery, MCL 750.529; and possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b, in exchange for sentences of 8 to 20
years’ imprisonment for carjacking and armed robbery and two years’ imprisonment for felony-
firearm, and the dismissal of the remaining six charges.2 We affirm defendant’s convictions and
sentences, but remand this case to determine the proper amount of restitution.
This case arose from the armed robbery and carjacking of three victims, John Cooke,
Imaikop Inyang, and Aaron Leneair, by defendant and defendant’s unnamed friend. Defendant
raises three arguments on appeal: (1) that he is entitled to withdraw his guilty plea because it was
involuntary due to his inability to understand it and due to ineffective assistance of his trial
counsel, Antonio D. Tuddles; (2) that he is entitled to resentencing for “reasonable” sentences
considering his changed OV score, his lack of prior offenses, and his “questionable” involvement
1
People v Dunbar, unpublished order of the Court of Appeals, entered August 15, 2016 (Docket
No. 333510).
2
The six charges that were dismissed were unlawful driving away of a motor vehicle, MCL
750.413; two other counts of armed robbery, MCL 750.529; assault with a dangerous weapon
(felonious assault), MCL 750.82; possession of a controlled substance, less than 25 grams, MCL
333.7403(2)(a)(v); and carrying a concealed weapon, MCL 750.227.
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in the incident in question; and (3) that he is entitled to resentencing regarding restitution
because the amount was not verified.
I. WITHDRAWAL OF GUILTY PLEA
The trial court did not abuse its discretion when it denied defendant’s motion to withdraw
his guilty plea because defendant’s guilty plea was knowing and voluntary, and his trial counsel
did not provide ineffective assistance during the plea proceedings.
“A trial court’s decision on a motion to withdraw a plea is reviewed for an abuse of
discretion.” People v Cole, 491 Mich. 325, 329; 817 NW2d 497 (2012). Claims of ineffective
assistance of counsel are mixed questions of law and fact. People v Ackley, 497 Mich. 381, 388;
870 NW2d 858 (2015). “A judge must first find the facts, then must decide whether those facts
establish a violation of the defendant’s constitutional right to the effective assistance of counsel.”
People v Armstrong, 490 Mich. 281, 289; 806 NW2d 676 (2011) (quotation marks and citation
omitted). This Court reviews the trial court’s findings of fact for clear error, and reviews
questions of constitutional law de novo. People v Trakhtenberg, 493 Mich. 38, 47; 826 NW2d
136 (2012). “Clear error exists if the reviewing court is left with a definite and firm conviction
that the trial court made a mistake.” Armstrong, 490 Mich. at 289.
A. VOLUNTARINESS OF THE PLEA
A guilty plea must be knowing, voluntary, and understanding. MCR 6.302(A); People v
Brown, 492 Mich. 684, 688-689; 822 NW2d 208 (2012). By pleading guilty, a defendant waives
the right to not incriminate himself, the right to a trial by jury, and the right to confront his
accusers in court. Cole, 491 Mich. at 332. For a guilty plea to be valid, a defendant must be
aware of the direct consequences of the plea. Id. at 333. There is no absolute right for a
defendant to withdraw a guilty plea after the trial court accepts it. People v Eloby, 215 Mich
App 472, 474; 547 NW2d 48 (1996). MCR 6.310(C) allows a defendant to seek to withdraw his
guilty plea within six months following sentencing; the trial court may allow withdrawal if “there
was an error in the plea proceeding that would entitle the defendant to have the plea set aside . . .
.” The decision whether to grant a defendant’s motion to withdraw a plea after sentencing is
within the discretion of the trial court. Eloby, 215 Mich. App. at 475.
The trial court did not abuse its discretion when it denied defendant’s motion to withdraw
his guilty plea because there were no defects in the plea proceedings. The trial court complied
with the requirements of MCR 6.302 in determining that defendant’s guilty plea was knowing,
understanding, and voluntary. At the plea hearing, defendant responded “Yes” when the court
asked whether he had had a “full, fair and complete opportunity to talk with” Tuddles about the
case before appearing that day. Defendant stated that he understood the three charges against
him, and his sentences, after the court explained the charges and the sentences. Defendant said
he understood that he would be ordered to pay restitution. Defendant also said he understood
that in pleading guilty, he would give up his trial rights. Defendant acknowledged his signature
on the settlement offer and notice of acceptance, and told the court that he read and understood
the form. Defendant said he understood that if he pleaded guilty, he would “give up any claim
that [his] plea was the result of promises or threats that [the court was] not told about today and
also give up any claim that it was not [his] own choice to plead guilty.” Defendant testified that
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no one promised him anything for pleading guilty, that no one threatened him to plead guilty,
that it was his own choice to plead guilty, and that he pleaded guilty because he was, in fact,
guilty. Defendant also responded “Yes” when the court asked him if he was satisfied with
Tuddles’s representation.
