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Guilty plea by phone overturned

What the court held

Case: Van Patten v. Deppisch, No. 04-1276

Issue: Can a guilty or no contest plea be entered with the defense attorney appearing by speakerphone?

Holding: No. The right to counsel requires that the attorney be physically present.

It violates a defendant’s right to counsel for his attorney to appear at the change of plea hearing by speakerphone, the Seventh Circuit held on Jan. 24. The court further held that the failing is not subject to harmless error analysis.

Joseph Van Patten was charged in state court with one count of first degree intentional homicide following a fatal shooting in Shawano County, Wisconsin. A plea agreement was reached under which he would plead no contest to first degree reckless homicide, with a penalty enhancement for committing the offense while using a dangerous weapon.

His attorney did not appear in person for the change of plea hearing, but appeared instead via speakerphone, apparently because of scheduling conflicts with cases in two other counties the same day.

Van Patten was not asked whether he objected to his attorney’s absence from the hearing, or whether he would prefer to reschedule the hearing to a time when his attorney could appear in person.

The hearing was held around a speakerphone on the judge’s bench, and the judge encouraged Van Patten to “take all the time you need to confer with your attorney, and we can perhaps get him on the line in a private place so you could talk to him privately also.”

After a plea colloquy, the judge accepted the plea. Van Patten was later sentenced to the maximum term of 25 years in prison.

After retaining different counsel, Van Patten moved to withdraw his plea, arguing that his attorney’s failure to appear in person at the change of plea hearing violated his Sixth Amendment right to counsel. At the hearing on that motion, Van Patten testified that he had wanted a jury trial but felt “forced” to enter a no-contest plea because his attorney told him if he didn’t, the prosecutor would “make sure I would die in prison.”

He also testified that he would not have entered his plea if his attorney had been present at the hearing. The court denied Van Patten’s postconviction motion, and the denial was affirmed by the court of appeals, which held the error harmless, although the court acknowledged that the procedure violated sec. 967.08. The statute authorizes some hearings to be conducted by phone, but not change of plea hearings.

The Wisconsin Supreme Court denied review, and Van Patten filed a habeas corpus petition in federal court, but District Judge Rudolph T. Randa denied the petition. Van Patten appealed, and the Seventh Circuit reversed in a decision by Judge Terence T. Evans.

The court determined that the case was governed by the U.S. Supreme Court’s decision in U.S. v. Cronic, 466 U.S. 648 (1984), rather than Strickland v. Washington, 466 U.S. 668 (1984)(decided the same day).

Under Strickland, to prevail on an ineffective assistance of counsel claim, the defendant must show that his counsel’s performance fell below an objective standard of reasonableness, and he must show prejudice — a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.

Cronic applies, however, if the circumstances are “so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Cronic, at 658.

The court concluded that entry of a guilty (or no contest) plea is so critical that appearance of counsel by telephone is governed by Cronic, reasoning, “with plea bargaining the norm and trial the exception, for most criminal defendants a change of plea hearing is the critical stage of their prosecution (emphasis in original).”

The court added, “although the transcript shows that the state trial judge did his best to conduct the plea colloquy with care, the arrangements made it impossible for Van Patten to have the ‘assistance of counsel’ in anything but the most perfunctory sense. Van Patten stood alone before judge and prosecutor.”

The court noted that Van Patten “could not turn to his lawyer for private legal advice, to clear up misunderstandings, to seek reassurance, or to discuss any last-minute misgivings. Listening over an audio connection, counsel could not detect and respond to cues from his client’s demeanor that might have indicated he did not understand certain aspects of the proceeding, or that he was changing his mind.”

Related Links

7th Circuit Court of Appeals

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Case Analysis

Accordingly, the court concluded that it was error for the Wisconsin Court of Appeals to analyze the case under Strickland, instead of Cronic: “Properly analyzed,
Van Patten’s claim is not a complaint about his attorney’s effectiveness; rather, it points to a structural defect in the proceedings against him. When a defendant is denied assistance of counsel at a stage where he must assert or lose certain rights and defenses, the error ‘pervade[s] the entire proceeding.’ (cite omitted).”

Although acknowledging that Van Patten does not identify any bad judgments on his counsel’s part, the court explained, “However acceptable an attorney’s performance may otherwise be by Strickland standards, it is beside the point if the attorney is prevented by the design of the proceeding from providing the full benefit of his skills when his client needs them most. Although the record may make the proceeding appear to have been routine and proper, we cannot know what Van Patten might have done had he been treated like any other defendant with counsel at his side. Under such unique circumstances, a plea cannot meet the constitutional requirement that it be intelligent and voluntary.”

The court concluded, “we have observed that ‘[t]he Sixth Amendment … guarantees more than just a warm body to stand next to the accused.’ In this case, Van Patten didn’t get even a warm body (cite omitted).”

The court therefore reversed, and remanded the case for entry of a writ of habeas corpus and further remand to state court.

Click here for Case Analysis.

David Ziemer can be reached by email.

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