(dissenting).
¶ 33. 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.
*621¶ 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. Because I agree with the unanimous court of appeals' decision here, which concluded that Robert Deilke did not breach the plea agreements in the 1993 and 2000 cases by collaterally attacking the results of those convictions, I respectfully dissent.
¶ 35. In 1993, 1994, and 2000, Deilke was convicted on the basis of pleas obtained without benefit of counsel. He successfully collaterally attacked those convictions, 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.
A. Inflation of Facts
¶ 36. The essence of the majority's analysis lies in the application of contract principles to plea bargains. Majority op., ¶ 12. 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. Id., ¶ 24.
¶ 37. Herein lies the majority's problem. 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 *622three. 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,1 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 part of the plea agreements. 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.2
*623¶ 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 OM-VWI convictions still remain of record. Rather than receiving 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. Stretching the Law
¶ 41. The majority cannot cite a single case from any jurisdiction that holds as the majority does here: that a defendant who has served his sentence breaches his plea agreement by collaterally attacking the use of a prior conviction for penalty enhancement. On the contrary, many cases suggest that the majority's approach is constitutionally suspect.
¶ 42. In Burgett v. Texas, the Supreme Court announced that if a 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 prior conviction compounds the harm done to the defendant by deprivation of the right to counsel. Id. See also Custis v. U.S., 511 U.S. 485 (1994). This court analyzed Custis in State v. Hahn and reaffirmed that a *624defendant 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 earlier proceeding. 2000 WI 118, ¶ 17, 238 Wis. 2d 889, 618 N.W.2d 528.
¶ 43. By holding that a collateral attack of a conviction as a penalty enhancer in an entirely separate proceeding constitutes a breach of the earlier plea agreement, the majority is imposing a rather stiff tax on the exercise of the constitutional right to challenge a conviction obtained in violation of the right to counsel. It is not clear how, if at all, the majority can reconcile its holding with Burgett, Custis, and Hahn.
¶ 44. The majority concludes that the collateral attack violated an implicit term of the plea agreement. It offers a pair of cases as authority for the premise that a plea agreement contains implicit terms the violation of which constitute breach.3 Once again, the majority is attempting to stretch the law to accommodate its novel contention. Neither of the cases cited by the majority involved an implicit term of a plea agreement.
*625¶ 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 bargain." Id., ¶ 16.
¶ 46. In State v. Williams, we found that the prosecutor presented the agreed-upon sentencing recommendation in a less-than-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 agreement. Id., ¶ 59.
¶ 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 principles. Consequently, they do not address whether a defendant who has performed as specified in the explicit terms of his plea agreement may be found to have 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 materially and substantially breached their plea agreements: State v. Robinson, 2002 WI 9, 249 Wis. 2d 553, 638 N.W.2d 564, and State v. Rivest, 106 Wis. 2d 406, 316 N.W.2d 395 (1982). In Robinson, the defendant had *626not yet started to serve his sentence. Pursuant to an agreement, the State filed an amended information and the defendant pled 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 two-count information and thus reduces his exposure to half of what was contemplated in the plea agreement, the defendant has breached a term of the agreement. 249 Wis. 2d 553, ¶ 57. Employing the contract principle of detrimental reliance, the court concluded that the remedy is to reverse the convictions and sentences, vacate the plea agreement, and reinstate the original information so that the parties are restored to their positions prior to the negotiated plea agreement. Id., ¶ 55.
¶ 50. In this case the future use of Deilke's convictions for penalty enhancement purposes was never made a part of the agreement. Unlike in Robinson, where the defendant was challenging one of two convictions in the same 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 *627agreement. 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. It was later determined that he had testified falsely. 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. In reviewing the circuit court's findings, this court determined that the testimony of both Rivest's attorney and the prosecutor "demonstrates that it was implicit in the plea agreement that Rivest's testimony was to be truthful. . . ." 106 Wis. 2d at 416.
¶ 53. The 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. Rivest can be distinguished in significant ways.
¶ 54. 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. Here, Deilke did not default by exercising his constitutional rights. Rather, he had already served his sentences and otherwise performed the specified terms of his plea agreement.
*628¶ 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 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. The Consequences
¶ 57. Although the majority pays lip service in a footnote to the limitations of applying contract principles to plea agreements, it fails to acknowledge the extent of those limitations. Majority op., ¶ 12, n. 7, ¶ 22, n. 18.4 Likewise, the majority fails to acknowledge *629the consequences of having courts, months or years later, reading implied terms into plea agreements. To give such unbridled 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. Yet, the State concedes that it never discussed this term with Deilke during the plea negotiations. It never informed him that it was seeking the specific benefit of using his convictions for later penalty enhancement. 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.
*630¶ 61. It is unnecessary to introduce this new layer of complexity and uncertainty to the law. 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 plea agreement based on this unarticu-lated condition. Accordingly, I respectfully dissent.
¶ 62. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this opinion.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.
Wisconsin Stat. § 346.63(l)(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. *623343.30(lq) and 343.305. Paragraphs (a) and (b) each require proof of a fact for conviction which the other does not require.
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.
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 in Robinson: "The constitutional concerns undergirding a 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)). "[A] criminal defendant's rights are grounded in more than contract; thus, contract principles, while useful, do not corn-*629pletely 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).