State v. Robert C. Deilke

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2004 WI 104 SUPREME COURT CASE NOS.: COMPLETE TITLE: OF WISCONSIN 02-2897-CR & 02-2898-CR State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Robert C. Deilke, Defendant-Appellant. REVIEW OF A DECISION OF THE COURT OF APPEALS 2003 WI App 151 Reported at: 266 Wis. 2d 274, 667 N.W.2d 867 (Ct. App. 2003-Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: February 11, 2004 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Eau Claire Eric J. Wahl JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: July 8, 2004 BRADLEY, J., dissents (opinion filed). ABRAHAMSON, C.J., joins dissent. SYKES, J., did not participate. ATTORNEYS: 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. 2004 WI 104 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. Nos. 02-2897-CR & 02-2898-CR (L.C. Nos. 93 CT 174 & 00 CT 250) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent-Petitioner, JUL 8, 2004 v. Robert C. Deilke, Cornelia G. Clark Clerk of Supreme Court Defendant-Appellant. REVIEW of a decision of the Court of Appeals. Reversed. ¶1 of PATIENCE D. ROGGENSACK, requests review of a decision of J. The the State court of Wisconsin 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 Wahl, We conclude presiding, that correctly the circuit held that court, Judge Deilke's J. Eric successful collateral challenge to his convictions constituted a material and substantial breach of the plea agreements on which the Nos. convictions were based. Further, because 02-2897-CR & 02-2898-CR 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. ¶3 BACKGROUND 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 1 Wis. Stat. § 346.63(1)(a) (2001-02). Because there is no difference among the statutes that were in effect on the various dates of Deilke's violations that is material to the issues presented, we use the 2001-02 version of the statutes. Additionally, unless otherwise noted, all further references are to the 2001-02 version. 2 Wis. Stat. § 346.63(1)(b). 3 Wis. Stat. § 343.30(1q). 2 Nos. the State dismissed five other charges: 02-2897-CR & 02-2898-CR 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 colloquies earlier in those OMVWI cases convictions, did waived his right to counsel. not arguing show that that he his had plea validly 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. 3 Nos. ¶8 02-2897-CR & 02-2898-CR 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. punishment for The State requested no additional convictions.5 the 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 substantially court of of breach appeals, conviction the the plea did not agreements. State did not materially According tell Deilke to that and the 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. 4 The State's motion regarding Deilke's 1993 and 2000 cases was granted by the circuit court for Eau Claire County, Judge Eric J. Wahl, presiding. The State's motion regarding Deilke's 1994 conviction was denied by a different judge in a different circuit court branch and is not part of this appeal. 5 In arguing the equities of its position, the dissent asks, "How can you undo the forfeiture of his car and the period of time that he was without its use?" Dissent, ¶51. The answer to this query is that there is no need to undo it because no further sentence was given Deilke. He received and served the sentence for which he entered the plea bargains, and his later PAC convictions did not change that. 4 Nos. II. A. 02-2897-CR & 02-2898-CR DISCUSSION 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. the historical facts will not be set aside unless While they are clearly erroneous, whether the particular conduct constitutes a material and substantial breach of question of law that we review de novo. a plea agreement is a 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 erroneously exercised its discretion. the circuit court 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 administration of justice." 257, 260 (1971); see also "an essential component of the Santobello v. New York, 404 U.S. State ex rel. Wis. 2d 17, 21-22, 203 N.W.2d 638 (1973). White v. Gray, 57 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. 5 They also reduce Nos. 02-2897-CR & 02-2898-CR 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 6 For example, a defendant's plea must be made knowingly and voluntarily, see Santobello v. New York, 404 U.S. 257, 261-62 (1971), and the circuit court must follow specific statutory guidelines before accepting the plea. Wis. Stat. § 971.08 (2001-02); State v. Lange, 2003 WI App 2, ¶18, 259 Wis. 2d 774, 656 N.W.2d 480. 7 The plea agreement-contract analogy is not precise because plea agreements may implicate fundamental due process rights. State v. Rivest, 106 Wis. 2d 406, 413, 316 Wis. 2d 395 (1982); State v. Scott, 230 Wis. 2d 643, 655, 602 N.W.2d 296 (Ct. App. 1999). 6 Nos. and substantial.8 02-2897-CR & 02-2898-CR State 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.9 Williams, 249 Wis. 2d 492, ¶38; 8 "Material and substantial," though it appears to have two parts, is actually a single concept. In relation to a breach of a plea agreement, the concept makes its first appearance in Rivest. 106 Wis. 2d at 414. Rivest, however, uses three different variations to describe a breach of a plea agreement that warrants a remedy: "material and substantial," id., "sufficiently material," id., and "substantial default of a material issue," id. "Material and substantial" is the phrase that has survived, and that has been used in subsequent cases as the standard, though it is a single concept, and that concept deals with materiality. See note 9, supra. 