State v. Gregory F. Atwater

2021 WI App 16

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2019AP1977-CR

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

GREGORY F. ATWATER,

DEFENDANT-APPELLANT.

Opinion Filed: February 4, 2021
Submitted on Briefs: August 20, 2020

JUDGES: Blanchard, Kloppenburg, and Graham, JJ.

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Susan E. Alesia, assistant state public defender, of Madison.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Donald V. Latorraca, assistant attorney general, and Joshua L.
Kaul, attorney general.
2021 WI App 16

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 4, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP1977-CR Cir. Ct. Nos. 2013CF374

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

GREGORY F. ATWATER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Dodge County: JOHN R. STORCK and MARTIN J. DE VRIES, Judges.
Reversed in part and cause remanded with directions.

Before Blanchard, Kloppenburg, and Graham, JJ.
No. 2019AP1977-CR

¶1 GRAHAM, J. Gregory Atwater appeals a judgment and a circuit
court order denying his postconviction motion to withdraw his plea.1 Atwater
contends that the court erred when it determined that his trial counsel would not be
allowed to testify remotely2 during a hearing on his postconviction motion, and
later denied his postconviction motion on the ground that trial counsel would not
appear at the postconviction hearing. For the reasons explained below, we
conclude that the record does not reflect whether the circuit court properly
exercised its discretion when considering Atwater’s motion to allow testimony by
remote means. Accordingly, we reverse the order denying Atwater’s
postconviction motion and remand for further proceedings consistent with this
opinion.

BACKGROUND

¶2 Atwater was serving a prison sentence when he was involved in a
physical altercation with two correctional officers. He was charged with two
counts of battery by a prisoner, pleaded no contest to one of the charges, and was
sentenced to probation with an imposed and stayed prison sentence.

1
The Honorable John R. Storck presided over the trial and entered the judgment of
conviction, and the Honorable Martin J. De Vries presided over the postconviction proceedings.
2
This opinion discusses WIS. STAT. § 807.13(2) (2017-18), which allows testimony by
telephonic or live audiovisual means under certain circumstances, and WIS. STAT. §§ 885.56 and
885.60, which allow testimony by video conferencing technology under certain circumstances.
We sometimes use the words “remote” and “remotely” when referring to testimony that is
authorized by any of these statutes.

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

2
No. 2019AP1977-CR

¶3 Atwater filed a postconviction motion for plea withdrawal based on
ineffective assistance of counsel.3 His motion alleged that trial counsel failed to
investigate two important matters. First, he alleged that counsel failed to interview
an inmate who was a known eyewitness, and also failed to identify other inmate
eyewitnesses who would have testified that the officers initiated the physical
altercation by throwing Atwater to the ground. Second, he alleged that counsel
failed to follow up with a correctional officer who was not directly involved in the
altercation and had contacted counsel with exculpatory information. According to
Atwater, this officer would have testified, among other things, that she had
reviewed video footage depicting the incident from a different camera angle than
the footage that had been provided in discovery. She also would have testified
that the officers involved in the incident were responsible for escalating the
conflict, causing it to become physical. Atwater alleged that these available and
willing witnesses could have supported a self-defense claim and that Atwater
would not have pleaded no contest if trial counsel had pursued the investigation.

¶4 The circuit court set a briefing schedule. Rather than submitting a
brief, the State sent a letter to the court acknowledging that a Machner hearing
was required.4

3
This appeal is Atwater’s direct appeal of a 2014 judgment of conviction. It has been
delayed because Atwater did not file a timely notice of intent to pursue postconviction relief. We
later reinstated his appeal rights based on his allegation that trial counsel failed to pursue
postconviction relief despite Atwater’s direction that she do so, and Atwater finally filed his
postconviction motion in November 2018. This appeal follows the circuit court’s denial of that
motion.
4
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979) (when a
defendant’s postconviction motion sets forth sufficient factual allegations which, if true, would
demonstrate ineffective assistance of counsel, the defendant is entitled to a hearing at which the
allegations can be tested).

