COURT OF APPEALS

DECISION

DATED AND FILED

January 23, 2024

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2022AP1695-CR Cir. Ct. No. 2019CF88

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

MATTHEW ROBERT MAYOTTE,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Taylor County: ANTHONY J. STELLA, JR., Judge. Affirmed. 

Before Stark, P.J., Hruz and Gill, JJ.
No. 2022AP1695-CR

2

¶1 GILL, J. Matthew Mayotte appeals a judgment of conviction, 

entered upon his Alford1 plea, for one count of burglary of a building. He also 

appeals an order denying his postconviction motion for plea withdrawal. Mayotte 

contends that he should be permitted to withdraw his plea for two reasons: (1) the 

plea was involuntary because he entered it with the understanding that he could 

appeal the circuit court’s previous denial of his motion to dismiss; and (2) his trial 

attorney was constitutionally ineffective by informing him that he could challenge 

the denial of his motion to dismiss on appeal after entering his plea.

¶2 We conclude Mayotte has failed to establish either that his plea was 

involuntary or that his trial attorney rendered ineffective assistance. We therefore 

affirm the judgment of conviction and the order denying postconviction relief.

BACKGROUND

¶3 The State charged Mayotte with burglary of a building, felony bail 

jumping, misdemeanor theft, and two counts of criminal damage to property. 

According to the complaint, on September 14, 2019, Mayotte’s brother contacted 

the Taylor County Sheriff’s Office to report that Mayotte had stolen a set of keys 

from the Taylor County district attorney and had used them to enter the 

Taylor County courthouse. Mayotte’s brother also reported that Mayotte changed 

the time on the courthouse’s tower clock and took photos of himself on his cell 

phone while in the clock tower. Mayotte’s brother further stated that Mayotte was 

drunk while on bond.

 

1

 See North Carolina v. Alford, 400 U.S. 25 (1970). “An Alford plea is a guilty plea in 

which the defendant pleads guilty while either maintaining his innocence or not admitting having 

committed the crime.” State v. Garcia, 192 Wis. 2d 845, 856, 532 N.W.2d 111 (1995).
No. 2022AP1695-CR

3

¶4 A Medford police officer followed up on this report and learned that 

an employee of the district attorney’s office had lost her keys at the courthouse on 

September 5, 2019. The officer also learned that the courthouse’s clock tower had 

been tampered with and required repairs and that the district attorney’s office was 

missing its file on Mayotte’s open felony case.

¶5 Officers subsequently executed a search warrant at Mayotte’s 

residence and took Mayotte into custody. A detective interviewed Mayotte’s 

roommate, who admitted that Mayotte had a set of keys belonging to the 

Taylor County district attorney; that Mayotte found the keys in the courthouse 

parking lot a week earlier; that Mayotte went to the courthouse and stole his own 

case file and another individual’s case file; and that Mayotte burned the case files 

in a burn pit outside of their residence. The detective searched the burn pit and 

found remnants of burned court paperwork, some of which pertained to a case 

involving an individual named Travis Spinler. The detective then confirmed that 

Spinler’s restitution file was missing from the district attorney’s office. The 

detective later interviewed Mayotte’s girlfriend, who stated that Mayotte told her 

that he had found a set of keys belonging to the district attorney on courthouse 

property and had used the keys to enter the district attorney’s office and steal his 

own case file and Spinler’s file.

¶6 The complaint also recounted that law enforcement had reviewed 

surveillance video footage from the courthouse, which showed a person in a green 

hooded sweatshirt inside the courthouse during the early morning hours of 

September 6, 2019. In particular, the video showed this person on the third floor 

of the courthouse near the door leading to the clock tower. The video also showed 

the person entering the district attorney’s office and then leaving the office with 

paperwork or case files. The complaint alleged that the person’s face could not be 
No. 2022AP1695-CR

4

seen on the surveillance video. The complaint also alleged, however, that law 

enforcement had located a sweatshirt similar to the one seen in the surveillance 

video inside Mayotte’s residence.

