State v. Matthew J. Decola

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 22, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP725-CR Cir. Ct. No. 2020CF493

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MATTHEW J. DECOLA,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Sauk
County: MICHAEL P. SCRENOCK, Judge. Reversed and cause remanded for
further proceedings.

Before Kloppenburg, P.J., Blanchard, and Taylor, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Matthew Decola appeals a judgment of conviction
for operating a motor vehicle while intoxicated (5th offense) and a circuit court
No. 2023AP725-CR

order that denied, without a hearing, Decola’s postconviction motion seeking plea
withdrawal based on ineffective assistance of counsel. Specifically, Decola argues
that his postconviction motion sufficiently alleged that counsel provided
constitutionally ineffective assistance for failing to file a motion to suppress
evidence obtained after police unlawfully entered his residence, requiring the
circuit court to hold an evidentiary hearing. We agree that Decola’s
postconviction motion sufficiently alleged ineffective assistance of counsel to
entitle him to a hearing. We therefore reverse and remand for an evidentiary
hearing on Decola’s postconviction motion.1

Background

¶2 A police officer, while on patrol in his squad car, observed Decola
commit a traffic violation. Decola then turned into his own driveway and parked
in his garage.

¶3 The police officer followed Decola to his driveway, exited the squad
car, and entered Decola’s garage to seize Decola for the traffic violation. Based
on evidence obtained following the seizure—including field sobriety tests
performed in Decola’s driveway and subsequent blood alcohol testing—the State
charged Decola with multiple criminal offenses.

1
In his appellate briefs, Decola asks that, if we conclude that his motion sufficiently
alleged that counsel was constitutionally ineffective for failing to file a suppression motion, we
should remand to the circuit court either to hold an evidentiary hearing on his ineffective
assistance of counsel claim or, alternatively, to grant his motion to withdraw his plea. The State
is silent on Decola’s alternative relief request that we direct the circuit court to grant the plea
withdrawal motion. However, under well-established case law, a circuit court must hold an
evidentiary hearing to consider a postconviction motion based on ineffective assistance of counsel
if the motion alleges facts that, if true, would entitle the defendant to relief. State v. Allen, 2004
WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. Accordingly, we do not further consider
Decola’s request for alternative relief.

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No. 2023AP725-CR

¶4 Decola’s trial counsel did not pursue a motion to suppress the
evidence against him. The parties reached a plea agreement, and Decola entered a
plea to operating a motor vehicle while intoxicated as a fifth offense and was
sentenced.

¶5 Decola filed a postconviction motion for plea withdrawal, arguing
that his trial counsel was ineffective for failing to move to suppress evidence
based on Fourth Amendment violations.2 Decola argued that police lacked the
necessary probable cause and exigent circumstances to justify the warrantless
entry to his garage and his seizure. He asserted that, had his counsel moved to
suppress, all of the evidence following the illegal entry and seizure would have
been suppressed. Counsel averred that Decola would testify at an evidentiary
hearing that if Decola “[h]ad known that his constitutional rights were violated,
and all evidence collected from the warrantless entry into his garage could be
suppressed, he would not have entered the no contest plea.”

¶6 The State opposed the motion. It conceded that the police entry into
Decola’s garage violated Decola’s Fourth Amendment rights. However, it argued
that all of the evidence police obtained outside the garage after police seized him
and removed him from the garage—including the results of field sobriety and
blood alcohol tests—was admissible. It cited New York v. Harris, 495 U.S. 14
(1990), and State v. Felix, 2012 WI 36, 339 Wis. 2d 670, 811 N.W.2d 775, as
establishing an exception to the exclusionary rule for evidence obtained outside of

2
It is undisputed that Decola’s garage is part of his residence for Fourth Amendment
purposes. See State v. Cundy, 2023 WI App 41, ¶19, 409 Wis. 2d 34, 995 N.W.2d 266 (“The
Fourth Amendment’s protection extends to the curtilage of one’s home, the area ‘immediately
surrounding and associated with the home.’” (quoted source omitted)).

