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State v. Jon Anthony Soto, 2010AP2273-CR, District 3, 5/17/11, affirmed 2012 WI 93

certification; for Soto: Shelley Fite, SPD, Madison Appellate; case activity, circuit court affirmed 2012 WI 93

Plea Procedure – Personal Presence

We certify this appeal to the Wisconsin Supreme Court to determine whether Jon Soto’s statutory right to be physically present during a plea hearing was violated when the judge conducted the hearing through video teleconferencing and whether this issue was properly preserved.

As suggested by the quote, the trial judge conducted a “remote” guilty plea proceeding: the judge was in one courthouse, and Soto and both attorneys in another, so they communicated via video teleconferencing. Soto argues that this procedure violated § 971.04(1)(g), which mandates that the defendant “be present” when judgment is pronounced. Caselaw cited in the certification supports the idea that this right to personal presence can’t be waived. The question is whether § 885.60 (which was subsequently adopted) supersedes this line of authority; and, if so, whether a formal colloquy is necessary to renunciation of this statutory right. Hence:

We certify this appeal to the Wisconsin Supreme Court to determine whether Wis. Stat. § 885.60 modifies the case law interpreting Wis. Stat. § 971.04.  We also request that the court clarify whether forfeiture or waiver applies and, if forfeiture, whether Soto’s agreement was sufficient, and if waiver, must the court conduct a more thorough colloquy.  This court cannot overturn existing precedent.  Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997).  We assert that only the supreme court can resolve a conflict between its rule and its existing precedent.  The supreme court is in the best position to interpret its own rule.  In addition, courts are increasingly using video technology as the technology improves.  Video conferencing can save circuit courts’ time, travel, and expense and, in some situations, enhance court security and public safety.  Resolution of these issues would assist the circuit courts in determining the proper use of video conferencing technology for taking guilty or no contest pleas.

If this issue seems vaguely familiar, you’re probably thinking of Wright v. Van Patten, 552 U.S. 120 (2008) (per curiam). The 7th Circuit had held that defense counsel’s appearance by speaker phone at Van Patten’s plea proceeding amounted to denial of counsel, Van Patten v. Endicott, 489 F.3d 827 (7th Cir. 2007); Van Patten v. Deppisch, 434 F.3d 1038 (7th Cir. 2006). The Supreme Court reversed, on the technical ground that there was no clearly established precedent “in this novel factual context,” therefore habeas can’t be supported. However strong the underlying merits of Van Patten’s argument, it was necessarily different from Soto’s: Van Patten was present in court, it was his attorney who wasn’t. In any event, the policy reasons mustered by the 7th might have some valence here, even if the context is different, 434 F.3d at 1045:

Physical presence is necessary not only so that counsel can keep an eye on the client and the prosecutor, but so the court can keep an eye on counsel. Even if a private line had been arranged for Van Patten to speak with his attorney, we would regard long-distance lawyering in critical-stage proceedings as inadequate to safeguard effective assistance of counsel and the integrity of the judicial process. This point underscores why Cronic, not Strickland, applies here.

Over a phone line, it would be all too easy for a lawyer to miss something. For example, she might prejudice her client by failing to make some important point during the proceedings and later claim it was a tactical decision (in which case Strickland mandates a large benefit of the doubt), when in reality she wasn’t paying attention. Or an attorney might realize he had neglected to inform the client of some crucial piece of information but be tempted to let it pass rather than broadcasting the issue to everyone in the room. Cf. Ivy v. Caspari, 173 F.3d 1136 (8th Cir.1999) (defendant’s guilty plea was not knowing and voluntary where counsel had failed to provide adequate explanation of elements of offense and other crucial information). On collateral review, courts can rarely assess an attorney’s performance from the printed record alone. Even assuming that counsel could hear and understand every word (and how many people who have experienced speakerphones or conference calls would stake their liberty on that assumption?),[3] the client or the judge might never know whether the defense attorney was hanging on every word, reading documents in another case, surfing the web, or falling asleep.[4] Cf. Burdine v. Johnson, 262 F.3d 336 (5th Cir.2001) (en banc), cert. denied sub nom. Cockrell v. Burdine, 535 U.S. 1120, 122 S.Ct. 2347, 153 L.Ed.2d 174 (2002) (under Cronic, defendant was denied assistance of counsel when his attorney repeatedly dozed during trial)

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