Clearly, under Boykin v. Alabama, supra, Wisconsin courts can no longer indulge in the presumption stated in Strickland, supra. In State ex rel. Burnett v. Burke (1964), 22 Wis.2d 486, 494, 126 N.W.2d 91, this court suggested that it was feasible for the trial court to do the following and make a record thereof: "1.
"Von Moltke is cited approvingly and as authority by the Wisconsin Supreme Court in State ex rel. Burnett v. Burke, 22 Wis.2d 486, 126 N.W.2d 91 (1964). In listing the duties of a trial court prior to accepting a plea of guilty, the court declared at 22 Wis.2d at 494, 126 N.W.2d at 95:
In recognition of these principles the Supreme Court of Wisconsin has prescribed the duties of a trial court before accepting a plea of guilty and waiver of counsel. See Burnett v. Burke (1964) 22 Wis.2d 486, 126 N.W.2d 91, in which the Supreme Court stated that it was the duty of trial courts to (1) determine the extent of defendant's education and general comprehension; (2) establish his understanding of the crime and range of punishment; (3) ascertain whether any promises or threats had been made in connection with his appearance, his refusal of counsel and his proposed plea of guilty; (4) alert the petitioner to the possibility that a lawyer may discover defenses or mitigating circumstances; (5) make sure that the defendant understood that if indigent, counsel would be provided at no expense to him. It is significant that Judge Parnell found that at least four of these five propositions before acceptance of a plea of guilty, were not reflected in the record at the time of conviction.
Defendant contends that the failure to advise him of the possible maximum penalty he might receive under the charges brought against him compels a reversal as a matter of law, not because the defendant did not know, but simply because the trial court failed to so state. In support of his contention, the defendant first cites State ex rel. Burnett v. Burke (1964), 22 Wis.2d 486, 126 N.W.2d 91, for the correct proposition that this court formulated therein a desirable procedure recommended for the use of trial courts before accepting waivers of counsel and pleas of guilty. The recommended procedure reads in part as follows, at page 494:
When the judge discharges that function, he leaves a record adequate for any review that may be later sought ( Garner v. Louisiana, 368 U.S. 157, 173; Specht v. Patterson, 386 U.S. 605, 610), and forestalls the spin-off of collateral proceedings that seek to probe murky memories.Among the States requiring that an effective waiver of the right to plead not guilty appear affirmatively in the record are Colorado, Colo. Rev. Stat. Ann. § 39-7-8; Illinois, Ill. Rev. Stat., c. 38, §§ 113-1 to 114-14; Missouri, State v. Blaylock, 394 S.W.2d 364 (1965); New York, People v. Seaton, 19 N.Y.2d 404, 407, 227 N.E.2d 294, 295 (1967); Wisconsin, State v. Burke, 22 Wis.2d 486, 494, 126 N.W.2d 91, 96 (1964); and Washington, Woods v. Rhay, 68 Wn.2d 601, 605, 414 P.2d 601, 604 (1966)."A majority of criminal convictions are obtained after a plea of guilty. If these convictions are to be insulated from attack, the trial court is best advised to conduct an on the record examination of the defendant which should include, inter alia, an attempt to satisfy itself that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses for which he is charged and the permissible range of sentences."
(Emphasis added.) See also Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 839 (1927); United States v. Washington, 341 F.2d 277 (3rd Cir. 1965); United States v. Cariola, 323 F.2d 180, 186 (3rd Cir. 1963); United States v. Lester, 247 F.2d 496, 499-500 (2nd Cir. 1957); Snell v. United States, 174 F.2d 580 (10th Cir. 1949); People v. Kemp, 55 Cal.2d 458, 11 Cal.Rptr. 361, 359 P.2d 913 (1961); Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 202 A.2d 303 (1964); State ex rel. Burnett v. Burke, 22 Wis.2d 486, 126 N.W.2d 91 (1964); People v. Chesser, 29 Cal.2d 815, 823, 178 P.2d 761, 765 (1947). The Supreme Court has repeatedly pointed out that it will indulge every reasonable presumption against waiver of fundamental constitutional rights; and while the accused may waive his right to counsel, the trial court should determine whether there is a proper waiver, and that determination should appear in the record.
Thus, on our assumptions from an unclear record that Spanbauer was not informed of specific sentences, possible defenses or mitigating circumstances, it is clear that the Wisconsin standards are not as comprehensive or strict as the federal standards, at least as expressed in Von Moltke. State v. Strickland, 27 Wis.2d 623, 135 N.W.2d 295 (1965); State ex rel. Burnett v. Burke, 22 Wis.2d 486, 126 N.W.2d 91 (1964). It is also clear that the federal district judge in coming to a decision on Spanbauer's habeas corpus petition, assumed that the Von Moltke standards did not fully apply.
Taylor v. Holman, 222 F. Supp. 482, 484 (N.D.Ala. 1963), aff'd 330 F.2d 497 (5th Cir. 1964) (1st case). Failure to take the precautionary safeguards proposed for proceedings on arraignment in State ex rel. Burnett v. Burke, 22 Wis.2d 486, 126 N.W.2d 91 (1964) does not establish that there was a denial of constitutional rights in this case. See Aiken v. United States, 296 F.2d 604, 607 (4th Cir. 1961).
The finding of the circuit court of Chippewa County, which had opportunity to observe the demeanor of the witnesses, that the statement and pleas were made voluntarily has substantial support in the record. The trial court, on arraignment and plea, did not take all the steps proposed by the Supreme Court of Wisconsin as means of ascertaining the voluntariness and understanding with which the waiver of counsel and plea of guilty were made. See State ex rel. Burnett v. Burke, 22 Wis.2d 486, 126 N.W.2d 91 (1964), and State ex rel. Drankovich v. Murphy, 248 Wis. 433, 22 N.W.2d 540 (1946). Failure to take the additional precautionary safeguards does not establish that petitioner's constitutional rights were violated. See Aiken v. United States, 296 F.2d 604, 607 (4th Cir. 1961); Bagley v. Washington State Board of Prison Terms and Paroles, supra.
Ernst v. State, 43 Wis. 2d 661, 170 N.W.2d 713 (1969), abrogated by State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986). In Ernst, this court overruled the Strickland "assumption" and mandated that the circuit courts follow the practice suggested in State ex rel. Burnett v. Burke, 22 Wis. 2d 486, 494, 126 N.W.2d 91 (1964). Ernst, 43 Wis. 2d at 674.