Defendant’s assertions after sentencing that he did not fully understand the plea deal, and
that Tuddles told him what to say, are in direct contradiction of his sworn testimony during his
plea hearing. Defendant testified that his guilty plea was not the result of promises or threats,
and that it was his choice to enter a guilty plea. Based on defendant’s testimony at the plea
hearing, it is clear that the plea was entered knowingly and voluntarily. Further, defendant
signed a written settlement offer and notice of acceptance, which was confirmed by the trial
court at the plea hearing. Because there were no errors at the plea hearing, defendant was not
entitled to withdraw his guilty plea pursuant to MCR 6.310(C). Brown, 492 Mich. at 692.
Defendant argues on appeal that he is innocent and wanted to go to trial, and that he
suffers from a cognitive impairment and mental illness that affect his judgment and ability to
comprehend. 3 However, it is not proper for a defendant to produce evidence after the fact that
contradicts his sworn statements made under oath while entering a guilty plea in open court. See
People v White, 307 Mich. App. 425, 429-431; 862 NW2d 1 (2014). In White, the defendant
produced affidavits authored by him and family members to demonstrate that his trial counsel
coerced him to plead guilty. Id. at 429. However, during his plea hearing, the defendant testified
that he was satisfied with his trial attorney, that the plea was his own choice, and that he was not
threatened to enter the plea. Id. This Court held “that because defendant’s offer of proof, i.e.,
his own affidavit, is inconsistent with defendant’s own testimony during the plea hearing, the
trial court did not abuse its discretion when it denied defendant’s request for an evidentiary
hearing.” Id. at 431. In the present case, the trial court did not abuse its discretion when it
rejected defendant’s affidavit because it directly contradicted the testimony he made under oath
at the plea hearing.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
When a defendant alleges ineffective assistance of counsel in the context of a guilty plea,
this Court must determine whether the defendant’s plea was tendered “voluntarily and
understandingly.” People v Corteway, 212 Mich. App. 442, 445; 538 NW2d 60 (1995). A
defendant is entitled to the effective assistance of counsel during the plea-bargaining process just
as he or she is entitled to the effective assistance of counsel at trial. People v Douglas, 496 Mich.
557, 591-592; 852 NW2d 587 (2014). Effective assistance of counsel is “strongly presumed.”
People v Vaughn, 491 Mich. at 642, 670; 821 NW2d 288 (2012). When a defendant seeks relief
for ineffective assistance of counsel in the plea-bargaining context, he or she must meet the two-
pronged standard set forth in Strickland v Washington, 466 U.S. 668; 104 S. Ct. 2052; 80 L. Ed. 2d
3
Defendant’s learning disability, mental health issues, and limited reading skills, as reported by
defendant and his mother, were included in the presentence investigation report. Accordingly,
the court was aware of these issues at the time of sentencing, but neither party challenged
defendant’s competency based on his mental capacity.
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674 (1984). Douglas, 496 Mich. at 592. The defendant must show “(1) ‘that counsel’s
representation fell below an objective standard of reasonableness,’ and (2) ‘that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’ ” Id., quoting Lafler v Cooper, 566 U.S. 156, 163; 132 S. Ct. 1376;
182 L. Ed. 2d 398 (2012). In demonstrating the second prong of the standard, “the ‘defendant
must show the outcome of the plea process would have been different with competent advice.’ ”
Douglas, 496 Mich. at 592, quoting Lafler, 566 U.S. at 163.
Defendant is not entitled to withdraw his guilty plea on the basis of ineffective assistance
of counsel by Tuddles. There is no evidence to rebut the strong presumption that Tuddles’s
performance during the plea-negotiation process was adequate and competent, or that his
decisions resulted from sound professional judgment. Vaughn, 491 Mich. at 670. It is clear that
from the beginning of the plea hearing, defendant wanted to enter a guilty plea. The court asked
defendant if he wanted the court to accept the plea agreement, and he responded, “Yes.”