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No. 2023AP725-CR

the defendant’s residence after police unlawfully entered the residence, so long as
police had probable cause to arrest the defendant before the illegal entry. The
State argued that the exception to the exclusionary rule applied because police had
probable cause to arrest Decola for the traffic violation under the authority of WIS.
STAT. § 345.22 (2021-22).3 Thus, the State argued, Decola’s trial counsel was not
ineffective for failing to pursue a meritless motion to suppress.

¶7 In reply, Decola disputed that the Harris/Felix exception to the
exclusionary rule would allow admission of the evidence obtained outside of his
garage. He conceded that police had authority to arrest him for the traffic
violation under WIS. STAT. § 345.22. However, he argued that the Harris/Felix
exception does not apply to entry into a residence to arrest for a non-criminal
traffic violation such as the violation at issue here.

¶8 The circuit court determined that application of the Harris/Felix rule
to an illegal entry into a residence to arrest for a non-criminal traffic violation is
unsettled. The court concluded that Decola’s trial counsel was not ineffective for
failing to pursue an unsettled issue. See State v. Jackson, 2011 WI App 63, ¶10,
333 Wis. 2d 665, 799 N.W.2d 461 (stating that, when the law is unsettled, the
failure to raise an issue may be objectively reasonable and therefore not deficient
performance). The court therefore denied the postconviction motion without an
evidentiary hearing. Decola appeals.

3
WISCONSIN STAT. § 345.22 states, “A person may be arrested without a warrant for the
violation of a traffic regulation if the traffic officer has reasonable grounds to believe that the
person is violating or has violated a traffic regulation.”

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2023AP725-CR

Standard of Review

¶9 A post-sentencing motion for plea withdrawal must establish that
plea withdrawal is necessary to correct a manifest injustice. State v. Bentley, 201
Wis. 2d 303, 311, 548 N.W.2d 50 (1996). “[T]he ‘manifest injustice’ test is met if
the defendant was denied the effective assistance of counsel.” Id. A defendant
claiming ineffective assistance of counsel must show that counsel’s performance
was deficient and that the defendant was prejudiced by the deficient performance.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficient
performance, a defendant must point to specific acts or omissions by counsel that
were “outside the wide range of professionally competent assistance.” Id. at 690.
To prove prejudice in the plea withdrawal context, the defendant must demonstrate
that, absent counsel’s errors, the defendant would not have pled guilty but would
have exercised the defendant’s constitutional right to a trial. State v. Dillard, 2014
WI 123, ¶¶85, 95-96, 358 Wis. 2d 543, 859 N.W.2d 44.

¶10 A defendant is entitled to an evidentiary hearing on a postconviction
motion if “the motion on its face alleges sufficient material facts that, if true,
would entitle the defendant to relief.” State v. Ruffin, 2022 WI 34, ¶¶27, 35, 401
Wis. 2d 619, 974 N.W.2d 432. A motion does not entitle a defendant to relief if it
contains “only conclusory allegations, or if the record conclusively demonstrates
that the defendant is not entitled to relief.” Id., ¶28. Whether a motion suffices to
entitle a defendant to relief is a question of law that this court reviews de novo.
State v. Sulla, 2016 WI 46, ¶23, 369 Wis. 2d 225, 880 N.W.2d 659; State v. Allen,
2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433.

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No. 2023AP725-CR

Discussion

¶11 On appeal, as in the circuit court, the parties agree that the police
officer: (1) had sufficient grounds to arrest Decola for a non-criminal traffic
violation when the officer entered Decola’s garage but had no basis at that point to
arrest Decola for a crime; and (2) violated Decola’s Fourth Amendment rights by
entering his garage and seizing him. The parties also agree that, under
Harris/Felix, assuming no other constitutional violations, when police obtain
evidence outside a residence following an illegal entry into the residence, the
evidence is admissible if police had probable cause to arrest the defendant for a
crime prior to the entry. Thus, the sole dispute between the parties is whether the
exception to the exclusionary rule recognized in Harris/Felix extends to entry into
a residence to arrest a suspect for a non-criminal offense.4 We conclude that it
does not and that, therefore, Decola has sufficiently alleged facts that entitle him
to a hearing on his ineffective assistance of counsel claim.

