Because Holmes can’t show that the court would have granted his motion to dismiss the misdemeanor charges in the case with prejudice, he hasn’t shown he was prejudiced by trial counsel’s advice to enter into a plea agreement because he was going to lose the motion to dismiss.
Holmes, charged with a felony and seven misdemeanors, requested a prompt disposition of the charges under § 971.11, the Intrastate Detainer Act. (¶¶2-3). The prosecutor requested a trial date no later than 120 days from Holmes’s request, which is the time limit under § 971.11(2) for trying a felony. (¶3) But the time limit for misdemeanors is 90 days, § 971.11(3), so shortly before the trial date, but after 90 days had elapsed, Holmes moved to dismiss the misdemeanor charges with prejudice. (¶4).
A dismissal for a violation of § 971.11 can be with or without prejudice in the discretion of the court, State v. Davis, 2001 WI 136, ¶5, 248 Wis. 2d 986, 637 N.W.2d 62, and his lawyer advised him he would lose his motion to dismiss with prejudice, which meant the charges could be refiled. (¶¶6, 12). So before getting a ruling on the dismissal motion, he followed his lawyer’s advice to take a deal under which he pled to the felony and one misdemeanor, the remaining seven misdemeanors were dismissed, and the parties made a joint sentencing recommendation, which the circuit court followed. (¶5).
Holmes sought to withdraw his plea, claiming his lawyer was wrong to advise him that he would lose his motion to dismiss with prejudice all the misdemeanors. The court of appeals holds he hasn’t shown he was prejudiced by his lawyer’s failure to pursue the dismissal motion because the circuit court wouldn’t have dismissed the charges with prejudice:
¶16 The circuit court stated that it had reviewed the Davis factors and that it would not have dismissed the misdemeanor charges with prejudice had the motion to dismiss been pursued. Although Holmes argues that the circuit court “should have” dismissed the charges with prejudice, he does not argue that dismissal of those charges without prejudice would be an erroneous exercise of the court’s discretion. In order to be an erroneous exercise of the court’s discretion, no reasonable judge could reach the conclusion that the circuit court stated it would have reached. See State v. Jeske, 197 Wis. 2d 905, 913, 541 N.W.2d 225 (Ct. App. 1995). We conclude that such a discretionary determination would be supported under the Davis factors by the record in this case and, therefore, Holmes’ assertion is speculative, at best. …
¶19 Furthermore, as pointed out by the circuit court, the sentence Holmes received under the terms of his plea agreement was substantially less than what he faced for the felony alone. … Holmes asserts in his postconviction motion that had the misdemeanor charges been dismissed, his bargaining position would have been “distinctly different.” However, he does not assert that he would have received better terms in a plea agreement with the State, nor does he assert that the facts would have been such that he would have gone to trial rather than enter into a plea agreement.