Weekly Case Digests — June 9-13, 2014

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Wisconsin Law Journal’s Case Digests, June 9-13, 2014

CIVIL OPINIONS

BANKRUPTCY

U.S. Supreme Court

Civil
Bankruptcy — “non-core” proceedings

28 U.S.C. 157(c)(1)’s procedures apply to fraudulent conveyance claims.

This Court assumes without deciding that these claims are Stern claims, which Article III does not permit to be treated as “core” claims under §157(b). But because the claims assert that property of the bankruptcy estate was improperly removed, they are self-evidently “related to a case under title 11.” Accordingly, they fit comfortably within the category of claims governed by §157(c)(1).The Bankruptcy Court would have been permitted to follow that provision’s procedures, i.e., to submit proposed findings of fact and conclusions of law to the District Court for de novo review.

702 F. 3d 553, affirmed.

12-1200 Executive Benefits Ins. Agency v. Arkison

Thomas, J.

U.S. Supreme Court

Civil
Bankruptcy – exemptions — retirement funds

Funds held in inherited IRAs are not “retirement funds” within the meaning of §522(b)(3)(C).

The ordinary meaning of “retirement funds” is properly understood to be sums of money set aside for the day an individual stops working. Three legal characteristics of inherited IRAs provide objective evidence that they do not contain such funds. First, the holder of an inherited IRA may never invest additional money in the account. 26 U. S. C. §219(d)(4). Second, holders of inherited IRAs are required to withdraw money from the accounts, no matter how far they are from retirement. §§408(a)(6), 401(a)(9)(B). Finally, the holder of an inherited IRA may withdraw the entire balance of the account at anytime — and use it for any purpose — without penalty.

714 F. 3d 559, affirmed.

13-299 Clark v. Rameker

Sotomayor, J.

EMPLOYMENT

U.S. Court of Appeals for the 7th Circuit

Civil
Employment – discrimination — failure to hire

In a failure to hire claim, the district court erroneously did not consider evidence of a hostile work environment.

“By giving such substantial weight to the Jackson hire, the district court apparently forgot that while she was employed at Navistar, she was subject to a severely hostile environment at the Plant, which was primarily directed at her race. In fact, Jackson’s story of waiting two years, despite being more qualified than white applicants that were hired instead of her, as well as the racial hostility she was subjected to when she was finally hired, bolster Whitfield’s direct dis-crimination evidence. It is a rather persuasive piece of circumstantial evidence, which the district court erroneously relied upon to negate discrimination rather than to support it. Moreover, this singular instance of Navistar hiring a black electrician, does not entitle Navistar to immunity from sub-sequent discrimination allegations. Cf. Carson v. Bethlehem Steel Corp., 82 F.3d 157, 158–59 (7th Cir. 1996). Instead, the court should have recognized that even though a member of the same protected class was hired, that fact does not magically negate the inference created by the evidence of Jack-son’s hiring and employment at the Plant, the evidence of intense racial hostility at the Plant or the cover page on Whitfield’s personnel file identifying him as black. We find that these clear errors led the district court to improperly distort Whitfield’s mosaic of circumstantial evidence.”

Affirmed in part, and Reversed in part.

13-1876 Whitfield v. International Truck & Engine Corp.

Appeal from the United States District Court for the Southern District of Indiana, Young, J., Cudahy, J.

ENVIRONMENTAL LAW

U.S. Supreme Court

Civil
Environmental Law — preemption

42 U.S.C. 9658 does not pre-empt state statutes of repose.

The text and structure of §9658 resolve this case. Under that provision, pre-emption is characterized as an “[e]xception,” §9658(a)(1), to the regular rule that the “the statute of limitations established under State law” applies. The “applicable limitations period,” the “commencement date” of which is subject to pre-emption, is defined as “the period specified in a statute of limitations.” §9658(b)(2). That term appears four times, and “statute of repose” does not appear at all. While it is apparent from the historical development of the two terms that their general usage has not always been precise, their distinction was well enough established to be reflected in the 1982 Study Group Report that guided §9658’s enactment, acknowledged the distinction, and urged the repeal of both types of statutes. Because that distinction is not similarly reflected in §9658, it is proper to conclude that Congress did not intend to preempt statutes of repose.

723 F.3d 434, reversed.

13-339 CTS Corp. v. Waldburger

Kennedy, J.; Scalia, J., concurring; Ginsburg, J., dissenting.

IMMIGRATION

U.S. Supreme Court

Civil
Immigration — family preferences

8 U.S.C. 1153(h)(3) does not unambiguously entitle all aged-out derivative beneficiaries to automatic conversion and priority date retention.

Because §1153(h)(3) does not speak unambiguously to the issue here, a court must defer to the BIA’s reasonable interpretation. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844. The first clause of §1153(h)(3) states a condition that encompasses every aged-out beneficiary of a family preference petition. The second clause, however, does not easily cohere with the first. It prescribes a remedy that can apply to only a subset of the beneficiaries described in the first clause. This remedial prescription directs immigration officials to take the alien’s petition and convert it from a category benefitting a child to an appropriate category for adults, without any change in the petition, including its sponsor, or any new filing. Moreover, this conversion is to be “automati[c]” — that is, one involving no additional decisions, contingencies, or delays. Thus, the only aliens who may benefit from §1153(h)(3)’s back half are those for whom automatic conversion is possible.

695 F.3d 1003, reversed and remanded.

12-930 Scialabba v. De Osorio

Kagan, J.; Roberts, C.J., concurring; Alito, J., dissenting; Sotomayor, J., dissenting.

INSURANCE

Wisconsin Supreme Court

Civil
Insurance — UIM coverage

Where an insured was hit by a driver as she walked in front of the car and stated that she would “help [the driver] get in traffic,” she was not “using” an automobile within the meaning of sec. 632.32(2)(c).