9 The concept of a material breach comes from contract law. See Rivest, 106 Wis. 2d at 413. In contract law, a material breach of a contract releases the non-breaching party from performance of the contract. Management Computer Servs., Inc. v. Hawkins, Ash, Baptie & Co., 206 Wis. 2d 158, 183, 557 N.W.2d 67 (1996). A material breach can be one that deprives the nonbreaching party of a benefit that party reasonably expected. Id., 206 Wis. 2d at 184. See Restatement (Second) of Contracts § 241 (1981). However, in contract law, there is no parallel concept of "substantial" breach. Nonetheless, "substantial" has been used in tandem with "material" regarding breaches of plea agreements, and we use it here as well, noting that "material and substantial" is a single concept. 7 Nos. 02-2897-CR & 02-2898-CR 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 substantial of which breach); he was convicted Howard, 246 was Wis. 2d a material 475, and ¶¶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 material and substantial breach of the plea agreement). D. Deilke's Plea Agreements 8 was a Nos. 02-2897-CR & 02-2898-CR 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 is agreements dispute that between both Deilke parties the State, there relinquished rights and benefits by plea-bargaining. and no received Deilke gave up his constitutional rights to a jury trial, to be proven guilty beyond a reasonable doubt by witnesses, a unanimous and to jury, remain to silent. convicted of only three charges: 2000. confront In and return, cross-examine Deilke was an OMVWI in 1993, 1994 and His pleas eliminated the risk of going to trial on six additional charges: 1993, PAC-2nd; 1994 PAC-3rd, OAR, OMVWI-4th and PAC-4th; 2000, PAC-4th.11 He also received less-than-maximum fines and penalties. For its part, the State gave up the right to viable prosecute other charges against Deilke and it 10 The State agrees with Deilke that he had the right to collaterally challenge his previous convictions during a proceeding where the prior convictions were being used for sentence enhancement, based on an alleged invalid waiver of the right to counsel. See State v. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528; Custis v. United States, 511 U.S. 485 (1994). Both parties also agree that Deilke's 1993, 1994 and 2000 OMVWI convictions were obtained without a valid waiver of counsel. 11 Pursuant to Wis. Stat. § 346.63(1)(c), the State proceed on both OMVWI and PAC charges when they arise out of same incident. However, a person found guilty of both OMVWI PAC receives a single conviction for purposes of sentencing for purposes of counting convictions. 9 may the and and Nos. 02-2897-CR & 02-2898-CR recommended less-than-maximum fines and penalties.12 the State did not have to prepare for and However, participate in trials;13 it obtained fines, jail time, license revocations and the effect of those OMVWI convictions. convictions on penalties for subsequent In assessing the plea bargains, the circuit court concluded: Deilke in each incident received the benefit of some bargain with the District Attorney. In most instances the District Attorney, in exchange for a plea to the OWI charges, dismisses any other traffic citations which are part of the file. In other instances, lower guideline penalties are applied as an inducement for the defendant to plead to the charge. ¶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: (1) he did not move to withdraw his pleas, he moved to invalidate only their effect; 12 The dissent contends that the State did not give up the opportunity to prosecute Deilke on additional charges because the additional "charges are dismissed, not as a benefit of a plea bargain, but by operation of law." Dissent, ¶39. The dissent's assertion is incorrect because, absent a plea bargain, Deilke would have been required to defend against both PAC and OMVWI charges at trial. Wis. Stat. § 346.63(1)(c). 13 The court of appeals focused on the lesser amount of work the State was required to perform in avoiding a trial by a plea bargain. See State v. Deilke, 2003 WI App 151, ¶16, 266 Wis. 2d 274, 667 N.W.2d 867. However, we note that Deilke, through the plea bargains, also avoided the expense and strain of a trial. 10 Nos. 02-2897-CR & 02-2898-CR (2) during the negotiation for the plea bargains, no one told him that he could not attack the convictions at a later date because the State was relying on the penalty enhancers that are connected with the convictions; and (3) he has served his jail time and paid his fines so no breach of the plea bargains occurred. ¶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. Deilke cites no authority for the novel idea that a conviction obtained through an unrepresented defendant's plea, made without a effect cannot.14 15 (1967), conviction counsel is valid waiver of counsel, can stand, yet its Indeed, in Burgett v. Texas, 389 U.S. 109, 114- the United obtained "void." States without We Supreme the Court assistance employed similar concluded or the that waiver reasoning, a of citing Burgett, and came to a similar conclusion in State v. Hahn, 2000 WI 118, ¶29, 238 Wis. 2d 889, 618 N.W.2d 528, where we stated 14 The dissent bases its position on this theory as well, and following Deilke's lead, it, too, cites no authority for its legal conclusion. Dissent, ¶40. Instead, the dissent cites Burgett v. Texas, 389 U.S. 109 (1967), which we have cited in some detail in ¶17. However, Burgett provides no support for the dissent's theory. In Burgett, the United States Supreme Court held that a conviction obtained without assistance or a valid waiver of counsel is "void." Id. at 114-15. It said nothing about keeping the conviction in place while removing the effect of the conviction. 