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BENCH BLOG: Phoning in a guilty plea

Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at jeandimotto@gmail.com

Judge Jean DiMotto retired in 2013 after
16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at jeandimotto@gmail.com.

In a carefully reasoned decision, the Court of Appeals required certain safeguards before a defendant may be allowed to plead guilty by phone.

Whenever a defendant wants to plead guilty or no contest, a judge must conduct a colloquy with the defendant to ascertain that the plea is being entered freely and knowingly. “Freely” contemplates a voluntary, uncoerced choice, and “knowingly” perpends an understanding of the various constitutional rights the defendant is giving up by pleading guilty — the right to a jury trial and the rights attendant to a trial.

When engaging in such a colloquy, a judge not only listens to the defendant’s answers, but also observes the defendant’s nonverbal behavior to see if there are any indication of pressure having been brought to bear or confusion about rights and the fact that they are being waived. Disharmony between verbal and nonverbal behavior can be telling.

Thus, the longstanding practice has been for the defendant to be physically present in the courtroom with the presiding judge, the prosecutor and defense counsel when the defendant is entering a plea.

Presence in court

Nonetheless, what constitutes presence in court was a question taken up in 2012 by the state Supreme Court in State v. Soto. Soto was in a courtroom in one county with his attorney and the prosecutor while the presiding judge was in a courtroom in another county. The two courtrooms were connected by videoconferencing.

In deciding the case, the Wisconsin Supreme Court first interpreted sec. 971.04(1)(g) as requiring that the defendant be “present” in a courtroom when entering a plea.

Moreover, it held that the right to be “present” meant that a defendant had a right to be physically present in the same courtroom as the presiding judge.

But the court also determined that the right to be present in the same courtroom may be waived. The court set two requirements for waiver.

First, the judge “shall ascertain whether the defendant and his attorney, if represented by counsel, are able to see, speak to and hear the judge and that the judge can see, speak to and hear the defendant and counsel.”

Second, the judge “shall ascertain … whether the defendant knowingly, intelligently, and voluntarily consents to the use of videoconferencing.”

State v. Anderson

In a recent case before the Court of Appeals, Ricky Anderson pleaded guilty in a different set of circumstances than Soto had. He was on a phone in prison while the judge, prosecutor and his attorney were all present together in a courtroom.

Before starting the plea colloquy, Shawano County Judge James Habeck said: “Mr. Anderson, you know, you can be present in person for different things. For our procedure today, realizing the fact that we have a jury trial coming scheduled (next week) to start, is it okay that we do this by phone today?”

Anderson replied affirmatively.

Habeck then said he’d tried to arrange Anderson’s appearance “on the Internet” — presumably meaning videoconferencing — but that was not possible on short notice.

The judge then conducted the plea colloquy by speakerphone. The sentencing hearing was conducted at a later date with Anderson physically present in the courtroom.

Thereafter, Anderson sought to withdraw his plea on the grounds that he was deprived of his right to be present in court during his plea hearing in violation of sec. 971.04(1)(g). The request was denied, and Anderson appealed.

Distinguishable situations

District 3 Presiding Judge Lisa Stark described the issue as “whether Anderson waived his right to be present in the same courtroom as the presiding judge by agreeing to proceed with the plea hearing by telephone.”

The Court of Appeals determined that Anderson’s circumstances were “materially distinguishable” from Soto’s. Soto was physically present in a courtroom. By contrast, Anderson was in prison.

Another difference in circumstances was that Soto was in the courtroom with his attorney; both the judge and defense counsel could see Soto’s nonverbal cues during the colloquy, and Soto could consult his attorney. Anderson, on the other hand, was in prison while his attorney and the judge were in the courtroom.

Lastly, the Soto case involved videoconferencing whereas Anderson’s involved a phone.

Conclusion

Because of these differences, the Court of Appeals concluded that “more is required” when the defendant dials in by telephone, from prison, and is physically separated from counsel.

“Under these circumstances, we hold that a valid waiver of the defendant’s right to be present must be predicated upon a colloquy that unambiguously informs the defendant he or she has a right to be physically present for the plea hearing in the same courtroom as the presiding judge. “

Also, similar to one of the Soto criteria, “the court must specifically inquire, as often and in whatever manner necessary under the circumstances, whether the defendant is able to hear and understand the court and the other participants.”

Applying these two standards, the court decided that Judge Habeck’s colloquy was insufficient. The court also noted its ambiguity.

Telling Anderson he could be “present for different things” could have been understood as his being present for other proceedings, not this one. And the mention of appearing by the Internet but not mentioning the option of physical presence in the courtroom could have been understood to mean that the only other option was videoconferencing, not actual presence in the courtroom.

The court remanded the case for an evidentiary hearing to determine whether Anderson had knowingly, voluntarily, and intelligently waived his right to be present at his plea hearing.

Commentary

Who would have wanted to be in Anderson’s shoes, pleading guilty from a room in prison while the judge and attorneys are in a courtroom?

Expedience and the availability of a prison phone do not justify such a pathetic procedure for something as important as a person’s entering a plea and waiving fundamental constitutional rights.

As the Soto court observed: “A courtroom is a setting epitomizing and guaranteeing ‘calmness and solemnity,’ … so that a defendant may recognize that he has had access to the judicial process in a criminal proceeding.”

Thus, the Court of Appeals did well in articulating a requirement that a judge explicitly advise a defendant of his or her right to actually be present in the courtroom for a plea hearing.

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