State v. Darrin D. Burns, 226 Wis.2d 762, 594 N.W.2d 799 (1999), affirming unpublished decision
For Burns: Glenn L. Cushing, SPD, Madison Appellate
Issue/Holding:
¶3 We affirm the judgment of conviction in this case, even though the defendant did not expressly and personally articulate a plea of no contest on the record in open court, because the only inference possible from the totality of the facts and circumstances in the record is that the defendant intended to plead no contest. Indeed in this case the defendant acknowledges, as he must, that the record amply and clearly demonstrates that he intended to enter a plea of no contest when he came to court on January 16, 1996.
The supreme court “urges circuit courts to follow the usual and strongly preferred practice of asking defendants directly and personally in open court and on the record how they plead to the charged offenses and of entering the pleas on the record.” This caution is directory, not mandatory, but it underscores the holding’s relatively narrow reach:
¶27 In sum, although the strongly preferred practice is that circuit courts elicit from defendants a response of ‘guilty’ or ‘no contest’ to the question ‘how do you plead?,’ when a circuit court has failed to do so, a reviewing court may hold that a defendant made such a plea when the only inference possible from the totality of the facts and circumstances in the record is that the defendant intended to plead no contest (or guilty, as the case may be).”
Note the use of “may,” rather than “shall,” and even then, when only the one inference is possible.
