State v. Tamio T. Shipman-Allen

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 3, 2020
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. 2019AP267-CR Cir. Ct. No. 2017CF2721

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TAMIO T. SHIPMAN-ALLEN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JEFFREY A. CONEN and JOSEPH R. WALL, Judges.
Affirmed.

Before Dugan, Fitzpatrick and Donald, 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. 2019AP267-CR

¶1 PER CURIAM. Tamio T. Shipman-Allen appeals the judgment of
conviction following his guilty pleas to one count of second-degree reckless
homicide; one count of child abuse by recklessly causing great bodily harm to a
child; and one count of child neglect resulting in bodily harm to a child. 1 He also
appeals the order denying his postconviction motion.

¶2 Shipman-Allen argues that, because his postconviction motion
alleged facts that, if true, would have entitled him to withdraw his guilty pleas, due
to ineffective assistance of trial counsel, the trial court erred in denying his motion
without an evidentiary hearing. We conclude that Shipman-Allen’s conclusory
allegation of prejudice was insufficient to entitle him to an evidentiary hearing
and, therefore, we affirm.

BACKGROUND

¶3 On June 9, 2017, the State issued a four-count complaint charging
Shipman-Allen with the first-degree reckless homicide of T.D., a one-year-old
girl; child abuse by recklessly causing great bodily harm to J.D., a three-year-old
boy; child neglect resulting in bodily harm to T.D.; and child abuse by
intentionally causing bodily harm to J.D. The conduct giving rise to the charges
occurred on the morning of June 4, 2017, when Shipman-Allen was watching T.D.
and J.D. in their home while their mother was working.2 As relevant to this

1
The Honorable Jeffrey A. Conen presided over the case through sentencing and the
entry of the judgment of conviction. The Honorable Joseph R. Wall presided over the
postconviction proceedings. We refer to Judge Conen as the trial court and Judge Wall as the
postconviction court.
2
According to the complaint, Shipman-Allen had been dating the children’s mother for a
few months.

2
No. 2019AP267-CR

appeal, the complaint stated that the penalty for first-degree reckless homicide was
imprisonment for not more than sixty years.3 At Shipman-Allen’s initial
appearance on June 9, 2017, a Milwaukee County Circuit Court court
commissioner specifically told Shipman-Allen that the maximum penalty for first-
degree reckless homicide was imprisonment for sixty years.

¶4 Shipman-Allen subsequently reached a plea agreement with the
State and, on September 22, 2017, the State filed a four-count amended
information that charged him with second-degree reckless homicide, instead of
first-degree reckless homicide as originally charged.4 The amended information
listed the penalties for each charge, including that the penalty for second-degree
reckless homicide was imprisonment for not more than twenty-five years, a fine of
not more than $100,000, or both. The child abuse by causing bodily harm charge
involving J.D. was dismissed but read in at sentencing.

¶5 At the September 22, 2017 plea hearing, the State explained the plea
agreement indicating that, following Shipman-Allen’s guilty pleas to counts one
through three of the amended information, the parties would be “completely free
to argue for the appropriate sentence in [the] case” at sentencing. The trial court
asked Shipman-Allen whether the State’s description was accurate. Both
Shipman-Allen and trial counsel said that the description was accurate.

3
The complaint also stated that the penalty for child abuse by recklessly causing great
bodily harm to a child (count two) was imprisonment for not more than fifteen years, a fine of not
more than $50,000, or both; and that the penalty for each charge in counts three and four was
imprisonment for not more than six years, a fine of not more than $10,000, or both.
4
The charges of child abuse by recklessly causing great bodily harm to J.D. and child
neglect resulting in bodily harm to T.D. were essentially identical to those charged in the original
information.

3
No. 2019AP267-CR

¶6 The trial court then conducted a thorough plea colloquy with
Shipman-Allen that included informing him of, and making sure he understood the
maximum possible term of imprisonment and the maximum possible fine for each
charge to which he was pleading guilty, and that each term of imprisonment could
be divided between initial confinement (I.C.) and extended supervision (E.S.).
The trial court then engaged Shipman-Allen in the following colloquy:

Trial court: Do you understand I don’t have to follow
anyone’s recommendations, I can sentence you to the
maximum penalty in all these cases and run those
[sentences] consecutive to one [an]other and consecutive to
any time that you may be serving? Do you understand
that?

Shipman-Allen: Yes.

Trial court: So in looking at all of this, you’re facing 28
years of confinement time maximum and 18 years of
extended supervision maximum. Do you understand that?

Shipman-Allen: Yes.

