971.04(3)
(3) If the defendant is present at the beginning of the trial and thereafter, during the progress of the trial or before the verdict of the jury has been returned into court, voluntarily absents himself or herself from the presence of the court without leave of the court, the trial or return of verdict of the jury in the case shall not thereby be postponed or delayed, but the trial or submission of said case to the jury for verdict and the return of verdict thereon, if required, shall proceed in all respects as though the defendant were present in court at all times. A defendant need not be present at the pronouncement or entry of an order granting or denying relief under s.
974.02,
974.06, or
974.07. If the defendant is not present, the time for appeal from any order under ss.
974.02,
974.06, and
974.07 shall commence after a copy has been served upon the attorney representing the defendant, or upon the defendant if he or she appeared without counsel. Service of such an order shall be complete upon mailing. A defendant appearing without counsel shall supply the court with his or her current mailing address. If the defendant fails to supply the court with a current and accurate mailing address, failure to receive a copy of the order granting or denying relief shall not be a ground for tolling the time in which an appeal must be taken.
971.04 History
History: 1971 c. 298; Sup. Ct. Order, 130 Wis. 2d xix (1986);
1993 a. 486; Sup. Ct. Order No.
96-08, 207 Wis. 2d xv (1997);
2001 a. 16.
971.04 Note
Judicial Council Note, 1996: This statute [sub. (1) (c)] defines the proceedings at which a criminal defendant has the right to be present. The prior statute's [sub. (1) (c)] reference to “all proceedings when the jury is being selected" was probably intended to include only those at which the jurors themselves were present, not the selection of names from lists which occurs at several stages before the defendant is charged or the trial jury picked. [Re Order effective 1-1-97]
971.04 Annotation
The court erred in resentencing the defendant without notice after imposition of a previously ordered invalid sentence. State v. Upchurch,
101 Wis. 2d 329,
305 N.W.2d 57 (1981).
971.04 Annotation
If the court is put on notice that the accused has a language difficulty, the court must make a factual determination of whether an interpreter is necessary. If so, the accused must be made aware of the right to an interpreter, at public cost if the accused is indigent. A waiver of the right must be made voluntarily in open court on the record. State v. Neave,
117 Wis. 2d 359,
344 N.W.2d 181 (1984).
971.04 Annotation
Sub. (2) allows entry of a plea to a misdemeanor by an attorney without the defendant being present, but for a guilty or no contest plea, all requirements of s. 971.08, except attendance, must be met. State v. Krause,
161 Wis. 2d 919,
469 N.W.2d 241 (Ct. App. 1991).
971.04 Annotation
Sub. (1) does not encompass a postconviction evidentiary hearing. State v. Vennemann,
180 Wis. 2d 81,
508 N.W.2d 404 (1993).
971.04 Annotation
A defendant present at the beginning of jury selection is not “present at the beginning of the trial" under sub. (3). State v. Dwyer,
181 Wis. 2d 826,
512 N.W.2d 533 (Ct. App. 1994).
971.04 Annotation
A defendant's presence is required during all proceedings when the jury is being selected, including in camera voir dire. However, failure to allow the defendant's presence may be harmless error. State v. David J.K.
190 Wis. 2d 726,
528 N.W.2d 434 (Ct. App. 1994).
971.04 Annotation
A trial begins under sub. (3) occurs when jeopardy attaches, which is when the jury is sworn. State v. Miller,
197 Wis. 2d 518,
541 N.W.2d 153 (Ct. App. 1995),
95-0129.
971.04 Annotation
An accused has the right to be present at trial, but the right may be waived by misconduct or consent. A formal on-the-record waiver is favored, but not required. State v. Divanovic,
200 Wis. 2d 210,
546 N.W.2d 501 (Ct. App. 1996),
95-0881.
971.04 Annotation
A defendant may not be sentenced in absentia. The right to be present for sentencing may not be waived. State v. Koopmans,
210 Wis. 2d 670,
563 N.W.2d 528 (1997),
94-2424.
