State v. Howard Edward Wells

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.
October 17, 2023
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. 2022AP572-CR Cir. Ct. No. 2018CF1765

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

HOWARD EDWARD WELLS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Brown County:
DONALD R. ZUIDMULDER, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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. Howard Wells, pro se, appeals from a judgment
convicting him of possession of a firearm by a felon. Wells raises a series of
No. 2022AP572-CR

issues related to motions he filed seeking to dismiss the complaint and to suppress
evidence. We conclude that the issues Wells attempts to raise on appeal related to
the complaint are procedurally barred by his entry of a no-contest plea. We reject
Wells’ remaining arguments challenging the circuit court’s suppression ruling and
affirm the judgment of conviction.

BACKGROUND

¶2 On December 11, 2018, a Brown County police officer met with
Barbara Parks1 at a domestic abuse shelter in response to a dispatch call. Parks
informed the officer that she had previously been in a physically and verbally
abusive relationship with Wells, with whom she shared two children. Parks
alleged that Wells had recently been “intimidating” her. Among several incidents
that Parks described were a sexual assault, a beating that led her to seek medical
treatment for a head injury, and an episode during which Wells texted Parks that
he would have shot her if their daughter had not been present.

¶3 On December 14, 2018, Parks again contacted the police to report that
Wells, armed with a gun and a hammer, had confronted her and another woman,
Kate Woods, outside of Wells’ apartment building while Parks was attempting to
retrieve her truck. Parks reported that Wells had threatened to shoot them.
Responding officers arrested Wells at the scene because he was “wanted on
several felony charges” stemming from Parks’ prior report. After speaking with
Parks and Woods, the police obtained a warrant to search Wells’ apartment for the

1
This matter involves the alleged victims of a crime. Pursuant to the policy underlying
WIS. STAT. RULE 809.86(4) (2021-22), we use pseudonyms instead of the victims’ names. All
references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

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gun and hammer used in the most recent incident. During the search, the police
discovered a loaded firearm, two hammers, a baggie of methamphetamine, and
various drug paraphernalia. The police then obtained a second search warrant to
seize the drugs and drug paraphernalia.

¶4 The State filed a complaint three days later charging Wells with nine
offenses. Wells waived his right to counsel. Following a preliminary hearing, the
State filed an Information amending the charges to: (1) disorderly conduct by use
of a dangerous weapon, as domestic abuse and as a domestic abuse repeat
offender; (2) possession of a firearm by a felon as a repeat offender; (3) possession
of methamphetamine as a second or subsequent offense; and (4) possession of
drug paraphernalia as a repeat offender.

¶5 Wells moved to dismiss the charges on the grounds that he was
arrested on “mere hearsay”; that an “invalid arrest” was insufficient to confer
subject matter and personal jurisdiction upon the circuit court; and that the
complaint merely recited the elements of the crimes charged. Wells alternately
moved to suppress the gun and other evidence recovered from his apartment on
the grounds that his arrest was invalid and there was no probable cause to support
the search warrant.

¶6 The circuit court denied Wells’ suppression motion during the final
pretrial conference, without taking evidence. The court concluded that there were
no grounds to suppress evidence obtained during the search because the search
warrant was signed by a magistrate who found probable cause and Wells had not
alleged that the officer applying for the warrant knew that any information in his
application was false. The court also denied the motion to dismiss the case, but
noted that it would be willing to entertain a challenge to the sufficiency of the

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evidence—including whether there were sufficient facts to establish personal
jurisdiction—after trial.

¶7 Wells subsequently pled no contest to the charge of possession of a
firearm by a felon, without the repeater penalty enhancer, in exchange for the
dismissal of the remaining charges as read-in offenses and a joint recommendation
for an eighteen-month term of probation. The circuit court followed the parties’
recommendation and placed Wells on probation for eighteen months.

¶8 After the appointment and withdrawal of postconviction counsel,
Wells filed this pro se appeal. Wells now contends: (1) the circuit court failed to
provide adequate reasoning for denying his motions to dismiss the charges and to
suppress evidence; (2) the court failed to make factual findings to support its
rulings; (3) the court violated Wells’ “right to be heard” by denying his motions
without an evidentiary hearing and without allowing him to fully present his
arguments; (4) the search warrant was not supported by probable cause; (5) the
complaint was defective because it was based upon hearsay; (6) Wells’ arrest was
unlawful because it was based upon hearsay and suspicion; (7) the court cannot
obtain jurisdiction through an invalid arrest; and (8) evidence seized from the
search should have been suppressed as “fruit of the poisonous tree.” Wells further
claims that he should be allowed to withdraw his no-contest plea as a remedy for
these alleged errors.