Defendant also stated twice during the plea hearing that he was pleading guilty to all three
charges.
Defendant did provide confusing responses to some of the court’s questions in laying the
factual basis. When the court asked if defendant had had a firearm, defendant said, “No . . . .
Not on me.” But then defendant clarified that he did not have a weapon upon entering the
vehicle, but obtained one once he got inside. When the court asked defendant if he demanded
property from the victims, defendant said, “No.” At that point, Tuddles stepped in, apologized to
the court, and questioned defendant. Defendant testified that he did demand the telephones and
property of the victims in the car, and that he had the weapon on him when he did. There is no
evidence in the record that Tuddles was telling defendant what to say (“plead guilty, plead
guilty”) as argued by defendant and asserted in his affidavit. Although defendant seemed to
mistakenly answer some of the questions at the plea hearing, the court clarified the
circumstances by asking defendant, “They thought they were selling you a gun and it went -- you
took it further, is that fair?” and defendant responded, “Yes.” Defendant’s claims in his affidavit
that contradict his testimony at the plea hearing that he was satisfied with Tuddles’s
representation are insufficient to support his claim of ineffective assistance of counsel. See
White, 307 Mich. App. at 432. We discern no mistakes by Tuddles to demonstrate that his
performance fell below an objective standard of reasonableness. Douglas, 496 Mich. at 592.
Defendant alleges that Tuddles provided ineffective assistance of counsel because he did
not investigate the charges and evidence against defendant before defendant entered the guilty
plea. However, defendant did not and does not provide any evidence to support this claim.
Rather, the record demonstrates that Tuddles was retained by defendant and his family after
defendant was arraigned, and at the first “final conference,” Tuddles informed the court that he
needed time to consult with defendant about the plea agreement. Thus, the final conference was
adjourned from September 4, 2015, to September 9, 2015. At the final conference held on
September 9, 2015, defense counsel was informed that if defendant was going to enter a guilty
plea, it had to take place the next day. Thus, defense counsel was given ample time from
September 4, 2015, to September 10, 2015, the day of the plea hearing, to consider the plea
agreement. Defendant failed to provide concrete evidence that Tuddles failed to investigate the
charges and evidence, and there is nothing to demonstrate that Tuddles’s performance fell below
an objective standard of reasonableness in this regard. Id.
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Because of our conclusion, we need not reach the second prong of the ineffective-
assistance test. We note, however, that defendant has not offered any evidence to demonstrate
that he would have received an even more favorable outcome had he received different advice
from Tuddles.
II. RESENTENCING
The trial court did not abuse its discretion when it declined to resentence defendant.
When this Court reviews a sentence for reasonableness, this Court determines whether
the trial court abused its discretion by violating the principle of proportionality. People v
Steanhouse, 500 Mich. 453, 459-460; ___ NW2d ___ (2017). To determine whether a sentence is
“so unreasonable as to constitute an abuse of the trial court’s discretion and warrant reversal on
appeal,” this Court uses the “principle-of-proportionality” test provided by People v Milbourn,
435 Mich. 630, 636; 461 NW2d 1 (1990). Steanhouse, 500 Mich. at 471. This requires sentences
that are imposed by the trial court to be “ ‘proportionate to the seriousness of the circumstances
surrounding the offense and the offender.’ ” Id. at 474, quoting Milbourn, 435 Mich. at 636.
Defendant pleaded guilty, and then he was sentenced to 8 to 20 years’ imprisonment for
carjacking and armed robbery, plus two years’ imprisonment for felony-firearm, according to the
plea agreement. However, his appellate counsel discovered that OV 3 was erroneously scored at
10 points, and should have been scored at 0, because none of the victims sustained injuries
requiring medical treatment. The trial court agreed to amend OV 3 to 0 points. However, the
trial court declined to resentence defendant:
With regards to the challenge regarding the Offense Variable, I will in fact
amend OV [3] to score that as zero. But as [the prosecution] correctly indicated,
under [People v Lockridge, 498 Mich. 358; 870 NW2d 502 (2015),] when there is
a sentencing agreement, it is of no moment because the sentence agreement
obviates the scoring of the sentencing guidelines for purposes of resolution of this
particular case.
We agree with the trial court that Lockridge does not apply to defendant’s sentences because
defendant was sentenced pursuant to a plea agreement, rather than the sentencing guidelines,
which are advisory only pursuant to Lockridge. Lockridge, 498 Mich. at 391. Thus, defendant’s
arguments that Lockridge applies, and that he should be resentenced, are without merit.
