State v. Anderson
| Decision Date | 22 February 2017 |
| Docket Number | Appeal No. 2015AP2611-CR |
| Citation | 2017 WI App 17,374 Wis.2d 372,896 N.W.2d 364 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Ricky C. ANDERSON, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Jeremy Newman and Colleen Marion, assistant state public defenders, Madison.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Thomas J. Balistreri, assistant attorney general, and Brad D. Schimel, attorney general.
Before Stark, P.J., Hruz and Seidl, JJ.
¶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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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.
¶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:
¶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:
¶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:
Finally, just before the hearing ended, the prosecutor interjected, 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:
The court responded, "Certainly."
¶9 The following exchange then occurred between Anderson and the circuit court regarding his plea:
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:
¶12 On cross-examination, Anderson acknowledged the circuit court informed him during the plea hearing that he could be present in the courtroom for "different things." Anderson also acknowledged he had agreed to go forward with the plea hearing by telephone. However, on redirect examination, Anderson clarified that, when the circuit court told him he could be present for "different things," he thought the court meant "[s]entencing, anything, different thing—it was just—I was thinking he was referring to video court." Anderson reiterated he did not know he had a right to "demand to be present in court."
¶13 Following Anderson's testimony, the State called Anderson's trial attorney as a witness. Counsel testified that, during the telephone conference just before the plea hearing, Anderson expressed a strong desire to settle the case and enter a plea. Counsel further testified he had no reason to doubt Anderson's competency. Finally, counsel testified he was familiar with the discovery materials provided by the State and was aware Anderson had confessed to sexually assaulting the victim, a minor who suffered from "developmental delays." Counsel was never asked, and thus did not testify, regarding whether he ever informed Anderson he had a right to be present in court for the plea hearing.
¶14 The circuit court denied Anderson's motion for plea withdrawal, concluding Anderson "clearly waived his rights to be present at the plea hearing." Anderson now appeals.
¶15 To withdraw a plea after sentencing, a defendant must prove by clear and...
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