Plea Bargaining – Judicial Participation
Neither the trial court’s allusion to the disposition it would impose if Wells pleaded guilty (“I’ll probably go along with the recommendation,” but proceeding to trial “would be a whole different ballgame”) nor its own assessment of the representation advice it would have given (“I’d probably tell that client to take the deal … because you got  big exposure”) amounted to prohibited judicial participation in the plea bargaining process:
¶10 We conclude that, taken in context, these comments do not reveal an improper participation in the plea negotiation. First, given that, at the time of the hearing, Wells had more than ninety days’ sentence credit and a disorderly conduct conviction’s maximum imprisonment penalty is ninety days’ jail, any allusion the court may have made to imposing a time-served disposition was a statement of fact and not improper.
¶11 Second, the court did not advocate for a particular plea agreement when it stated that it would “probably” advise a client facing big exposure to accept a plea that would allow him to be released immediately. Taken in context, this comment occurred after Wells indicated to the court that he was torn because he felt the court was telling him to go to trial but his attorney was advising him to take the deal. Immediately following this comment, the court informed Wells that it was not the court’s job to tell him whether he should plead, rather, the court works to make sure that Wells understands his options and that whatever he chooses is his choice alone, not his attorney’s. Taken in context, we conclude the court’s comments as a whole reflect an exhaustive effort on the part of the court to ensure that Wells’ decision to plead was in fact voluntary.
The operative rule is set by State v. Williams, 2003 WI App 116, ¶16, 265 Wis. 2d 229, 666 N.W.2d 58: “a defendant who has entered a plea, following a judge’s participation in the plea negotiation, is conclusively presumed to have entered his plea involuntarily and is entitled to withdraw it.” However, this rule doesn’t “encompass all comments a judge might make regarding the strength of the State’s case or the advisability of a defendant giving consideration to a disposition short of trial,” State v. Hunter, 2005 WI App 5, ¶8, 278 Wis. 2d 419, 692 N.W.2d 25. Placement of the comments here within the exception recognized by Hunter seems a stretch.