3
No. 2019AP1977-CR

¶5 After the hearing was scheduled, Atwater filed a motion asking the
circuit court to allow him to present telephone and video testimony. Atwater
explained that his trial counsel had moved to Missouri, and he asked that she be
allowed to testify by telephone. Additionally, as an alternative to seeking an order
to produce three inmate witnesses at the hearing, Atwater asked for an order
allowing these witnesses to testify by video or telephone.5 The State objected, and
the court ordered the parties to submit briefs on whether Atwater’s witnesses
should be allowed to testify remotely.

¶6 In his brief, Atwater cited WIS. STAT. § 807.13(2)(c) as authority
allowing telephone testimony at a postconviction hearing, and he discussed the
“tremendous logistical problems” associated with securing trial counsel’s physical
presence at the hearing. Specifically, counsel would be required to miss multiple
days of work and arrange for childcare, and the Office of the State Public
Defender would not pay for her travel expenses because she was no longer an
employee.

¶7 In response, the State argued that trial counsel should be required to
testify in person at the Machner hearing due to the importance of her testimony
and the potential difficulties posed by a telephone cross-examination. The
prosecutor indicated that he did not doubt the cost and inconvenience of requiring
counsel to travel to Wisconsin. However, he contended that these factors must be
considered “in relation to the importance of [trial counsel’s] testimony,” which

5
Atwater does not appeal the circuit court’s denial of his request to present the inmate
witnesses’ testimony by remote means; therefore, we do not further address the court’s denial of
this aspect of Atwater’s motion.

4
No. 2019AP1977-CR

was “extremely high” because Atwater “[could not] prevail at this [Machner]
hearing” without it. In response to Atwater’s assertion that the prosecutor would
be able to adequately cross-examine counsel by telephone, the prosecutor
countered, “I do not know how, at this point, [Atwater] can assume what my
cross-examination of [trial counsel] will look like.” The prosecutor elaborated as
follows:
Without too much thought, I can think of a number
of potential issues. First, if the Court allows telephone
testimony, how would I be able to show [trial counsel] any
documents in this matter? Second, if [counsel] indicates
she doesn’t remember something, how will I be able to
refresh her recollection with her file or another means?

¶8 The circuit court denied Atwater’s motion for remote testimony in a
written order. The order did not identify the legal standards the court was
applying. Nor did it specifically identify the basis for the decision other than that
the court “agree[d] with the objections raised” by the prosecutor. As we interpret
the order, we take this as a reference to the prosecutor’s practical concerns about
how he could present documents during a telephone cross-examination. The court
did not raise any concerns about its ability to assess trial counsel’s credibility over
the telephone.

¶9 Following the court’s order, the parties sent a series of letters to the
circuit court discussing how to proceed. At some point, Atwater informed the
court that trial counsel would not appear in person at the hearing, and the parties
agreed that Atwater could not prevail on his ineffective assistance of counsel claim
without her testimony. See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905
(Ct. App. 1979) (providing a general rule that the defendant must present trial

5
No. 2019AP1977-CR

counsel testimony during a postconviction hearing on counsel’s ineffectiveness).6
A separate dispute arose concerning whether there could be another basis, apart
from ineffective assistance of counsel, which would warrant a hearing or
postconviction relief.7

¶10 Ultimately, Atwater asked the circuit court to reconsider its ruling
that trial counsel would not be allowed to testify by telephone. Atwater supplied
an affidavit from his trial counsel identifying specific reasons that it would be
burdensome for her to travel to Wisconsin to testify in person. That same day, the
court entered an order denying Atwater’s postconviction motion for plea
withdrawal. The language of this order is discussed in greater detail below.