¶9 We note that the eight issues Wells discusses in the argument section
of his brief overlap, but they do not fully correspond to the five issues he identifies
in his statement of the issues. Although we have listed the issues as Wells
discusses them in his argument, we will reorganize them for our own analysis
based upon a framework that better addresses the procedural posture of the case.

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DISCUSSION

¶10 As a threshold matter, the State asserts that Wells has forfeited all
issues relating to the validity of the complaint. By entering a valid plea of guilty
or no contest, a defendant forfeits the right to challenge nearly all nonjurisdictional
defects and defenses occurring prior to the plea, including most alleged violations
of constitutional rights. See State v. Kelty, 2006 WI 101, ¶¶18 & n.11, 34, 294
Wis. 2d 62, 716 N.W.2d 886. There is a statutory exception to this forfeiture rule
allowing review of a suppression ruling following a plea of guilty or no contest.
WIS. STAT. § 971.31(10). We review questions involving the effect of a plea
de novo. Kelty, 294 Wis. 2d 62, ¶13.

¶11 Here, Wells attempts to avoid the application of the
guilty-plea-forfeiture rule by framing his challenge to the validity of the complaint
as jurisdictional in nature. However, the type of jurisdictional defects that are
exempted from the guilty-plea-forfeiture rule involve challenges to subject matter
jurisdiction, not personal jurisdiction. See State v. Aniton, 183 Wis. 2d 125, 129,
515 N.W.2d 302 (Ct. App. 1994) (regarding subject matter jurisdiction); State v.
Asmus, 2010 WI App 48, ¶4, 324 Wis. 2d 427, 782 N.W.2d 435 (regarding
personal jurisdiction).

¶12 Subject matter jurisdiction refers to the power of a court to decide
certain types or categories of actions. City of Cedarburg v. Hansen, 2020 WI 11,
¶49, 390 Wis. 2d 109, 938 N.W.2d 463 (citation omitted). Under the Wisconsin
Constitution, circuit courts have original subject matter jurisdiction over “all
matters civil and criminal.” WIS. CONST. art. VII, § 8. Subject matter jurisdiction
in a criminal case is conferred upon the court by the filing of an Information that
states the elements of a crime. Asmus, 324 Wis. 2d 427, ¶4. A circuit court lacks

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subject matter jurisdiction over a criminal case only when the charged offense
does not exist. Aniton, 183 Wis. 2d at 129.

¶13 Wells does not (and could not successfully) contend that any of the
four offenses alleged in the Information do not exist under Wisconsin law, or that
the Information failed to state any of the elements of those offenses. Wells’
assertion that the complaint was invalid because it was based upon hearsay that
was insufficient to establish probable cause has no bearing upon the circuit court’s
subject matter jurisdiction. Rather, a claim that a complaint fails to state probable
cause raises a question of personal jurisdiction. See State v. Higgs, 230 Wis. 2d 1,
8-9, 601 N.W.2d 653 (Ct. App. 1999). Therefore, Wells forfeited the right to
challenge the complaint by entering his no-contest plea.

¶14 We turn next to the denial of Wells’ suppression motion without an
evidentiary hearing. In order to obtain an evidentiary hearing, a defendant must
allege material facts sufficient to warrant the relief sought. State v. Allen, 2004
WI 106, ¶¶9, 36, 274 Wis. 2d 568, 682 N.W.2d 433. No evidentiary hearing is
required when the defendant presents only conclusory allegations or when the
record conclusively demonstrates that he or she is not entitled to relief. Nelson v.
State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972). We review the decision
to deny a motion without an evidentiary hearing de novo, independently
determining whether the facts alleged would, if proven, establish the right to the
relief sought. See State v. Bentley, 201 Wis. 2d 303, 308, 548 N.W.2d 50 (1996).

¶15 In his suppression motion, Wells claimed: (1) his arrest was invalid
because officers acted without prior approval by a judge or magistrate and without
exigent circumstances justifying their failure to obtain an arrest warrant; (2) his
arrest was invalid because it was based upon mere hearsay that fell short of

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probable cause; and (3) the initial search warrant also was invalid because it was
based upon hearsay that fell short of probable cause. We conclude that Wells was
not entitled to an evidentiary hearing on his suppression motion because the facts
alleged in his motion do not establish a right to relief on any of these claims.

¶16 First, there is no requirement under Wisconsin law that there be
exigent circumstances in order to make a warrantless arrest. Rather, pursuant to
WIS. STAT. § 968.07(1)(d), a law enforcement officer may arrest a person without
a warrant when “[t]here are reasonable grounds to believe that the person is
committing or has committed a crime.” The term “reasonable grounds” is
synonymous with the term “probable cause.” Johnson v. State, 75 Wis. 2d 344,
348, 249 N.W.2d 593 (1977). A judicial determination of probable cause may be
properly made after the arrest. See County of Riverside v. McLaughlin, 500 U.S.
44, 55-56 (1991). Therefore, neither the lack of an arrest warrant nor the lack of
exigent circumstances rendered Wells’ arrest illegal.

