State v. Kamari Ashunti Dunn ( 2021 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 2, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal Nos.
2020AP1096-CR Cir. Ct. Nos. 2016CF4867
2016CF5142
2020AP1097-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
KAMARI ASHUNTI DUNN,
DEFENDANT-APPELLANT.
APPEALS from judgments and orders of the circuit court for
Milwaukee County: PEDRO COLON and DAVID L. BOROWSKI, Judges.
Affirmed in part, reversed in part, and cause remanded with directions.
Before Brash, P.J., Donald and White, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
Nos. 2020AP1096-CR
2020AP1097-CR
¶1 PER CURIAM. Kamari Ashunti Dunn challenges his convictions
after he pled guilty to two counts of robbery with the use of force and one count of
attempted armed robbery, all as a party to a crime. Dunn argues that his trial counsel
was ineffective with regard to advice provided to Dunn during the plea bargaining
process. The trial court denied Dunn’s motion for postconviction relief on that
claim without a hearing.
¶2 Additionally, Dunn argues that the trial court erred in reopening the
judgment of conviction for a restitution hearing after sentencing with regard to one
of the victims, and that his trial counsel was ineffective for failing to object to that.
Furthermore, Dunn asserts that the order for restitution for two other victims was
also erroneous. The restitution for those two victims was stipulated to at sentencing,
but after hearing Dunn’s postconviction motion, the trial court ordered a contested
restitution hearing as to those victims. Dunn contends that at that hearing, he was
not permitted to actually contest restitution for those two victims.
¶3 Upon review, we affirm the trial court’s denial of Dunn’s claim of
ineffective assistance of counsel during the plea bargain process. We further
conclude that it was within the trial court’s authority to amend the judgment of
conviction regarding the restitution ordered for the first victim, and thus Dunn’s
argument on that issue as well as his related ineffective assistance claim both fail.
¶4 However, the record indicates that Dunn was never afforded the
opportunity to contest the restitution amounts ordered for the other two victims at
the postconviction restitution hearing. We therefore reverse and remand for a full
restitution hearing regarding those victims.
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BACKGROUND
¶5 The charges against Dunn stem from a string of robberies and other
crimes that occurred in various locations in Milwaukee in October 2016. Over the
course of approximately one week, Dunn and several co-actors committed crimes
against several victims: they attempted to steal vehicles from three victims, and
succeeded in stealing the vehicle of a fourth victim. They also used physical force
against the victims in committing these crimes. Additionally, they stole personal
property from two of the victims, including a purse, a wallet, a cell phone, and a
work bag.
¶6 Dunn was apprehended after police attempted to pull over the vehicle
he was driving, which had been identified as being involved in the robberies. Dunn
led police on a high-speed chase for over fifteen miles on city streets, striking two
other vehicles and narrowly missing a pedestrian before coming to a stop. Dunn
then fled on foot, but was apprehended and taken into custody.
¶7 For these incidents, Dunn was charged with three counts of robbery
with the use of force, as a party to a crime; two counts of second-degree recklessly
endangering safety, with one of those counts charged as a party to a crime; one count
of attempted armed robbery with the use of force, as a party to a crime; one count
of attempt to operate a motor vehicle without consent, as a party to a crime; one
count of fleeing an officer; and one count of obstructing an officer.1
¶8 These charges were resolved with a global plea agreement. Pursuant
to the plea negotiations, Dunn agreed to plead guilty to two counts of robbery with
1
The charges against Dunn were set forth in two separate cases; those cases were
consolidated on appeal.
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the use of force and one count of attempted armed robbery, all as a party to a crime,
with the remaining counts in both cases to be dismissed and read in at sentencing.
In exchange, the State agreed to recommend a global sentence of nine years of initial
confinement followed by nine years of extended supervision. Dunn entered his
pleas at a hearing in April 2017; at the subsequent sentencing hearing in August
2017, the trial court2 followed the State’s sentencing recommendation.3
¶9 Also at the sentencing hearing, Dunn’s trial counsel stipulated on
Dunn’s behalf to the restitution proposed for two of the victims, G.Z. and K.A.
Another victim, B.H., addressed the court during the hearing, but did not request
restitution. However, after sentencing, the State requested a restitution hearing for
B.H. A contested restitution hearing was held in October 2017, approximately two
months after sentencing, where the trial court ordered restitution consistent with
B.H.’s request.
