A guilty plea defendant has a statutory right under § 971.04(1)(g) to be present in court when the plea is accepted and judgment pronounced, but the right may be waived (as distinguished from forfeited), as it was here.
¶2 We conclude that Wis. Stat. § 971.04(1)(g) provides a criminal defendant the statutory right to be in the same courtroom as the presiding judge when a plea hearing is held, if the court accepts the plea and pronounces judgment. However, we also conclude that this statutory right may be waived and that Soto waived it prior to pleading and the court’s pronouncement of judgment. We so conclude because Soto appeared in a courtroom in the Trempealeau County courthouse; both his attorney and the prosecuting attorney also appeared in the same courtroom; through videoconferencing, the judge was able to see, speak to and hear Soto and Soto was able to see, speak to and hear the circuit court judge; the judge explained that videoconferencing would be used for the plea hearing if Soto chose to enter a plea that day; and Soto expressly consented to the use of videoconferencing for the plea hearing. Accordingly, we affirm the circuit court’s order denying Soto’s motion to withdraw his guilty plea.
Section 971.04 enumerates various proceedings at which “the defendant shall be present.” Plea proceedings aren’t among this listing, but “pronouncement of judgment” is, and in this instance the trial court “adjudged that [Soto] is convicted of the crime” when he entered his plea, ¶17: “Therefore, in the context of § 971.04(1)(g), ‘present’ means the defendant is in a courtroom when the plea is made and judgment is pronounced,” ¶22.
¶27 Furthermore, the Wis. Stat. § 971.04(1) requirement that “the defendant shall be present” applies to multiple paragraphs of § 971.04(1), such as (1)(b), “[a]t trial,” (1)(c), “[d]uring voir dire of the trial jury,” and (1)(f), “[w]hen the jury returns its verdict.” One would expect that the judge would be present in the same courtroom as the defendant when a trial is ongoing, when the jury is being questioned prior to their selection and when the verdict is returned. It would be contrary to the plain meaning of “present” to conclude that the term had different meanings for different paragraphs of subsec. (1) that employ a common introductory statement. Accordingly, we conclude that under§ 971.04(1)(g), Soto had a statutory right to be present in the same courtroom as the judge when he made his guilty plea because the judge accepted Soto’s plea and pronounced judgment in regard to the crime to which Soto pled.
This right is nonetheless subject to waiver (as distinguished from mere forfeiture), which requires “some affirmative relinquishment on the part of the holder,” ¶¶36-45.
¶46 When videoconferencing is proposed for a plea hearing at which it is anticipated that judgment will be pronounced, the judge should enter into a colloquy with the defendant that explores the effectiveness of the videoconferencing then being employed. In that regard, 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. The judge shall also ascertain, either by personal colloquy or by some other means, whether the defendant knowingly, intelligently, and voluntarily consents to the use of videoconferencing. In so doing, questions should be asked to suggest to the defendant that he has the option of refusing to employ videoconferencing for a plea hearing at which judgment will be pronounced.
The record shows an adequate waiver, ¶¶47-49.
Take note that the court qualifies the holding in State v. Koopmans, 210 Wis. 2d 670, 675, 563 N.W.2d 528 (1997), which granted resentencing because sentence had ben imposed in the defendant’s absence: “Soto argues that Koopmans stands for a broad rule that the right to be present absolutely cannot be waived. In light of the narrow question presented in that case, we do not read Koopmans as necessarily stating such a sweeping rule. Instead, we conclude that the case should be read to hold that a defendant who absents herself from sentencing, without more, has not sufficiently demonstrated waiver of her right to be physically present,” ¶41 n. 8.