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COA: No IAC for plea advice or lack of plea withdrawal; also no new factor

State v. Terrell Antwain Kelly, 2017AP1584, 7/31/18, District 1 (not recommended for publication); case activity (including briefs)

Kelly was charged with both a long-ago second-degree sexual assault of a child and several domestic violence counts (the victim was the same). The state offered him a choice between two plea deals: one in which he would plead to the sexual assault with the DV counts dismissed and read in, and one in which he would plead to the DV counts with the sexual assault dismissed and read in.

His first trial lawyer advised him to plead to the sexual assault. Per his testimony at the Machner hearing, the thinking was that the assault was a long time ago, the sex was consensual, and a child had resulted, so the lawyer thought he could sell the court on a lesser sentence, even though the max was greater. It didn’t work out for Kelly–he got a sentence higher than the max for the DV charges he could have pleaded to–but, given the deferential IAC standard the court blesses the attorney’s advice as reasonable strategy. (¶¶17-20).

The court also decides there was no prejudice, in part because the DV counts would have been difficult to prove. This makes no sense. Why would it matter, when deciding which plea bargain to accept? Nobody was going to be proving any counts. Or, as Kelly’s appellate attorney aptly put it “[t]he relative strength of the State’s cases had nothing to do with anything.” Per the court it apparently had something to do with something, but the opinion doesn’t attempt to explain what it had to do with what. (¶21).

The court also rejects Kelly’s claim that successor counsel (he fired his first lawyer after the plea but before sentencing) failed him by telling him it was “too late” to withdraw his plea. Basically, the lawyer testified that’s not what was said, and the circuit court believed him. (¶¶23-26).

Finally, the court of appeals agrees with the circuit court’s conclusion that evidence Kelly has an “intellectual disability”–rather than the “learning disability” that was before the court at sentencing–is not a new factor for sentence modification purposes. (¶¶27-30).

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