11 Nos. 02-2897-CR & 02-2898-CR that, "the offender may seek to reopen a sentence imposed as a persistent repeater . . . if that sentence was based on the vacated conviction." Id. (emphasis added). Therefore, in each case where a defendant's constitutional right to counsel was abridged, the conviction was set aside in its entirety. Additionally, once a conviction for OMVWI is entered and not set aside, the legislature determines its effect on punishments for future OMVWI violations, through Wis. Stat. § 346.65(2).15 Therefore, we conclude that Deilke cannot have it both ways: either the conviction is invalid because of the violation of Deilke's right to counsel or it is valid because he chooses to 15 Wisconsin Stat. 346.65(2) states in relevant part: Any person violating s. 346.63(1): (b) . . . shall be fined not less than $350 nor more than $1,100 and imprisoned for not less than 5 days nor more than 6 months if the number of convictions . . . counted under s. 343.307(1) within a 10-year period, equals 2 . . . . (c) . . . shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 30 days nor more than one year in the county jail if the number of convictions . . . counted under s. 343.307(1), equals 3 . . . . (d) . . . shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 60 days nor more than one year in the county jail if the number of convictions . . . counted under s. 343.307(1), equals 4 . . . . (e) . . . is guilty of a Class H felony and shall be fined not less than $600 and imprisoned for not less than 6 months if the number of convictions . . . counted under s. 343.307(1), equals 5 or more . . . . 12 Nos. 02-2897-CR & 02-2898-CR withdraw his challenge. We conclude that the result of Deilke's successful collateral attack invalidate the on convictions Accordingly, convictions. the we was to 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 collaterally challenge those convictions. he could not In the absence of such express provisions, Deilke contends he cannot have breached the plea agreements. He asserts that the court of appeals was correct in concluding that, "[The State's] contended harm arises from an unspoken expectation not evident or explained to Deilke during the agreement plea by requirement." process. failing Deilke to comply could not with breach an Deilke, 266 Wis. 2d 274, ¶23. a plea unarticulated The State argues that the punishment to which Deilke was subject as part of the plea agreements OMVWI included convictions set out the in statutory Wis. Stat. effect of repetitive § 346.65(2), and by removing that effect, he materially and substantially breached the agreement. Without the penalty-enhancing feature, the State claims the convictions are virtually useless in trying to keep impaired drivers off the road.16 16 The prosecutor noted, "[I]t doesn't do me much good to get a conviction in this [b]ranch if I can't then use it for penalty enhancement purposes in the future. I mean[,] what good is a conviction on his record if it doesn't mean anything?" 13 Nos. ¶19 Additionally, in decisions that 02-2897-CR & 02-2898-CR 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. See, e.g., Matson, 268 Wis. 2d 725 (concluding that an investigating officer's letter to the court recommending that the sentence be longer than was agreed to in the plea bargain was a material and substantial breach of the plea bargain); Williams, 249 Wis. 2d 492 (concluding that a prosecutor's "less than neutral" agreement). presentation of the plea Accordingly, we conclude bargain that the breached lack the of a specific instruction to Deilke in regard to a subsequent attack of the convictions, is not dispositive of any issue before us.17 17 The dissent characterizes the statutory consequences of repetitive OMVWI convictions as an "implicit" term of the plea agreements, and accuses the majority of "attempting to stretch the law" because the dissent maintains that no case cited by the majority relies on a breach of an "implicit term of a plea agreement." Dissent, ¶44. In arguing that there can be no breach of the plea agreement if the breached provision is "implicit," dissent ¶¶44, 47, 53, the dissent sets up a strawman so that it can then knock it down. The word "implicit" is not used in the majority opinion. Indeed, if one were forced to choose a label for the statutory penalties that increase with each OMVWI conviction, it surely would be "explicit," as the mandatory consequences of repetitive OMVWI violations are clearly stated in the statutes. Furthermore, Deilke had to know that these statutory provisions were part of his pleas because the charge at issue here was his 6th OMVWI in ten years, during which time he was subjected to those increasing penalties. Additionally, breaches of provisions that were not explicitly stated in plea agreements have been held to be material and substantial breaches, as we discussed in ¶14. 14 Nos. ¶20 02-2897-CR & 02-2898-CR Furthermore, we are not persuaded by Deilke's argument that because he served jail time and paid fines, no breach of the plea agreement occurred. part of scheme Deilke's regarding punishment drunken We agree with the State that a was the driving effect penalties of the under statutory Wis. Stat. § 346.65, which envisions progressive punishment as a central component of convictions. See State v. Banks, 105 Wis. 2d 32, 49, 313 N.W.2d 67 (1981) (noting that removing drunk drivers from the highways is the "underlying premise of the criminal penalties" in § 346.65, and that "the purpose of general repeater statutes is to increase the punishment of persons who fail to learn to respect the law after suffering the initial penalties and embarrassment of conviction"). ¶21 In addition, the prosecutor is without the authority or power to bargain away the penalty-enhancing character of an OMVWI or PAC conviction. See Wis. Stat. § 343.307(1) (stating, in relevant part, "The court shall count the following . . . to determine the penalty under s. 346.65(2): (a) Convictions for violations under s. 346.63(1) [i.e., OMVWI or PAC convictions]") (emphasis added). See also Banks, 105 Wis. 2d at 39 (stating that the use of the word "shall" in the penalty provisions of Wis. Stat. § 346.65(2) evidences a legislative intent that "all the penalties for repeated offenses . . . be mandatory rather than discretionary . . . ."). Without a conviction for a violation of Wis. Stat. § 346.63(1) that allows the State to use the penalty-enhancing value of that conviction in the sentencing under § 346.65(2), the grounds on which the State negotiated the 15 Nos. plea agreement substantially changed. 