¶12 We begin by noting the following well-established legal principles
regarding a defendant’s Fourth Amendment rights against illegal seizures in the
defendant’s residence. “Both the Fourth Amendment to the United States
Constitution and article I, section 11 of the Wisconsin Constitution protect ‘[t]he
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.’” State v. Cundy, 2023 WI App 41,
¶19, 409 Wis. 2d 34, 995 N.W.2d 266 (quoting U.S. CONST. amend. IV; WIS.
CONST. art. I, § 11.4). “Our supreme court has recognized this protection as ‘one

4
The State makes no argument that, if the Harris/Felix exception does not apply,
Decola is not for any other reason entitled to an evidentiary hearing on his ineffective assistance
of trial counsel claim.

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No. 2023AP725-CR

of the core constitutional guarantees found in the United States Constitution.’” Id.
(quoted source omitted). “[W]hen it comes to the Fourth Amendment, the home is
first among equals. At the Amendment’s ‘very core’ stands ‘the right of a person
to retreat into the person’s own home and there be free from unreasonable
governmental intrusion.’” Id. (quoted sources omitted). Thus, the Fourth
Amendment generally prohibits warrantless in-residence arrests.5 Payton v. New
York, 445 U.S. 573 (1980).

¶13 As a remedy for a violation of the above constitutional principles,
under the exclusionary rule “evidence obtained in violation of the Fourth
Amendment is generally inadmissible in court proceedings.” Cundy, 409 Wis. 2d
34, ¶22. Evidence obtained following an unlawful search or seizure will be
suppressed as the fruit of a Fourth Amendment violation, unless the evidence is
sufficiently “attenuated” from the illegal police activity.6 Brown v. Illinois, 422
U.S. 590 (1975). Otherwise, “[w]e allow illegally obtained evidence to be
introduced at trial only under narrow exceptions and specific circumstances ….”
State v. Garcia, 2020 WI App 71, ¶8, 394 Wis. 2d 743, 951 N.W.2d 631.

¶14 With that background, we turn to the exception to the exclusionary
rule recognized in Harris. There, the United States Supreme Court held that,
following a warrantless in-residence arrest in violation of Payton, evidence

5
There are exceptions to the warrant requirement, but none are at issue here. As noted,
the State concedes that police violated Decola’s Fourth Amendment rights by entering his garage
and seizing him.
6
The parties agree that the issue of whether the evidence obtained outside Decola’s
garage was sufficiently attenuated from the police illegality has not been litigated and is not at
issue in this appeal. We do not address attenuation or other issues that have not been raised, and
which may be addressed in the circuit court during further proceedings.

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No. 2023AP725-CR

obtained from the defendant outside of the residence is admissible so long as
police had probable cause for the arrest. Harris, 495 U.S. at 17-19. The Court
explained that “the rule in Payton was designed to protect the physical integrity of
the home; it was not intended to grant criminal suspects, like Harris, protection for
statements made outside their premises where the police have probable cause to
arrest the suspect for committing a crime.” Id. at 17. The Harris court reasoned
that “the police had a justification to question Harris prior to his arrest; therefore,
his subsequent statement was not an exploitation of the illegal entry into Harris’
home.” Id. at 19.

¶15 Thus, under Harris, “where the police have probable cause to arrest
a suspect, the exclusionary rule does not bar the State’s use of a statement made by
the defendant outside of [the defendant’s] home, even though the statement is
taken after an arrest made in the home in violation of Payton.” Harris, 495 U.S.
at 21. The Harris court also clarified that the Brown “attenuation analysis is only
appropriate where, as a threshold matter, courts determine that the challenged
evidence is in some sense the product of illegal governmental activity.” Harris,
495 U.S. at 19.

