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State v. Deilke7/8/2004
On May 12, 1993, the State charged Deilke with one count of operating a motor vehicle while intoxicated (OMVWI),*fn1 second offense (OMVWI-2nd), and one count of operating with a prohibited alcohol content (PAC),*fn2 second offense (PAC-2nd). Deilke entered a guilty plea and was convicted of the OMVWI-2nd. The court dismissed the PAC-2nd.
. 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).*fn3 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.
. 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.
. 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.
. 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.
. The circuit court granted the State's motion in the 1993 and 2000 cases.*fn4 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.*fn5 Deilke appealed the order allowing the State to vacate the plea agreements and reinstate the PAC charges, as well as the judgments of conviction.
. 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, , 266 Wis. 2d 274, 667 N.W.2d 867. We granted review, and we reverse.
II. DISCUSSION
A. Standard of Review
. 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
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