02-2897-CR & 02-2898-CR See Robinson, 249 Wis. 2d 553, ¶47. ¶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.18 For example, in reviewing the effect of a successful attack on a conviction that resulted from a plea bargain, we concluded a breach occurred. the State Robinson, 249 Wis. 2d 553, ¶47. entered into a plea agreement Robinson and whereby the State dropped a repeater allegation and reduced an aggravated battery charge to a reckless second reckless endangerment endangerment charge, charge. while The retaining State's a amendment reduced Robinson's possible prison time from twenty-seven years to ten years. endangerment. Robinson pled to both counts of reckless He was sentenced to five years on each count, to be served consecutively. Id., ¶¶6-8. Robinson then filed a postconviction motion arguing that the two counts of recklessly endangering safety were multiplicitous and violated the double jeopardy clauses of the state and federal constitutions. ¶9. Id., On appeal, the State did not challenge this contention, id., ¶12, but it argued the effect of Robinson's motion, which would reduce Robinson's overall sentence from ten years to five 18 The dissent takes issue with the application of contract principles to Deilke's breach of the plea agreement. Dissent, ¶57. However, when a defendant is alleged to have breached a plea agreement, contract principles guide the analysis and the remedy. See State v. Robinson, 2002 WI 9, ¶50, 249 Wis. 2d 553, 638 N.W.2d 564. 16 Nos. years (half of what the State believed 02-2897-CR & 02-2898-CR it had bargained receive), amounted to a repudiation of the plea agreement. id., ¶¶9, 18. to See We agreed that the successful withdrawing of Robinson's plea to one of the counts of reckless endangerment constituted a repudiation of the plea agreement. Id., ¶47. 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. ¶23 We also note that decisions that have reviewed alleged breaches of plea agreements have concluded that good faith is implied in plea agreements. 230 Scott, Wis. 2d at 656 (concluding that the State was "obliged to act in good faith and adhere to the bargain it had struck with Scott"); see also State v. Wills, 187 Wis. 2d 529, 537, 523 N.W.2d 569 (Ct. App. 1994).19 We have also concluded that a party to a plea agreement cannot do an "end run" around the plea agreement and in so doing accomplish by indirect means what could not be done by direct means. ¶24 Williams, 249 Wis. 2d 492, ¶42. Here, Deilke's successful collateral challenge of the convictions entered on the basis 19 of his guilty pleas This court was equally divided on whether the State breached the plea agreement at issue in State v. Wills, therefore, the decision of the court of appeals on that issue and the proposition that the parties to a plea agreement are required to act in "good faith" was affirmed. State v. Wills, 193 Wis. 2d 273, 275, 533 N.W.2d 165 (1995). 17 Nos. accomplished directly. by indirect means what he 02-2897-CR & 02-2898-CR could not have done He retains all of the benefits of the plea agreement (e.g., being subject to fewer charges, less-than-maximum fines and jail time) and attempts to place himself in a better position than he would have been if he had entered the same agreements with advice of counsel. That is, the previous convictions he successfully challenged cannot be used as penalty enhancers in subsequent OMVWI/PAC proceedings. the other hand, retains only some of the The State, on benefits of the original agreement (e.g., not having to take the case to trial), but it is left in a far worse position. As the circuit court said at the hearing to reinstate the charges, "So the practical effect is what, despite this rather horrendous record that Mr. Deilke has achieved that now he gets credit to be an OWI first?" This is inconsistent with concepts of fairness that run to both the State and Deilke. defendant to claim As we explained in Rivest, "To allow a the benefit of an agreement where he, himself, is in default, offends fundamental concepts of honesty, fair play and justice." Rivest, 106 Wis. 2d at 414. Accordingly, we conclude that Deilke's conduct materially and substantially breached the plea agreements. 2. Remedy for breach ¶25 Having concluded that Deilke's successful collateral challenge to substantial whether the warranted. his breach remedy previous of of the convictions plea was agreements, rescission that was a material we turn applied and now to here is Not every breach of a plea agreement necessarily 18 Nos. 02-2897-CR & 02-2898-CR gives rise to a per se right to a remedy; however, a material and substantial breach is a manifest injustice that requires vacating the plea. Bangert, 131 Wis. 2d at 289. The appropriate remedy for a material and substantial breach of a plea agreement depends on the totality of the circumstances. Robinson, 249 Wis. 2d 553, ¶48. "A court must examine all of the circumstances of a case to determine an appropriate remedy for that case, interests." agreement considering defendant. the defendant's and State's One remedy is to vacate the negotiated plea Id. and both reinstate Id. In the original Robinson, we charges concluded against that the given the circumstances in that case, the parties should be restored to the same positions they held before the defective plea agreement was entered. 