¶16 The Wisconsin Supreme Court adopted the Harris rule, for purposes
of its interpretation of Article I, Section 11 of the Wisconsin Constitution, in
Felix, 339 Wis. 2d 670. The court summarized the Harris rule as follows:
“[W]here the Fourth Amendment violation is an unlawful arrest without a warrant,
in violation of Payton, but with probable cause, evidence obtained from the
defendant outside of the home is admissible because it is not ‘the product of illegal
governmental activity.’” Felix, 339 Wis. 2d 670, ¶1 (quoted source omitted). The
court stated that, consistent with Harris: “We hold that, where police had
probable cause to arrest before the unlawful entry, a warrantless arrest from

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No. 2023AP725-CR

Felix’s home in violation of Payton requires neither the suppression of statements
… nor the suppression of physical evidence obtained from Felix outside of the
home.” Felix, 339 Wis. 2d 670, ¶4.

¶17 Because “the Harris rule applies to evidence and statements
obtained from a defendant outside of the home where police had probable cause to
arrest the defendant, but arrested him in his home without a warrant,” the court
first addressed the “threshold” issue of whether police had probable cause for the
arrest. Felix, 339 Wis. 2d 670, ¶27. In addressing that issue, the court defined
“probable cause to arrest” as “information which would lead a reasonable police
officer to believe that the defendant probably committed a crime.” Id., ¶28.

¶18 Decola argues that the Harris/Felix rule does not apply to allow
admission of evidence obtained outside his residence following the illegal seizure
in his garage because the Harris/Felix rule unambiguously requires probable
cause to arrest for a crime. He contends that, while police had authority to arrest
him for a non-criminal traffic violation under WIS. STAT. § 345.22, that does not
meet the requirements for the Harris/Felix exception to the exclusionary rule. He
contends that, had his counsel pursued a suppression motion, the evidence against
him would have been suppressed and he would not have entered his plea. See
Dillard, 358 Wis. 2d 543, ¶¶85, 95-96 (to prove prejudice, the defendant must
demonstrate there is a reasonable probability that “but for counsel’s unprofessional
errors, the result of the proceeding would have been different”).

¶19 The State responds that the Harris/Felix exception to the
exclusionary rule applies to allow admission of evidence obtained from Decola
outside of his residence, because police had probable cause to arrest Decola for a
non-criminal offense before they illegally entered his garage. According to the

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No. 2023AP725-CR

State, the Harris/Felix rule turns on “whether a suspect was in lawful custody
when evidence was gathered from [the suspect], not on a distinction between
whether that custody arose from a civil or criminal offense.” The State
acknowledges that the exception to the exclusionary rule under Harris/Felix is
phrased in terms of probable cause to arrest for a crime, but contends that is only
because those cases happened to involve criminal offenses. It argues that nothing
in Harris or Felix suggests that evidence obtained outside the residence is
admissible if police illegally entered the residence with probable cause to arrest for
a crime, but not admissible if police illegally entered the residence with probable
cause to arrest for a non-criminal offense. The State argues that the rationale
applied in Harris and Felix applies equally to allow admission of the evidence
obtained outside Decola’s residence.

¶20 The State also contends in the alternative that, even if the
Harris/Felix rule does not apply to an illegal in-residence arrest for a non-criminal
offense, the performance of defense counsel was not deficient because the issue is
unsettled. See State v. Hanson, 2019 WI 63, ¶28, 387 Wis. 2d 233, 928 N.W.2d
607 (Deficient performance is limited to circumstances in which “‘the law or duty
is clear such that reasonable counsel should know enough to raise the issue.’”
(quoted source omitted)).

¶21 As we proceed to explain, we conclude that the unambiguous
meaning of Harris and Felix is the following: the exception to the exclusionary
rule following a Payton violation applies only when police have probable cause to
arrest a suspect for committing a crime. Thus, because police had probable cause
to arrest Decola for a non-criminal offense, Decola has sufficiently alleged that
counsel was constitutionally ineffective for not moving to suppress evidence

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No. 2023AP725-CR

obtained after police illegally entered Decola’s garage and seized him for a non-
criminal violation.