971.04 Annotation
Koopmans does not require rejecting the harmless error test for all violations of this section. State v. Peterson,
220 Wis. 2d 474,
584 N.W.2d 144 (Ct. App. 1998),
97-3294.
971.04 Annotation
Deprivation of the right to be present and to have counsel present at jury selection is subject to a harmless error analysis; there is a thin line between when reversal is warranted and when it is not. That a juror's subjective bias is generally ascertained by that person's responses at voir dire and that the interplay between potential jurors and a defendant is both immediate and continuous are factors that weigh against finding harmless error. State v. Harris,
229 Wis. 2d 832,
601 N.W.2d 682 (Ct. App. 1999),
98-1091.
971.04 Annotation
A violation of sub. (1) does not automatically translate into a constitutional violation. The entry of a plea from jail by closed circuit TV, while a violation of the statute, does not violate due process absent a showing of coercion, threat, or other unfairness. State v. Peters,
2000 WI App 154,
237 Wis. 2d 741,
615 N.W.2d 655,
99-1940. But see also
2001 WI 74,
244 Wis. 2d 470,
628 N.W.2d 797,
99-1940.
971.04 Annotation
The correction of a clerical error in the sentence portion of a written judgment to reflect accurately an oral pronouncement of sentence is not the pronouncement or imposition of a sentence under sub. (1) (g) and does not mandate the offender's presence when the error is corrected. State v. Prihoda,
2000 WI 123,
239 Wis. 2d 244,
618 N.W.2d 857,
98-2263.
971.04 Annotation
Excusing and deferring prospective jurors under s. 756.03 is one component of a circuit judge's obligation to administer the jury system. The judge may delegate the authority to the clerk of circuit court under s. 756.03 (3), may be handled administratively, need not be handled by a judge, in court, or with the prospective juror present in person, and may take place well in advance of a particular trial. The defendant's presence cannot be required when the judge or clerk is acting in an administrative capacity. State v. Gribble,
2001 WI App 227,
248 Wis. 2d 409,
636 N.W.2d 488,
00-1821.
971.04 Annotation
Although it was error for the court to interview potential jurors outside of the presence of the prosecution, defendant, and defense counsel, the error was harmless when there was no showing that it contributed to the defendant's conviction. State v. Tulley,
2001 WI App 236,
248 Wis. 2d 505,
635 N.W.2d 807,
00-3084.
971.04 Annotation
A court's order that the defendant not look at his victim during her statement to the court, because, the trial court said, “I just don't want him intimidating her," did not deprive the defendant of his statutory right under this section or a due process right to be present at his sentencing. State v. Payette,
2008 WI App 106,
313 Wis. 2d 39,
756 N.W.2d 423,
07-1192.
971.04 Annotation
Sub. (1) (g) provides a criminal defendant the statutory right to be in the same courtroom as the presiding judge when a plea hearing is held and the court accepts the plea and pronounces judgment. A defendant may waive, but not forfeit, the right to be in the same courtroom as the presiding judge. State v. Soto,
2012 WI 93,
343 Wis. 2d 43,
817 N.W.2d 848,
10-2273 971.04 Annotation
The defendant waived his statutory right to be in the same courtroom as the presiding judge because he appeared in a courtroom with both his attorney and the prosecuting attorney; through videoconferencing, the judge was able to see, speak to, and hear the defendant, and the defendant was able to see, speak to, and hear the judge; the judge explained that videoconferencing would be used for the plea hearing if the defendant chose to enter a plea that day; and the defendant expressly consented to the use of videoconferencing for the plea hearing. State v. Soto,
2012 WI 93,
343 Wis. 2d 43,
817 N.W.2d 848,
10-2273.
971.04 Annotation
The circuit court's decision to exclude the defendant from in-chambers meetings with jurors during the trial regarding possible bias did not violate the statutory right under sub. (1) (c) to be present during voir dire. Voir dire is a preliminary examination of whether an individual can serve on a jury. In this case, the trial had already commenced and the jurors had already been selected when the bias issue arose. State v. Alexander,
2013 WI 70,
349 Wis. 2d 327,
833 N.W.2d 126,
11-0394.