DISCUSSION

¶11 Atwater argues that he presented the circuit court with good cause to
allow his trial counsel to testify by telephone during the Machner hearing. He
argues that the circuit court erred—both when it denied his initial motion to
present counsel’s testimony by telephone, and then again later, when it denied his
motion for postconviction relief on the sole basis that counsel would not appear in
person at the hearing. The parties disagree about many issues, including which
statute governs a request for remote testimony at a postconviction hearing,

6
But see State v. Lukasik, 115 Wis. 2d 134, 139-40, 340 N.W.2d 62 (Ct. App. 1983)
(providing an exception from the general rule when trial counsel is unavailable due to “death,
insanity or unavailability for other reasons”). Atwater has not cited Lukasik or argued that
counsel was “unavailable” within the meaning of Lukasik, and we discuss that case no further.
7
Specifically, Atwater asserted that he might be able to withdraw his plea “in the interest
of justice pursuant to WIS. STAT. § 805.15(1)” based on the inmate witness testimony. The
prosecutor responded that any such argument was not the basis of the postconviction motion, was
undeveloped, and would be barred by the guilty-plea-waiver rule.

6
No. 2019AP1977-CR

whether a court’s decision on such a motion can be appealed, and whether the
court erroneously exercised its discretion in this case. Before turning to the
parties’ arguments on those issues, we address a threshold matter raised by the
State.

I. The State’s Arguments About the Sufficiency of the Allegations

¶12 As a threshold matter, the State contends that Atwater’s appeal can
be easily resolved on the ground that Atwater fails to address one of two reasons
the circuit court gave for denying his postconviction motion. According to the
State, the court determined that Atwater’s allegations were insufficient to warrant
a Machner hearing regarding trial counsel’s effectiveness.8 The State argues that
Atwater’s failure to include any argument in his opening appellate brief about the
sufficiency of his allegations is an abandonment of the issue and a standalone
reason to affirm the denial of the postconviction motion.

¶13 The State’s argument is based on an erroneous interpretation of the
circuit court’s order. The order denying the motion for plea withdrawal provided
in relevant part as follows:
The Machner motion is denied without a hearing
because [Atwater] will not bring trial counsel to the
hearing.

8
The State acknowledges that, during the circuit court proceedings, it conceded that
Atwater’s allegations were sufficient to warrant a Machner hearing. Specifically, the prosecutor
represented to the court, “After carefully reading through [Atwater’s] claims and doing some
research of my own, I have come to the conclusion that an evidentiary hearing should be
scheduled on the issues of [trial counsel’s] effectiveness.” Yet, the State contends that, as the
respondent, it is allowed to present inconsistent arguments on appeal.

7
No. 2019AP1977-CR

The Nelson/Bentley9 motion is denied because it is
essentially a Machner hearing and the motion does not
allege sufficient nonconclusory facts, that if true, would
entitle [Atwater] to relief.

The State’s argument is based on the order’s second sentence, and to be sure, that
sentence is somewhat ambiguous when read in isolation. However, we do not
interpret the language of a court order in isolation. We interpret a court order as
we do other written documents, Jacobson v. Jacobson, 177 Wis. 2d 539, 546, 502
N.W.2d 869 (Ct. App. 1993), reading its language in context.

¶14 Here, when the language of the order is read in context, it becomes
apparent that the circuit court did not determine that the allegations in Atwater’s
postconviction motion were insufficient to state a claim for ineffective assistance
of counsel. Rather, the order’s two sentences address the two separate claims that
Atwater had asserted as a legal basis for postconviction relief. The first sentence
provides that, to the extent the motion is based on ineffective assistance of
counsel, it was denied because Atwater “will not bring trial counsel to the
hearing.” This determination is consistent with the parties’ acknowledgment that
trial counsel would not attend in person and would not be permitted by the court to
testify telephonically, and their agreement that Atwater could not prevail on an
ineffective assistance claim without her testimony. And when the second sentence
is read in context, it is apparent that the court intended to convey that the
allegations were insufficient to state a claim for relief on any basis other than
ineffective assistance of counsel. This determination was in response to the
9
Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972); State v. Bentley, 201 Wis. 2d
303, 548 N.W.2d 50 (1996) (collectively providing that a defendant is entitled to an evidentiary
hearing if the defendant alleges facts that, if true, would demonstrate that there was some factor
extrinsic to the plea colloquy that would render a plea unknowing, involuntary, or unintelligent).

8
No. 2019AP1977-CR

parties’ disagreement about whether Atwater was entitled to a hearing to present
the inmate eyewitnesses’ testimony and argue for plea withdrawal in the interest of
justice. Plainly stated, the second sentence does not pertain to Atwater’s
ineffective assistance of counsel claim.

