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Guilty Pleas – Required Knowledge — Plea Bargain not Binding

State v. Corey J. Hampton, 2004 WI 107, affirming 2002 WI App 293, 259 Wis. 2d. 455, 655 N.W.2d 131
For Hampton: Melinda A. Swartz, SPD, Milwaukee Appellate

Issue1Whether the trial court must advise a guilty plea defendant personally on the record that the court isn’t bound by a plea agreement, and ascertain whether the defendant understands this information.

¶27 In Wisconsin, circuit judges do not involve themselves in plea bargaining. State v. Erickson, 53 Wis. 2d 474, 481, 192 N.W.2d 872 (1972); Rahhal v. State, 52 Wis. 2d 144, 150, 187 N.W.2d 800 (1971); State v. Wolfe, 46 Wis. 2d 478, 487, 175 N.W.2d 216 (1970). In Farrar v. State, 52 Wis. 2d 651, 657, 191 N.W.2d 214 (1971), this court declared that “any advance understanding between a prosecutor and defendant must not involve the trial judge.”

¶28 In White, the court embraced the corollary to the Farrer principle, namely: “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.” 57 Wis. 2d at 24 (quoting American Bar Association, Standards Relating to Pleas of Guilty, Approved Draft, § 1.5 at 29 (1968)) (emphasis added).

¶37 Perhaps even more telling is the case of State v. Williams, 2000 WI 78, 236 Wis. 2d 293, 613 N.W.2d 132. In Williams, this court was asked to adopt a new rule of procedure requiring a trial judge who anticipated exceeding the state’s sentencing recommendation under a plea agreement, to inform the defendant of the judge’s anticipated action and to allow the defendant to withdraw his plea. … Abandoning the White/McQuay/Comstock mandate in this case would destroy the foundation of our Williams decision.

¶38 Consequently, we reaffirm the rule that a circuit court must advise the defendant personally that the terms of a plea agreement, including a prosecutor’s recommendations, are not binding on the court and, concomitantly, ascertain whether the defendant understands this information.


¶42 The essence of the mandate is that the court must engage in a colloquy with the defendant on the record at the plea hearing to ascertain whether the defendant understands that the court is not bound by a sentencing recommendation from the prosecutor or any other term of the defendant’s plea agreement. The plea colloquy is defective if it fails to produce an exchange on the record that indicates that the defendant understands the court is free to disregard recommendations based on a plea agreement for sentencing.

¶43 The court’s duty is to assure that the defendant has enough information and understanding of the court’s independent role in sentencing, notwithstanding any plea agreement, that the defendant is able to enter a knowing, voluntary, and intelligent plea. This duty does not require that the court provide all the essential information personally, although personal explanation by the court strikes us as the most logical, consistent, and efficient way of delivering information. Nor does it require magic words or an inflexible script. In every case, however, the court must make personal inquiry of the defendant to determine whether the defendant understands that the court is not bound by the terms of the plea agreement.

¶44 In a legal sense, the purpose of the colloquy is to assure a voluntary and intelligent plea, as well as fundamental fairness in the taking of pleas. In a practical sense, the purpose of the colloquy is to promote finality by eliminating one of the grounds for plea withdrawal. As we have done in the past, we strongly encourage courts to follow the approved plea acceptance procedures as set forth in Wis JI-Criminal SM-32 (1995). See Bangert, 131 Wis. 2d at 272; State v. Minniecheske, 127 Wis. 2d 234, 245-46, 378 N.W.2d 283 (1985); State v. Bartelt, 112 Wis. 2d 467, 483-84 n.3, 334 N.W.2d 91 (1983). We also encourage that these procedures be updated periodically to reflect recent developments in case law.

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