971.04 Annotation
While
Soto describes what a circuit court should do to establish a valid waiver of the defendant's right to be present at his or her plea hearing when the defendant appears by videoconferencing or similar technology, is in a courtroom, and is in the same room as his or her attorney, more is required when the defendant appears by telephone, from prison, and is physically separated from counsel. Under these circumstances, a valid waiver of the defendant's right to be present must be predicated upon a colloquy that unambiguously informs the defendant he or she has a right to be physically present for the plea hearing in the same courtroom as the presiding judge. The court must specifically inquire, as often and in whatever manner is necessary under the circumstances, whether the defendant is able to hear and understand the court and the other participants. State v. Anderson,
2017 WI App 17,
374 Wis. 2d 372,
896 N.W.2d 364,
15-2611.
971.04 Annotation
In a case in which a defendant asserts he or she did not validly waive his or her right to be present at a plea hearing, once a defendant has shown that the circuit court's waiver colloquy was deficient and has asserted that he or she did not understand his or her right to appear in person at the plea hearing, the burden should shift to the state to prove by clear and convincing evidence that the defendant did, in fact, knowingly, voluntarily, and intelligently waive his or her right to be present. State v. Anderson,
2017 WI App 17,
374 Wis. 2d 372,
896 N.W.2d 364,
15-2611.
971.04 Annotation
Sub. (3) sets forth a way that a defendant can forfeit the right to be present at trial: by leaving after the jury has been sworn. The statute does not limit a defendant's ability to waive the right to be present and does not purport to set forth the exclusive manner in which a defendant can relinquish the right to be present. Sub. (3) was created to attend to the situation in which a defendant absconds, not when an obstreperous defendant seeks to delay and disrupt proceedings through his or her own actions. State v. Washington,
2018 WI 3,
379 Wis. 2d 58,
905 N.W.2d 380,
16-0238.
971.04 Annotation
Similar to the constitutional right to be present, a defendant may waive his or her statutory right to be present at certain proceedings enumerated in sub. (1). Waiver can be either express or by conduct. Determining whether there is waiver by conduct presents a fact intensive inquiry. State v. Washington,
2018 WI 3,
379 Wis. 2d 58,
905 N.W.2d 380,
16-0238.
971.05
971.05
Arraignment. If the defendant is charged with a felony, the arraignment may be in the trial court or the court which conducted the preliminary examination or accepted the defendant's waiver of the preliminary examination. If the defendant is charged with a misdemeanor, the arraignment may be in the trial court or the court which conducted the initial appearance. The arraignment shall be conducted in the following manner:
971.05(1)
(1) The arraignment shall be in open court.
971.05(2)
(2) If the defendant appears for arraignment without counsel, the court shall advise the defendant of the defendant's right to counsel as provided in s.
970.02.
971.05(3)
(3) The district attorney shall deliver to the defendant a copy of the information in felony cases and in all cases shall read the information or complaint to the defendant unless the defendant waives such reading. Thereupon the court shall ask for the defendant's plea.
971.05(4)
(4) The defendant then shall plead unless in accordance with s.
971.31 the defendant has filed a motion which requires determination before the entry of a plea. The court may extend the time for the filing of such motion.
971.05 Annotation
When through oversight, an arraignment is not held, it may be conducted after both parties had rested during the trial. Bies v. State,
53 Wis. 2d 322,
193 N.W.2d 46.
971.06(1)(1)
A defendant charged with a criminal offense may plead as follows:
971.06(1)(c)
(c) No contest, subject to the approval of the court.
971.06(1)(d)
(d) Not guilty by reason of mental disease or defect. This plea may be joined with a plea of not guilty. If it is not so joined, this plea admits that but for lack of mental capacity the defendant committed all the essential elements of the offense charged in the indictment, information or complaint.
