COA applies harmless error rule to statutory right to be present at plea hearing, holds any error was harmless
State v. Charles Williams, 2024AP1424-CR, 12/2/25, District III (authored, not recommended for publication); case activity
Williams argues that the circuit court erred by denying his postconviction motion to withdraw his plea because he did not knowingly, intelligently, and voluntarily waive his right, under WIS. STAT. § 971.04(1)(g), to appear in person at the plea hearing. COA assumes without deciding that Williams did not waive his right to be present, but concludes that any error was harmless and affirms.
The state charged Williams with two counts of second-degree sexual assault of a child in 2020. (¶3). Defense counsel filed a “Waiver of Right to Personal Appearance” form before the Zoom arraignment hearing. (¶4). After defense counsel raised competency twice and moved to withdraw once, Williams appeared by Zoom at the plea hearing. (¶¶5-15). Counsel noted that Williams had signed the waiver form and the court confirmed that Williams could hear. (¶¶15-16). Williams confirmed he had received treatment for mental health conditions and was taking medication, but said that it did not interfere with his ability to understand the plea hearing. (¶16). The court then conducted the remainder of the required colloquy with Williams and accepted his plea. (¶¶16-17).
Less than a week after the plea hearing, Williams filed a motion to withdraw his plea. He appeared in person at the next hearing and withdrew the motion. (¶18). Williams also appeared in person for sentencing. (¶19). He later filed a postconviction motion to withdraw his plea, claiming that his statutory right to be present at the plea hearing was violated when he appeared by Zoom without the circuit court first obtaining a valid waiver. The court denied his motion. (¶20).
On appeal, Williams contends that a manifest injustice occurred in this case because he did not knowingly, intelligently, and voluntarily waive his statutory right to appear in person at the plea hearing. (¶23). “It is undisputed that Williams had a statutory right, pursuant to WIS. STAT. § 971.04(1)(g), to be present in the same courtroom as the presiding judge during the plea hearing because the circuit court accepted Williams’ no-contest plea and pronounced judgment during that hearing.” (¶23). COA “assume[s] without deciding that Williams did not validly waive his statutory right to be present in the courtroom for his plea hearing.” (¶24).
However, COA also concludes that the harmless error rule applies to this violation. (¶24). Although there is no binding case law on whether the harmless error rule applies to a violation of the right to be physically present during his or her plea hearing, Wisconsin courts have held that the harmless error rule applies to violations of WIS. STAT. § 971.04(1) generally. (¶¶29-30). Williams relies on State v. Anderson, 2017 WI App 17, 374 Wis. 2d 372374 Wis. 2d 372, which did not apply the harmless error rule to a violation of § 971.04(1)(g), but concluded that the state had failed to demonstrate that the error was harmless in that case. (¶¶31-32). Thus, “[t]he Anderson court applied these principles and explicitly left open the possibility that the harmless error rule may apply to a violation of a defendant’s statutory right to appear in person at his or her plea hearing.” (¶33). The court also distinguishes State v. Soto, 2012 WI 93, 343 Wis. 2d 43, 817 N.W.2d 848, and State v. Koopmans, 210 Wis. 2d 670, 563 N.W.2d 528 (1997)–both involving the right to be present at sentencing where harmless error was not raised.
COA then applies the harmless error analysis. It finds the facts that Williams appeared by audiovisual means rather than just audio, that nothing in the record suggests the videoconferencing malfunctioned, and that Williams did not allege that he did not understand any aspect of the plea, whether due to his virtual appearance or not, significant. (¶¶37-38). COA rejects Williams’s argument that his pre-sentencing plea withdrawal motion demonstrates he would have withdrawn his plea before sentencing if he had known he had a legal basis for doing so because the pre-sentencing motion was not based on his absence from the courtroom, and then Williams told the court he wanted to be sentenced. (¶¶40-41). The court also rejects Williams’s argument based on the fact that the circuit court failed to confirm that he could see the court or attorneys, that he could hear the attorneys, or that he was able to meet privately with his attorney. (¶42). COA therefore concludes that the state satisfied its burden to show beyond a reasonable doubt that Williams would have entered his no-contest plea even if he had been present in the courtroom for his plea hearing.