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Defendant’s Presence — “Remote” Appearance by Video, at Plea and Sentencing

State v. Lawrence P. Peters, 2000 WI App 154, 237 Wis. 2d 741, 615 N.W.2d 655, petition for rev. gr., 11/15/00, reversed on other grounds, 2001 WI 74
For Peters: Jane K. Smith
Issue: Whether a prior offense may be used to enhance a current one, where the plea and sentencing on the prior offense were accomplished by closed-circuit television.
Holding: Although the procedure used in the prior offense violated the &sect 971.04(1) statutory mandate of actual physical presence, it did not violate the constitution and therefore the prior offense could be used as a penalty enhancer.
Analysis: Peters, convicted of OAR, attempts to collaterally attack a prior OAR conviction on the ground that its plea and sentencing were accomplished by closed-circuit television rather than personal appearance.) The court begins with the assumption that a collateral attack requires a constitutional violation that affects the reliability of the prior conviction. ¶6. It’s clear that a statutory violation occurred: § 971.04(1) mandates a defendant’s physical presence at arraignment and sentencing. ¶7. However, this “does not automatically translate into a constitutional violation.” ¶10. The closed-circuit television proceeding comported with due process, the court agreeing with foreign authority that such a remote appearance is the legal equivalent of physical presence. ¶13. The case will turn on the arcana of collateral attack procedure. Under § 974.06(1), collateral attack isn’t limited to constitutional issues, but may assert a jurisdictional defect based on violation of the “laws of this state.” You could argue, that is, that the statutory violation was jurisdictional in nature (more concretely, a court lacks jurisdiction to take a “remote” guilty plea and, therefore, lacks jurisdiction to enter judgment of conviction on such a plea). Nonetheless, a defendant attacking an enhancement-prior may not be able to use § 974.06, because he’s not in custody under that offense. There is authority for the idea that the prior becomes entwined with the present sentence precisely because of its enhancement status.  Fawcett v. Bablitch, 962 F.2d 617 (7th Cir. 1992) (“person serving a sentence that has been enhanced because of a prior conviction may challenge the validity of that conviction by litigation against his current custodian”). But the viability of that holding may be questinable under Daniels v. U.S. and Lackawanna Co. D.A. v. Coss. And, the Wisconsin supreme court recently held that only denial of right to counsel will support an attack on an enhancer in the pending case, State v. David M. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528. This will make Peters’ already-difficult argument even harder.