The trial court completed the colloquy and accepted the guilty pleas.5

¶7 At the December 15, 2017 sentencing, the State recommended forty
years of imprisonment, consisting of twenty-eight years of I.C. and twelve years of
E.S. Trial counsel recommended twenty to thirty years of imprisonment,
consisting of ten to fifteen years of I.C. and ten to fifteen years of E.S. The trial

Shipman-Allen’s postconviction motion states that he does not contest that the trial
5

court complied with the requirements for taking a plea as set forth in WIS. STAT. § 971.08 (2017-
18).

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

4
No. 2019AP267-CR

court then imposed a global sentence amounting to forty years of imprisonment—
twenty-eight years of I.C., followed by twelve years of E.S.6

¶8 On January 4, 2019, Shipman-Allen filed a postconviction motion,
seeking an order allowing him to withdraw his pleas on the ground that trial
counsel was ineffective because he made two incorrect statements that purportedly
induced Shipman-Allen to plead guilty. The first statement was that “he was
facing a potential life sentence on the original charge of first[-]degree reckless
homicide, which he could avoid by pleading guilty to the amended charge of
second[-]degree reckless homicide.” The second statement was that “the State
would be recommending concurrent time for the three counts such that if the
State’s recommendation was followed, the most initial confinement that he would
receive would be 15 years.” (Emphasis added.) Shipman-Allen also alleged that
he was prejudiced by trial counsel’s deficient performance “because he would not
have entered his guilty plea but for counsel’s error.” Shipman-Allen alleged that
the two incorrect statements were made by trial counsel in a meeting at the jail the
day before the plea hearing, and again during a recess in the plea proceeding.

¶9 In a written decision, the postconviction court denied the motion
holding that Shipman-Allen’s statement that but for trial counsel’s advice he
would not have pled guilty was conclusory and insufficient to warrant a hearing.

¶10 This appeal followed.

6
Shipman-Allen’s sentences were comprised of fifteen years of I.C. and six years of
E.S., consecutive to any other sentence, for the second-degree reckless homicide; ten years of I.C.
and four years of E.S., consecutive to the sentence on count one and any other sentence, for the
child abuse by recklessly causing great bodily harm to a child; and three years of I.C. and two
years of E.S., consecutive to the sentence on counts one and two and any other sentence, for the
child neglect resulting in bodily harm to a child.

5
No. 2019AP267-CR

DISCUSSION

¶11 On appeal, Shipman-Allen raises the same arguments that he made
in his postconviction motion. The State argues that Shipman-Allen’s bare bones
allegations are insufficient to warrant a hearing because he failed to allege why he
would have proceeded to trial but for the alleged misinformation that trial counsel
provided to him.

I. Standard of review and applicable law

¶12 A defendant is not automatically entitled to an evidentiary hearing
on a postconviction motion. “A hearing on a postconviction motion is required
only when the movant states sufficient material facts that, if true, would entitle the
defendant to relief.” See State v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d 568, 682
N.W.2d 433. “[I]f the motion does not 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[,]” a trial court may deny a
postconviction motion without a hearing. See id., ¶9. Whether a motion alleges
sufficient facts that, if true, would entitle the defendant to an evidentiary hearing
presents a question of law that we review de novo. See State v. Bentley, 201
Wis. 2d 303, 310, 548 N.W.2d 50 (1996).

¶13 Furthermore, courts in Wisconsin have

long held that the facts supporting plea withdrawal must be
alleged in the petition and the defendant cannot rely on
conclusory allegations, hoping to supplement them at a
hearing. A defendant must do more than merely allege that
he would have pled differently; such an allegation must be
supported by objective factual assertions.

6
No. 2019AP267-CR

Id. at 313 (citation omitted). “[A] defendant should provide facts that allow the
reviewing court to meaningfully assess his or her claim.” Id. at 314. As stated in
Allen:

postconviction motions sufficient to meet the Bentley
standard allege the five “w’s” and one “h”; that is, who,
what, where, when, why, and how. A motion that alleges,
within the four corners of the document itself, the kind of
material factual objectivity ... will necessarily include
sufficient material facts for reviewing courts to
meaningfully assess a defendant’s claim.

Id., 274 Wis. 2d 568, ¶23 (footnote omitted).

