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State v. Anderson

Court of Appeals of Wisconsin, District III

February 22, 2017

State of Wisconsin, Plaintiff-Respondent,
v.
Ricky C. Anderson, Defendant-Appellant.

         APPEAL from a judgment and an order of the circuit court for Shawano County No. 2014CF21: JAMES R. HABECK, Judge. Order reversed and cause remanded for further proceedings.

          Before Stark, P.J., Hruz and Seidl, JJ.

          STARK, P.J.

         ¶1 Ricky Anderson appeals a judgment convicting him of second-degree sexual assault of a child, as a repeater, and an order denying his postconviction motion for plea withdrawal. Anderson argues the circuit court should have allowed him to withdraw his plea because his statutory right to be present at his plea hearing, during which the court pronounced judgment, was violated when he appeared at that hearing by telephone. Anderson further argues he did not knowingly, intelligently, and voluntarily waive his right to be present at his plea hearing. In the alternative, Anderson argues the fact that he was not present in the same room as his attorney during the plea hearing violated his Sixth Amendment right to counsel.

         ¶2 We conclude Anderson has failed to demonstrate, under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), that his right to counsel was violated during the plea hearing. With respect to Anderson's other argument, we agree that Anderson had a statutory right to be physically present at his plea hearing. We further conclude the circuit court's waiver colloquy regarding Anderson's right to be present at the plea hearing was inadequate. In addition, we reject the State's argument that any error regarding the violation of Anderson's right to be present at his plea hearing was harmless as a matter of law. For the reasons explained below, we therefore reverse the order denying Anderson's postconviction motion and remand for a new postconviction evidentiary hearing, at which the State will have the burden to prove that Anderson knowingly, intelligently, and voluntarily waived his right to be present at his plea hearing.

         BACKGROUND

         ¶3 The State charged Anderson with second-degree sexual assault of a child, as a repeater, contrary to WIS . STAT . § 948.02(2) (2015-16). [1] A final pretrial hearing was scheduled for October 28, 2014. On the same date, Anderson was also scheduled to make an initial appearance in Shawano County case No. 2014CM128, in which he was charged with a single count of misdemeanor theft. Prior to October 28, Anderson's extended supervision in a previous case was revoked, and he was returned to prison.

         ¶4 On October 28, shortly before the scheduled final pretrial hearing, Anderson participated in a telephone conference call from prison with his attorney and the prosecutor, who were both in the prosecutor's office in Shawano. By the end of the call, the parties had reached an agreement to resolve both cases against Anderson. Namely, Anderson agreed to plead guilty to the second-degree sexual assault charge in the instant case, and, in exchange, the State agreed to recommend no more than fifteen years' initial confinement on that charge and to recommend dismissal of the misdemeanor theft charge in case No. 2014CM128.

         ¶5 The October 28 hearing therefore became a plea hearing. Anderson appeared at the hearing by telephone from prison. The judge, Anderson's trial attorney, and the prosecutor were present in the courtroom in Shawano. At the beginning of the hearing, the following exchange took place between Anderson and the circuit court regarding Anderson's appearance by telephone:

THE COURT: All right. And, Mr. Anderson, you know, you can be present in person for different things. For our procedure today, realizing the fact that we have a jury trial coming scheduled on November 5 to start, is it okay that we do this by phone today?
MR. ANDERSON: Yes.
THE COURT: So you understand, when I spotted this yesterday, we pursued whether we could get you by internet, then that would have given you the ability to see us and vice versa. But they were already filled up and we could not get that, so this was the next best technology.
MR. ANDERSON: Okay.
THE COURT: So you're aware of that. And [defense counsel] is here in the courtroom with me too.

         ¶6 The circuit court then conducted a plea colloquy with Anderson. After the colloquy, but before it accepted Anderson's plea, the court addressed him as follows:

THE COURT: All right. Also I could vacate the courtroom if you wanted to speak with your attorney and ask him any questions or discuss anything else. Do you feel confident on proceeding right now?
MR. ANDERSON: Yes.
THE COURT: So it's okay that we go ahead right now without talking with your attorney anymore?
MR. ANDERSON: Yes, sir.

         ¶7 The circuit court then accepted Anderson's guilty plea and pronounced him guilty. After the court pronounced judgment, the following exchange took place regarding the sentencing hearing:

THE COURT: Now at a future sentencing date, we can plan ahead and we can have you here in the courtroom for that. Would you like that, Mr. Anderson?
MR. ANDERSON: Yes.
THE COURT: All right. So we will make arrangements on that.

         Finally, just before the hearing ended, the prosecutor interjected, "Your Honor, if I may simply inquire of Mr. Anderson. Is it okay, Mr. Anderson, with you that we do this plea over the telephone?" Anderson responded, "Yes."

         ¶8 On January 14, 2015, Anderson was physically present in the courtroom for his sentencing hearing. At the beginning of the hearing, Anderson's attorney submitted to the circuit court a completed plea questionnaire and waiver of rights form, a one-page addendum related to the guilty plea waiver rule, a one-page recitation of the State's plea offer, a copy of the Information, a document entitled "Defendant's Notifications, " and copies of Wisconsin Criminal Jury Instructions 2104 and 2101B. Counsel explained:

I intended to complete the normal paperwork for a plea entry back when the Court took the plea, but I was surprised to find out that my client was not actually here. He would be appearing by phone.
Today I completed the paperwork. If you believe it would be acceptable, I would like to turn it in now for the record.

         The court responded, "Certainly."

         ¶9 The following exchange then occurred between Anderson and the circuit court regarding his plea:

THE COURT: On the plea form here, Mr. Anderson, is this your signature I see here?
MR. ANDERSON: Yes.
THE COURT: Did that occur after you had gone through your rights and procedures again with your attorney?
MR. ANDERSON: Yes.
THE COURT: Now it does indicate here that you have gotten some mental health treatment and also that you're on medication for depression. Do you believe you're understanding things here today?
MR. ANDERSON: Yes.
THE COURT: You seem to be speaking clearly without any unusual pause. And you haven't said a lot, but I did not notice a flat effect [sic] there.
Let me check what else you have here. Okay. We will accept that and mark that as received for today. I don't find it contrary to the earlier finding of knowing, free, voluntary, and understanding waiver of rights and plea entry.

         The court ultimately imposed a twenty-one year sentence, consisting of fifteen years' initial confinement and six years' extended supervision.

         ¶10 Anderson subsequently filed a postconviction motion for plea withdrawal. He asserted he should be allowed to withdraw his plea because he was deprived of his right to be present in court during his plea hearing.

         ¶11 The circuit court held a hearing on Anderson's postconviction motion, at which Anderson had the burden of proof. During the hearing, Anderson testified on direct examination that he did not know when he entered his plea that he had a right to be physically present in the courtroom:

[POSTCONVICTION COUNSEL:] So were you-were you aware that you had a right to be present in the courtroom when you entered your pleas?
[ANDERSON:] Well I didn't really know what was going on. I was confused because I never really had that happen.
[POSTCONVICTION COUNSEL:] Okay. So you never knew that you had a right to require them to bring you in- to be in the ...

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