¶7 After receiving discovery from the State, which included screenshots 

from the surveillance video but not the video itself, Mayotte learned that the State 

had failed to preserve the video. Mayotte therefore moved to dismiss the charges 

against him pursuant to Arizona v. Youngblood, 488 U.S. 51 (1988), and State v. 

Greenwold, 181 Wis. 2d 881, 882, 512 N.W.2d 237 (Ct. App. 1994) (addressing 

the circumstances under which the government’s failure to preserve evidence may 

result in a denial of due process). Hereinafter, we refer to Mayotte’s motion to 

dismiss as his “Youngblood motion.”

¶8 Following a hearing, the circuit court denied Mayotte’s Youngblood

motion. However, the court left open the issue of whether the State could refer to 

the video or use the screenshots at trial. Mayotte later filed motions in limine 

seeking to prevent the State from introducing the screenshots at trial and seeking

an adverse inference instruction regarding the State’s failure to preserve the video. 

The court denied Mayotte’s motion to exclude the screenshots but granted his 

motion for an adverse inference instruction.

¶9 Shortly thereafter, Mayotte entered an Alford plea to the burglary 

charge, pursuant to a plea agreement. The agreement provided that in exchange 

for Mayotte’s plea, the remaining charges would be dismissed and read in, and the 

parties would jointly recommend that the circuit court withhold sentence and place 

Mayotte on probation for thirty months, with sixty days of jail time imposed as a 

condition of probation. The court accepted Mayotte’s Alford plea and followed

the parties’ joint sentence recommendation.
No. 2022AP1695-CR

5

¶10 Mayotte subsequently filed a postconviction motion for plea 

withdrawal, asserting that he “was not properly advised of the appellate issues he 

was waiving by entering his plea” and was “unaware ... that by entering his plea 

he waived his right to challenge the court’s decision on his” Youngblood motion. 

Although Mayotte’s postconviction motion sought plea withdrawal based on 

ineffective assistance of trial counsel, he later clarified that he was also alleging 

that his plea was not knowingly, intelligently, and voluntarily entered.

¶11 The circuit court denied Mayotte’s postconviction motion, following 

a Machner2 hearing. The court concluded that Mayotte was “not prejudiced by 

not allowing him to withdraw his plea” because any appellate challenge to the 

court’s denial of Mayotte’s Youngblood motion would have been unsuccessful. 

Mayotte now appeals.

DISCUSSION

¶12 “The general rule is that a guilty, no contest, or Alford plea ‘waives 

all nonjurisdictional defects, including constitutional claims[.]’” State v. Kelty, 

2006 WI 101, ¶18, 294 Wis. 2d 62, 716 N.W.2d 886 (alteration in original; 

footnote omitted; citation omitted). Courts refer to this rule as the guilty plea 

waiver rule. Id.

¶13 Mayotte claims that he should be permitted to withdraw his Alford

plea to the burglary charge because he was not aware at the time he entered his

plea that the guilty plea waiver rule would prevent him from challenging the 

circuit court’s denial of his Youngblood motion on appeal. In response, the State 

 

2

 See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
No. 2022AP1695-CR

6

asserts that “[i]n the interest of finality and judicial economy,” this court should 

“overlook” the guilty plea waiver rule and address Mayotte’s Youngblood claim 

on the merits. Mayotte disagrees with the State’s proposed approach, arguing that 

this court’s consideration of the merits of his Youngblood claim would not remedy 

the fact that his plea was not knowing, intelligent, and voluntary.

¶14 We may, in our discretion, choose not to apply the guilty plea waiver 

rule in a particular case. See State v. Tarrant, 2009 WI App 121, ¶6, 321 Wis. 2d 

69, 772 N.W.2d 750. Nevertheless, we decline to ignore the guilty plea waiver 

rule here. On appeal, Mayotte has not asked us to review the circuit court’s denial 

of his Youngblood motion; he has asked us to determine whether the court erred 

by denying his postconviction motion for plea withdrawal. The issue on appeal is 

not whether Mayotte was entitled to dismissal of the charges against him, but 

whether his Alford plea was validly entered. Under these circumstances, we 

conclude that it would not be appropriate for us to ignore the guilty plea waiver 

rule. Instead, we will address the merits of Mayotte’s arguments regarding his 

postconviction motion for plea withdrawal.

