State v. Ricky J. O'Driscoll

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 17, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP2075-CR Cir. Ct. No. 2017CF39

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RICKY J. O’DRISCOLL,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Clark
County: JON M. COUNSELL, Judge. Affirmed.

Before Fitzpatrick, P.J., Blanchard and Kloppenburg, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP2075-CR

¶1 PER CURIAM. Ricky O’Driscoll appeals the circuit court
judgment convicting him of a fifth offense operating while intoxicated (OWI).
O’Driscoll also appeals the court’s order denying his motion for postconviction
relief. O’Driscoll argues that one of the prior OWI offenses identified by the State
to support charging him with a fifth offense was not a countable prior conviction.
We affirm.

¶2 O’Driscoll entered a guilty plea to the fifth offense OWI. When
entering his plea, O’Driscoll stated that he understood that the charge required
four prior countable offenses. He further stated that he understood that, by
pleading guilty, he was admitting that there were facts to support the charge.
Additionally, O’Driscoll’s attorney stipulated that there was a factual basis for
O’Driscoll’s guilty plea.

¶3 In his postconviction motion, O’Driscoll alleged that the State failed
to prove that one of the alleged prior offenses, a 2001 State of Oregon case, was a
countable prior conviction. O’Driscoll further alleged that his trial counsel was
ineffective for failing to raise this issue. The circuit court denied the motion. The
court concluded that the 2001 Oregon case was a countable prior conviction under
State v. List, 2004 WI App 230, 277 Wis. 2d 836, 691 N.W.2d 366.

¶4 On appeal, the parties dispute whether O’Driscoll waived his
argument as to the 2001 Oregon case and, if he did, whether he sufficiently alleged
ineffective assistance of counsel. We agree with the State’s waiver argument, but
we need not engage in a discussion of waiver because we conclude that, regardless
of waiver, the ultimate question is the same. That question is whether the 2001
Oregon case was a countable prior conviction under List. O’Driscoll fails to
persuade us that it was not.

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No. 2018AP2075-CR

¶5 In List, this court interpreted the applicable statutory provision that
defines a prior countable conviction. Under that provision, WIS. STAT.
§ 340.01(9r) (2017-18),1 a “[c]onviction” is broadly defined to include not only an
adjudication of guilt but also any “determination that a person has violated or
failed to comply with the law in a court of original jurisdiction.” § 340.01(9r);
List, 277 Wis. 2d 836, ¶10.

¶6 Applying this statutory language, this court in List concluded that an
Illinois OWI arrest resulting in “placement under court supervision” was a
countable prior conviction because the court supervision “was a result of a
determination that [List] ‘violated or failed to comply with the law.’” List, 277
Wis. 2d 836, ¶¶2, 10 (quoting WIS. STAT. § 340.01(9r)). This court in List
compared court supervision to a deferred prosecution agreement, stating that,
“because Wisconsin does not permit deferred prosecution agreements for alcohol-
related driving offenses, to give preferential treatment at sentencing to those
convicted in states that permit such agreements would be inconsistent with the
policy choice of our legislature.” Id., ¶11.

¶7 Here, O’Driscoll asserts that his 2001 Oregon case involved an arrest
for impaired driving that was resolved by a diversion agreement. Under List, we
see no reason to distinguish this diversion agreement from the court supervision or
deferred prosecution agreements referenced in List.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted. We cite the current version for ease of reference. The statutory language that we apply
here has not changed during the times relevant to O’Driscoll’s prosecution.

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No. 2018AP2075-CR

¶8 In seeking to distinguish List, O’Driscoll argues that, unlike in List,
here there was no evidence to support a conclusion that his diversion agreement
involved a judicial determination that he “violated or failed to comply with the
law.” This argument misconstrues List. Nothing in the List court’s reasoning
requires evidence of such a determination beyond O’Driscoll’s undisputed
assertion that his 2001 Oregon case involved an arrest for impaired driving that
was resolved by a diversion agreement. Rather, as far as its reasoning reveals, this
court in List concluded that participation in programs such as court supervision,
deferred prosecution, or diversion following a drunk driving arrest necessarily
implies a judicial determination that the defendant “violated or failed to comply
with the law” within the meaning of WIS. STAT. § 340.01(9r).

¶9 Similarly, O’Driscoll is not persuasive in arguing that List is
distinguishable because Illinois court supervision requires a guilty or no-contest
plea while his Oregon diversion agreement did not. Nothing in the List court’s
reasoning indicates that the List court relied on such a requirement.

¶10 In sum, O’Driscoll fails to persuade us that his 2001 Oregon case
was not a countable prior conviction under List. Accordingly, we conclude that
the circuit court properly denied O’Driscoll’s postconviction motion, and we
affirm.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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