61, 73-74, Id. at ¶49. 579 N.W.2d See also State v. Briggs, 218 Wis. 2d 783 (Ct. App. 1998) (reinstating the parties to the positions they had before they negotiated a plea agreement based on an inaccurate view of the law). ¶26 In this case, the State requested reinstatement of the PAC charges against Deilke.20 motion and counts. Deilke, with The circuit court granted the advice of counsel, pled to the PAC The State did not request any additional jail time, fines or term of license revocation for these convictions, other than that which convictions. had been imposed at the time of the OMVWI However, the PAC convictions then served as the 20 It did not request reinstatement of the fourth PAC count, the OAR counts or the OMVWI that also were dismissed. 19 Nos. 02-2897-CR & 02-2898-CR 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. 3. Statute of limitations ¶27 Deilke argues that the statute of limitations bars the reinstatement of the 1993 PAC charge because the three-year time limitation for prosecution of misdemeanors has run. Stat. § 939.74(1).21 The circuit court22 rejected See Wis. Deilke's statute of limitations defense and added that even if it were a defense, the State would be able to block its use through the discovery rule announced in Hansen v. A.H. Robins Co., 113 Wis. 2d 550, 560, 335 N.W.2d 578 (1983) (holding that a personal injury action accrues, for statute of limitations purposes, when the plaintiff injury). discovers, or reasonably should discover, the We agree with the circuit court that Deilke does not have a statute of limitations defense. conclusion on a different basis. However, we reach our See State v. Chrysler Outboard Corp., 219 Wis. 2d 130, 148-49, 580 N.W.2d 203 (1998) (refusing 21 Wisconsin Stat. § 939.74(1) provides in relevant part: "Except as provided in subs. (2) and (2d) and s. 946.88(1), prosecution . . . must be commenced . . . for a misdemeanor . . . within 3 years after commission thereof. Within the meaning of this section, a prosecution has commenced when a warrant or summons is issued, an indictment is found, or an information is filed." 22 The court of appeals did not reach this issue. 20 Nos. to extend the enforcement discovery cases and rule to 02-2897-CR & 02-2898-CR limiting quasi-criminal the discovery environmental rule to tort cases). ¶28 The primary purpose of the statute of limitations is to protect the accused from criminal consequences for remote past actions. State v. Jennings, 2003 WI 10, ¶15, 259 Wis. 2d 523, 657 N.W.2d 393 (citations omitted). However, we have held that prosecution for the act in question tolls the statute of State v. Pohlhammer, 78 limitations that otherwise would apply. Wis. 2d 516, 522, 254 N.W.2d 478 (1977). ¶29 parties In of resulted in Pohlhammer, charges the that addressed were filing Pohlhammer pled. that the we of the withdrawn an amended consequence when a plea information to the bargain to which On postconviction motion, Pohlhammer argued act described in the amended information (making a false representation) was different from the act described in the original information (intentionally damaging a building by means of fire). We agreed, concluding that not all charges that arise out of the same course of conduct comprise the same acts. Id. at 522-23. filed more Therefore, because the amended information was than six years after the complained of act, Pohlhammer argued he had an absolute defense to the charge and his conviction should be vacated. Id. at 522-23. that the conviction was properly vacated. Id. at 524. because was the amended Pohlhammer's agreement information, to which plead guilty to the We agreed However, filed based on one charge it contained, formed the basis for the plea bargain that Pohlhammer 21 Nos. breached through his successful 02-2897-CR & 02-2898-CR postconviction motion, we returned the parties to "the same posture" they occupied prior to his plea. Id. Accordingly, we reinstated the original information that contained three counts of arson with intent to defraud an insurer, as party to the crime, and permitted further proceedings on those charges. ¶30 Id. at 524-25. We conclude that Pohlhammer provides ample support for the circuit court's conclusion that Deilke has no statute of limitations defense to the PAC charges he pled to after his original convictions were set aside. As in Pohlhammer, PAC was charged and initial appearances were made before the statute of limitations was implicated. As in Pohlhammer, the PAC charges were not proceeded upon because of plea bargains in which Deilke pled to OMVWI successfully charges, overturned. the convictions As in for Pohlhammer, which he later Deilke's pleas induced the State to refrain from prosecuting the PAC charges when they were originally filed. Accordingly, we conclude that the circuit court was correct in rescinding the plea agreements so that the parties were in the same posture as they had prior 22 Nos. to Deilke's pleas, when the statute of 02-2897-CR & 02-2898-CR limitations was not implicated.23 III. ¶31 CONCLUSION We conclude that the circuit court correctly held that Deilke's successful constituted a agreements on collateral material which and the challenge substantial convictions to his breach were convictions of based. the plea 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. By the Court. The decision of the court of appeals is reversed. ¶32 DIANE S. SYKES, J., did not participate. 