¶15 To withdraw his or her plea after sentencing, a defendant must show 

by clear and convincing evidence that a refusal to allow plea withdrawal would 

result in manifest injustice. State v. Dillard, 2014 WI 123, ¶36, 358 Wis. 2d 543, 

859 N.W.2d 44. As relevant here, a defendant may demonstrate manifest injustice 

by showing that his or her plea was not knowing, intelligent, and voluntary, or by 

showing that his or her trial attorney was constitutionally ineffective. Id., ¶¶37, 

84. Both of these inquiries present questions of constitutional fact. Id., ¶¶38, 86. 

On review, we will uphold the circuit court’s factual findings unless they are 

clearly erroneous, but the application of the facts to the applicable legal standards 

is a question of law that we review independently. Id.
No. 2022AP1695-CR

7

I. Knowing, intelligent, and voluntary plea

¶16 Mayotte first contends that this plea was involuntary because it was 

“entered with the understanding that he could pursue the denial of his motion to 

dismiss on appeal.” In support of this argument, Mayotte relies on our supreme 

court’s decision in State v. Riekkoff, 112 Wis. 2d 119, 332 N.W.2d 744 (1983). 

There, Riekkoff’s plea was expressly conditioned on a reservation of his right to 

appellate review of a pretrial order denying the admission of certain evidence. Id.

at 120-21. The prosecutor “agreed to the conditional plea and the reservation” of 

Riekkoff’s right to appeal, and the circuit court “acquiesced in the arrangement.” 

Id. at 121. On appeal, the supreme court considered whether “review may be 

preserved when the plea of guilty is conditioned upon the right to assert [a 

particular argument] on appeal and there is agreement by the prosecutor and 

acceptance of the plea by the trial judge.” Id. at 122. The court answered that 

question in the negative, concluding that “conditional guilty pleas are not to be 

accepted and will not be given effect, except as provided by statute.” Id. at 130.

¶17 Nevertheless, the supreme court acknowledged that Riekkoff had 

entered his guilty plea “believing that he was entitled to an appellate review of the 

reserved issue” and that “[b]oth the prosecutor and the trial judge acquiesced in 

this view and permitted Riekkoff to believe that, despite his plea, appellate review 

could be had of the evidentiary order.” Id. at 128. Under these circumstances, the 

court concluded as a matter of law that Riekkoff’s plea was not knowing or 

voluntary. Id. The court therefore held that Riekkoff was entitled to withdraw his 

plea, if he wished to do so. Id.

¶18 Based on Riekkoff, Mayotte argues that he is entitled to plea 

withdrawal because he entered his plea with the understanding that he could 
No. 2022AP1695-CR

8

appeal the circuit court’s denial of his Youngblood motion following his 

conviction. We agree with the State, however, that Riekkoff “does not stand for 

the proposition that a defendant may automatically withdraw his or her plea any 

time the defendant is unaware of or misunderstands the guilty plea waiver rule.” 

Instead, Riekkoff permitted plea withdrawal in a situation where the right to 

appellate review of a particular issue was a critical component of the plea 

agreement and where the prosecutor and the court affirmed the defendant’s 

mistaken belief that he would be able to appeal that issue after entering his plea.

¶19 Those circumstances are not present in the instant case. Mayotte’s

plea agreement was not conditioned on his ability to appeal the circuit court’s 

ruling on his Youngblood motion. Before Mayotte entered his plea, there was no 

discussion on the record about whether Mayotte’s right to appeal the denial of his 

Youngblood motion would survive the entry of his plea. Neither the prosecutor 

nor the court endorsed the proposition that Mayotte could enter an Alford plea and 

then appeal the denial of his Youngblood motion. For these reasons, we agree 

with the State that Riekkoff is materially distinguishable and does not compel a 

conclusion that Mayotte’s plea was involuntary.