Defendant asserts that he is entitled to resentencing for new, reasonable sentences, which
must be proportionate to the offense and the defendant, pursuant to Steanhouse. Defendant
entered into a plea agreement, with the knowledge of what sentences would be imposed.
“Generally, a defendant who voluntarily and understandingly entered into a plea agreement that
included a specific sentence waives appellate review of that sentence.” People v Billings, 283
Mich. App. 538, 550; 770 NW2d 893 (2009), citing People v Wiley, 472 Mich. 153, 154; 693
NW2d 800 (2005). The Billings Court noted that this Court, in an unpublished opinion, has
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declined to apply this rule where the sentence was based on improperly-scored guidelines.4
Billings, 283 Mich. App. at 551. However, in Billings, this Court ruled that the defendant was not
entitled to resentencing because even after the Court corrected the defendant’s scoring, the
defendant still received a sentence that was below the guidelines range. Billings, 283 Mich. App.
at 551.
Defendant is not entitled to resentencing because he waived appellate relief on the ground
that his sentences were disproportionate, or “unreasonable,” by pleading guilty pursuant to the
plea agreement that included a sentence agreement. Billings, 283 Mich. App. at 550. Moreover,
defendant is not entitled to resentencing because the sentences that he received pursuant to the
plea agreement fell within the statutory guidelines range after the trial court changed the scoring
of OV 3 from 10 points to 0 points. Defendant’s original sentencing guidelines range was 108 to
180 months’ imprisonment. MCL 777.62. The correction of OV 3 changed defendant’s
sentencing guidelines range to 81 to 135 months’ imprisonment. MCL 777.62. Defendant’s
sentences of eight years’ imprisonment for carjacking and armed robbery fell within the
guidelines range after OV 3 was corrected. Defendant’s sentence of two years’ imprisonment for
felony-firearm is immaterial because MCL 750.227b requires a two-year sentence. MCL
750.227b(1). Thus, the trial court did not abuse its discretion when it declined to resentence
defendant.
Defendant argues that his lack of a prior criminal record was not considered by the trial
court in determining the “reasonableness” of his sentences. There is no evidence in the record
that the trial court failed to consider this fact. The presentence investigation report (PSIR)
indicates that defendant is not an habitual offender. At sentencing, defense counsel stated that
the PSIR needed no corrections or deletions. Thus, there is no evidence that defendant’s
sentences are unreasonable or disproportionate in light of his lack of a criminal history. Rather,
defendant’s sentences are proportionate to the offense and defendant’s circumstances.
Steanhouse, 500 Mich. at 474.
Defendant alleges in his statement of the issue that he is entitled to new, reasonable
sentences given “his questionable involvement in the incident in question.” However, defendant
makes no supported argument on this basis in reference to the issue of resentencing, except for
baldly stating that “it is questionable whether there was actually enough of a factual basis to
determine his involvement in the crimes.” “Failure to brief an issue on appeal constitutes
abandonment.” People v McGraw, 484 Mich. 120, 131 n 36; 771 NW2d 655 (2009).
Nonetheless, as discussed above, defendant laid a factual basis for his involvement in the crime
when he pleaded guilty. Therefore, defendant’s involvement in the crimes of this case is not
“questionable,” and this is not a basis to resentence defendant.5
4
People v Fix, unpublished opinion per curiam of the Court of Appeals, issued October 15, 2007
(Docket No. 273448), p 1. Unpublished opinions are not binding under the rule of stare decisis.
MCR 7.215(C)(1).
5
There is no indication, contrary to defendant’s suggestion, that the trial court considered
improper or inaccurate facts in sentencing defendant; the trial court followed the plea agreement.
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III. RESTITUTION
The evidence indicates that the amount of restitution ordered in defendant’s judgment of
sentence is inaccurate; therefore, defendant is entitled to a remand for the trial court to determine
the correct amount of restitution to which the victims are entitled.
To preserve a challenge to a trial court’s order of restitution, a defendant must object to
the restitution at sentencing. People v Newton, 257 Mich. App. 61, 68; 665 NW2d 504 (2003).
