It would simply be without any logical basis to assume that when our supreme court was mandating the need for notice of the maximum sentence, it was also deciding that any presumptive minimum sentence would not have to be communicated. We have found one case, State v. Erickson, 53 Wis.2d 474, 192 N.W.2d 872 (1972), where the supreme court examined a plea to drug charges carrying a mandatory minimum sentence of the type that appeared in our statutes prior to the 1971 repeal. But there is nothing within that decision which suggests that the court even considered whether the defendant should be informed about the minimum sentence.
SeeFarrar v. State, 52 Wis.2d 651, 657, 191 N.W.2d 214, 217 (1971) ("[T]he entire sentencing process is to be a search for the truth and an evaluation of alternatives. Any advance understanding between prosecutor and defendant must not involve the trial judge . . . or court."); State v. Erickson, 53 Wis.2d 474, 481 192 N.W.2d 872, 876 (1972) ("[T]his court has firmly stated that a trial judge is not to participate in plea bargaining."); Melby v. State, 70 Wis.2d 368, 385, 234 N.W.2d 634, 643 (1975) ("[S]ince State v. Wolfe, 46 Wis.2d 478, 175 N.W.2d 216 (1970), this court has made it clear that trial courts are not to participate in plea bargains."); State v. Williams, 2002 WI 1, ¶ 24, 249 Wis.2d 492, 637 N.W.2d 733 ("[A] sentencing court may not participate in a plea agreement."). ¶ 16.
¶5 In the criminal context, a circuit court has discretion whether to accept a plea, be it a guilty plea or a no-contest plea. State v. Martin, 162 Wis. 2d 883, 904, 470 N.W.2d 900 (1991) ("... a court has discretion whether or not to officially receive or accept [guilty or no-contest] pleas ..."); State v. Erickson, 53 Wis. 2d 474, 476, 192 N.W.2d 872 (1972) ("The trial court earlier rejected a plea of nolo contendere [i.e., no contest], but it was within its discretion to do just that."); State v. La Pean, 247 Wis. 302, 308, 19 N.W.2d 289 (1945) ("The right of the court to refuse to accept a plea is an inherent power of all criminal courts."); Brozosky v. State, 197 Wis. 446, 222 N.W. 311, 313 (1928) (a plea of nolo contendere "is received at the discretion of the court"). Although an attorney disciplinary proceeding is a civil action, rather than a criminal case, we see no reason why this rule would not also apply to a referee in an attorney disciplinary proceeding.
¶5 In the criminal context, a circuit court has discretion whether to accept a plea, be it a guilty plea or a no-contest plea. State v. Martin, 162 Wis.2d 883, 904, 470 N.W.2d 900 (1991) (". . . a court has discretion whether or not to officially receive or accept [guilty or no-contest] pleas . . ."); State v. Erickson, 53 Wis.2d 474, 476, 192 N.W.2d 872 (1972) ("The trial court earlier rejected a plea of nolo contendere [i.e., no contest], but it was within its discretion to do just that."); State v. La Pean, 247 Wis. 302, 308, 19 N.W.2d 289 (1945) ("The right of the court to refuse to accept a plea is an inherent power of all criminal courts."); Brozosky v. State, 197 Wis. 446, 222 N.W.2d 311, 313 (1928) (a plea of nolo contendere "is received at the discretion of the court"). Although an attorney disciplinary proceeding is a civil action, rather than a criminal case, we see no reason why this rule would not also apply to a referee in an attorney disciplinary proceeding.
Accordingly, the general practice is to advise defendants of the minimum and maximum penalties associated with a plea. Id.; see also State v. Erickson, 53 Wis.2d 474, 479–80, 192 N.W.2d 872 (1972) (discussing the importance of informing the defendant of the maximum penalty possible upon entry of a plea); State v. Mohr, 201 Wis.2d 693, 700, 549 N.W.2d 497 (Ct.App.1996) (holding that circuit courts must advise defendants of the presumptive minimum sentence associated with a plea). ¶ 25 A defendant's failure to understand the precise maximum punishment is not necessarily a due process violation.
¶ 49 Second, the defendant's suggestion violates the principle that circuit courts may not participate in plea bargaining. State v. Hampton, 2004 WI 107, ¶ 27, 274 Wis.2d 379, 683 N.W.2d 14;State v. Williams, 2000 WI 78, ¶ 26, 236 Wis.2d 293, 613 N.W.2d 132;State v. Comstock, 168 Wis.2d 915, 927, 485 N.W.2d 354 (1992); State v. Erickson, 53 Wis.2d 474, 481, 192 N.W.2d 872 (1972); State v. Wolfe, 46 Wis.2d 478, 487, 175 N.W.2d 216 (1970). ¶ 50 The defendant points to State v. Conger, 2010 WI 56, ¶ 3, 325 Wis.2d 664, 797 N.W.2d 341, where the court held that a circuit court may reject a plea agreement that does not, in its view, serve the public interest.
¶ 147. In State v. Erickson, 53 Wis. 2d 474, 481, 192 N.W2d 872 (1972), the court said: Whatever may be the policies or procedures elsewhere, this court has firmly stated that a trial judge is not to participate in plea bargaining.
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); Statev. Wolfe, 46 Wis. 2d 478, 487, 175 N.W.2d 216 (1970).
"The second and equally compelling reason for not entitling defendants to be told, at time of entry of plea, what sentence will probably be imposed is the rule or policy in this state against participation by judges in so-called `plea bargains.' . . ." State v. Erickson, 53 Wis.2d 474, 480-81, 192 N.W.2d 872 (1972). In addition to interfering with the sentencing process by requiring the judge who rejects a plea agreement to determine the sentence he intends to impose without the benefit of a presentence investigation, the proposed procedure blurs the distinct roles of the executive and judicial branches of government in the operation of our criminal justice system. If the prosecutor's dispositional recommendation made pursuant to an agreement reached with the defendant is rejected, the defendant could understandably perceive the judge's subsequent declaration of an intended sentence as the judge's assuming the prosecutor's role and making a "counter offer," which the defendant could accept or, by withdrawing his plea, reject.
"`(3) the plea was involuntary, or was entered without knowledge of the charge or that the sentence actually imposed could be imposed, . . .'" In State v. Erickson, 53 Wis.2d 474, 479, 480, 192 N.W.2d 872 (1972), this court interpreted the above standards as requiring ". . . that the defendant be informed of the full range of statutorily authorized penalties for commission of the crime charged, particularly the maximum sentence possible." In Preston v. State, supra, this court held that where a trial court misinforms the defendant as to the maximum penalty in accepting a guilty plea, the court cannot then impose a greater sentence than that of which he was informed.