Attorney can appear by phone

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A Wisconsin prisoner won’t be getting a second chance after pleading guilty, even though his attorney appeared only by telephone at his change of plea hearing. The U.S. Supreme Court on Jan. 7 reversed the Seventh Circuit’s decision granting his habeas corpus petition.

Nevertheless, the practice should not be repeated, as the result could have been different had it been considered on direct review, rather than as a federal habeas corpus review of a state court action.

Joseph Van Patten pleaded guilty to a reduced charge of first-degree reckless homicide, after being charged with first-degree intentional homicide in Shawano County.

His attorney was not physically present during the guilty plea hearing, but appeared by speakerphone, with the participants gathered around the judge’s bench. Van Patten was encouraged to take all the time he needed to confer with his attorney, and the court suggested he could talk to him privately if necessary.

After Van Patten was sentenced to the maximum 25 years, he retained different counsel, and moved to withdraw his plea, arguing that his attorney’s failure to appear personally violated his right to counsel.

The circuit court denied the motion, the court of appeals affirmed in an unpublished opinion, and the Wisconsin Supreme Court denied review.

Van Patten then sought relief in federal court. U.S. District Court Judge Rudolph T. Randa denied the petition. On appeal, the Seventh Circuit reversed, holding that counsel’s appearance by speakerphone was a structural error, and prejudice need not be shown by the defendant. Van Patten v. Deppisch, 434 F.3d 1038 (7th Cir. 2006) .

The U.S. Supreme Court vacated the opinion, and remanded the case to the Seventh Circuit to reconsider its holding in light of Carey v. Musladin, 127 S.Ct. 649 (2006).

On remand, the Seventh Circuit reached the same result, again holding that the Wisconsin court of appeals’ decision was contrary to clearly established federal law. Van Patten v. Endicott, 489 F.3d 827 (7th Cir. 2007).

The U.S. Supreme Court granted review, and reversed the opinion of the Seventh Circuit, in a per curiam opinion. Justice John Paul Stevens wrote a concurrence.

Ordinarily, Strickland v. Washington, 466 U.S. 668 (1984), applies to claims of ineffective assistance of counsel, and requires the defendant to show prejudice.

However, U.S. v. Cronic, 466 U.S. 648 (1984), applies in limited cases where prejudice can be presumed, such as when counsel is totally absent, or prevented from assisting the defendant during a critical stage of the proceedings.

The Wisconsin Court of Appeals applied Strickland, and found no prejudice; the Seventh Circuit applied Cronic, and held that Van Patten need not show prejudice.

However, because no prior U.S. Supreme Court precedent squarely add-resses whether counsel’s participation by speakerphone should be treated as a denial of counsel on par with total absence, the Supreme Court concluded that it was not unreasonable for the state court to apply Strickland, rather than Cronic, and require a showing of prejudice.

The explicit terms of 28 U.S.C. 2254 (d)(1), require that a state court holding be contrary to “clearly established Federal law,” for a federal writ to issue. Therefore, the court held that the Seventh Circuit was not authorized to grant Van Patten relief. Accordingly, the court reversed.

Justice Stevens wrote separately, attributing the holding in this case to “[a]n unfortunate drafting error in the Court’s opinion in [Cronic].”

Stevens opined, “The [Seventh Circuit] apparently read ‘the presence of counsel’ in Cronic to mean ‘the presence of counsel in open court.’ Initially, all three judges on the panel assumed that the constitutional right at stake was the right to have counsel by one’s side at all critical stages of the proceeding. … In my view, this interpretation is correct. The fact that in 1984, when Cronic was decided, neither the parties nor the Court contemplated representation by attorneys who were not present in the flesh explains the author’s failure to add the words ‘in open court’ after the word ‘present.’”

Given the absence of the expression “in open court,” however, Stevens agreed with the rest of the court that the Wisconsin Court of Appeals’ interpretation was not unreasonable.

Case analysis

Although Van Patten may not get a second chance in his case, it would be unwise in the future for a circuit court to allow a defendant’s attorney to appear by speakerphone at a guilty plea hearing.

Both the per curiam opinion, and Justice Stevens’ concurrence express concern with allowing a plea to be entered in this way.

Stevens’ concurrence makes clear that, had the issue came to the court via direct review, he would have concluded that Van Patten must be allowed to withdraw his plea.

The final paragraph of the per curiam opinion avoids the issue, stating, “Petitioner tells us that ‘[i]n urging review, [the State] does not condone, recommend, or encourage the practice of defense counsel assisting clients by telephone rather than in person at court proceedings, even in nonadversarial hearings such as the plea hearing in this case,’ and he acknowledges that ‘[p]erhaps, under similar facts in a direct federal appeal, the Seventh Circuit could have properly reached the same result it reached here.’ Our own consideration of the merits of telephone practice, however, is for another day, and this case turns on the recognition that no clearly established law contrary to the state court’s conclusion justifies collateral relief.”

Thus, the State’s own petition for review all but acknowledges that counsel who is not physically present cannot offer effective assistance, and it would be hard-pressed to defend the practice in a future case, given its admissions in its petition for review.

The actual presence of counsel should also be required for sentencing hearings.

In an unpublished opinion, State v. Turonie, 2006 WI App 175, 295 Wis.2d 842, 751 N.W.2d 158 (Table), 2006 WL 1821338 (Wis.App., July 5, 2006), the defendant alleged ineffective assistance of counsel as a result of his attorney’s appearing at sentencing by telephone.

On appeal, the State conceded error, but only because of the Seventh Circuit’s opinion in Van Patten’s case.

The court of appeals wrote, “the State asserts that Van Patten was wrongly decided and points out that we are not bound by federal decisions, other than those of the United States Supreme Court. However, the State concedes that, as a practical matter, Turonie would ultimately be able to obtain resentencing by petitioning for a writ of habeas corpus in federal district court, where the Van Patten holding is binding precedent. Accordingly, the State requests that we reverse and remand for resentencing. We neither reject nor adopt the reasoning of Van Patten, but rather accept the State’s concession.”

Thus, no precedent any longer requires cir
cuit courts in Wisconsin to insist on the physical presence of attorneys at guilty plea hearings or sentencings; nevertheless, conducting such hearings by telephone poses an unnecessary risk to the finality of the proceedings without any benefit.