A Kenosha County judge held a felony plea hearing on Zoom without ever telling the defendant he had the right to appear in person, violating both the defendant's statutory rights and standards established by the state Supreme Court, according to a new appeal.
Kenosha County Circuit Judge Bruce Schroeder denied without a hearing Mark Weiss' postconviction motion arguing that he did not "knowingly and voluntarily" waive his right to appear in person at the December, 2020, plea hearing. Schroeder said the right was actually a statutory directive under SCOW supervisory control, "which was suspended during the pandemic," Weiss' attorney, Assistant State Public Defender Kathilynne Grotelueschen wrote in a brief.
However, she wrote, "At the time Mr. Weiss entered his pleas, the circuit court was no longer subject to the Wisconsin Supreme Court’s COVID-19 orders." Instead, it was operating under Kenosha County Circuit Courts' operational plans. Those plans "did not take away a criminal defendant’s right to demand an in-person appearance for his plea hearing," she said.
Weiss should be allowed to withdraw his guilty pleas or at least have an evidentiary hearing on the issue, she said.
State law gives a defendant a right to be present at sentencing and the Supreme Court ruled that right applies to plea hearings where the judgment is handed down, she wrote. During the 2020 hearing Weiss pleaded guilty one count of arson to a building and intentional contact with a victim.
"The circuit court pronounced judgment and, therefore...Mr. Weiss had a statutory right to be present in person, in the same courtroom as the presiding judge," Grotelueschen wrote.
SCOW has made clear that judges must discuss with defendants their right to be present in the courtroom, she said. Courts must determine, if videoconferencing is used, that the defendant and counsel can see, speak to and hear the judge can do the same with the defendant and counsel.
Courts must also determine whether a defendant "knowingly, intelligently, and voluntarily consents to the use of videoconferencing," Grotelueschen said.
Schroeder did none of those things, she said.
The state, she said, argued that Weiss was "required to object to his remote appearance. This argument misses the mark. ... A defendant cannot knowingly waive a right that he does not know he has."
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