State v. Kamau Kambui Bentley, Jr.

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.
July 5, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2021AP1782 Cir. Ct. No. 1993CF934585A

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KAMAU KAMBUI BENTLEY, JR.,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:

MICHELLE ACKERMAN HAVAS, Judge. Affirmed.

Before Brash, C.J., Donald, P.J., and White, J.

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. 2021AP1782

¶1 PER CURIAM. Kamau Bentley, Jr., appeals the circuit court’s

order denying his postconviction motion brought pursuant to WIS. STAT. § 974.06

(2021-22).1 Bentley argues: (1) that he should be allowed to withdraw his plea

because the circuit court did not comply with WIS. STAT. § 971.08 and State v.

Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986); (2) that the State breached the

plea agreement; and (3) that he received constitutionally ineffective assistance of

postconviction counsel. We affirm.

¶2 In 1993, Bentley pled guilty to one count of felony murder, as a

party to a crime, in the shooting death of Lenard Boyd, and he pled guilty to one

count of first-degree intentional homicide, as a party to a crime, in the shooting

death of Curtis Brown. Bentley filed a postconviction motion to withdraw his

pleas on the grounds that Bentley’s trial counsel gave him incorrect information

before he entered the pleas. The circuit court denied the motion. On appeal, we

reversed. The Supreme Court then reversed our order. See State v. Bentley, 201

Wis. 2d 303, 306, 548 N.W.2d 50 (1996). On March 9, 2021, Bentley filed the

action currently before us collaterally attacking his conviction.

¶3 Bentley argues that he should be allowed to withdraw his plea

because the circuit court’s plea colloquy did not comply with WIS. STAT. § 971.08

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2021AP1782

and Bangert, 131 Wis. 2d at 246. He contends that the circuit court did not

explain the meaning of party-to-a-crime liability, did not explain the meaning of

“intent” with regard to the first-degree intentional homicide charge, and did not

adequately inquire about his level of education and his ability to comprehend the

proceedings.

¶4 Bangert made it mandatory for the circuit court to ascertain the

defendant’s understanding of the nature of charge against him or her during the

plea hearing by following one or a combination of several methods. Id., 131

Wis. 2d at 267-68. One of the enumerated methods is for the circuit court to

“summarize the elements of the crime charged by reading from the appropriate

jury instructions … or from the applicable statute.” Id. at 268.

¶5 The circuit court complied with this duty by asking the prosecutor to

explain the elements of the charges.2 The prosecutor did so by referring to

applicable statutes. The prosecutor listed the elements of the crimes, including the

elements of party-to-a-crime liability and the intent element of first-degree

intentional homicide. As the prosecutor read the elements of the crimes, the

circuit court questioned Bentley about his understanding of the elements as

applied to the crimes he was charged with, asked Bentley repeatedly whether he

2
The circuit court judge was apparently having some difficulty with his voice because
he stated: “And I’d ask, Ms. Kraft, could you just briefly outline the elements? Of felony
murder? Of the two crimes just to save my voice.”

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No. 2021AP1782

had any questions, and ascertained that Bentley could read and write. Therefore,

the plea hearing transcript contradicts Bentley’s assertion that the plea hearing

colloquy was inadequate and establishes that there was no violation of Bangert or

WIS. STAT. 971.08 during the plea colloquy.3

¶6 Bentley next argues that the State breached the plea agreement. A

criminal defendant has a due process right to have the prosecutor fulfill the terms

of a plea agreement. State v. Matson, 2003 WI App 253, ¶16, 268 Wis. 2d 725,

674 N.W.2d 51. Bentley contends that the State agreed to make no

recommendation with regard to his parole eligibility date for his first-degree

intentional homicide conviction, which carried a mandatory life sentence. Bentley

argues that the prosecutor violated this agreement by asking the circuit court at

sentencing to set his parole eligibility at forty-five years.

¶7 The record does not support Bentley’s contention that the State

breached the plea agreement. The prosecutor did not agree to make no

recommendation with regard to Bentley’s parole eligibility with regard to his first-

degree intentional homicide conviction. We agree with the following detailed

analysis of the circuit court rejecting this argument.

