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Defendant waived right to appear in person; failed to show new factor for sentence modification

State v. Leroy Rice, Jr., 2022AP244-CR, 9/14/22, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs)

Rice sought resentencing based on an inadequate waiver of his right to be physically present at his sentencing per §971.04(1)(g) and based on a new factor: the circuit court overlooked his substance abuse needs at the time of sentencing and thus failed to make him eligible for substance abuse programming (SAP). Successful completion of SAP would entitle him to early release.  The court of appeals rejected both arguments.

Waiver of right to appeal in person. The circuit court held Rice’s final pretrial in January 2021, during the pandemic. The court told him that if he ended up entering a plea, he had a right to appear in person. At that point, the court and parties expected the next hearing to be in February. Rice stated on the record that it was okay for him to appear by Zoom for the possibility of entering a plea. The court found that he knowingly, intelligently, and voluntarily waived his right to appear in person.

The plea hearing in fact occurred in June.  Rice did not object to appearing by Zoom. But then on appeal, he argued that his waiver of his right to appear in person was inadequate.

The court of appeals held that the January 2021 colloquy and waiver were sufficient to waive Rice’s right to be physically present in June. Opinion, ¶29. It also pointed to Kenosha County’s Operational Plan, authorized by the Wisconsin Supreme Court’s COVID-19 orders. The Plan required all defendants to “notify the Court at the plea hearing if they wish to be present in person for disposition/sentencing hearings.” Rice did not notify the circuit court that he wanted to appear in person. Opinion, ¶¶25-28.

New factor sentence modification. Rice conceded that his actual substance abuse needs existed on the date of sentencing. He argued that the circuit court unknowingly overlooked them. Then when he entered the prison system DOC created a staffing report, based on information provided by Rice. It recommended 100-150 hours of possible programming.

The court of appeals held that the circuit court did not overlook Rice’s substance abuse needs. It referred to them several times. It simply considered other sentencing factors more relevant. Thus, Rice failed to satisfy one of the requirements for a new factor–information that was overlooked yet “highly relevant” to the imposition of sentence. See Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69, 73 (1975). Opinion, ¶¶40-41, ¶47.

The court of appeals was also unmoved by the DOC inmate classification report. The report was more like a reflection or second thoughts, which don’t qualify as new factors under State v. Grindemann, 2002 WI App 106, ¶23, 255 Wis. 2d 632, 648 N.W.2d 507.  Plus Rice failed to cite authority for the idea that the circuit court should just accept the information that Rice told DOC. Opinion, ¶¶44-45.


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