¶10 Dunn subsequently filed a postconviction motion in March 2019,
raising several claims. He first alleged ineffective assistance of counsel, on the
ground that his trial counsel unreasonably advised him to reject a second plea offer
from the State. The first plea offer by the State—which Dunn ultimately accepted—
included a requirement for guilty or no contest pleas to the three counts with the
State recommending an eighteen-year sentence, bifurcated as described above, with
the defense free to argue regarding sentence disposition. It also required full
restitution to all victims. However, a second plea offer was extended by the State
2
The Honorable Jeffrey A. Wagner took Dunn’s pleas, while the Honorable Pedro Colon
imposed his sentence. Judge Colon also presided over the restitution hearing in October 2017, and
heard Dunn’s postconviction motion.
3
Dunn’s term of extended supervision was subsequently reduced, upon a request for
review by the Department of Corrections, to comply with statutory limitations.
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just prior to sentencing. That offer called for pleas to the same counts, but required
a joint global sentencing recommendation of seven years of initial confinement
followed by seven years of extended supervision, along with full restitution.
¶11 In his postconviction motion, Dunn alleged that he took the first offer
because his trial counsel advised him that if counsel was free to argue for a lower
sentence—as he was with the first plea offer—he would be able to “talk down the
judge” and obtain a sentence that was lower than both the eighteen-year sentence of
the first offer and the fourteen-year sentence of the second offer. Dunn claims that
this advice was both deficient and prejudicial, thereby constituting ineffective
assistance.
¶12 Dunn also sought the vacation of the restitution order for B.H. in his
postconviction motion. He asserted that there was no “legal rationale” for the trial
court to amend his judgment of conviction to include that order for restitution, and
that his trial counsel’s failure to object to this also constituted ineffective assistance
of counsel.
¶13 Additionally, Dunn sought a hearing relating to the restitution ordered
for G.Z. and K.A. at the sentencing hearing. Dunn contends that his trial counsel
never discussed the issue of restitution with him, and was therefore ineffective for
stipulating to the same at sentencing.
¶14 The trial court rejected Dunn’s claim regarding the advice provided
by trial counsel relating to the plea offers. The court found the basis for this claim
too speculative, in that there was no guarantee that the court would have accepted
the fourteen-year recommendation even with a joint recommendation from both
parties. The court also rejected Dunn’s claim that the restitution award for B.H.
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should be vacated, stating that it was within the court’s inherent power to amend
Dunn’s sentence with that additional restitution order.
¶15 However, the trial court granted a Machner4 hearing on Dunn’s claim
of ineffective assistance of counsel regarding trial counsel’s stipulation to the
restitution ordered for G.Z. and K.A. At that hearing, held in June 2019, the court
concluded that there was not a clear indication that counsel had discussed those
restitution requests with Dunn prior to stipulating to them at sentencing. Therefore,
the court determined that Dunn was entitled to a contested restitution hearing for the
restitution requested for G.Z. and K.A.
¶16 That postconviction restitution hearing was held in November 2019.5
After a brief argument by the State, and an even shorter argument by the defense,
the trial court found that the amounts being requested were reasonable and that Dunn
had the ability to pay. The court deemed Dunn’s argument to be “disingenuous”
and determined that he simply did not want to pay restitution because he was a “bad
actor.” Therefore, the court ordered restitution for G.Z. and K.A. in the same
amounts that were ordered at sentencing.
¶17 This appeal follows.
DISCUSSION
Ineffective Assistance of Counsel Relating to the Plea Offers
¶18 We first address Dunn’s claim that he received ineffective assistance
of counsel with regard to the advice he received from trial counsel relating to the
4
See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).
5
The Honorable David L. Borowski presided over this restitution hearing.
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two plea offers presented by the State. Our analysis of an ineffective assistance of
counsel claim involves the familiar two-pronged test: the defendant must show that
his trial counsel’s performance was deficient and that the deficiency prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). “To prove
constitutional deficiency, the defendant must establish that counsel’s conduct falls
below an objective standard of reasonableness.” State v. Love, 2005 WI 116, ¶30,
284 Wis. 2d 111, 700 N.W.2d 62. “To prove constitutional prejudice, the defendant
must show that ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.’” Id. (citations and one set of quotation marks omitted).
¶19 The court “need not address both components of this inquiry if the
defendant does not make a sufficient showing on one.” State v. Smith, 2003 WI
App 234, ¶15, 268 Wis. 2d 138, 671 N.W.2d 854. “The ultimate determination of
whether counsel’s performance was deficient and prejudicial to the defense are
questions of law which this court reviews independently.” State v. Johnson, 153
Wis. 2d 121, 128, 449 N.W.2d 845 (1990).