¶14 A defendant who seeks to withdraw a guilty plea after sentencing
must prove by clear and convincing evidence that a refusal to allow plea
withdrawal would result in “manifest injustice.” State v. Taylor, 2013 WI 34, ¶24,
347 Wis. 2d 30, 829 N.W.2d 482 (citation and one set of quotation marks
omitted). A defendant may bring a Nelson/Bentley7 motion to withdraw his or her
plea on manifest injustice grounds based on a factor extrinsic to the plea colloquy
that renders the plea infirm. See State v. Sulla, 2016 WI 46, ¶25, 369 Wis. 2d 225,
880 N.W.2d 659. One way a defendant may demonstrate manifest injustice is to
establish that he or she received ineffective assistance of counsel. State v. Dillard,
2014 WI 123, ¶84, 358 Wis. 2d 543, 859 N.W.2d 44. Whether trial counsel was
ineffective is a question of constitutional fact that we analyze under a mixed
standard of review. See id., ¶86. We will uphold the trial court’s findings of fact
unless they are “clearly erroneous.” See id. However, we independently review
whether those facts constitute ineffective assistance. See id.

7
Nelson v. State, 54 Wis. 2d 489, 493, 497-98, 195 N.W.2d 629 (1972), modified by
State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996).

7
No. 2019AP267-CR

¶15 To establish a claim of constitutionally ineffective assistance of
counsel, a defendant must establish the following two components: (1) trial
counsel’s performance was deficient; and (2) the deficient performance resulted in
prejudice to the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). A
reviewing court may decide an ineffective assistance of counsel claim by
analyzing either component. Id. at 697. To prove deficient performance, the
defendant must show that his or her counsel’s representation “fell below an
objective standard of reasonableness” considering all the circumstances. Id. at
688. Our supreme court explained that “[t]o establish prejudice in the context of a
postconviction motion to withdraw a guilty plea based upon ineffective assistance
of counsel, the defendant must allege that ‘but for the counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.’” See State v.
Burton, 2013 WI 61, ¶50, 349 Wis. 2d 1, 832 N.W.2d 611 (citations omitted).

II. The trial court properly denied Shipman-Allen’s
conclusory motion without a hearing

¶16 Here, Shipman-Allen’s postconviction motion merely states that he
accepted the plea offer because trial counsel told him he was facing a potential life
sentence on the original charge of first-degree reckless homicide, which he could
avoid by pleading guilty to the amended charge. He also asserts that trial counsel
told him that the State would be recommending concurrent sentences on the three
counts such that, if the recommendation was followed, the longest I.C. he would
receive would be fifteen years. However, Shipman-Allen’s motion does not allege
any facts that support his conclusory allegation that but for the misinformation that
he received from trial counsel he would not have entered his pleas.

¶17 We conclude that Bentley controls this decision. In Bentley, our
supreme court stated that Bentley’s motion essentially alleged that “had [trial]

8
No. 2019AP267-CR

counsel correctly informed him about his minimum parole eligibility date, he
would have pled differently.” See id., 201 Wis. 2d at 316. However, the supreme
court concluded that the allegation, absent more, was not sufficient to raise the
issue of whether Bentley was prejudiced by the misinformation. See id. The
Bentley court held that “[t]he conclusion of the court of appeals that Bentley’s
motion presented substantial allegations of prejudice ‘well beyond’ a conclusory
allegation [was] erroneous” because the appellate court had failed to identify any
facts to support the allegation. See id. The supreme court further stated that
“[w]ithout facts to support his allegation that he pled guilty only because of the
misinformation, [the defendant’s] allegation amounts to merely a self-serving
conclusion”, which “is no more than a ‘conclusory allegation.’” See id. (citation
omitted).

¶18 The supreme court further explained that its review of Bentley’s
motion revealed that the motion failed to allege any factual assertions which
would allow the court to meaningfully assess Bentley’s claim that he was
prejudiced by the misinformation. See id. As examples, the supreme court stated
that Bentley never explained how or why the difference between a minimum
parole eligibility date of eleven years and five months as compared to thirteen
years and four months would have affected his decision to plead guilty and that
Bentley alleged “no special circumstances that might support the conclusion that
he placed particular emphasis on his parole eligibility in deciding whether to plead
guilty.” See id. at 316-17.

¶19 Here, Shipman-Allen merely states that he accepted the plea offer
because trial counsel told him he was facing a potential life sentence on the
original charge of first-degree reckless homicide, which he could avoid by
pleading guilty to the amended charge, and that trial counsel told him the State

9
No. 2019AP267-CR

would be recommending concurrent time for the three counts such that, if the
State’s recommendation was followed, the most I.C. Shipman-Allen would receive
would be fifteen years. Shipman-Allen failed to allege any special circumstances
that support the conclusion that he placed particular emphasis on the State’s
recommendation to the trial court.

