Farrar v. State

Hallows, C. J, and Wilkie, J.

(jointly concurring). Inasmuch as the trial court specifically found that the parole agent did not participate in the plea bargain and, in any event, the defendant waived his right to object to the sentence recommendation, we agree in the affirmance of the conviction. The difficulty revealed by this case is that a complete record of the understanding of a defendant as he makes his plea of guilty and the full extent of the plea bargain are not pursued by the trial court at the time of the plea, consistent with our holding of seven years ago in State ex rel. Burnett v. Burke 1 indicating that when a criminal defendant pleads guilty the trial court must “ascertain whether any promises or threats have been made to him in connection with . . .2 his refusal of counsel, and his proposed plea of guilty.” Because of this requirement, the standard of procedure *663is for the defendant to indicate that no promises have been made even in cases in which the plea is the result of some promise by the prosecutor (usually as to sentence or as to dropping of another charge). Many of the criminal appeals reaching this court involve guilty pleas and the unsuccessful effort of a defendant to withdraw that plea after his conviction. In these appeals the defendant often argues that his plea was induced by some unfulfilled promises of the district attorney. In such cases the record at the time of taking the plea is usually of little help in resolving the question because the tacit agreement is that the anticipated bargain be kept sub rosa. Plea bargaining should move into the open. It is an acceptable practice providing no improper threats or promises have been made to induce a plea. For a defendant to deny the plea bargaining when everyone knows that an agreement has been reached to bring about the plea adds only confusion to the already complicated procedure surrounding the acceptance of guilty pleas.

Prior to accepting any guilty plea the trial court must ascertain from the defendant his notion of any promise, agreement, bargain, or recommendation which induced him to plead guilty. The defendant should be required to state in his own words just what he understands the bargain to be. This should be done on the record prior to the acceptance of the plea. In the event the defendant misstates the bargain, his attorney and the district attorney should state their understanding. In situations in which the bargain appears to be improper or to exceed the powers of the district attorney, the court should carefully explain the situation to the defendant. All parties should make certain that the exact understanding appears in the record. In this way the court can ascertain exactly what induced the defendant to enter the plea and determine whether the inducements were accurate and proper. In this way, too, the defendant would be precluded from *664later asserting that additional promises were made to induce the plea. The trial court would then have the entire picture before it when the plea is made, and this court would have a more intelligent basis for reviewing the conviction.

This procedure goes beyond the Minimum Standards for Criminal Justice Relating to Pleas of Guilty, sec. 3.3,3 in that the trial court would be required to inquire into the details of the bargain whereas under the standard the trial court’s inquiry is permissive, not mandatory. The experience of this court in reviewing guilty-plea proceedings indicates that the disclosure of the details of the plea bargain should be mandatory.

We would also add to the four grounds designated as manifest injustice warranting withdrawals of a guilty plea, as approved by Reppin4 the fifth ground added by sec. 2.1 (a) (ii) (5) of the Supplement to the Minimum Standards,5 approved after Reppin, which provides as follows:

“(5) he did not receive the charge or sentence concessions contemplated by the plea agreement concurred in by the court, and he did not affirm his plea after being advised that the court no longer concurred and being called upon to either affirm or withdraw his plea.”

(1964), 22 Wis. 2d 486, 494, 126 N. W. 2d 91.

Burkhalter v. State, ante, page 413, 190 N. W. 2d 502.

American Bar Association Project on Minimum, Standards for Criminal Justice — Pleas of Guilty (Approved Draft, 1968), Part III, pp. 71, 72.

State v. Reppin (1967), 35 Wis. 2d 377, 151 N. W. 2d 9.

Supra, footnote 2 (Supplement, March, 1968), at page 4.