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Defense win: colloquy inadequate to waive right to physical presence

State v. Ricky C. Anderson, 2017 WI App 17; case activity (including briefs)

Ricky Anderson pled to a sexual assault by telephone from prison, with his attorney, the prosecutor and the judge all in the courtroom. The court of appeals concludes the court did not do enough to establish either that Anderson knowingly waived his statutory right to be physically present or that the telephone connection was adequate to allow his meaningful participation in the hearing.

The court first considers and rejects Anderson’s claim that his lawyer’s separation from him constituted ineffective assistance of counsel. Anderson would have the issue analyzed under United States v. Cronic, 466 U.S. 648 (1984), which holds that under certain circumstances–notably the “complete denial of counsel”–a defendant need not show the deficient performance and prejudice that are typically required under Strickland v. Washington, 466 U.S. 668 (1984). The court of appeals disagrees that a defendant who participates by telephone, with his lawyer in the courtroom, is completely denied counsel. SCOTUS has held such a rule not “clearly established” such that it could entitled a defendant to federal habeas relief, and the court of appeals declines to announce such a rule in this case. (¶¶25-26). Absent a showing of deficient performance and prejudice, Anderson’s IAC claim fails. (¶¶27-28).

Anderson fares better with his argument that he was denied his statutory right to presence without an adequate waiver colloquy. The guiding case here is State v. Soto, 2012 WI 93, 343 Wis. 2d 43, 817 N.W.2d 848. Here, as in Soto, the plea hearing ended with the court’s entry of judgment, one of the events for which Wis. Stat. § 971.04(1) provides the defendant “shall be present.” Soto nevertheless concluded that the defendant, who appeared by video conference, had knowingly, voluntarily and intelligently waived his right to be physically present in the courtroom.

The court of appeals distinguishes Soto in two ways. It first notes the factual differences between that case and this one: Soto was in a courtroom with his attorney, connected by video with the judge in a different courtroom, while Anderson was alone in a prison room with his attorney in the courtroom. Thus he could not easily communicated privately with counsel, and beyond this

he could not see the other participants, and they could not see him. Again, this prevented the judge and counsel from observing non-verbal cues during the hearing, including during the exchanges relevant to a determination of whether a valid waiver of the right to be present occurred. In addition, when a hearing is conducted by videoconferencing, the ability to see the other participants provides an ongoing indicator that the technology is functioning correctly—if the audio cuts out, for instance, the other participants will be alerted to that fact because they will be able to see the defendant’s mouth moving without hearing what he or she is saying. Conversely, if the audio malfunctions during a hearing conducted by telephone, a court and other participants could have no idea there is a problem because they have little way of knowing anyone is speaking in the first place.


The court concludes that this arrangement requires greater care and a higher standard for a valid colloquy:

while Soto describes what a circuit court should do to establish a valid waiver of the defendant’s right to be present at his or her plea hearing when the defendant appears by videoconferencing or similar technology, is in a courtroom, and is in the same room as his or her attorney, we conclude more is required when, as in Anderson’s case, the defendant appears 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. In addition, 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.


The court finds this standard not met here. It goes on to hold that, even if Soto provides the correct test, the colloquy here didn’t clear even that low bar. First, the discussion between the court and the defendant failed to communicate that the defendant could, if he so chose, demand to be physically present; and second, the court failed to “enter into a colloquy” with Anderson to make sure that the technology was functioning properly. (¶¶44-49).

The court determines that the case should now be remanded to the circuit court, à la Bangert, for a hearing at which the state will have the burden to show that Anderson nevertheless knew of his right to presence and validly waived it. (¶¶51-55). It also rejects the state’s argument that any error was harmless. (¶¶56-58).

Judge Hruz concurs. He disagrees that the colloquy here did not pass the Soto test, but agrees with the majority that a more stringent test applies given the facts. (¶¶60-65).

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