State v. Kevin R. Dunay

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.
March 23, 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 No. 2019AP1884-CR Cir. Ct. No. 2015CF470

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KEVIN R. DUNAY,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Outagamie County: MARK J. McGINNIS, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, 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).
No. 2019AP1884-CR

¶1 PER CURIAM. Kevin Dunay appeals from convictions stemming
from sexually explicit communications with a thirteen-year-old girl.1 Dunay also
challenges an order denying postconviction relief. During his criminal case,
Dunay repeatedly threatened law enforcement officers, the prosecutor, and the
circuit court judge assigned to his case. Dunay argues that the judge was required
to recuse himself from this case because of the threats. We affirm.

BACKGROUND

¶2 Dunay communicated with the thirteen-year-old girl online, and they
began messaging each other. Dunay lived in New Jersey, and the victim lived in
Outagamie County. Dunay told the victim that he was forty years old, but he was
actually forty-eight. Dunay initially believed the victim was eighteen years old,
but he kept communicating with her after she told him that she was only thirteen.
Dunay told her he was divorced but, in fact, he was married and lived with his
wife and three teenage sons.

¶3 Dunay asked the victim to show her body to him, and when she was
reluctant, Dunay told her it was okay to do so because they were in a relationship
and he loved her. The victim eventually sent in excess of fifty images to Dunay
over a five-month period of herself stripping, masturbating, and sexually touching
herself. Dunay also sent images of himself to her, depicting his genitals and
videos of himself masturbating, among other things. They also exchanged many
disturbing and explicit statements regarding sexual topics, including anal sex.

1
Dunay, pro se, has submitted correspondence to this court on numerous occasions
during the course of this appeal. Dunay is represented by an attorney. When a litigant is
represented by counsel, he or she is not entitled to conduct court proceedings pro se. We will
therefore take no action on his correspondence.

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No. 2019AP1884-CR

¶4 The victim’s mother eventually found two images on the victim’s
phone depicting the victim’s bare breasts. The victim told her mother that she had
sent the pictures to “Kevin” and that he called her his girlfriend. The mother then
contacted law enforcement.

¶5 The State of Wisconsin charged Dunay with sexual exploitation of a
child, child enticement, causing a child to view or listen to sexual activity, and
causing a child to expose intimate parts. The State of New Jersey charged Dunay
with four felony counts of endangering the welfare of a child. Dunay was arrested
and jailed in New Jersey before being extradited to Wisconsin. Dunay pleaded no
contest to the four counts in Wisconsin.

¶6 While in the Outagamie County jail, Dunay stated that he would kill
the circuit court judge and the district attorney when he was released. After the
plea hearing, the State provided the court with copies of nineteen phone calls
Dunay had made from jail exhibiting his “vengefulness.” In the recordings,
Dunay referred to the judge as “the worst” and a “fuckin’ piece of shit.”

¶7 Outagamie County jail’s mental health professional and community
liaison met with Dunay at the jail to offer her expert assistance after learning of his
frequent angry statements and behavior. During this meeting, Dunay told her that
he planned to kill the circuit court judge and other people when he was released
from prison and that “I have nine years to plan that.”

¶8 At the sentencing hearing, Dunay acknowledged the jail phone
recordings showed that he made threats against the judge as well as others, but
Dunay claimed he was merely “venting” and would not carry out the actions. The

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court imposed a sentence of twelve years’ initial confinement and twenty years’
extended supervision.2 Following his transfer to Dodge Correctional Institution,
Dunay continued to make statements about his plans to kill the judge, police, and
prosecutors after his release from prison.

¶9 Dunay had also made death threats against members of the criminal
justice system while in New Jersey, stating he wanted to kill two New Jersey
detectives for ruining his life. He made threatening statements toward the
detectives and prosecutors “every day” and “all day long” while incarcerated in
New Jersey. He even sang in the shower about how he was going to kill a
New Jersey detective. He also threatened to kill some of his victim’s family
members.

¶10 Dunay filed postconviction motions seeking to withdraw his pleas on
the grounds that he misunderstood information about his possible sentences and
about a possible federal prosecution; for resentencing on the grounds that his trial
counsel was ineffective by failing to move the circuit court to recuse itself because
of Dunay’s threats against the court and “the entire judicial system”; and for the
court to recuse itself from his case because of the threats. Dunay also
subsequently filed a brief in the circuit court arguing he was entitled to discovery
prior to any restitution hearing.