¶15 For these reasons, we conclude that the circuit court’s order is not
reasonably interpreted as determining that Atwater’s allegations were insufficient
to state a claim for ineffective assistance of counsel. Therefore, the sufficiency of
the allegations is not an issue that Atwater was required to address on appeal.

II. The Governing Statute

¶16 The parties dispute which statute governs a circuit court’s authority
to allow remote testimony at a postconviction hearing.

¶17 During the circuit court proceedings and in his opening appellate
brief, Atwater argued that the court’s decision should have been governed by WIS.
STAT. § 807.13(2). That statute is part of Wisconsin’s rules of civil procedure, and
it sets forth a process and criteria for considering whether to allow telephone or
live audiovisual testimony during evidentiary hearings in specified types of
proceedings.10

10
WISCONSIN STAT. § 807.13(2) provides in relevant part:

EVIDENTIARY HEARINGS. In civil actions and
proceedings, including those under chs. 48, 51, 54, and 55, the
court may admit oral testimony communicated to the court on
the record by telephone or live audiovisual means, subject to
cross-examination, when:

….

(continued)

9
No. 2019AP1977-CR

¶18 The State did not take any position on the applicable statute during
the circuit court proceedings, but on appeal, it argues that WIS. STAT. § 807.13(2)
is inapplicable. It instead contends that WIS. STAT. §§ 885.56 and 885.60 are the
pertinent statutes addressing remote testimony in criminal proceedings, including
postconviction hearings. Section 885.56 sets forth criteria to guide the court’s
exercise of discretion when considering a motion to permit the use of

(c) The proponent shows good cause to the court.
Appropriate considerations are:

1. Whether any undue surprise or prejudice would
result;

2. Whether the proponent has been unable, after due
diligence, to procure the physical presence of the witness;

3. The convenience of the parties and the proposed
witness, and the cost of producing the witness in relation to the
importance of the offered testimony;

4. Whether the procedure would allow full effective
cross-examination, especially where availability to counsel of
documents and exhibits available to the witness would affect
such cross-examination;

5. The importance of presenting the testimony of
witnesses in open court, where the finder of fact may observe the
demeanor of the witness, and where the solemnity of the
surroundings will impress upon the witness the duty to testify
truthfully;

6. Whether the quality of the communication is
sufficient to understand the offered testimony;

7. Whether a physical liberty interest is at stake in the
proceeding; and

8. Such other factors as the court may, in each
individual case, determine to be relevant.

10
No. 2019AP1977-CR

videoconferencing technology,11 and § 885.60 sets forth a procedure for such a
motion in any criminal case.12

11
WISCONSIN STAT. § 885.56, titled “Criteria for exercise of court’s discretion,”
provides:

(1) In determining in a particular case whether to
permit the use of videoconferencing technology and the manner
of proceeding with videoconferencing, the circuit court may
consider one or more of the following criteria:

(a) Whether any undue surprise or prejudice would
result.

(b) Whether the proponent of the use of
videoconferencing technology has been unable, after a diligent
effort, to procure the physical presence of a witness.

(c) The convenience of the parties and the proposed
witness, and the cost of producing the witness in person in
relation to the importance of the offered testimony.

(d) Whether the procedure would allow for full and
effective cross-examination, especially when the cross-
examination would involve documents or other exhibits.

(e) The importance of the witness being personally
present in the courtroom where the dignity, solemnity, and
decorum of the surroundings will impress upon the witness the
duty to testify truthfully.

(f) Whether a physical liberty or other fundamental
interest is at stake in the proceeding.

(g) Whether the court is satisfied that it can sufficiently
know and control the proceedings at the remote location so as to
effectively extend the courtroom to the remote location.

(h) Whether the participation of an individual from a
remote location presents the person at the remote location in a
diminished or distorted sense such that it negatively reflects
upon the individual at the remote location to persons present in
the courtroom.

