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Defendant not prejudiced by counsel’s failure to convey earlier plea offer

State v. Lorenzo D. Kyles, 2018AP296-Cr, District 1, 11/20/18, (not recommended for publication); case activity (including briefs)

This appears to be Wisconsin’s second application of Lafler v. Cooper, 566 U.S. 156 (2012), which modified the prejudice prong of  Strickland‘s ineffective assistance of counsel test for situations where defense counsel failed to convey a plea offer and thereby caused the defendant to accept  subsequent, potentially less favorable offer. 

SCOTUS decided Lafler and Missouri v. Frye, 566 U.S. 133 (2012) on the same day. See our posts here and here. The two cases hold that when defense counsel fails to convey a plea offer to the defendant, the defendant must show a reasonable probability that he would have accepted the lapsed plea, that the prosecution would have adhered to the agreement, and that the agreement would have been accepted by the trial court. Opinion, ¶16. The defendant must also show that his conviction or sentence would have been less severe under the offer than under the judgment that was in fact imposed. Opinion, ¶18.

Kyles’ claim foundered on the last requirement:

¶19 In the September offer, there was a definite, agreed-upon sentence length for the reckless homicide charge. Kyles’ maximum exposure for that crime was sixty-five years; thus, while Kyles argues that the lack of a definitive sentence recommendation in the August offer would have been beneficial to him because it would have allowed for his trial counsel to argue for a lower sentence, the trial court also could have imposed a longer sentence than the one presented under the joint recommendation. Additionally, in the September offer, the possession of a firearm by a felon charge was dismissed; that charge, which would not have been dismissed under the August offer, increased Kyles’ prison exposure by five years

The court of appeals also rejected Kyles’s argument that, if he had accepted the lapsed offer, defense counsel could have vigorously argued various mitigating factors could have resulted in a sentence lower than the sentence he actually received based on a joint recommendation. This was only a “theoretical possibility,” which is not sufficient to establish prejudice. Opinion ¶22 (citing Harrington v. Richter, 562 U.S. 86, 112 (2011)).


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