Jon Anthony Soto,
May 17, 2011
A. John Voelker
Acting Clerk of Supreme Court
We certify this appeal to the Wisconsin Supreme Court to determine whether Jon Soto’s statutory right to be physically present during a plea hearing was violated when the judge conducted the hearing through video teleconferencing and whether this issue was properly preserved.
Soto was charged with numerous felonies in
Following his conviction, Soto filed a motion to withdraw his guilty plea, arguing that conducting the plea hearing via video teleconferencing violated Wis. Stat. § 971.04(1)(g) (2009-10) and Soto’s due process rights. The circuit court denied the motion. Its language suggests that Soto waived or forfeited his claim by agreeing to the video teleconference and that any error was harmless. It found the technology allowed the court to clearly see Soto, defense counsel and the State’s attorney all at the same time. Soto and his counsel were also able to clearly see the court. The court concluded that Soto had the burden of establishing how the technology used denied him a fair and just hearing, and it could not imagine any different outcome from being present in the same place as Soto and his counsel.
Wisconsin Stat. § 971.04(1)(g)
provides that a defendant “shall be present” at the pronouncement of judgment
and the imposition of sentence.
“Present” means “physically present.”
State v. Vennemann, 180
In 2008, the supreme court created rules on the use of video conferencing and adopted Wis. Stat. § 885.60 to govern the use of teleconferencing technology in criminal cases. Subsection (1) allows the circuit court to permit the use of video conferencing technology in any pre-trial, trial or fact-finding, or post-trial proceeding. Subsection (2)(a) provides that, except as may otherwise be provided by law, a defendant in a criminal case is entitled to be physically present in the courtroom at all critical stages of the proceedings, including plea hearings at which a plea of guilty will be offered. Subsection (2)(b) creates procedures relating to a witness testifying via video conferencing technology. Subsection (2)(c) gives the court discretion regarding the use of video conferencing if an objection is made by the plaintiff or petitioner. Subsection (2)(d) gives a defendant in a criminal case veto power over conducting a plea hearing by video conferencing.
The State concedes that Soto’s argument “might have some force prior to adoption of the video conferencing rules.” However, the State asserts that the adoption of Wis. Stat. § 885.60 supersedes the holding in Koopmans, and allows a defendant to waive or forfeit his right to be physically present at a plea hearing.
Soto contends that Wis. Stat. § 885.60(2)(a) mirrors Wis. Stat. § 971.04(1) as interpreted and does not modify it. He supports that argument with the supreme court’s comments and an article published by one of the drafters of the subchapter indicating that the new teleconferencing rule was meant to preserve a defendant’s existing rights. Soto argues that subsection (2)(a) is a complete exception to the general rule of subsection (1) and the provisions of subsection (2)(d) only make sense in reference to the objection discussed in subsections (2)(b) and (2)(c) which refer to witnesses’ testimony, not a criminal defendant’s physical presence.
Soto also argues that even if Soto’s right to physical presence can be waived or forfeited, the court should have conducted a formal colloquy to fully inform Soto of his rights before accepting any waiver. The State contends that the requirement for a colloquy before waiver of a right applies only to a constitutional right, and Soto’s renunciation of his statutory right is merely a forfeiture of the right for which no colloquy was necessary.
Finally, the State argues that any error in conducting the hearing by video conferencing was harmless because the quality of the technology was much better than the defective technology used in earlier cases. Soto replies that the State cannot meet its burden of proving harmless error because it is impossible for the court to know whether it has seen and heard everything that occurred in the courtroom when it was not physically present in the same room as the parties.
We certify this appeal to the Wisconsin Supreme Court to
determine whether Wis. Stat. § 885.60
modifies the case law interpreting Wis.
Stat. § 971.04. We also
request that the court clarify whether forfeiture or waiver applies and, if
forfeiture, whether Soto’s agreement was sufficient, and if waiver, must the
court conduct a more thorough colloquy.
This court cannot overturn existing precedent. Cook v. Cook, 208
 All references to the Wisconsin Statutes refer to the 2009-10 version unless otherwise noted.
 The court did not differentiate in its ruling between Soto’s statutory claim and his constitutional claim. Soto abandoned the due process argument on appeal.
Use in criminal cases and proceedings under chapters 48, 51, 55, 938, and 980.
(1) Subject to the standards and criteria set forth in ss. 885.54 and 885.56 and to the limitations of sub. (2), a circuit court may, on its own motion or at the request of any party, in any criminal case or matter under chs. 48, 51, 55, 938, or 980, permit the use of videoconferencing technology in any pre-trial, trial or fact-finding, or post-trial proceeding.
(2)(a) Except as may otherwise be provided by law, a defendant in a criminal case and a respondent in a matter listed in sub. (1) is entitled to be physically present in the courtroom at all critical stages of the proceedings, including evidentiary hearings, trials or fact-finding hearings, plea hearings at which a plea of guilty or no contest, or an admission, will be offered, and sentencing or dispositional hearings.
(b) A proponent of a witness via videoconferencing technology at any evidentiary hearing, trial, or fact-finding hearing shall file a notice of intention to present testimony by videoconference technology 20 days prior to the scheduled start of the proceeding. Any other party may file an objection to the testimony of a witness by videoconference technology within 10 days of the filing of the notice of intention. If the time limits of the proceeding do not permit the time periods provided for in this paragraph, the court may in its discretion shorten the time to file notice of intention and objection.
(c) If an objection is made by the plaintiff or petitioner in a matter listed in sub. (1), the court shall determine the objection in the exercise of its discretion under the criteria set forth in s. 885.56.
(d) If an objection is made by the defendant or respondent in a matter listed in sub. (1), the court shall sustain the objection.