Plea Withdrawal – 6th Amendment Violation

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Ricky C. Anderson

Case No.: 2015AP2611-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Plea Withdrawal – 6^th Amendment Violation

Ricky Anderson appeals a judgment convicting him of second-degree sexual assault of a child, as a repeater, and an order denying his postconviction motion for plea withdrawal. Anderson argues the circuit court No. 2015AP2611-CR  should have allowed him to withdraw his plea because his statutory right to be present at his plea hearing, during which the court pronounced judgment, was violated when he appeared at that hearing by telephone. Anderson further argues he did not knowingly, intelligently, and voluntarily waive his right to be present at his plea hearing. In the alternative, Anderson argues the fact that he was not present in the same room as his attorney during the plea hearing violated his Sixth Amendment right to counsel. We conclude Anderson has failed to demonstrate, under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), that his right to counsel was violated during the plea hearing. With respect to Anderson’s other argument, we agree that Anderson had a statutory right to be physically present at his plea hearing. We further conclude the circuit court’s waiver colloquy regarding Anderson’s right to be present at the plea hearing was inadequate. In addition, we reject the State’s argument that any error regarding the violation of Anderson’s right to be present at his plea hearing was harmless as a matter of law. For the reasons explained below, we therefore reverse the order denying Anderson’s postconviction motion and remand for a new postconviction evidentiary hearing, at which the State will have the burden to prove that Anderson knowingly, intelligently, and voluntarily waived his right to be present at his plea hearing.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.