Plea agreement on OWI-10 hits snag when attorney misinforms client

EAU CLAIRE — What looked like a last-minute plea agreement to avoid trial fell apart when the defendant learned he was definitely going to do time under its terms.

Douglas Van Buskirk, 61, faces his 10th OWI charge, a Class E felony under Wisconsin law. On Monday, one day before his scheduled trial in the case, he entered a no contest plea to the OWI and guilty to bail jumping. Judge Jon Theisen accepted the plea and sentenced Van Buskirk to five years in prison and five years’ extended supervision.

Not much later Francis Rivard, Van Buskirk’s attorney, spoke up.

Court records say Rivard told the court that when he explained the plea offer to Van Buskirk “regarding programming related to CIP/SAP, [he] neglected to advise programming isn’t eligible to the defendant due to the mandatory minimum for a certain amount of time.”

Had he done so, “the defendant wouldn’t have agreed to enter into the plea agreement earlier today.”

CIP refers to the challenge incarceration program, which Wisconsin law defines as a program “for inmates who volunteer to participate in a rigorous regimen of manual labor, counseling and treatment. SAP is the state’s substance abuse program.

The question of what has priority, the mandatory minimum incarceration or programs like those was decided in State v. Jack B. Gramza in 2020. In that case Gramza was convicted of a seventh OWI.

Gramza was deemed eligible for SAP, and the Wisconsin Department of Corrections asked the court to convert his remaining time behind bars into extended supervision when he completed it.

While both the DOC and prosecutors said the district court had done its duty in imposing a three year sentence and could modify that later, the court disagreed. Wisconsin’s appeals court sided with the district court: “To adopt the interpretation argued by Gramza would ignore the legislative history of the statute … namely, the intent of the legislature to increase the penalties for multiple OWI convictions by mandating a minimum term of initial confinement that must be served.”

In Van Buskirk’s case, he asked the court to withdraw his pleas and reopen the cases “based on misinformation regarding eligibility for programming.”

Theisen didn’t immediately accept that outcome. He gave Rivard 30 days to file a motion to that effect or to “advise the Court ethical issues remain and a new attorney needs to be appointed.”

In the event a new attorney is appointed, that person will have 30 days to file the motion. Prosecutors will have an additional 30 days from that motion to file a response, with the defense then getting 15 days to reply.

Only after reviewing all the documents will the court give a ruling. Until that time, the judgements and convictions will remain in effect.