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Brief of appellant
Case no: 23AP1392, 23AP1393
Case name: State v Mark A. Weiss
Wisconsin Supreme Court: Petition for Review
Filing attorney: Kathilynne A. Grotelueschen
Title: Assistant state public defender
Law firm / agency: Wisconsin Office of the State Public Defender
Court of Appeals: District II, summary judgment affirming
Circuit Court: Kenosha County
Judge: Bruce Schroeder
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Issue presented
Mr. Weiss entered his guilty pleas on December 15, 2020, during the COVID-19 pandemic. He appeared at his plea hearing via Zoom from the Wisconsin Resource Center. The circuit court failed to conduct any colloquy with Mr. Weiss to ensure that he was aware of his right to appear in person and was waiving that right, or that he could see and hear the court and other parties. Postconviction, Mr. Weiss asserted that he did not know he had the right to be physically present in the courtroom for his plea hearing. The circuit court denied Mr. Weiss’ motion without a hearing. The court of appeals affirmed, holding that any violation of Mr. Weiss’ right to be physically present was harmless.
Does harmless error apply to violations of a defendant’s right to be physically present in the same courtroom as the judge when judgment is pronounced?
The circuit court denied Mr. Weiss’s postconviction motion without a hearing, finding that he had no right to be physically present at the time.
The court of appeals affirmed in a summary disposition. It assumed that Mr. Weiss’s right to be physically present was violated but held that any error was harmless in this case.
Criteria for review
Wisconsin Statute § 971.04(1)(g) “provides a criminal defendant with the statutory right to be in the same courtroom as the presiding judge when a plea hearing is held, if the court accepts the plea and pronounces judgment.”
This right is “particularly important to the actual or perceived fairness of the criminal proceedings,” and therefore, this Court has held that the right may be waived—through use of a specific colloquy—but not forfeited. Further, the court of appeals has adopted “a Bangert-type procedure to assess a defendant’s claim that he or she did not validly waive his or her right to be present at a plea hearing,” requiring that plea withdrawal be granted unless the state can prove that the defendant knowingly, voluntarily, and intelligently waived his right to be present despite an inadequate waiver colloquy.
***
The court of appeals found the violation of Mr. Weiss’ right to be physically present harmless because there was no reason to believe he would not have entered his plea had he been present in the courtroom at the time of the plea hearing.
No prior opinion from this Court, nor the court of appeals, has held that the harmless error rule applies to violations of a defendant’s right to be physically present at his plea hearing, nor what would constitute harmless error if it did. ...
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