971.06(2)
(2) If a defendant stands mute or refuses to plead, the court shall direct the entry of a plea of not guilty on the defendant's behalf.
971.06(3)
(3) At the time a defendant enters a plea, the court may not require the defendant to disclose his or her citizenship status.
971.06 History
History: 1985 a. 252;
1993 a. 486.
971.06 Annotation
Inaccurate legal advice renders a plea an uninformed one and can compromise the voluntariness of the plea. State v. Woods,
173 Wis. 2d 129,
496 N.W.2d 144 (Ct. App. 1992).
971.06 Annotation
The decision to plead guilty is personal to the defendant. A defendant's attorney cannot renegotiate a plea agreement without the defendant's knowledge and consent. State v. Woods,
173 Wis. 2d 129,
496 N.W.2d 144 (Ct. App. 1992).
971.06 Annotation
Whether to grant a defendant's motion to change a plea is within the court's discretion. State v. Kazee,
192 Wis. 2d 213,
531 N.W.2d 332 (Ct. App. 1995).
971.06 Annotation
The decision to withdraw a not guilty by reason of mental defect plea belongs to the defendant, and not counsel. State v. Byrge,
225 Wis. 2d 702,
594 N.W.2d 388 (Ct. App. 1999),
97-3217.
971.06 Annotation
If a defendant enters a plea of not guilty by reason of mental disease or defect under sub. (1) (d) without an accompanying not-guilty plea, the defendant waives the constitutional right to a trial as to the guilt phase and admits that he or she committed the criminal act. State v. Fugere,
2018 WI App 24,
381 Wis. 2d 142,
911 N.W.2d 127,
16-2258.
971.07
971.07
Multiple defendants. Defendants who are jointly charged may be arraigned separately or together, in the discretion of the court.
971.08
971.08
Pleas of guilty and no contest; withdrawal thereof. 971.08(1)(1)
Before the court accepts a plea of guilty or no contest, it shall do all of the following:
971.08(1)(a)
(a) Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted.
971.08(1)(b)
(b) Make such inquiry as satisfies it that the defendant in fact committed the crime charged.
971.08(1)(c)
(c) Address the defendant personally and advise the defendant as follows: “If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law."
971.08(2)
(2) If a court fails to advise a defendant as required by sub.
(1) (c) and a defendant later shows that the plea is likely to result in the defendant's deportation, exclusion from admission to this country or denial of naturalization, the court on the defendant's motion shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea. This subsection does not limit the ability to withdraw a plea of guilty or no contest on any other grounds.
971.08(3)
(3) Any plea of guilty which is not accepted by the court or which is subsequently permitted to be withdrawn shall not be used against the defendant in a subsequent action.
971.08 Annotation
A court can consider a defendant's record of juvenile offenses at a hearing on his guilty pleas prior to sentencing. McKnight v. State,
49 Wis. 2d 623,
182 N.W.2d 291 (1971).
971.08 Annotation
When a plea agreement contemplates the nonprosecution of uncharged offenses, the details of the plea agreement should be made a matter of record, whether it involves a recommendation of sentencing, a reduced charge, a nolle prosequi of charges, or “read ins" with an agreement of immunity. A “read-in" agreement made after conviction or as part of a post-plea-of-guilty hearing to determine the voluntariness and accuracy of the plea should be a part of the sentencing hearing and made a matter of record. Austin v. State,
49 Wis. 2d 727,
183 N.W.2d 56 (1971).
971.08 Annotation
A defendant may not withdraw a guilty plea simply because he or she did not specifically waive all of his constitutional rights if the record shows that the defendant understood what rights were waived by the plea. After a guilty plea, the hearing on the factual basis for the plea need not produce competent evidence that satisfies the criminal burden of proof. Edwards v. State,
51 Wis. 2d 231,
186 N.W.2d 193 (1971).
971.08 Annotation
It is sufficient for a court to inform a defendant charged with several offenses of the maximum penalty that could be imposed for each. Burkhalter v. State,