(continued)

11
No. 2019AP1977-CR

(i) Whether the use of videoconferencing diminishes or
detracts from the dignity, solemnity, and formality of the
proceeding so as to undermine the integrity, fairness, and
effectiveness of the proceeding.

(j) Whether the person proposed to appear by
videoconferencing presents a significant security risk to transport
and present personally in the courtroom.

(k) Waivers and stipulations of the parties offered
pursuant to s. 885.62.

(L) Any other factors that the court may in each
individual case determine to be relevant.

(2) The denial of the use of videoconferencing
technology is not appealable.
12
WISCONSIN STAT. § 885.60, titled “Use in criminal cases and proceedings under
chapters 48, 51, 55, 938, and 980,” provides in relevant part:

(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) ….

(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….

(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.

(continued)

12
No. 2019AP1977-CR

¶19 In his reply, Atwater continues to assert that WIS. STAT. § 807.13(2)
applies to postconviction hearings. However, he also agrees with the State that the
circuit court could have allowed his trial counsel to testify through video
conferencing under the authority of WIS. STAT. §§ 885.56 and 885.60.

¶20 The parties’ disagreement presents a question of statutory
interpretation, a question of law that we review de novo. State v Henley, 2010 WI
12, ¶9, 322 Wis. 2d 1, 778 N.W.2d 853. For the following reasons, we agree with
the State that WIS. STAT. § 807.13(2) does not apply to postconviction hearings,
and that the applicable statutes are WIS. STAT. §§ 885.56 and 885.60.

¶21 “Statutory interpretation begins with the language of a statute.”
State v. Wilson, 2017 WI 63, ¶21, 376 Wis. 2d 92, 896 N.W.2d 682. WISCONSIN
STAT. § 807.13(2) specifies that it applies “[i]n civil actions and proceedings,
including those under chs. 48, 51, 54, and 55.” As a general proposition, when a
statute lists certain types of proceedings but not others, the proceedings that are
not listed are excluded. See FAS, LLC v. Town of Bass Lake, 2007 WI 73, ¶27,
301 Wis. 2d 321, 733 N.W.2d 287 (discussing expressio unius est exclusio
alterius, a canon of statutory interpretation). Applying plain language
interpretation, we see no indication in the language of § 807.13(2) that its

(d) If an objection is made by the defendant or
respondent in a matter listed in sub. (1), regarding any
proceeding where he or she is entitled to be physically present in
the courtroom, the court shall sustain the objection. For all other
proceedings 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.

13
No. 2019AP1977-CR

provisions regarding telephone and audiovisual testimony were intended to apply
in criminal proceedings.

¶22 By contrast, again applying a plain language interpretation, the
language of WIS. STAT. § 885.60 specifically applies to “fact-finding” and “post-
trial” proceedings in “any criminal case,” and it provides that the applicable
criteria are found in WIS. STAT. § 885.56. As a general rule, specific statutes
control over general statutes, Wilson, 376 Wis. 2d 92, ¶22, and here, § 885.60
specifically applies to postconviction proceedings that are part of “any criminal
case.” Accordingly, we conclude that §§ 885.56 and 885.60 are the pertinent
statutes that should have governed the circuit court’s consideration of Atwater’s
motion for remote testimony.13

¶23 We recognize that Atwater did not cite WIS. STAT. §§ 885.56 and
885.60 during the circuit court proceedings, and that his motion sought telephonic
testimony rather than testimony by use of videoconferencing technology. Under
other circumstances, we might conclude that Atwater has forfeited any reliance on
the authority provided under §§ 885.56 and 885.60. See Schill v. Wisconsin
Rapids Sch. Dist., 2010 WI 86, ¶45 & n.21, 327 Wis. 2d 572, 786 N.W.2d 177
(providing the general rule that, when a party fails to raise an issue before the
circuit court, the issue is forfeited on appeal).

13
In his opening appellate brief, Atwater advances a number of additional arguments
about the applicability of WIS. STAT. § 807.13(2). These additional arguments, which are based
on WIS. STAT. § 972.11, WIS. STAT. § 967.08, and State v. Vennemann, 180 Wis. 2d 81, 94-95,
508 N.W.2d 404 (1993), disregard the plain language interpretation set forth above, and we reject
them on that basis.

