This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,


Ronald Joseph Tschida,


Filed July 5, 2005


Wright, Judge


Hennepin County District Court

File No. 04016998



James M. Ventura, 125 West Lake Street, Suite 208, Wayzata, MN  55391 (for appellant)


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent)



            Considered and decided by Peterson, Presiding Judge; Kalitowski, Judge; and Wright, Judge.


U N P U B L I S H E D  O P I N I O N




Appellant challenges his conviction of first-degree felony driving while impaired, arguing that two of the prior misdemeanor alcohol-related driving convictions used to enhance the instant offense to a felony were not supported by an adequate factual basis.  We affirm.



On March 13, 2004, officers initiated a traffic stop after observing a vehicle swerve, first nearly striking the curb and then making contact with the fog line.  Appellant Ronald Tschida, who was driving the vehicle, admitted that he had been drinking.  The officers administered field sobriety tests and a preliminary breath test, which Tschida failed.  Tschida was arrested for driving while impaired and agreed to take an Intoxilizer test.  The results revealed an alcohol concentration of .21. 

Tschida’s driving record includes three prior qualified impaired-driving incidents within ten years of the instant offense.  On August 2, 1995, Tschida pleaded guilty to driving under the influence of alcohol, in violation of Minn. Stat. § 169.121, subd. 1(a) (1994).[1]  On April 1, 1996, Tschida pleaded guilty to refusal to submit to chemical testing, in violation of Minn. Stat. § 169.121, subd. 1a (1996).  And on September 25, 1998, Tschida was convicted of gross misdemeanor driving while under the influence of alcohol, in violation of Minn. Stat. § 169.121, subds. 1(a), 3(d)(2) (1998).  Based on these prior convictions, Tschida was charged in the March 2004 incident with first-degree driving while impaired (DWI), a felony violation of Minn. Stat. §§ 169A.20, subd. 1(1), .24, subd. 1(1) (2002). 

            At the Rasmussen hearing on June 10, 2004, Tschida challenged the validity of the 1995 and 1996 convictions.[2]  Tschida argued that the 1995 and 1996 guilty pleas lacked a factual basis and, thus, could not be used to enhance the 2004 DWI charge to a felony.  Tschida was represented by counsel when he entered the guilty pleas in 1995 and 1996.

The district court rejected Tschida’s challenge, reasoning that, because Tschida was represented by counsel when he entered the guilty pleas, his challenge constituted an impermissible collateral attack on the prior convictions.  Alternatively, the district court concluded that the factual bases for the 1995 and 1996 guilty pleas were sufficient to enhance the 2004 offense. 

            Following the district court’s ruling, Tschida agreed to submit the case for a trial on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  Tschida was subsequently convicted of first-degree DWI.  After the district court denied Tschida’s motion for reconsideration, this appeal followed. 



Whether an alcohol-related offense can be enhanced to a felony under the statute is a legal question, which we review de novo.  See State v. Bergh, 679 N.W.2d 734, 737 (Minn. App. 2004) (analyzing whether an uncounseled Colorado license revocation may be used to enhance impaired-driving charges in Minnesota). 

A misdemeanor DWI may be enhanced to a felony offense if a driver “violates section 169A.20 (driving while impaired)” and “commits the violation within ten years of the first of three or more qualified prior impaired driving incidents[.]” Minn. Stat. § 169A.24, subd. 1(1) (2002).  The definition of a “qualified prior impaired driving incident” includes an impaired-driving conviction and an impaired-driving-related license revocation.  Minn. Stat. § 169A.03, subd. 22 (2004).  Tschida argues that his 1995 and 1996 impaired-driving convictions do not constitute qualified prior impaired-driving incidents because the guilty pleas on which the convictions were founded lacked an adequate factual basis in the record.[3] 

Prior to accepting a guilty plea, the district court must determine that the plea is “accurate, voluntary, and intelligent.”  State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).  Tschida challenges the accuracy of the 1995 and 1996 guilty pleas when arguing that they are not supported by sufficient facts to establish the elements of each offense.  State v. Iverson, 664 N.W.2d 346, 349 (Minn. 2003).  A reviewing court ordinarily rejects a guilty plea if it concludes that the district court could not have fairly found that the defendant’s plea was accurate.  State v. Warren, 419 N.W.2d 795, 798 (Minn. 1988).  But when the defendant collaterally attacks the prior conviction as part of a challenge to a sentence or offense enhancement in a subsequent case, deficiencies in a guilty plea will not invalidate the enhancement value of the plea if the defendant was represented by counsel.  Id.; State v. Simon, 339 N.W.2d 907, 907-08 (Minn. 1983). 