Defendant did not object to the restitution at sentencing. This Court reviews an unpreserved
issue regarding a trial court’s order of restitution for plain error affecting a defendant’s
substantial rights. People v Gaines, 306 Mich. App. 289, 322; 856 NW2d 222 (2014). To show
plain error warranting relief, a defendant must establish “(1) that an error occurred, (2) that the
error was plain, and (3) that the plain error affected defendant’s substantial rights.” People v
Kowalski, 489 Mich. 488, 505; 803 NW2d 200 (2011). The third prong generally requires a
showing of prejudice, meaning that the error affected the outcome of the lower court
proceedings. People v Putman, 309 Mich. App. 240, 243; 870 NW2d 593 (2015). However:
Even if [a] defendant could satisfy these requirements, “[r]eversal is warranted
only when the plain, forfeited error resulted in the conviction of an actually
innocent defendant or when an error “ ‘seriously affect[ed] the fairness, integrity
or public reputation of judicial proceedings” independent of the defendant’s
innocence.’ ” [Kowalski, 489 Mich. at 505-506 (citations omitted).]
Crime victims have a constitutional and statutory right to restitution. Const 1963, art 1,
§ 24; MCL 780.751 et seq.; People v Gubachy, 272 Mich. App. 706, 708; 728 NW2d 891 (2006).
“The [Crime Victim’s Rights Act (CVRA)] provides that if a felony . . . results in the loss of a
victim’s property, the trial court may order the defendant to pay the victim, as restitution, the
value of the property that was lost.” Id. at 708, citing MCL 780.766(3). Restitution covers
losses that are “easily ascertained and are a direct result of a defendant’s criminal conduct.”
People v Orweller, 197 Mich. App. 136, 140; 494 NW2d 753 (1992). The burden is on the
prosecution to demonstrate the amount of the victim’s loss by a preponderance of the evidence.
Gubachy, 272 Mich. App. at 708, citing MCL 780.767(4). To determine the proper amount of
restitution, the sentencing court “shall consider the amount of loss sustained by the victim, the
financial resources and earning ability of the defendant, the financial needs of the defendant and
the defendant’s dependents, and such other factors as the court deems appropriate.” People v
Avignone, 198 Mich. App. 419, 422; 499 NW2d 376 (1993) (emphasis removed). If the
sentencing court fails to apply the procedural requirements of the restitution statute, remand is
appropriate. Orweller, 197 Mich. App. at 141. However, when there is no dispute regarding the
restitution amount, the trial court is not required to make a separate factual finding on the record
concerning restitution but may instead rely on the recommendation in the PSIR. People v Grant,
455 Mich. 221, 233-234, 243; 565 NW2d 389 (1997).
As noted, defendant did not challenge the restitution amount at sentencing. The trial
court read the following from a restitution form submitted by the prosecution:
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Ms. Mathews, I also have from your colleague, Ms. [Hammoud], a
restitution form that has been submitted [for] $600.00 for an [IPhone], restitution
to Aaron [Leneair].
$605.00 for an [IPhone], $5.00 cash for restitution for [Inyang]. . . , and
for John [Cooke], the third complainant. $300.00 for the car rental. Restitution at
$600.00 for the cell phone. Total of $900.00. Total restitution is $2,105.00.[6]
The three victims testified that defendant took their telephones, Cooke and Inyang testified that
defendant took their wallets, and all three testified that defendant drove Cooke’s Jeep away.
However, Cooke testified that defendant returned Cooke’s telephone before defendant drove off
in Cooke’s Jeep. Therefore, the $600 attributed to Cooke’s telephone out of the $2,105 total
charged to defendant in restitution is inaccurate. In addition, Cooke testified that there was $300
in his wallet. This was not included in the total restitution amount, even though the $5 in
Inyang’s wallet was included. On the record before us, we find plain error. Kowalski, 489 Mich.
at 505. This evidence suggesting that the total amount contained in the restitution form is
inaccurate demonstrates that defendant was prejudiced as a result of the trial court’s findings and
that this resulted in unfairness. Defendant was prejudiced because he had to pay more in
restitution than was warranted. We therefore remand this matter for the trial court to determine
the accurate amount of restitution that defendant owes.
Defendant’s convictions and sentences are affirmed. This case is remanded to the trial
court for further proceedings to determine the correct amount of restitution owed. We do not
retain jurisdiction.
/s/ Patrick M. Meter
/s/ Stephen L. Borrello
/s/ Michael J. Riordan
6
It appears that the total from these amounts should be $2,110, not $2,105.
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