¶11 Following three hearings, the circuit court ordered Dunay to pay
restitution and it denied his postconviction motions for resentencing, plea
withdrawal, recusal, and discovery before the restitution hearing. Dunay now

2
The sentencing court imposed twelve years’ initial confinement. At the postconviction
hearing, the court added two months for contempt of court.

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No. 2019AP1884-CR

appeals, arguing that the judge was biased and required to recuse himself due to
Dunay’s threats.

DISCUSSION

¶12 There is a presumption that a judge is free of bias and prejudice.
State v. Jensen, 2011 WI App 3, ¶95, 331 Wis. 2d 440, 484, 794 N.W.2d 482
(2010). To overcome the presumption, the party asserting judicial bias must show
by a preponderance of the evidence that the judge is biased or prejudicial. Id.

¶13 Dunay does not argue that the circuit court was subjectively biased.
We need only determine, therefore, whether the court was objectively biased.
State v. Goodson, 2009 WI App 107, ¶8, 320 Wis. 2d 166, 771 N.W.2d 385.
Objective bias can exist when a reasonable person could question the court’s
impartiality based on the court’s statements, or when there are objective facts
demonstrating the judge in fact treated the defendant unfairly. Id., ¶9.

¶14 Dunay argues the circuit court was objectively biased “under both of
the objective tests.” His arguments, however, are largely conclusory. As we
discern them, he contends his threats to kill the judge caused the court to rule
against him on each of the postconviction motions, “as a result of the court’s
clouded judgment.” In turn, Dunay asserts the court’s denial of his motions would
keep him in prison, thus affecting his ability to carry out his death threats. Dunay
therefore contends “there were ample reasons for the court to be bias[ed] and deny
the defendant’s postconviction arguments.”

¶15 Judicial rulings alone almost never constitute a valid basis for a bias
or impartiality motion. OLR v. Nora, 2018 WI 23, ¶35, 380 Wis. 2d 311, 909
N.W.2d 155. Moreover, threats against judges generally do not require recusal.

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No. 2019AP1884-CR

See, e.g., S.E.C. v. Bilzerian, 729 F. Supp. 2d 19, 24 (D.D.C. 2010) (collecting
cases). Recusal is required only if a judge’s opinions or remarks display a
deep-seated antagonism or favoritism that would make fair judgment impossible.
Liteky v. United States, 510 U.S. 540, 555 (1994). Were the rule otherwise, a
defendant could readily manipulate the system, threatening every jurist assigned
until the defendant gets a judge he or she prefers. See United States v. Holland,
519 F.3d 909, 915 (9th Cir. 2008).

¶16 Dunay points to no statement or other indication by the circuit court
that would suggest the type of deep-seated antagonism necessary to demonstrate
bias or impartiality. Contrary to Dunay’s perception, the court in the present case
did not accelerate court procedures with the stated purpose of getting Dunay into
prison as soon as possible. Nor does the record on appeal suggest that the court
responded to Dunay’s repeated threats in a way that would reasonably suggest that
the court was biased against Dunay.

¶17 Absent unique and extraordinary circumstances, threats or plots by a
criminal defendant against the judge presiding over his or her case do not mandate
a judge’s recusal—even death threats. See United States v. Yousef, 327 F.3d 56,
170 (2d Cir. 2003). Dunay’s case is not sufficiently unique or extraordinary to
warrant recusal as a matter of law. Indeed, if Dunay’s assertions were enough to
prove objective bias, recusal could be mandatory in virtually every criminal case
where a defendant threatens to kill a judge.

¶18 Moreover, Dunay does not develop an argument that the circuit
court’s rulings were wrong or unfair regarding his discovery, restitution, plea
withdrawal, or resentencing motions. Dunay points to nothing more than the fact
that the court ruled against him. Dunay’s assertions do not establish objective

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No. 2019AP1884-CR

bias, even if we could somehow say the rulings were incorrect. The court did not
err in declining to recuse itself from ruling on Dunay’s postconviction motions.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2019-20).

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