concurring: I write separately because I believe that a plea should not result in a sentencing hearing that casts Garcia and similarly situated defendants in the role of a game show contestant anxiously wondering what criminal history score will be revealed behind door number one. I have previously thought otherwise about the degree of knowledge required to make a knowing and intelligent plea, but I have come to the conclusion that our statutorily derived procedure of determining criminal history post-conviction prevents the defendant from an intelligent understanding of the presumed consequences of the plea. And further, our inteipretation of K.S.A. 22-3210(a)(2) makes meaningless the statute’s intention of providing tire defendant knowledge of the maximum nonchallengeable, nonreviewable, presumptive liberty interest at stake.
Most criminal cases are resolved by a plea. A guilty or nolo con-tendré plea waives several important constitutional guarantees, including the right against self-incrimination, the right to trial by jury, and the right to confront one’s accusers. See, e.g., State v. Moses, 280 Kan. 939, 946, 127 P.3d 330 (2006). For that reason, the law requires that a waiver must be knowingly, intelligently, and voluntarily entered. There are numerous motivations for all of the parties in a criminal case to reach resolution by the plea negotiation process. The defendant is waiving constitutional rights in exchange *65for understanding the presumptive disposition and limiting the potential duration of the sentence to be imposed, reducing the number of convictions, minimizing the impact on criminal history, or other benefits. Plea agreements spare victims the trauma of testifying and save the State time, expense, and uncertainty of trial. Clearly, our overcrowded courts could not begin to resolve all of the cases in a timely manner if the majority of cases were not setded through plea agreements. Plea negotiations are vital to the function of our criminal courts; however, any shortcut employed in reaching final resolution in these cases must not be at the expense of the heightened constitutional protections demanded in criminal proceedings.
Following our statutorily derived procedure, a defendant’s criminal history score is not calculated until after the defendant has been convicted. K.S.A. 21-4714. This procedure makes some sense for completing a final presentence investigation report (PSI), because the PSI includes the current crime or crimes of conviction. But the delay in calculating the defendant’s criminal history score for the purpose of completing a PSI compromises the underlying integrity and principles of fair and equitable justice by requiring defendants to waive their constitutional rights without a basic understanding of the consequences of their actions. This statute does not preclude the calculation of criminal history prior to the plea, nor should it be applied in a manner that supersedes the defendant’s constitutional rights.
Further, K.S.A. 22-3210(a)(2) requires that, before accepting a plea of guilty or nolo contendere “in felony cases, the court has informed the defendant of the consequences of the plea, including the specific sentencing guidelines level of any crime committed on or after July 1,1993, and of the maximum penalty provided hy law which may he imposed upon acceptance of such plea.” (Emphasis added.) This statute recognizes the magnitude of the decision being made, which requires a full understanding of the consequences to the defendant. The statute explicitly requires that the defendant be informed of the maximum lawful penalty that may be imposed.
Without an accurate criminal history score calculated before the plea is accepted, die district court cannot properly inform the de*66fendant of the maximum penalty provided by law. To accept the entire range provided by the sentencing guidelines as the “maximum penalty provided by law” is to ignore the reality of the situation. For example, in this case, Garcia did not enter a plea merely to secure “a level 5” conviction. He entered a plea with the understanding that his expected criminal history score subjected him to a presumptive sentence of 53 to 60 months’ imprisonment. Instead, his actual criminal history score more than doubled his presumptive sentence to 114 to 128 months’ imprisonment. Reciting the fact that a level 5 conviction has a minimum sentence of 31 months and a maximum sentence of 136 months, depending on criminal history, does nothing more than repeat the fact that the defendant is entering a plea to a level 5, nondrug felony. This range encompasses the actual maximum penalty provided by law but does not inform the defendant of the actual applicable maximum penalty. The statutorily required “maximum penalty provided by law” is one that can, and should, be calculated before the defendant enters a plea of guilty or nolo contendere.
The Kansas Sentencing Guidelines Act (KSGA) K.S.A. 21-4701 et seq., provides detailed and specific methods for determining the sentence applicable to any particular crime or group of crimes, that is, the “maximum penalty provided by law.” The intersection of tire severity level of the current crime of conviction and the defendant’s criminal history score provides a presumptive sentence. If the defendant has been convicted of more than one crime, other provisions, such as the double-double rule, further define the maximum sentence diat the district court can impose. At a minimum, the defendant should have this information before entering a plea that is considered knowing and voluntaiy.
Requiring no more than the recitation of the potential sentencing range based solely on a crime’s severity level does not provide for a sufficient understanding of the potential consequence of the voluntary waiver of the right to trial. “Knowingly and intelligently” implies having the knowledge and being able to apply that knowledge to one’s decision. Being compelled to make such a critical decision without a basic understanding of the consequences precludes the exercise of an intelligent choice. A knowing and vol-*67untaiy waiver of this important constitutional right requires that the defendant have the applicable knowledge and the information necessary to apply that knowledge to his or her decision. I now believe that the manner in which the law has been applied to these situations precludes the full exercise of the concept of a knowing and intelligent choice.
Some may argue that employing a procedure that reveals criminal history at the plea stage somehow limits the sentencing court’s discretion in imposing sentence. The sentencing court’s power to impose sentence is governed by the KSGA, not by the timing of when criminal history is gathered and disclosed. Neither the State, nor defendant’s counsel, nor the defendant may bind the district court to any ultimate imposition of sentence stated during the plea stage; the court always maintains the discretion to depart on duration and/or disposition, utilization of jail sanctions, and in multiple conviction scenarios, imposition of concurrent or consecutive sentences. However, disclosure of the criminal history allows for a determination of the presumptive sentence for each crime in which a plea is entered, and the presumptive sentence is where the required recitation of any potential sentence should commence. The imposition of a presumptive sentence is not appealable and is the starting point from which the court will ultimately impose the controlling sentence. The presumptive sentence and any accompanying sentencing rules are an important piece of the defendant’s knowing and voluntary plea. Providing this information complies with Kansas law by disclosing the actual maximum penalty which may be imposed and gives the defendant a reasonable expectation of what lies ahead upon that entry of a plea.
While I agree with the dissent in concluding that there was no uncertainty as to whether the district court required Garcia to allege his innocence as a prerequisite to withdrawing his plea, I cannot follow the dissent’s public policy argument regarding the defendant’s disclosure of prior convictions. It has never been the duty or obligation of a criminal defendant to provide his or her criminal histoiy. Further, to expect any citizen who is not law trained, let alone familiar with the KSGA, to self-determine criminal histoiy is unrealistic and contraiy to the burdens that are placed on the State *68in criminal proceedings. The dissent’s concern of trickery or purposeful concealment of prior crimes by deceitful defendants is eliminated by disclosure of their criminal history prior to entering a plea.
From this point forward, I would require a criminal histoiy determination, which is to be used at any subsequent sentencing hearing, to be part of the plea agreement. In that respect, I would adopt the procedural suggestions made in Dyer, Revising Criminal History: Model Sentencing Guidelines §§ 4.1-4.2, 18 Fed. Sent’g Rep. 373,377 (2006). The gathering of criminal histoiy information and the computation of a criminal history score are merely issues of timing. While I realize this requirement compels a shifting of resources not heretofore demanded, whatever inconvenience suffered by those required to assemble this information before the plea hearing should not stand as an obstacle to justice in light of the critical nature of this determination. Therefore, I would reverse and allow Garcia to withdraw his plea. And because Garcia would possess the knowledge of his criminal histoiy, he could then knowingly and intelligently proceed accordingly.
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