14
No. 2019AP1977-CR

¶24 However, forfeiture “is a rule of judicial administration,” and we
have discretion to overlook a party’s forfeiture in appropriate cases. State v.
Kaczmarski, 2009 WI App 117, ¶7, 320 Wis. 2d 811, 772 N.W.2d 702. The
parties agree that the criteria found in WIS. STAT. § 807.13(2)(c) for telephone
testimony are similar in many ways to the criteria found in WIS. STAT. § 885.56(1)
for videoconferencing testimony. Compare supra n.10 with supra n.11. The
parties likewise agree that the procedure for requesting telephonic testimony under
§ 807.13(2)(c) is consistent with the procedure for requesting videoconferencing
testimony under WIS. STAT. § 885.60. Compare supra n.10 with supra n.12. In
this case, it appears that the only reason Atwater relied on § 807.13(2)(c) during
the circuit court proceedings is that the parties and the court inadvertently
overlooked the pertinent statutes. Both parties suggest that we can treat this
appeal as if Atwater had requested that counsel be allowed to testify remotely
using videoconferencing technology under WIS. STAT. § 885.60. We accept their
invitation and proceed accordingly.

III. Appellate Review of a Decision Under WIS. STAT. §§ 885.56 and 885.60

¶25 The State, having persuaded us to treat Atwater’s motion for remote
testimony as if he filed it pursuant to WIS. STAT. §§ 885.56 and 885.60, argues that
Atwater is barred from seeking appellate review of the circuit court’s decision. In
support of its argument, the State cites § 885.56(2), which provides: “The denial
of the use of videoconferencing technology is not appealable.” The State argues
that this language is “unequivocal,” and it suggests that a decision granting or
denying videoconferencing testimony can never be challenged—not even when a
party appeals a final judgment or order under WIS. STAT. RULE 809.30.

15
No. 2019AP1977-CR

¶26 Atwater disagrees. He contends that WIS. STAT. § 885.56(2) is
intended to prevent interlocutory appeals of a circuit court’s decision granting or
denying videoconferencing testimony. See WIS. STAT. RULE 809.50 (establishing
a procedure for seeking leave to appeal nonfinal orders and orders not appealable
as a matter of right). Atwater interprets WIS. STAT. § 885.56(2) as allowing a
party to argue that the court erred when it granted or denied a motion for
videoconferencing testimony—just as a party can argue that the court erred with
regard to any other nonfinal decision leading up to a final decision that is
appealable as a matter of right. See WIS. STAT. § 808.03(1) (providing that “[a]
final judgment or final order of a circuit court may be appealed as a matter of right
to the court of appeals unless otherwise expressly provided by law”); WIS. STAT.
RULE 809.30 (providing the process for appealing a final adjudication in a
criminal matter); see also WIS. STAT. RULE 809.10(4) (providing that “[a]n appeal
from a final judgment or final order brings before the court all prior nonfinal
judgments, orders and rulings adverse to the appellant and favorable to the
respondent made in the action or proceeding not previously appealed and ruled
upon”); State. v. Wolfe, 2019 WI App 32, ¶11, 388 Wis. 2d 45, 931 N.W.2d 298
(applying RULE 809.10(4) in a criminal proceeding).

¶27 We agree with Atwater. WISCONSIN STAT. § 885.56 was
promulgated by the Wisconsin Supreme Court. S. Ct. Order 07-12, 2008 WI 37,
305 Wis. 2d xli (eff. July 1, 2008). At the same time the court promulgated the
rule, it included the following comment, which specifically describes the intent of
§ 885.56(2) consistent with Atwater’s argument:
A circuit court’s denial of the use of videoconferencing is
not appealable as an interlocutory order, but to the extent
the denial involves issues related to a party’s ability to
present its case and broader issues related to the

16
No. 2019AP1977-CR

presentation of evidence, the denial can be appealed as part
of the appeal of the final judgment.

WIS. STAT. § 885.56 (Comment: 2008).