23 Other states that have considered a statute of limitations defense after a plea agreement has been abrogated and the charges dismissed earlier have been reinstated have come to the same conclusion. See, e.g., Geiger v. State, 532 So.2d 1298, 1301 (Fla. Dist. Ct. App. 1988) (finding statute of limitations tolled during postconviction motion because the charges were merely reinstated and the defendant had implied notice that abrogation of plea agreement would result in reinstatement of the charges); State v. White, 838 S.W.2d 140, 142 (Mo. Ct. App. 1992) (holding that in the interest of fairness, the statute of limitations tolls during a defendant's postconviction motion); State v. Neely, 1 S.W.3d 679, 683 (Tenn. Crim. App. 1999) (holding that the statute of limitations tolls during a postconviction motion because, otherwise, a defendant could attack the reinstated conviction while the state could not rescind from its side of the bargain). 23 No. ¶33 ANN WALSH BRADLEY, J. 02-2897-CR & 02-2898-CR.awb (dissenting). I, too, am concerned about the problem of drunk drivers on our highways and realize that the safety of all citizens is jeopardized by their presence. Nevertheless, I cannot join the majority opinion because in reaching its conclusion the majority (1) inflates the facts; (2) stretches the law; and (3) fails to consider the broad consequences of its decision. ¶34 The majority cannot cite a single case from any jurisdiction that has ruled that a defendant who has served his sentence breaches his plea agreement by collaterally attacking the use of a prior conviction for penalty enhancement. I agree which with the unanimous concluded that Robert court of Deilke appeals' did not Because decision breach the here, plea agreements in the 1993 and 2000 cases by collaterally attacking the results of those convictions, I respectfully dissent. ¶35 basis of In 1993, 1994, and 2000, Deilke was convicted on the pleas obtained successfully collaterally without attacked benefit those of counsel. convictions, He and the State concedes that the convictions were obtained in violation of Deilke's constitutional right to counsel. Now, the majority concludes that by asserting his constitutional rights, Deilke is attempting to evade the consequences of his bargain with the State and in so doing has materially and substantially breached that bargain. 1 No. A. ¶36 02-2897-CR & 02-2898-CR.awb Inflation of Facts The essence of the majority's analysis lies in the application of contract principles to plea bargains. op., ¶12. Majority After doing a benefit of the bargain analysis, it concludes that it would be unfair to allow Deilke to retain "all of the benefits of the plea agreement" and not be subjected to penalty enhancement of the prior convictions. ¶37 Herein lies the majority's problem. Id., ¶24. In weighing "all of the benefits," it fails to note that most of the dismissed charges that it is weighing have nothing to do with this case. As the parties made abundantly clear in their briefs and at oral argument, we are dealing with only two prior convictions, not three. The convictions that are the focus of our inquiry are the 1993 and 2000 convictions not the 1994 conviction. The majority acknowledges that in a footnote,24 but nevertheless uses the charges in the 1994 case to inflate the benefits received by Deilke. ¶38 The majority weighs an asserted benefit to Deilke of not facing six additional charges because they were dismissed as 24 The majority opinion states: The State's motion regarding Deilke's 1993 and 2000 cases was granted by the circuit court for Eau Claire County, Judge Eric J. Wahl, presiding. The State's motion regarding Deilke's 1994 conviction was denied by a different judge in a different circuit court branch and is not part of this appeal. Majority op., ¶8, n. 4. 2 No. part of the plea agreements. 02-2897-CR & 02-2898-CR.awb Id., ¶15. Yet, four of the six dismissed charges are in the 1994 case and are not involved here. ¶39 Of the two remaining charges that were dismissed, the 1993 PAC charge and the 2000 PAC charge, there is no benefit whatsoever that inures to Deilke. Those two charges are dismissed, not as a benefit of a plea bargain, but by operation of law. Although Wis. Stat. § 346.63(1)(c) provides that the State may prosecute both OMVWI and PAC, one of the charges must be dismissed because only a single conviction can be entered.25 ¶40 Thus, there is no benefit that inures to Deilke for dismissed charges. Rather, under the facts of this case, quite the opposite is true. Because Deilke never attacked his 1993 and 2000 OMVWI convictions, but only contested the consequences of those convictions for purposes of penalty enhancement, those OMVWI convictions still remain of record. 25 Rather than receiving Wisconsin Stat. § 346.63(1)(c) provides: A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of any combination of par. (a) or (b) or both for acts arising out of the same incident or occurrence. If the person is charged with violating both par. (a) and (b), the offenses shall be joined. If the person is found guilty of both pars. (a) and (b) for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under ss. 343.30(1q) and 343.305. Paragraphs (a) and (b) each require proof of a fact for conviction which the other does not require. 3 No. 02-2897-CR & 02-2898-CR.awb the benefit of any dismissed charges, Deilke now has the burden of both OMVWI and PAC convictions of record for the 1993 and 2000 offenses. By anyone's math, because of the dual convictions of record, the numbers reflect a net loss to Deilke, not an unfair benefit. B. ¶41 The jurisdiction majority that defendant who agreement by holds has Stretching the Law cannot cite as the served his collaterally that the case does sentence attacking majority's single majority conviction for penalty enhancement. suggest a here: breaches the from use any that a his plea a prior of On the contrary, many cases approach is constitutionally suspect. ¶42 if a In Burgett v. Texas, the Supreme Court announced that defendant demonstrates that an earlier conviction was obtained in violation of his right to counsel, it may not be used as a penalty enhancer in a subsequent proceeding. 