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Plea Bargains — Breach: By Defendant – Challenging Prior Enhancer-Conviction

State v. Robert C. Deilke, 2004 WI 104, reversing 2003 WI App 151, 266 Wis. 2d 274, 667 N.W.2d 867
For Deilke: Kelly J. McKnight

Issue: Whether a defendant’s successful challenge to a prior plea-bargain based conviction that is being used as an enhancer in a current proceeding amounts to a breach of that prior plea bargain so as to allow reinstatement of charges dismissed under it.

Holding1: Substantial and material breach:

¶16 The State asserts that due to Deilke’s breach, it did not receive the full benefit of the plea bargains because his successful attack eliminated a portion of the punishment for each conviction——the effect of the convictions on the statutory penalties available for subsequent OMVWI convictions. Deilke makes three arguments to counter the State’s argument and to support the court of appeals decision: …

¶17 In regard to his first argument, Deilke argues to us, as he did in the circuit court, that since he did not move to withdraw his pleas, but merely attacked the convictions due to the lack of a valid waiver of counsel, the convictions were not invalidated; they simply cannot be used for purposes of sentence enhancement. … We conclude that the result of Deilke’s successful collateral attack on the convictions was to invalidate the convictions. Accordingly, we address the remainder of our discussion to Deilke’s two other arguments.

¶18 Deilke asserts that none of his plea agreements contained the express condition that the convictions would be used for penalty enhancing purposes or that he could not collaterally challenge those convictions. In the absence of such express provisions, Deilke contends he cannot have breached the plea agreements. … Without the penalty-enhancing feature, the State claims the convictions are virtually useless in trying to keep impaired drivers off the road.

¶19 Additionally, in decisions that have reviewed the contention that a plea agreement has been breached, the conduct that was held to be a breach never was explicitly mentioned as an act a party to the agreement was constrained from taking. … Accordingly, we conclude that the lack of a specific instruction to Deilke in regard to a subsequent attack of the convictions, is not dispositive of any issue before us.

¶22 We note that analyzing the parties’ contentions under contract principles also causes us to conclude that Deilke materially and substantially breached the plea agreement. … Accordingly, we conclude that Deilke’s collateral attack here also prevented the State from receiving all it bargained for when it dismissed multiple charges in exchange for one OMVWI conviction which has, at its core, repeater consequences designed to remove drunk drivers from Wisconsin highways.

Two points. First, the effect of a collateral attack on a repeater allegation is to vacate the prior conviction – something that was at least arguable but now is explicit. (“We conclude that the result of Deilke’s successful collateral attack on the convictions was to invalidate the convictions.”)Second, it isn’t entirely clear whether this notion of defendant’s breach for attacking the prior conviction is limited to OWIs. Though the majority’s language is broad in some respects, it does focus narrowly on the peculiar characteristics of OWI, e.g., ¶20 (“part of Deilke’s punishment was the effect of the statutory scheme regarding drunken driving penalties under Wis. Stat. § 346.65, which envisions progressive punishment as a central component of convictions”) and ¶21 (“In addition, the prosecutor is without the authority or power to bargain away the penalty-enhancing character of an OMVWI or PAC conviction”). With those comments in mind, it’s possible to see the organizing principle of the case in this light: a successful attack on an OWI / PAC plea-bargained repeater is a substantial and material breach of that plea as a matter of law.

What about other contexts? Hard to imagine that this issue coming up much if at all outside the traffic context: attack on a repeater allegation is limited to denial of right to counsel, State v. David M. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, ¶4, clarified on reconsideration, 2001 WI 6; State v. Peters, 2001 WI 74, 244 Wis. 2d 470, 628 N.W.2d 797, and as a practical matter that’s something unlikely to be at issue outside of criminal traffic cases such as OWI and OAR. But that doesn’t mean you can’t have a sort of spill over effect – when, for example, OWI and non-OWI(s) are the subject of a common plea bargain, and then you raise a successful postconviction challenge to a plea-bargained OWI repeater; have you, in such an instance, breached that plea bargain as well as the prior one? That’s probably a fact-specific question. Dielke does, as suggested, support the idea that the attack breaches the prior agreement, but it doesn’t suggest that the present agreement would necessarily be breached. Perhaps all you can do is keep in mind the overarching principle, ¶14: “A material and substantial breach of a plea agreement is one that violates the terms of the agreement and defeats a benefit for the non-breaching party.”

Holding2: Remedy for breach

¶26 In this case, the State requested reinstatement of the PAC charges against Deilke. The circuit court granted the motion and Deilke, with advice of counsel, pled to the PAC counts. The State did not request any additional jail time, fines or term of license revocation for these convictions, other than that which had been imposed at the time of the OMVWI convictions. However, the PAC convictions then served as the basis for the OMVWI-5th and PAC-5th charges that occurred in 2001. We conclude that the circuit court appropriately exercised its discretion when it rescinded the plea agreements and returned the parties to the positions they occupied at the time they believed they had entered into valid plea agreements.

Deilke does not, under the circumstances, have a statute of limitations defense to the reinstated charges, because “Deilke’s pleas induced the State to refrain from prosecuting the PAC charges when they were originally filed,” ¶30. This seems to be an estoppel type of analysis, though the court doesn’t use that term. Instead, the court simply suggests that the SoL was tolled by Deilke’s plea agreement.

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