¶20 Dunn seeks a Machner hearing for his ineffective assistance of
counsel claim, as required for such claims “to preserve the testimony of trial
counsel.” See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App.
1979). However, a defendant is not automatically entitled to an evidentiary hearing
relating to his or her postconviction motion. State v. Bentley, 201 Wis. 2d 303, 309-
10, 548 N.W.2d 50 (1996). Rather, the trial court is required to hold an evidentiary
hearing only if the defendant has alleged “sufficient material facts that, if true,
would entitle the defendant to relief.” State v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d
568, 682 N.W.2d 433. If, on the other hand, the postconviction motion “does not
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raise facts sufficient to entitle the movant to relief, or presents only conclusory
allegations, or if the record conclusively demonstrates that the defendant is not
entitled to relief,” the trial court, in its discretion, may either grant or deny a hearing.
Id., ¶9.
¶21 The trial court denied Dunn’s motion on his ineffective assistance
claim relating to his pleas without a hearing. The court rejected Dunn’s argument
that his trial counsel’s advice to accept the plea offer with the longer sentence was
“unreasonable per se” as being “too speculative[.]” The court explained that there
was no guarantee that it would have accepted the joint recommendation of fourteen
years had it been presented by the State and the defense as a “united front”; in fact,
the court pointed out that at the sentencing hearing, it had remarked that “it could
not in good conscience impose anything less than the State’s nine[-]year
recommendation based on the facts and circumstances of this case.”
¶22 We agree that Dunn is not entitled to a Machner hearing on this
ineffective assistance claim. Defense counsel has “the right and duty to recommend
a plea bargain if he or she feels it is in the best interests of the accused,” and
predictions by trial counsel as to sentencing outcomes will not support a claim of
ineffective assistance. See State v. Provo, 2004 WI App 97, ¶¶17-18, 272 Wis. 2d
837, 681 N.W.2d 272. The advice Dunn’s trial counsel gave him regarding the plea
offers was based on counsel’s belief that the ability to argue for a lesser sentence
was a better strategy to employ in this case, and “[c]ounsel’s decisions in choosing
a trial strategy are to be given great deference,” see State v. Balliette, 2011 WI 79,
¶26, 336 Wis. 2d 358, 805 N.W.2d 334, even when in “hindsight we are able to
conclude that an inappropriate decision was made or that a more appropriate
decision could have been made,” see State v. Felton, 110 Wis. 2d 485, 502, 329
N.W.2d 161 (1983).
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¶23 Furthermore, a defendant’s challenge to counsel’s representation must
be based on “more than speculation” that the outcome of the proceeding would have
been different. See State v. Leighton, 2000 WI App 156, ¶38, 237 Wis. 2d 709, 616
N.W.2d 126. Here, the trial court found that even if Dunn’s trial counsel “had
performed at sentencing in the manner suggested by [Dunn],” the sentence would
have been the same. See State v. Giebel, 198 Wis. 2d 207, 219, 541 N.W.2d 815(Ct. App. 1995). Based on this finding, as well as our review of the record, we
conclude that even if there was a deficiency in his counsel’s performance, Dunn has
not demonstrated prejudice. See id. Therefore, his claim of ineffective assistance
regarding the plea offers fails. See Smith, 268 Wis. 2d 138, ¶15.
Restitution Order for B.H.
¶24 Dunn next argues that the trial court erred when it reopened his
judgment of conviction, post-sentencing, to order restitution for B.H. The State
argues that Dunn forfeited this argument because he did not object to the restitution
hearing for B.H., held approximately two months after the sentencing hearing.6 We
agree. See State v. Ndina, 2009 WI 21, ¶30, 315 Wis. 2d 653, 761 N.W.2d 612(failure to object during trial proceedings “constitutes a forfeiture of the right on
appellate review”).
¶25 However, we also conclude that Dunn’s argument has no merit. In
Wisconsin, court-ordered restitution is a statutory requirement. See WIS. STAT.
6
Although the State uses the term “waiver” in its argument, we note that it is actually
asserting that Dunn forfeited this argument. See State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d
653, 761 N.W.2d 612 (although “forfeiture” and “waiver” are sometimes used “interchangeably,
the two words embody very different legal concepts”: forfeiture is “‘the failure to make the timely
assertion of a right,’” while waiver is “‘the intentional relinquishment or abandonment of a known
right’” (citation omitted)).