389 U.S. 109, 115 (1967). There, the court recognized that use of the uncounseled conviction prior compounds the harm defendant by deprivation of the right to counsel. Custis v. U.S., 511 U.S. 485 (1994). done Id. to the See also This court analyzed Custis in State v. Hahn and reaffirmed that a defendant has a federal constitutional right to challenge the use of a prior conviction in an enhanced sentencing proceeding when the defendant alleges that his constitutional right to counsel was violated in the 4 No. earlier proceeding. 2000 WI 118, 02-2897-CR & 02-2898-CR.awb ¶17, 238 Wis. 2d 889, 618 N.W.2d 528. ¶43 a By holding that a collateral attack of a conviction as penalty enhancer in an entirely separate proceeding constitutes a breach of the earlier plea agreement, the majority is imposing constitutional a rather right stiff to tax challenge violation of the right to counsel. all, the majority can reconcile on a the exercise conviction of obtained the in It is not clear how, if at its holding with Burgett, Custis, and Hahn. ¶44 The majority concludes that the collateral violated an implicit term of the plea agreement. attack It offers a pair of cases as authority for the premise that a plea agreement contains implicit terms the violation breach.26 Once again, the majority is attempting to stretch the law to accommodate its novel contention. of which constitute Neither of the cases 26 Actually, the majority asserts that "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." Majority op., ¶19. The majority nowhere explains what term of the plea agreement Deilke violated. The reader is left to guess that the majority concluded that Deilke violated an implicit term not to collaterally attack the convictions in future proceedings. Whatever the term might be, it must be an implicit term supplied by the majority, as the express terms of the plea agreement are silent with respect to the issue in this case. 5 No. cited by the majority involved an 02-2897-CR & 02-2898-CR.awb implicit term of a plea agreement. ¶45 In State v. Matson, a detective wrote to the judge requesting that the judge impose the maximum allowable sentence. 2003 WI App 253, 268 Wis. 2d 725, 674 N.W.2d 51. The court of appeals concluded that the letter controverted the sentencing recommendation and therefore constituted a breach of the plea agreement, noting that "once an accused agrees to plead guilty in reliance upon a prosecutor's promise to perform a future act, the accused's due process rights demand fulfillment of the Id., ¶16. bargain." ¶46 In State v. Williams, we found that the prosecutor presented the agreed-upon sentencing recommendation in a lessthan-neutral way. 2002 WI 1, 249 Wis. 2d 492, 637 N.W.2d 733. Citing constitutional concerns identical to those mentioned in Matson, we concluded that this effectively breached the plea Id., ¶59. agreement. ¶47 Contrary to the majority's contention, in both Matson and Williams the court found that the State violated an explicit term of the plea agreement, i.e. to recommend the agreed upon sentence. Furthermore, the reasoning underlying these cases was specific to the defendant's due process rights and not grounded in contract whether explicit a principles. defendant terms of Consequently, who his has plea performed agreement 6 they as may do not specified be found address in to the have No. 02-2897-CR & 02-2898-CR.awb breached an implied term, nor do they speak to whether such a breach, if it could take place, might be material and substantial. ¶48 The majority also invokes a pair of cases in which the defendants were found to have breached their plea agreements: 249 Wis. 2d 553, 638 materially and State v. Robinson, 2002 WI 9, N.W.2d 564, and Wis. 2d 406, 316 N.W.2d 395 (1982). State v. the State filed an Rivest, 106 In Robinson, the defendant had not yet started to serve his sentence. agreement, substantially amended Pursuant to an information and the defendant plead guilty to two counts of reckless endangerment, with a resulting exposure of 10 years' imprisonment. Subsequently he sought to have one count vacated, claiming that it was multiplicitious. Thus, he attempted to cut his exposure to only five years' imprisonment half of what was contemplated in the plea agreement. ¶49 The Robinson court determined that when a defendant successfully challenges his conviction on one count of a twocount information and thus reduces his exposure to half of what was contemplated breached a term in the plea agreement, of the agreement. 249 the defendant Wis. 2d 553, has ¶57. Employing the contract principle of detrimental reliance, the court concluded that the remedy is to reverse the convictions and sentences, vacate the plea 7 agreement, and reinstate the No. 02-2897-CR & 02-2898-CR.awb original information so that the parties are restored to their positions prior to the negotiated plea agreement. ¶50 Id., ¶55. In this case the future use of Deilke's convictions for penalty enhancement purposes was never made a part of the agreement. Unlike challenging one of in two Robinson, where convictions in the the defendant same was information before the court, here the convictions which the State seeks to vacate are closed cases, dating back to eight years prior to the case currently pending before the court. ¶51 Moreover, Deilke served all of his time, paid all of his fines, attended all required classes, endured his license revocations, and even forfeited his vehicle. Unlike in Robinson, where the defendant had not yet started to serve his sentence, the defendant cannot be restored to his position prior to the negotiated plea agreement. How can you undo the forfeiture of his car and the period of time that he was without its use? ¶52 In State v. Rivest, another case relied upon by the majority, the defendant agreed to testify against an accomplice as part of his plea agreement. had testified