¶20 Furthermore, while Mayotte contends that he did not understand the 

guilty plea waiver rule at the time he entered his plea, “[n]ot every 

misunderstanding of the law by a defendant negates the knowing and voluntary 

nature of a plea.” State v. Brown, 2004 WI App 179, ¶11, 276 Wis. 2d 559, 687 

N.W.2d 543. As relevant here, a defendant’s failure to comprehend a collateral 

consequence of his or her plea does not render the plea involuntary where the 

defendant’s misunderstanding was the result of the defendant’s own inaccurate 

interpretation and was not based on any misinformation provided by the circuit 

court, the prosecutor, or defense counsel. Id., ¶¶7, 12.
No. 2022AP1695-CR

9

¶21 As the parties acknowledge, there are no published Wisconsin cases 

addressing whether the guilty plea waiver rule is a direct or collateral consequence 

of a plea. “A direct consequence of a plea is one that has a definite, immediate, 

and largely automatic effect on the range of a defendant’s punishment.” Id., ¶7 

(citation omitted). Conversely, a collateral consequence “is indirect, does not 

automatically flow from the conviction, and may depend on the subsequent 

conduct of a defendant.” Id. The guilty plea waiver rule: (1) has no effect on the 

range of a defendant’s punishment; (2) does not come into effect unless a 

defendant seeks to appeal a waived issue; and (3) comes into effect only if an 

appellate court decides to apply the rule. We therefore agree with the State that 

the guilty plea waiver rule is properly categorized as a collateral consequence of a 

defendant’s plea.

3

¶22 As such, to show that his Alford plea was involuntary due to his 

belief that the plea would not bar him from appealing the circuit court’s denial of 

his Youngblood motion, Mayotte must show that his belief in that regard was the 

result of inaccurate information that he received from defense counsel, the 

prosecutor, or the court, rather than the result of his own inaccurate interpretation. 

See Brown, 276 Wis. 2d 559, ¶12. Mayotte does not allege that he received any 

misinformation about the guilty plea waiver rule from the prosecutor or the circuit 

court. He asserts, however, that he testified at the Machner hearing “that he 

believed based upon communications with his trial counsel he would be able to 

challenge [the denial of his Youngblood motion] despite entering his plea.” He 

 

3

 Notably, Mayotte does not develop any argument in his reply brief disputing the State’s 

contention that the guilty plea waiver rule is a collateral consequence. Unrefuted arguments may 

be deemed conceded. Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 

279 N.W.2d 493 (Ct. App. 1979).
No. 2022AP1695-CR

10

contends that this testimony “constituted evidence” that trial counsel misinformed 

him about the guilty plea waiver rule and his ability to appeal the denial of the 

Youngblood motion.

¶23 The record belies this claim. At the Machner hearing, Mayotte 

testified that at the time he entered his plea, he understood that his Youngblood

motion “would likely go through the appeal process.” He did not, however,

specifically attribute that understanding to any information that his trial attorney 

provided. To the contrary, Mayotte testified that he could not recall whether he 

had any communications with his trial attorney about how his plea would affect 

his ability to appeal the denial of his Youngblood motion. Mayotte testified that 

after the Youngblood motion was denied, his trial attorney “did mention 

something about it[,] saying that it might go through the appeal process,” but 

Mayotte did not remember exactly what counsel said. On cross-examination, 

Mayotte conceded that he did not recall asking trial counsel before he entered his 

plea whether the denial of his Youngblood motion would be appealed.

¶24 Thus, Mayotte’s Machner hearing testimony does not support his 

claim that his mistaken belief about his ability to appeal the denial of his 

Youngblood motion was based on misinformation provided by his trial attorney.4 

As such, Mayotte’s misunderstanding regarding that collateral consequence of his 

plea did not render the plea involuntary.