Relying on the rule articulated in Simon, the Warrencourt stated that, even if a district court accepts a guilty plea without a factual basis on the record, the conviction is immune from collateral attack as long as the plea is counseled.  419 N.W.2d at 798.  The Warrencourt reasoned that, for the purpose of a collateral attack on an offense for which a defendant had counsel, it is proper to assume that important trial rights, “including a factual basis for a plea,” were protected.  Id.; accord, State v. Lyle, 409 N.W.2d 549, 552 (Minn. App. 1987) (stating that, when a defendant is represented, it is proper to presume that he has been “informed of the nature of the offense and of his alternatives”).  Although the controlling language in Warren is dictum since Warren involved an uncounseled guilty plea, we accord it considerable weight because it is an expression of the supreme court’s opinion.  State v. Busse, 616 N.W.2d 760, 763-64 (Minn. App. 2000), rev’d on other grounds, 644 N.W.2d 79 (Minn. 2002); see also In re Estate of Bush, 302 Minn. 188, 207, 224 N.W.2d 489, 501 (1974).

Thus, unless a defendant can demonstrate that the guilty plea in a predicate offense was uncounseled, the prior conviction is immune from collateral attack.  State v. Otto, 451 N.W.2d 659, 661 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990); State v. Lang, 432 N.W.2d 478, 480 (Minn. App. 1988) (holding that when defendant was represented by counsel at the time of guilty plea, the conviction is immune from collateral attack and can be used to enhance a misdemeanor DWI offense to a gross misdemeanor). 

It is uncontested that Tschida was represented when he entered guilty pleas to the 1995 and 1996 offenses.  He, therefore, is barred from collaterally attacking those convictions in this proceeding. 

Tschida attempts to distinguish between a conviction used for sentence enhancement and a conviction used for offense enhancement.  He argues that, when a conviction is used to enhance an offense, a collateral attack on the prior conviction should be permitted even when the defendant was represented by counsel.  But caselaw does not support this distinction.  Indeed Simon, an offense-enhancement case, held that, on collateral attack, deficiencies in a guilty plea will not invalidate the enhancement value of the offense for a defendant who was represented when entering the guity plea.  339 N.W.2d at 907-08.  And Warren, which endorsed the holding in Simon, was a sentence-enhancement case.  419 N.W.2d at 798.  Minnesota law makes no distinction between a collateral attack that seeks to prevent the use of a prior conviction for sentencing purposes and a collateral attack that seeks to prevent the use of a prior conviction to enhance a subsequent offense.  See State v. Edmison, 379 N.W.2d 85, 86-87 (Minn. 1985) (holding that if prior offense cannot be used for offense enhancement, it also cannot be used for sentence enhancement). 

Tschida also argues that, although a counseled plea may later bar a claim that a defendant did not understand his trial rights, a counseled plea should not bar a collateral challenge to the factual basis for the plea.  But Warren expressly provides the contrary, stating that, in a collateral attack, it is proper to assume that, when a defendant has counsel, other important trial rights, “including a factual basis for the plea,” are being protected.  419 N.W.2d at 798 (emphasis added).  Again, the distinction Tschida advances is not supported by governing Minnesota precedent.

Accordingly, the district court did not err in using the 1995 and 1996 convictions to enhance Tschida’s DWI offense to a felony.     


[1] Because the 1995 plea petition does not cite the statutory provision for the offense of conviction, the plea petition is unclear as to what impaired-driving offense Tschida pleaded guilty.  Tschida admitted in the plea petition that the prosecutor agreed to dismiss the “driving over .10” charge in exchange for the guilty plea to the other charge.  Because the remaining charged offense was operating a motor vehicle under the influence of alcohol, we assume that this is the offense to which he pleaded guilty.

[2] Tschida conceded the validity of the 1998 conviction. 

[3] Tschida does not contend that he did not understand his rights when he entered the 1995 and 1996 guilty pleas.  As such, this case is distinguishable from State v. Nordstrom, 331 N.W.2d 901 (Minn. 1983), and its progeny.