falsely. It was later determined that he The Rivest court gave deference to the factual findings of the circuit court which expressly held that one of the conditions of the plea agreement was that Rivest would give truthful testimony. findings, this court In reviewing the circuit court's determined 8 that the testimony of both No. 02-2897-CR & 02-2898-CR.awb Rivest's attorney and the prosecutor "demonstrates that it was implicit in the plea agreement that Rivest's testimony was to be truthful . . . ." ¶53 The 106 Wis. 2d at 416. majority cites Rivest for the premise that a defendant who defaults on an implied term of a plea agreement cannot reap its benefit. I do not dispute that premise. I disagree, however, with the application of the Rivest premise to this case. ¶54 Rivest can be distinguished in significant ways. First and foremost, it is important to note that both Rivest's defense attorney and the prosecutor agreed that such an implicit condition existed. Here, the parties do not agree. Second, the court determined that by violating a fundamental tenet of the American system of jurisprudence truthful testimony the defendant had defaulted on the plea agreement. Exercising a collateral challenge to sentence enhancement is not akin to violating a fundamental tenet of our American system of jurisprudence. constitutional Here, Deilke did not default by exercising his rights. Rather, he had already served his sentences and otherwise performed the specified terms of his plea agreement. ¶55 The majority is also stretching the precedent in its analysis of the duty of good faith implied in plea agreements. In State v. Wills, 187 Wis. 2d 529, 523 N.W.2d 569 (Ct. App. 1994), and State v. Scott, 230 Wis. 2d 643, 602 N.W.2d 296 (Ct. App. 1999), the court of appeals ruled not on the basis of the 9 No. 02-2897-CR & 02-2898-CR.awb implied duty of good faith but rather on the same due process grounds that controlled our decisions in Williams and Matson. ¶56 In sum, the majority is stretching the law and has absolutely no authority to support its novel contention that a defendant who has served his sentence breaches a plea agreement by collaterally attacking the use of a prior conviction for penalty enhancement. C. ¶57 to The Consequences Although the majority pays lip service in a footnote the limitations agreements, it limitations. of fails applying to contract acknowledge principles the extent Majority op., ¶12, n. 7, ¶22, n. 18.27 to of plea those Likewise, the majority fails to acknowledge the consequences of having courts, months or years later, reading implied terms into plea 27 As stated in Rivest, "[w]hile analogies to contract law are important to the determination of questions regarding the effects of a plea bargain, such analogies are not solely determinative of the question as fundamental due process rights are implicated by the plea agreement." State v. Rivest, 106 Wis. 2d 406, 413, 316 N.W.2d 395 (1982). We further explained "The constitutional concerns undergirding a in Robinson: defendant's 'contract rights' in a plea agreement demand broader and more vigorous protection than those accorded private contractual commitments." State v. Robinson, 2002 WI 9, ¶50, n. 24, 249 Wis. 2d 553, 638 N.W.2d 264 (quoting State v. Scott, 230 Wis. 2d 643, 654-55, 602 N.W.2d 296 (Ct. App. 1999)). "[C]riminal defendant's rights are grounded in more than contract; thus, contract principles, while useful, do not completely define the obligations of the parties. A myriad of collateral considerations . . . are implicated in plea agreements. In light of such implications, application of the rules of commercial contract law may require 'tempering' the rules." Scott, 230 Wis. 2d at 655, n. 8 (citations omitted). 10 No. agreements. To give such unbridled 02-2897-CR & 02-2898-CR.awb license undermines the finality of convictions. ¶58 The State claims that the benefit it bargained for in the original plea negotiations was the ability to establish the earlier convictions for use in penalty enhancement if there were any subsequent convictions. never discussed negotiations. specific this term with Deilke during the plea It never informed him that it was seeking the benefit enhancement. Yet, the State concedes that it of using his convictions for later penalty How can there be a meeting of the minds between the parties as to this unarticulated condition? ¶59 Additionally, I am concerned about the breadth of the majority's holding. Its application of contract principles is not limited to OWI penalty enhancement cases. This may become the motion du jour, brought by both the State and by defendants, trying to open up prior convictions because there was not a meeting of the minds on an unstated term of a plea agreement. Where is the stopping point? ¶60 Here, the majority advances that this court should read into the plea bargain what it views as an implicit term, regardless if there was ever any meeting of the minds as to the term. Yet, to read such a term into plea agreements would effectively create an implicit waiver of the right to counsel in all plea agreements, and to do so would chill the exercise of a defendant's constitutional rights. 11 No. ¶61 It is unnecessary to 02-2897-CR & 02-2898-CR.awb introduce complexity and uncertainty to the law. this new layer of A simpler remedy would place the onus for obtaining the defendant's waiver of counsel on the State, at the peril of their ability to use convictions for later penalty enhancement. Like the court of appeals, I conclude that Deilke could not have materially and substantially breached the condition. ¶62 plea agreement based on this unarticulated Accordingly, I respectfully dissent. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this opinion. 12 No. 1 02-2897-CR & 02-2898-CR.awb

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