State v. Deilke

274 Wis.2d 595

2004 WI 104

682 N.W.2d 945

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Robert C. DEILKE, Defendant-Appellant.

Nos. 02-2897-CR, 02-2898-CR.

Supreme Court of Wisconsin.

Oral argument February 11, 2004.

Decided July 8, 2004.

For the plaintiff-respondent-petitioner the cause was argued by Kathleen M. Ptacek, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.

For the defendant-appellant there was a brief by Kelly J. McKnight and Wachowski & Johnson, S.C., Eau Claire, and oral argument by Kelly J. McKnight.

¶ 1. PATIENCE D. ROGGENSACK, J.

The State of Wisconsin requests review of a decision of the court of appeals that reversed an order of the circuit court for Eau Claire County vacating plea agreements between Robert C. Deilke and the State, and permitting the State to reinstate charges against Deilke, which resulted in convictions that the court of appeals also reversed.

¶ 2. We conclude that the circuit court, Judge J. Eric Wahl, presiding, correctly held that Deilke's successful collateral challenge to his convictions constituted a material and substantial breach of the plea agreements on which the convictions were based. Further, because we agree with the circuit court that the appropriate remedy for the breach was to vacate the plea agreements and reinstate those original charges for which the State requested reinstatement and to accept Deilke's subsequent guilty pleas, we reverse the decision of the court of appeals.

I. BACKGROUND

¶ 3. On May 12, 1993, the State charged Deilke with one count of operating a motor vehicle while intoxicated (OMVWI),¹ second offense (OMVWI-2nd), and one count of operating with a prohibited alcohol content (PAC),² second offense (PAC-2nd). Deilke entered a guilty plea and was convicted of the OMVWI-2nd. The court dismissed the PAC-2nd.

¶ 4. On March 3, 1994, Deilke was arrested and charged with one count of OMVWI-3rd, one count of PAC-3rd, and one count of operating after revocation (OAR).³ On March 19, 1994, Deilke was arrested again and charged with OMVWI and PAC, as third offenses because he had not yet been convicted of the charges that arose out of his March 3 conduct. He also was charged with OAR-2nd. Subsequently, Deilke pled guilty to the March 3 OMVWI-3rd, and the State dismissed five other charges: the March 3 PAC-3rd, the March 3 OAR, the March 19 OMVWI, the March 19 PAC and the March 19 OAR.

¶ 5. On March 29, 2000, Deilke was arrested again and charged with one count of OMVWI-4th and one count of PAC-4th. Deilke pled guilty and was convicted of the OMVWI-4th. The PAC-4th was dismissed as part of the plea agreement.

¶ 6. On March 8, 2001, Deilke was arrested, yet again, and charged with one count of OMVWI-5th and one count of PAC-5th. His convictions in 1993, 1994 and 2000, as well as one earlier conviction, served as the basis for charging the violations as fifth offenses. See Wis. Stat. § 343.307 (explaining which convictions count as prior convictions for charging purposes). In this case, however, Deilke filed a motion to collaterally attack his earlier OMVWI convictions, arguing that his plea colloquies in those cases did not show that he had validly waived his right to counsel. The State agreed no valid waiver of the right to counsel occurred, and the circuit court granted Deilke's motion.

¶ 7. Deilke's successful collateral challenge to the validity of his 1993, 1994 and 2000 convictions caused none to be available for use as penalty enhancers for the 2001 charges and for any OMVWI charges that may be brought subsequently. The State moved to vacate the plea agreements and to reinstate three of the dismissed PAC charges. It argued that Deilke breached the plea agreements by his successful collateral attack.

¶ 8. The circuit court granted the State's motion in the 1993 and 2000 cases.⁴ The State reinstated the dismissed PAC charges in those cases, and Deilke, with the advice of counsel, pled no contest to them. The State requested no additional punishment for the convictions.⁵ Deilke appealed the order allowing the State to vacate the plea agreements and reinstate the PAC charges, as well as the judgments of conviction.

¶ 9. The court of appeals reversed, concluding that Deilke had served his sentences, and that his collateral attack on the three judgments of conviction did not materially and substantially breach the plea agreements. According to the court of appeals, the State did not tell Deilke that a successful collateral attack of the convictions would breach the plea agreements; and therefore, it was only an unarticulated expectation that was not agreed to by Deilke. State v. Deilke, 2003 WI App 151, ¶ 23, 266 Wis. 2d 274, 667 N.W.2d 867. We granted review, and we reverse.

