STATE v. PETERS (2000)

Lawrence Peters collaterally attacks a prior criminal conviction for operating after revocation that enhanced his penalty in this case for subsequently operating after revocation.   In the prior conviction, Peters pled no contest and was sentenced via closed-circuit television.   Although the closed-circuit television procedure violated statutory criminal procedure, we conclude that the procedure did not violate Peters' constitutional due process rights.   Accordingly, we affirm the judgment.

background

¶ 2 Peters' appeal arises from the statutory scheme providing progressive penalties for successive convictions of operating a motor vehicle after revocation (OAR) or suspension of a license.   Peters was convicted of fifth-offense OAR, contrary to wis. Stat. § 343.44(1),¹ for driving while his license was revoked in April 1999.

 ¶ 3 Prior to pleading no contest, Peters filed a motion attacking, for sentencing purposes, the validity of his second OAR conviction that occurred in 1996.²  Peters did not seek a fact-finding hearing on his motion and presented no evidence other than the plea and sentencing transcript of the 1996 closed-circuit television hearing.   Although the circuit court acknowledged that there might have been a violation of statutory criminal procedure, the court concluded that any error was harmless.   The court denied Peters' motion, after which Peters entered a plea of no contest.³

¶ 4 Peters claims the closed-circuit television procedure violated his due process rights because he had an absolute right to be physically present in court during his plea and sentencing hearing.   He argues that his plea and sentencing are unreliable because of the “inherently coercive nature of jail for an unrepresented defendant ….”

discussion

 ¶ 5 Peters' collateral challenge to his prior OAR conviction presents a question of law that we decide on the basis of undisputed facts.   We decide questions of law without deference to the circuit court.   See State v. Woods, 117 Wis.2d 701, 715-16, 345 N.W.2d 457 (1984).

 ¶ 6 Before reaching the issue presented, we must determine the appropriate analytical framework for Peters' collateral challenge to a prior conviction that enhances his sentencing penalty.   We find that framework in State v. Baker, 169 Wis.2d 49, 485 N.W.2d 237 (1992).⁴  Baker allowed a defendant to collaterally attack his prior conviction by claiming that he did not knowingly, voluntarily and intelligently enter his plea.⁵  See id. at 55, 485 N.W.2d 237.   The defendant satisfied his initial burden by establishing a facial violation of wis. Stat. § 971.08(1), but only because that violation implicated a “constitutional right that would affect the reliability of the prior conviction, that is that would affect the integrity of the truth-finding process.”  Id. at 70, 485 N.W.2d 237 (citing Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967)).   Therefore, in order to attack a prior conviction, Baker requires a defendant to initially establish a constitutional violation that affects its reliability.   With this analytical framework, we turn to Peters' argument.

A. Statutory Criminal Procedure

 ¶ 7 Peters claims a violation of wis. Stat. § 971.04(1).   Section 971.04(1) provides that a defendant shall be present at the arraignment and at the imposition of sentence.⁶  Our supreme court has previously interpreted this statute as identifying the stages of the criminal process where a defendant must be physically present.   See State v. Vennemann, 180 Wis.2d 81, 93, 508 N.W.2d 404 (1993).⁷  Peters did not explicitly waive his right to be physically present, and we agree with the circuit court that the closed-circuit television procedure violated statutory criminal procedure.⁸

B. Due Process Argument

¶ 8 According to Baker, however, we must still decide whether Peters has established a violation of a constitutional right that affects the reliability of the conviction.   See id. at 70, 485 N.W.2d 237.   Peters claims that the closed-circuit television procedure violated his constitutional rights to due process.⁹  Wisconsin courts have recognized that “the presence of the defendant is required as a constitutional condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.”  May v. State, 97 Wis.2d 175, 186, 293 N.W.2d 478 (1980) (citing Snyder v. Massachusetts, 291 U.S. 97, 107, 108, 54 S.Ct. 330, 78 L.Ed. 674 (1934)).

¶ 9 The due process requirement for physical presence stands in contrast to the constitutional requirement at issue in Baker :  For accepting a no contest plea, Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), “requires an affirmative showing or an allegation and evidence which show that the defendant entered the plea knowingly, voluntarily and intelligently.”   See Baker, 169 Wis.2d at 73, 485 N.W.2d 237 (emphasis added).   As explained in Baker, however, Boykin does not set forth the specific procedural requirements that a circuit court must follow in accepting a no contest plea.   See Baker, 169 Wis.2d at 73, 485 N.W.2d 237.   Because Wisconsin courts had interpreted wis. Stat. § 971.08 as specifying those procedures, the Baker defendant satisfied his initial burden by establishing a violation of § 971.08. See Baker, 169 Wis.2d at 73, 485 N.W.2d 237.

 ¶ 10 Comparatively, wis. Stat. § 971.04(1) has not been interpreted to specify constitutionally mandated procedures.   Therefore, a statutory violation of § 971.04(1) does not automatically translate into a constitutional violation.   To meet his initial burden, Peters must show that the closed-circuit television procedure denied him a fair and just hearing.   See May, 97 Wis.2d at 186, 293 N.W.2d 478.

 ¶ 11 We conclude that the closed-circuit television procedure did not violate Peters' due process rights.   During the hearing, the court clarified for Peters the elements of the offense and the ramifications of a decision to waive counsel.   The court explained the constitutional rights Peters would be waiving by entering his plea.   Peters stated that he understood his rights and wanted to plead no contest.   The court inquired of Peters' education and his physical condition.   On two separate occasions the court asked Peters if anyone had threatened him or coerced him into entering his plea and waiving his constitutional rights.   Peters answered each time that he had not been coerced or threatened.   The judge was able to observe Peters' demeanor, and Peters was able to observe the judge.   Peters did not object to the procedure, and freely explained that he desired to plead no contest and did not want the assistance of counsel.   The court accepted Peters' plea and sentenced him according to a negotiated recommendation.   Other than conducting the hearing by closed-circuit television, the plea and sentencing followed appropriate procedure.¹⁰

¶ 12 We note that there is no indication from Peters now that he was coerced or threatened by outside forces.   Peters does not even suggest that he lacked an ability to effectively communicate with the judge and other participants in the courtroom.   We conclude that the record clearly and convincingly indicates that the hearing's fairness and justness was not thwarted by Peters' physical absence.   See May, 97 Wis.2d at 186, 293 N.W.2d 478.

 ¶ 13 We reject Peters' contention that entering a no contest plea from jail by closed-circuit television is always coercive or violative of due process.¹¹  We agree with a Florida district court of appeals that noted that “an audio-video hookup may well be the legal equivalent of physical presence.” ¹²  Scott v. Florida, 618 So.2d 1386, 1388 (Fla.Dist.Ct.App.1993).   Absent any substantiated allegations of unfairness, we are not persuaded that simply appearing live via closed-circuit television, as opposed to being physically present in the courtroom, would inherently damage the fairness or justness of the plea hearing.¹³

Judgment affirmed.

I concur, but write to emphasize what I perceive as our core holding.   It is not hard to conceive that a pro se incarcerated defendant could find being in a room in the jail with only corrections staff present a coercive environment in which to enter an inculpatory plea.   Our opinion can be read to hold that to the extent it is true that this scenario may breed coercion, more must be shown.   In order to implicate due process, the defendant must make specific showings that the environment was coercive in fact and the manner in which the circumstances affected his or her decision to plead guilty or no contest.

¶ 1 PETERSON, J.