52 Wis. 2d 413,
190 N.W.2d 502 (1971).
971.08 Annotation
A desire to avoid a possible life sentence by pleading guilty to a lesser charge does not alone render a plea involuntary. A claimed inability to remember does not require refusal of the plea if the evidence is clear that the defendant committed the crime. State v. Herro,
53 Wis. 2d 211,
191 N.W.2d 889 (1971).
971.08 Annotation
The proceedings following a plea of guilty were not designed to establish a prima facie case, but to establish the voluntariness of the plea and the factual basis therefor. If the defendant denies an element of the crime after pleading guilty, the court is required to reject the plea and set the case for trial and is not obliged to dismiss the action because of refusal to accept the guilty plea. Johnson v. State,
53 Wis. 2d 787,
193 N.W.2d 659 (1972).
971.08 Annotation
A hearing on a motion to withdraw a guilty plea is to be liberally granted if the motion is made prior to sentencing; it is discretionary if made thereafter and need not be granted if the record refutes the allegations. The defendant must raise a substantial issue of fact. Nelson v. State,
54 Wis. 2d 489,
195 N.W.2d 629 (1972).
971.08 Annotation
If there is strong evidence of guilt, a conviction will be sustained even against a defendant who, having pleaded guilty, nonetheless denies the factual basis for guilt. State v. Chabonian,
55 Wis. 2d 723,
201 N.W.2d 25 (1972).
971.08 Annotation
A plea bargain that contemplates special concessions to another person requires careful scrutiny by the court. If the prosecuting attorney has agreed to seek charge or sentence concessions which must be approved by the court, the court must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the court. The bargain must also be reviewed to determine whether it is in the public interest. State ex rel. White v. Gray,
57 Wis. 2d 17,
203 N.W.2d 638 (1973).
971.08 Annotation
A court has inherent power to refuse to accept a plea of guilty and may dismiss the charge on the motion of the district attorney in order to allow prosecution on a 2nd complaint. State v. Waldman,
57 Wis. 2d 234,
203 N.W.2d 691 (1973).
971.08 Annotation
It is not error for the court to accept a guilty plea before hearing the factual basis for the plea if a sufficient basis is ultimately presented. Staver v. State,
58 Wis. 2d 726,
206 N.W.2d 623 (1973).
971.08 Annotation
The fact that a defendant pled guilty with the understanding that his wife would be given probation on another charge did not necessarily render the plea involuntary. Seybold v. State,
61 Wis. 2d 227,
212 N.W.2d 146 (1973).
971.08 Annotation
The defendant's religious beliefs regarding the merits of confessing one's wrongdoing and his desire to mollify his family or give in to their desires were self-imposed coercive elements and did not vitiate the voluntary nature of the defendant's guilty plea. Craker v. State,
66 Wis. 2d 222,
223 N.W.2d 872 (1974).
971.08 Annotation
A defendant wishing to withdraw a guilty plea must show by clear and convincing evidence that the plea was not knowingly and voluntarily entered and that withdrawal is necessary to prevent manifest injustice, as indicated when: 1) the defendant was denied effective assistance of counsel; 2) the plea was not entered or ratified by the defendant or a person authorized to so act in his behalf; 3) the plea was involuntary or was entered without knowledge of the charge or that the sentence actually imposed could be imposed; and 4) the defendant did not receive the concessions contemplated by the plea agreement and the prosecutor failed to seek them as promised in the agreement. Birts v. State,
68 Wis. 2d 389,
228 N.W.2d 351 (1975).
971.08 Annotation
As required by
Ernst v. State,
43 Wis. 2d 661, and sub. (1) (b), prior to accepting a guilty plea, the trial court must establish that the conduct that the defendant admits constitutes the offense charged or an included offense to which the defendant has pleaded guilty. If the plea is made under a plea bargain, the court need not probe as deeply in determining whether the facts would sustain the charge as it would were the plea not negotiated. Broadie v. State,