3
Although Bentley does not directly state that his argument is premised on the fact that
the prosecutor read the elements of the crimes aloud, as opposed to the circuit court, this
argument would be unavailing. The circuit court was actively engaged in discussion with Bentley
about the elements of the crimes as they were being listed, allowing it to ascertain whether
Bentley understood the crimes to which he was pleading guilty.

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No. 2021AP1782

At the plea hearing, the State indicated that [it]
would be recommending “that the defendant receive
concurrent sentences on the two … charges. He will be
exposed to 40 years for [felony murder] and life
imprisonment with the Court setting the parole eligibility
date [for first-degree intentional homicide]. And I
indicated to [trial counsel] I would indicate to our
sentencing committee that Mr. Bentley be given
consideration by us in our representations by virtue of the
fact that he [pled] guilty and is taking responsibility,
although I also made it clear to him I could not generate a
parole eligibility recommendation.”

At sentencing, the State recommended “that Mr.
Bentley be sentenced to life in prison as the court must
sentence him [for first-degree intentional homicide], that
the court set a parole eligibility date for Mr. Bentley at 45
years, and that the court sentence Mr. Bentley to a
concurrent time of 25 year[s] on the Boyd homicide.” The
defendant argues that the State violated its agreement to
make no parole eligibility recommendation….

The State responds that the defendant has
misconstrued the State’s recommendation: “Defendant’s
claim that the ‘[S]tate agreed to remain silent on the parole
eligibility recommendation’ is not supported by the March
28, 1994 offer letter or the State’s statements at the plea
hearing. In neither the letter nor in court did the State
inform the court that it would ‘remain silent on the parole
eligibility recommendation.’” The State explains that
“[t]he clear language of that [offer] letter is that the State
would not, prior to conviction, negotiate a parole eligibility
recommendation, but that after conviction, a committe[e]
would meet to determine the appropriate recommendation.
That is exactly what occurred.” The State indicates that
ADA Kraft was describing the defendant’s maximum
exposure on both counts when she referred to the Court
“setting the parole eligibility date.”

The March 28, 1994 offer letter from ADA Kraft to
[trial counsel] explained, “With respect to sentencing, you
are aware that I cannot negotiate the parole eligibility
recommendation relative to the 1st Degree Intentional
Homicide charge. You are also aware that it is the policy
of our office that after conviction, a sentencing committee
meets to determine the appropriate recommendation.” The
letter makes clear that ADA Kraft was not herself
authorized to negotiate a parole eligibility recommendation
due to office policy. Rather, her offer involved urging the
DA’s office’s sentencing committee to take into

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No. 2021AP1782

consideration that the defendant admitted to being a party
to the crime, but was not the shooter …[] that he was taking
responsibility for his participation in these offenses, and
that he was pleading guilty and sparing the families the
ordeal of a jury trial. Accordingly, it is apparent that the
plea agreement was not for ADA Kraft to remain silent
about parole eligibility, but that she would urge her office’s
“sentencing committee” to take into consideration the
defendant’s acceptance of responsibility in determining the
appropriate recommendation from their office. [Emphasis
added; record citations omitted].

¶8 Finally, Bentley argues that he received ineffective assistance of

postconviction counsel because his lawyer should have raised the two issues

addressed above in Bentley’s first postconviction motion after he was convicted.

“[A] defendant who alleges … that his postconviction counsel was ineffective for

failing to bring certain viable claims must demonstrate that the claims he wishes to

bring are clearly stronger than the claims postconviction counsel actually

brought.” State v. Romero-Georgana, 2014 WI 83, ¶4, 360 Wis. 2d 522, 849

N.W.2d 668. We have concluded above that these issues lack merit and we

therefore conclude that these issues are not clearly stronger than the claims

originally brought. Postconviction counsel did not render constitutionally

ineffective assistance of counsel by failing to raise issues without merit. See State

v. Golden, 185 Wis. 2d 763, 771, 519 N.W.2d 659 (Ct. App. 1994) (providing that

counsel did not render ineffective assistance by failing to raise a meritless

argument). Therefore, we reject Bentley’s claim that he received ineffective

assistance of postconviction counsel.

By the Court.—Order affirmed.

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No. 2021AP1782

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.

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