¶22 In Felix, 339 Wis. 2d 670, ¶39, our supreme court explained that
“[t]he Harris rule appropriately balances the purposes of the exclusionary rule and
the Payton rule with the social costs associated with suppressing evidence.” The
Felix court noted that “[t]he Payton rule was premised on the Fourth
Amendment’s protection of the ‘sanctity of the home,’” while the primary purpose
of the exclusionary rule is “to deter police misconduct.” Felix, 339 Wis. 2d 670,
¶39 (quoted source omitted). Because “there are substantial social costs associated
with excluding relevant evidence,” the exclusionary rule “must bear some relation
to the purposes which the law is to serve.” Id., ¶¶39-40. Thus, “[t]he Harris rule
is based on the Supreme Court’s conclusion that suppressing evidence and
statements obtained from a defendant outside of the home following a Payton
violation does not further the purpose of the Payton rule.” Felix, 339 Wis. 2d
670, ¶40. More specifically, “‘the rule in Payton was designed to protect the
physical integrity of the home; it was not intended to grant criminal suspects, like
Harris, protection for statements made outside their premises where the police
have probable cause to arrest the suspect for committing a crime.’” Felix, 339
Wis. 2d 670, ¶40 (emphasis added and quoted source omitted).

¶23 The Felix court made clear that it adopted only “a limited, bright-
line rule for a narrow category of evidence obtained after an unlawful arrest in
violation of Payton, but where police had probable cause to arrest.” Felix, 339
Wis. 2d 670, ¶43. As the Felix court explained: “Harris provides a narrow rule:
where police had probable cause before the unlawful entry and arrest, an arrest in
violation of Payton does not require the suppression of evidence obtained from the
defendant outside of the home ….” Felix, 339 Wis. 2d 670, ¶41. And, as the

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No. 2023AP725-CR

Felix court explicitly stated, the “probable cause” required for the rule to apply is
probable cause to arrest for a crime. Id., ¶28. Because the narrow exception to the
exclusionary rule recognized in Harris and Felix plainly applies only when police
have probable cause to arrest a suspect for a crime, it does not extend to police
entry into a residence to arrest a suspect for a non-criminal violation.7

Conclusion

¶24 To reiterate, the issue before this court is whether Decola’s
postconviction motion sufficiently alleged ineffective assistance of counsel such
that the circuit court was required to hold an evidentiary hearing on the motion.
The parties agree that the only disputed issue on that point is whether the
Harris/Felix exception to the exclusionary rule applies to the warrantless entry
into Decola’s garage to arrest him for a non-criminal offense. For the reasons set
forth above, we conclude that the Harris/Felix exception unambiguously applies
only to arrests for criminal offenses. Thus, well-established Fourth Amendment
principles would have defeated the only argument that the State makes in
opposition to a motion to suppress all evidence obtained following the illegal
seizure of Decola in his garage. See Garcia, 394 Wis. 2d 743, ¶8 (illegally
obtained evidence is admissible “only under narrow exceptions and specific
circumstances”). It follows that Decola has sufficiently alleged that counsel was
deficient for not pursuing such a motion.

7
Contrary to the State’s argument, the rationale underlying the Harris/Felix exception to
the exclusionary rule does not apply equally to illegal police entry into a residence to arrest a
suspect for a non-criminal violation. For example, as to the balancing of interests recognized in
Felix, the social costs associated with suppressing evidence of non-criminal offenses would not
outweigh the need for deterrence of police misconduct in illegally entering a suspect’s residence
to take the suspect into custody for a non-criminal offense.

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No. 2023AP725-CR

¶25 As to prejudice, the State does not respond to Decola’s argument
that he sufficiently alleged prejudice based on counsel’s averment that Decola
would have testified at an evidentiary hearing that Decola would not have pleaded
no contest to the OWI offense had he known that a viable motion could be filed,
resulting in the suppression of the OWI-related evidence. Thus, we take the State
to concede that Decola has sufficiently alleged prejudice from the alleged deficient
performance.

¶26 Accordingly, we reverse and remand for an evidentiary hearing.

By the Court.—Judgment and order reversed and cause remanded
for further proceedings.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

13