68 Wis. 2d 420,
228 N.W.2d 687 (1975).
971.08 Annotation
The trial court did not abuse its discretion by failing to inquire into the effect a tranquilizer had on the defendant's competence to enter a plea. Jones v. State,
71 Wis. 2d 750,
238 N.W.2d 741 (1976).
971.08 Annotation
A plea bargain agreement by law enforcement officials not to reveal relevant and pertinent information to the sentencing judge was unenforceable as being against public policy. Grant v. State,
73 Wis. 2d 441,
243 N.W.2d 186 (1976).
971.08 Annotation
Withdrawal of a guilty plea prior to sentencing is not an absolute right but should be freely allowed when a fair and just reason for doing so is presented. Dudrey v. State,
74 Wis. 2d 480,
247 N.W.2d 105 (1976).
971.08 Annotation
A guilty plea cannot be withdrawn on grounds that probation conditions were more onerous than expected. Garski v. State,
75 Wis. 2d 62,
248 N.W.2d 425 (1977).
971.08 Annotation
A plea of guilty admits the facts charged but does not raise the issue of the statute of limitations because the time of the commencement of the action does not appear on the information. State v. Pohlhammer,
78 Wis. 2d 516,
254 N.W.2d 478 (1977).
971.08 Annotation
While courts have no duty to secure informed waivers of possible statutory defenses, under the unique facts of the case, the defendant was entitled to withdraw a guilty plea to a charge barred by the statute of limitations. State v. Pohlhammer,
82 Wis. 2d 1,
260 N.W.2d 678 (1978).
971.08 Annotation
Sub. (2) does not deprive the court of jurisdiction to consider an untimely motion. State v. Lee,
88 Wis. 2d 239,
276 N.W.2d 268 (1979).
971.08 Annotation
Trial courts do not have subject matter jurisdiction to convict defendants under unconstitutionally vague statutes. The right to raise the issue on appeal cannot be waived, regardless of a guilty plea. State ex rel. Skinkis v. Treffert,
90 Wis. 2d 528,
280 N.W.2d 316 (Ct. App. 1979).
971.08 Annotation
Withdrawal of a guilty plea on the grounds of ineffective representation by trial counsel is discussed. State v. Rock,
92 Wis. 2d 554,
285 N.W.2d 739 (1979).
971.08 Annotation
Absent abuse of discretion in doing so, a prosecutor may withdraw a plea bargain offer at any time prior to an action by the defendant in detrimental reliance on the offer. State v. Beckes,
100 Wis. 2d 1,
300 N.W.2d 871 (Ct. App. 1980).
971.08 Annotation
The trial court did not err in refusing to allow the defendant to withdraw a guilty plea accompanied by protestations of innocence. State v. Johnson,
105 Wis. 2d 657,
314 N.W.2d 897 (Ct. App. 1981).
971.08 Annotation
A prosecutor is relieved from terms of a plea agreement if it is judicially determined that the defendant has materially breached its conditions. State v. Rivest,
106 Wis. 2d 406,
316 N.W.2d 395 (1982).
971.08 Annotation
Except as provided by statute, conditional guilty pleas are not to be accepted and will not be given effect. State v. Riekkoff,
112 Wis. 2d 119,
332 N.W.2d 744 (1983).
971.08 Annotation
Effective assistance of counsel was denied when the defense attorney did not properly inform the client of the personal right to accept a plea offer. State v. Ludwig,
124 Wis. 2d 600,
369 N.W.2d 722 (1985).
971.08 Annotation
When the defendant offered a plea of no contest but refused to waive any constitutional rights or to answer the judge's questions, the judge should have set a trial date and refused any further discussion of the no contest plea. State v. Minniecheske,
127 Wis. 2d 234,
378 N.W.2d 283 (1985).
971.08 Annotation
Due process does not require that the record of a plea hearing demonstrate the defendant's understanding of the nature of the charge at the time of the plea. State v. Carter,
131 Wis. 2d 69,
389 N.W.2d 1 (1986).