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§ 973.20(1r) (2019-20).7 For our review of this issue, we apply this statute to the
undisputed facts surrounding this issue, which is a question of law that we review
de novo. See Kox v. Center for Oral & Maxillofacial Surgery, S.C., 218 Wis. 2d
93, 99, 579 N.W.2d 285 (Ct. App. 1998).
¶26 Specifically, WIS. STAT. § 973.20(1r) requires courts to “order full or
partial restitution … to any victim of a crime ‘unless the court finds substantial
reason not to do so and states the reason on the record.’” See State v. Ziegler, 2005
WI App 69, ¶11, 280 Wis. 2d 860, 695 N.W.2d 895 (citation omitted). Indeed,
“Wisconsin courts have repeatedly held that ‘restitution is the rule and not the
exception,’ and ‘should be ordered whenever warranted.’” State v. Wiskerchen,
2019 WI 1, ¶22, 385 Wis. 2d 120, 921 N.W.2d 730 (citations omitted).
Furthermore, a sentence that “fails to provide for restitution is unlawful and is
subject to amendment.” Ziegler, 280 Wis. 2d 860, ¶11.
¶27 Moreover, a trial court “has inherent power to change and modify its
judgment even after a defendant has begun to serve a criminal sentence.” State v.
Borst, 181 Wis. 2d 118, 123, 510 N.W.2d 739 (Ct. App. 1993). Therefore, we
conclude that the trial court did not err in holding the restitution hearing for B.H.
after sentencing and amending Dunn’s judgment of conviction to include that order
for restitution.
¶28 Based on this conclusion, Dunn’s claim that his trial counsel was
ineffective for failing to object to the post-sentencing restitution hearing fails as
well. See State v. Allen, 2017 WI 7, ¶46, 373 Wis. 2d 98, 890 N.W.2d 245 (“It is
well-established that trial counsel could not have been ineffective for failing to make
7
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
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Nos. 2020AP1096-CR
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meritless arguments.”) Therefore, he is not entitled to a Machner hearing on this
issue. See Allen, 274 Wis. 2d 568, ¶9.
Restitution Order for G.Z. and K.A.
¶29 The final issue on appeal involves the restitution ordered for G.Z. and
K.A. The trial court ordered a contested restitution hearing after Dunn successfully
argued in his postconviction motion that his trial counsel had not discussed
restitution with him prior to stipulating at the sentencing hearing to the amounts
sought by the State for G.Z. and K.A.
¶30 However, the record for that postconviction restitution hearing—held
in November 2019, as previously noted—indicates that Dunn was not actually
provided an opportunity to contest the restitution for G.Z. and K.A. The entire
transcript for the hearing was only five pages, excluding the cover page and the
certification page, and Dunn’s argument, as made by trial counsel, comprises
approximately one-half of a page. Essentially, counsel was able to assert that Dunn
contested the amounts sought as well as his ability to pay, but was not permitted to
develop and present arguments on these issues.
¶31 A restitution order is a discretionary decision of the trial court.
Wiskerchen, 385 Wis. 2d 120, ¶37. Therefore, we may reverse such a decision
“only if the trial court applied the wrong legal standard or did not ground its decision
on a logical interpretation of the facts.” See id. (citation omitted).
¶32 We also observe, however, that WIS. STAT. § 973.20(13)(a) requires
that the trial court, in making a restitution determination, “shall consider” all of the
following factors:
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1. The amount of loss suffered by any victim as a result of a
crime considered at sentencing.
2. The financial resources of the defendant.
3. The present and future earning ability of the defendant.
4. The needs and earning ability of the defendant’s
dependents.
5. Any other factors which the court deems appropriate.
See id. (emphasis added).
¶33 Based on the transcript of that restitution hearing, we are unable to
conclusively ascertain that the trial court considered all of these factors—
specifically, those relating to the defendant and his ability to pay—since the trial
court did not permit any argument or testimony relating to those factors prior to
rendering its decision. Therefore, the trial court did not properly exercise its
discretion for the restitution orders for G.Z. and K.A.
¶34 As a result, we reverse the restitution orders for G.Z. and K.A., and
remand this matter for another contested hearing in which both parties are provided
the opportunity to present arguments relating to the statutory factors of WIS. STAT.
§ 973.20(13)(a) for consideration by the trial court. All other judgments and orders
of the trial court are affirmed.
By the Court.—Judgments and orders affirmed in part, reversed in
part, and cause remanded with directions.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
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