II. DISCUSSION

A. Standard of Review

¶ 10. This case requires us to determine whether Deilke's successful collateral attack on his convictions constitutes a material and substantial breach of the plea agreements. While the historical facts will not be set aside unless they are clearly erroneous, whether the particular conduct constitutes a material and substantial breach of a plea agreement is a question of law that we review de novo. State v. Williams, 2002 WI 1, ¶ 5, 249 Wis. 2d 492, 637 N.W.2d 733; State v. Wills, 193 Wis. 2d 273, 277, 533 N.W.2d 165 (1995). In this case, the historical facts leading up to Deilke's convictions are not at issue; rather, we review, de novo, whether his successful collateral attack constitutes a material and substantial breach of the plea agreements warranting a remedy. And finally, we will not reverse the remedy selected by the circuit court for a material and substantial breach unless the circuit court erroneously exercised its discretion. State v. Howard, 2001 WI App 137, ¶ 36, 246 Wis. 2d 475, 630 N.W.2d 244.

B. Plea Agreements, Generally

¶ 11. Plea agreements are "an essential component of the administration of justice." Santobello v. New York, 404 U.S. 257, 260 (1971); see also State ex rel. White v. Gray, 57 Wis. 2d 17, 21-22, 203 N.W.2d 638 (1973). They can result in the prompt disposition of criminal cases and eliminate the need for full-scale trials, saving the State time, money and other resources. Santobello, 404 U.S. at 260-61. They also reduce the amount of time a defendant spends awaiting disposition of charges against him or her, id. at 261; can reduce the risk of additional convictions when charges are dismissed; and reduce a defendant's exposure to higher penalties at sentencing after a trial. We require certain procedural protections to safeguard defendants from unfair treatment. Id. at 262.⁶ Once a plea agreement has been reached and a plea made, a defendant's due process rights require the bargain be fulfilled. Williams, 249 Wis. 2d 492, ¶ 37; State v. Matson, 2003 WI App 253, ¶ 16, 268 Wis. 2d 725, 674 N.W.2d 51.

¶ 12. A plea agreement is analogous to a contract, though the analogy is not precise.⁷ However, we do draw upon contract principles in determining the rights of the parties to a plea agreement and whether there has been a breach that is material and substantial.⁸State v. Rivest, 106 Wis. 2d 406, 413-14, 316 N.W.2d 395 (1982); State v. Scott, 230 Wis. 2d 643, 654-55, 602 N.W.2d 296 (Ct. App. 1999); State v. Toliver, 187 Wis. 2d 346, 355, 523 N.W.2d 113 (Ct. App. 1994); State v. Jorgensen, 137 Wis. 2d 163, 167, 404 N.W.2d 66 (Ct. App. 1987).

C. Breach of Plea Agreement

¶ 13. Not all conduct that deviates from the precise terms of a plea agreement constitutes a breach that warrants a remedy. State v. Bangert, 131 Wis. 2d 246, 290, 389 N.W.2d 12 (1986) (concluding that a technical breach will not warrant a remedy). In order for a court to vacate a plea agreement, the breach must be material and substantial.⁹Williams, 249 Wis. 2d 492, ¶ 38; Bangert, 131 Wis. 2d at 290; Rivest, 106 Wis. 2d at 414. The burden is on the party arguing a breach to show, by clear and convincing evidence, that a breach occurred and that the breach is material and substantial. Bangert, 131 Wis. 2d at 289; State v. Rock, 92 Wis. 2d 554, 559, 285 N.W.2d 739 (1979).

¶ 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. Williams, 249 Wis. 2d 492, ¶¶ 38, 46-47 (concluding that the prosecutor's failure to relate the sentence agreed upon in a neutral fashion was a material and substantial breach of the agreement); Matson, 268 Wis. 2d 725, ¶ 25 (concluding that the investigating officer's letter to the court in which he recommended a sentence greater than that which the prosecutor requested in the plea agreement was a material and substantial breach of the agreement); State v. Robinson, 2002 WI 9, ¶ 47, 249 Wis. 2d 553, 638 N.W.2d 564 (concluding that Robinson's successful withdrawal of a no-contest plea to one of the counts of which he was convicted was a material and substantial breach); Howard, 246 Wis. 2d 475, ¶¶ 16-17 (concluding that a prosecutor's recommendation of a consecutive, rather than a concurrent, sentence was not merely a technical violation); State v. Howland, 2003 WI App 104, ¶ 37, 264 Wis. 2d 279, 663 N.W.2d 340 (concluding that the prosecutor's comments to the presentence investigative report's drafter that resulted in an amended report recommending a greater sentence was a material and substantial breach of the plea agreement).

D. Deilke's Plea Agreements

1. Material and substantial breach

¶ 15. We must decide whether Deilke's successful collateral attack on his previous convictions for OMVWI constitutes a material and substantial breach of the plea agreements.¹⁰ In the plea agreements between Deilke and the State, there is no dispute that both parties relinquished rights and received benefits by plea-bargaining. Deilke gave up his constitutional rights to a jury trial, to be proven guilty beyond a reasonable doubt by a unanimous...