 

4

 Mayotte’s trial attorney testified at the Machner hearing that he did not remember 

whether he had any discussions with Mayotte before entry of the plea about appealing the denial 

of the Youngblood motion.
No. 2022AP1695-CR

11

II. Ineffective assistance of trial counsel

¶25 Mayotte also argues that he should be permitted to withdraw his plea 

because his trial attorney was constitutionally ineffective. To prevail on an 

ineffective assistance of counsel claim, a defendant must prove both that counsel’s 

performance was deficient and that the deficiency prejudiced the defense. Dillard, 

358 Wis. 2d 543, ¶85. To establish deficient performance, a defendant must show 

that counsel’s performance fell outside of the wide range of professionally 

competent assistance. Id., ¶88. To establish prejudice in the plea withdrawal 

context, a defendant must show a reasonable probability that, but for counsel’s 

errors, the defendant would not have entered a plea and would have insisted on 

going to trial. State v. Bentley, 201 Wis. 2d 303, 312, 548 N.W.2d 50 (1996).

¶26 Mayotte claims that his trial attorney’s performance was deficient 

“with regard to informing Mayotte he could challenge the pretrial motion to 

dismiss after entry of his plea and waiver of appeal rights with regard to the 

motion.” We reject this argument for two reasons. First, as discussed above, the 

record does not support Mayotte’s claim that trial counsel told him that he could 

appeal the denial of his Youngblood motion after entering his plea. Second, to the 

extent Mayotte means to argue that counsel performed deficiently by failing to 

inform him of the existence of the guilty plea waiver rule, the failure to inform a 

defendant about a collateral consequence of a plea does not constitute deficient 

performance. See State v. LeMere, 2016 WI 41, ¶30, 368 Wis. 2d 624, 879 

N.W.2d 580. Under these circumstances, Mayotte has failed to show that his 

attorney’s performance fell outside the wide range of professionally competent 

assistance. See Dillard, 358 Wis. 2d 543, ¶88.
No. 2022AP1695-CR

12

¶27 Mayotte has also failed to satisfy the prejudice prong of his 

ineffective assistance claim. To establish prejudice in this context, Mayotte must 

“convince the court that a decision to reject the plea bargain would have been 

rational under the circumstances.” See Padilla v. Kentucky, 559 U.S. 356, 372 

(2010). We agree with the State that Mayotte cannot make this showing.

¶28 If convicted on all five of the charges at trial, Mayotte faced

maximum sentences totaling more than twenty years of imprisonment. The plea 

agreement allowed Mayotte to enter an Alford plea to a single charge, which 

permitted him to maintain his innocence. In exchange for Mayotte’s plea, the 

remaining charges were dismissed and read in, and the parties agreed to jointly 

recommend a probationary disposition, rather than a prison sentence.

¶29 At the Machner hearing, trial counsel testified that Mayotte was 

reluctant to go to trial. Counsel explained, “[I]t was a risk litigation technique 

where we had to either risk what would likely be a substantial prison sentence 

versus a probation offer, so it would—it was felt that it’s not worth it to go to 

trial.” Counsel also testified that under the circumstances, he believed that it was 

in Mayotte’s best interest to accept the plea offer. Mayotte never testified or 

submitted an affidavit stating that he would have rejected the State’s plea offer and 

gone to trial had he known that entering a plea would bar him from appealing the 

circuit court’s denial of his Youngblood motion. 

¶30 On this record, we cannot conclude that it would have been rational 

for Mayotte to reject the State’s plea offer—which involved the dismissal of four

charges and a joint recommendation of probation—and risk going to trial and

possibly receiving a significant prison sentence, simply to preserve his ability to 

appeal the circuit court’s denial of his Youngblood motion. See Padilla, 559 U.S. 
No. 2022AP1695-CR

13

at 372. The strength of the State’s evidence against Mayotte further supports our 

conclusion in this regard. Mayotte has failed to establish a reasonable probability 

that, absent his trial attorney’s alleged errors, he would not have entered his plea 

and would have insisted on going to trial.5 See Bentley, 201 Wis. 2d at 312.

By the Court.—Judgment and order affirmed.

Not recommended for publication in the official reports.

 

5

 In addition, we note that Mayotte has not responded to the State’s argument that he 

failed to establish the prejudice prong of his ineffective assistance claim. Again, unrefuted 

arguments may be deemed conceded. Charolais Breeding Ranches, 90 Wis. 2d at 109.