¶28 Here, Atwater appealed a final judgment of conviction and a final
order denying his postconviction motion, both of which he appealed under WIS.
STAT. RULE 809.30 as a matter of right. On appeal, he argues that the sole reason
he could not provide evidentiary support for his postconviction motion is that the
circuit court denied his motion to allow trial counsel to testify remotely. We
conclude that, under these circumstances, the language of WIS. STAT. § 885.56(2)
does not prevent us from reviewing the order denying Atwater’s motion for remote
testimony.

IV. The Circuit Court’s Exercise of Discretion

¶29 Finally, we turn to the circuit court’s decision to deny Atwater’s
motion to allow his trial counsel to testify by remote means. Subject to constraints
that are inapplicable here,14 a circuit court has broad discretion to allow or
disallow testimony by videoconferencing in a criminal case. See WIS. STAT.
§ 885.60(2)(c)-(d); see also Welytok v. Ziolkowski, 2008 WI App 67, ¶32, 312
Wis. 2d 435, 752 N.W.2d 359 (providing that a court has similarly broad
discretion with regard to a motion for telephone testimony). Appellate courts will
sustain a circuit court’s exercise of discretion if it “examined the relevant facts,
applied a proper standard of law, and, using a demonstrated rational process,

14
For example, WIS. STAT. § 885.60(2)(a) provides that “[e]xcept 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 trials and sentencing or dispositional
hearings.”

17
No. 2019AP1977-CR

reached a conclusion that a reasonable judge could reach.” Loy v. Bunderson, 107
Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982).

¶30 Here, the circuit court’s order provides little explanation for its
decision. The sole explanation provided is that the court agreed with the State’s
objection. And the only concrete objection articulated by the State is a
hypothetical one: that the prosecutor might need to use documents to impeach
counsel or to refresh her recollection, and if so, it would be challenging to do so
effectively over the telephone. Notably, the prosecutor’s concerns may have been
resolved by the use of videoconferencing technology, which, as discussed above,
is the available means under the applicable statute, WIS. STAT. § 885.60.15

¶31 At the same time, however, the parties appeared to have come to a
consensus that Atwater’s claim for relief was potentially meritorious, and that
Atwater would be entitled to withdraw his plea if his allegations about counsel’s
ineffectiveness were true. We do not see any indication in the record that the
circuit court considered the reality that, by denying Atwater’s motion, it was
effectively foreclosing Atwater’s only option to prove his allegations and obtain
relief. The record does not demonstrate whether the court gave any consideration
to the fact that trial counsel lived out of state. And, at the time the court denied
Atwater’s motion for remote testimony, the court could not have known that trial
counsel would offer additional factual support regarding the particular difficulties
posed by traveling to Wisconsin. Nor could the court have known that counsel

15
It is, of course, not surprising that the court did not consider the availability of
videoconferencing technology because neither party brought the proper statute to the court’s
attention.

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No. 2019AP1977-CR

would ultimately decline to appear in person for a Machner hearing. Although
these facts are not necessarily dispositive, they were undoubtedly germane to a
reasoned, supported determination of whether to permit Atwater’s trial counsel to
testify by remote means.

¶32 We recognize that the circuit court’s discretion over such motions is
quite broad. We also recognize that the court’s consideration of the motion was
hampered by the parties’ failure to bring the applicable statutes to the court’s
attention. However, based on the unusual record here, we cannot say that the
court “examined the relevant facts, applied a proper standard of law, and, using a
demonstrated rational process, reached a conclusion that a reasonable judge could
reach.” Loy, 107 Wis. 2d at 414-15. Accordingly, we reverse the circuit court’s
denial of Atwater’s postconviction motion and remand for further proceedings.
On remand, if Atwater continues to request remote testimony at a Machner
hearing, the court must consider that request, exercising its discretion in light of
the criteria and procedures found in WIS. STAT. §§ 885.56 and 885.60.

CONCLUSION

¶33 For the reasons explained above, we reverse the order denying
Atwater’s postconviction motion and remand to the circuit court for further
proceedings consistent with this opinion.

By the Court.—Order reversed and cause remanded with directions.

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