COURT OF APPEALS

DECISION

DATED AND FILED

October 17, 2019

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

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

2

¶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. 
No. 2018AP2075-CR

3

¶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),1a “[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 alcoholrelated 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.
No. 2018AP2075-CR

4

¶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.