¶17 Second, the facts set forth in both the complaint and the suppression
motion were sufficient to establish probable cause for Wells’ arrest. Probable
cause for arrest exists when the totality of the circumstances within the arresting
officer’s knowledge would lead a reasonable law enforcement officer to believe
that the suspect probably committed a crime. State v. Kutz, 2003 WI App 205,
¶11, 267 Wis. 2d 531, 671 N.W.2d 660. The officer’s belief may be predicated in
part upon hearsay and upon the collective knowledge of the police. Id., ¶12. The
probable cause test is “not a high bar,” and “requires only a probability or
substantial chance of criminal activity, not an actual showing of such activity.”
District of Columbia v. Wesby, 583 U.S. 48, 57 (2018) (citation omitted). When
competing reasonable inferences could be drawn, the officer is entitled to rely on
the one justifying arrest. Kutz, 267 Wis. 2d 531, ¶12.

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No. 2022AP572-CR

¶18 We first note that the allegations against Wells made by Parks and
Woods at the scene of the hammer and gun incident were not hearsay statements
being relayed to the arresting officers by third parties. See generally WIS. STAT.
§ 908.01(3) (defining hearsay). Instead, they were direct accounts of the women’s
own experiences that would have been admissible in circuit court if the women
had testified at trial. To the extent that the arresting officers also relied upon a
dispatch report regarding felony charges stemming from Parks’ prior allegations of
battery and sexual assault, that information was within the collective knowledge of
the police. Again, Parks’ prior statement regarding the battery and sexual assault
allegations would not have constituted inadmissible hearsay if she had testified at
trial. The arresting officers therefore were entitled to consider the statements the
two women made at the scene of the hammer and gun incident, as well as the
collective knowledge of the police regarding Parks’ earlier report of battery and
sexual assault, as part of their evaluation of whether there was probable cause for
the arrest.

¶19 Wells seems to argue that Parks’ allegations were untrue, and that
the police should have further investigated the allegations before acting upon
them. That, however, is not the legal standard that applies. Although Wells
challenged the truth of Parks’ and Woods’ statements, he did not dispute that the
complaint accurately conveyed the substance of those statements. Therefore, there
was no need for an evidentiary hearing or for the circuit court to make factual
findings to determine what knowledge the police possessed at the time of the
arrest.

¶20 We conclude, as a matter of law, that the substance of the statements
Parks and Woods made to the police at the scene of the hammer and gun incident
were sufficient to lead a reasonable police officer to believe that Wells had, at a

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minimum, committed the offense of disorderly conduct. Therefore, the facts
alleged in the suppression motion did not establish that Wells was arrested without
probable cause.

¶21 Third, the facts alleged in the suppression motion did not establish a
right to relief based upon an invalid search warrant.2 To begin, essentially the
same facts that established probable cause for Wells’ arrest would also establish
probable cause for the first search warrant. See State v. Romero, 2009 WI 32,
¶¶16, 19, 317 Wis. 2d 12, 765 N.W.2d 756 (requiring “a fair probability that
contraband or evidence of a crime will be found in a particular place”). Given the
proximity in time and place to when Parks and Woods reported the hammer and
gun incident outside Wells’ house, and when the police responded, there was a fair
probability that the hammer and gun would be located in the house.

¶22 Moreover, evidence seized pursuant to a warrant does not need to be
suppressed unless the affidavit in support of the search warrant contained false
statements necessary to a finding of probable cause that were made intentionally
or with reckless disregard for the truth. Franks v. Delaware, 438 U.S. 154, 156
(1978). Wells did not allege that the officer who applied for the first search
warrant made any intentionally false or reckless statements. Although the circuit
court did not explicitly cite Franks in its decision, it is plain that it applied the
Franks test when concluding that suppression would not be an available remedy
even if the search warrant had not been supported by probable cause. We are

2
Our ability to evaluate the validity of the search warrant is somewhat constrained by
the fact that it is not included in the appellate record. Given that the circuit court denied Wells’
suppression motion without holding an evidentiary hearing at which Wells could have introduced
the warrant, we will accept as true the allegations in the suppression motion as to the basis for
issuing the warrant.

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No. 2022AP572-CR

satisfied that the court’s discussion, though brief, adequately explained the
grounds for its decision.

¶23 We conclude that the circuit court acted properly in denying Wells’
suppression motion without a hearing, and without making factual findings,
because the allegations in the suppression motion were insufficient to establish
grounds for relief. We are further satisfied that the court adequately explained its
decision. We therefore affirm the judgment of conviction.

By the Court.—Judgment affirmed.

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

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