¶20 Moreover, the very words in the alleged statement—“such that if the
State’s recommendation was followed”—show that Shipman-Allen knew that the
recommended confinement time was conditioned on the trial court accepting any
such recommendation. Further, Shipman-Allen knew that the trial court was not
bound by the State’s recommendation. During the plea colloquy, the trial court
specifically advised him, “I don’t have to follow anyone’s recommendations, I can
sentence you to the maximum penalty in all these cases and run those consecutive
to one [an]other and consecutive to any time that you may be serving[.]” We
conclude that Shipman-Allen failed to allege facts to support his conclusory
statement that, but for trial counsel’s statement that the State would be
recommending fifteen years of confinement, he would not have entered his pleas.

¶21 Shipman-Allen also does not allege any special circumstances that
might support the conclusion that he placed particular emphasis on the difference
between a life sentence and a maximum sixty-year sentence for the first-degree
reckless homicide charge. Nor does he explain how or why the difference
between a potential life sentence and sixty-year sentence would have changed his
decision to plead guilty. According to the plea questionnaire, Shipman-Allen was
twenty-two years old at the time of the plea. Under the original charges, Shipman-
Allen would have been seventy-eight years old, if the trial court had imposed fifty-
six years of I.C. By contrast, pursuant to the plea negotiations, he would be fifty
years old at the time he completed the maximum twenty-eight years of I.C.

10
No. 2019AP267-CR

Shipman-Allen fails to allege any facts to support his conclusory statement that,
but for trial counsel’s misstatement that a life sentence was the maximum penalty
for first-degree reckless homicide, he would not have entered his pleas.8

¶22 Further, during the plea colloquy after Shipman-Allen told the trial
court that he reviewed the criminal complaint, the trial court asked, “So is
everything [in the complaint] true and correct?”, to which Shipman-Allen
responded, “Everything.” The trial court then asked, “Is everything true and
correct?”, to which Shipman-Allen said, “Yes.” Shipman-Allen fails to explain
why he would have proceeded to trial on the original charges when he admitted
that all the factual allegations in the criminal complaint were true—he does not
allege any defense or any facts supporting a defense.

8
As a result of the plea negotiations, the original maximum penalties were reduced from
eighty-seven years to forty-six years of confinement, a difference of forty-one years. The
maximum I.C. was reduced from fifty-six years to twenty-eight years, a difference of twenty-
eight years, and the maximum E.S. was reduced from thirty-one years to eighteen years, a
difference of thirteen years.

As previously noted, the original charges of the complaint involved maximum terms of
imprisonment as follows:

Count one: Sixty years—forty years of I.C./twenty years of E.S.;
Count two: Fifteen years—ten years of I.C./five years of E.S.;
Count three: Six years—three years of I.C./three years of E.S.; and
Count four: Six years—three years of I.C./three years of E.S.
Total: Eighty-seven years—fifty-six years of I.C./thirty-one years of E.S.

As a result of the plea negotiations, Shipman-Allen faced maximum terms of imprisonment as
follows:

Count one: Twenty-five years—fifteen years of I.C./ten years of E.S.;
Count two: Fifteen years—ten years of I.C./five years of E.S.; and
Count three: Six years—three years of I.C./three years of E.S.
Total: Forty-six years—twenty-eight years of I.C./eighteen years of E.S.

11
No. 2019AP267-CR

¶23 We conclude that Shipman-Allen failed to allege any facts that
would explain his conclusory statement that but for trial counsel’s misinformation
about facing a life sentence for first-degree reckless homicide, he would have
proceeded to trial on the original charges. His conclusory statements in his
postconviction motion failed to provide any reason why he would have insisted on
going to trial on the original charges. See Bentley, 201 Wis. 2d at 316 (stating that
“[w]ithout facts to support his allegation that he pled guilty only because of the
misinformation, [the defendant’s] allegation amounts to merely a self-serving
conclusion”, which “is no more than a ‘conclusory allegation.’” (citation
omitted)).9

CONCLUSION

¶24 For the reasons stated above, we conclude that Shipman-Allen did
not allege sufficient facts that, if true, would have entitled him to withdraw his
guilty pleas due to ineffective assistance of trial counsel. Therefore, the trial court
acted properly when it denied Shipman-Allen’s postconviction motion without an
evidentiary hearing and we affirm.

By the Court.—Judgment and order affirmed.

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

9
The State also argues that the postconviction court properly exercised its discretion
when it denied Shipman-Allen’s motion because his claims were conclusively disproved by the
record. However, as an appellate court, we decide cases on the narrowest possible grounds. See
State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989). We need not address
the State’s argument because we conclude that Shipman-Allen failed to allege facts to support the
prejudice component of his ineffective assistance of counsel claim.

12