“[T]his case does not reach the level of a close case because everything relevant to this case happened before Jackson began to guide the vehicle. To revisit Jackson’s description of what she did with regard to the vehicle that hit her, recall that she stated that she ‘asked [the driver] if he could pull over to the curb,’ then bent down to speak into the window, standing one or two feet away from the car, and answered his question. After that, the driver asked, ‘How am I going to get back in traffic?’ Jackson said she responded, ‘I’ll go in front of your car, and I’ll come around and help you get in traffic.’ As Jackson walked on the pedestrian walkway in front of the car, she was hit.”

Reversed.

2012AP1644 Jackson v. Milwaukee County Mut. Ins. Co.

Crooks, J.

Attorneys: For Appellant: Guerin, D. Michael, Milwaukee; Keppel, Kathryn A., Milwaukee; Strohbehn, Christopher L., Milwaukee; For Respondent: Lubinsky, Lori M., Madison; Barber, Timothy M., Madison

Wisconsin Court of Appeals

Civil
Insurance — UIM coverage — stacking

Section 632.32(6)(d) (2009-10) does not require an insurer to “stack” the underinsured motorist coverage in a Public Entity Liability Insurance Policy, by multiplying the UIM limit in the liability policy by the number of vehicles in the insured’s fleet.

“Flynn testified that the Policy’s premium did not increase between 2008 and 2010 when Milwaukee County added underinsured and uninsured motorist coverage to the Policy, also implying that the number of vehicles in Milwaukee County’s fleet was not a factor in calculating the Policy’s premium.”

“In sum, because we conclude that Milwaukee County paid one premium to County Mutual as set forth on the declaration’s page of the Policy, we must also conclude that WIS. STAT. § 632.32(6)(d)’s stacking requirement is inapplicable and we affirm.”

Affirmed.

Recommended for publication in the official reports.

2013AP1659 Bodish v. West Bend Mut. Ins. Co.

Dist. I, Milwaukee County, Foley, J., Brennan, J.

Attorneys: For Appellant: Leavell, Jeffrey L., Racine; Glaser, Joanna Ruth, Racine; For Respondent: Lubinsky, Lori M., Madison; Barber, Timothy M., Madison

INTELLECTUAL PROPERTY

U.S. Supreme Court

Civil
Intellectual Property — Lanham Act

Competitors may bring Lanham Act claims challenging food and beverage labels regulated by the FDCA.

Neither the Lanham Act nor the FDCA, in express terms, forbids or limits Lanham Act claims challenging labels that are regulated by the FDCA. The absence of such a textual provision when the Lanham Act and the FDCA have coexisted for over 70 years is “powerful evidence that Congress did not intend FDA oversight to be the exclusive means” of ensuring proper food and beverage labeling. See Wyeth, supra, at 575. In addition, and contrary to Coca-Cola’s argument, Congress, by taking care to pre-empt only some state laws, if anything indicated it did not intend the FDCA to preclude requirements arising from other sources. See Setser v. United States, 566 U. S. ___, ___. The structures of the FDCA and the Lanham Act reinforce this conclusion. Where two statutes are complementary, it would show disregard for the congressional design to hold that Congress intended one federal statute nonetheless to preclude the operation of the other. See J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U. S. 124, 144. The Lanham Act and the FDCA complement each other in major respects, for each has its own scope and purpose. Both touch on food and beverage labeling, but the Lanham Act protects commercial interests against unfair competition, while the FDCA protects public health and safety. They also complement each other with respect to remedies. The FDCA’s enforcement is largely committed to the FDA, while the Lanham Act empowers private parties to sue competitors to protect their interests on a case-by-case basis. Allowing Lanham Act suits takes advantage of synergies among multiple methods of regulation. A holding that the FDCA precludes Lanham Act claims challenging food and beverage labels also could lead to a result that Congress likely did not intend. Because the FDA does not necessarily pursue enforcement measures regarding all objectionable labels, preclusion of Lanham Act claims could leave commercial interests — and indirectly the public at large — with less effective protection in the food and beverage labeling realm than in other less regulated industries.

679 F. 3d 1170, reversed and remanded.

12-761 POM Wonderful LLC v. The Coca-Cola Co.

Kennedy, J.

JUVENILES

Wisconsin Court of Appeals

Civil
Juveniles – TPR — placement

Dwayne F. Jr. appeals the order terminating his parental rights to his daughter, Nylah F. Dwayne F. argues that the trial court erroneously exercised its discretion in determining that Nylah F.’s best interest involved a guardianship with the Bureau of Milwaukee Child Welfare, with the expectation that Nylah F. would be adopted by the foster family with whom she had lived most her life and in whose care she had thrived. According to Dwayne F., the court should have ordered placement with his father, Dwayne F. Sr., instead. This court disagrees with Dwayne F. and concludes that the trial court properly exercised its discretion. Consequently, this court affirms the trial court’s order. This opinion will not be published.

2014AP595 In re the termination of parental rights to Nylah F.

Dist I, Milwaukee County, DiMotto, J., Curley, P.J.

Attorneys: For Appellant: Earle, Jane S., Shorewood; For Respondent: Havas, Michelle Ackerman, Milwaukee

PROFESSIONAL RESPONSIBILITY

Wisconsin Supreme Court

Civil
Professional Responsibility – suspension

Attorney had been the subject of prior discipline and license is currently suspended. The current complaint alleges four separate counts of misconduct — failure to use proper alternative fee placement procedures in depositing client’s retainer in his business account; accepting a fee for a representation he did not complete, which was then an unreasonable fee; failing to refund unearned fees; and failing to cooperate in his investigation. Attorney defaulted and the referee found that the misconduct occurred. The court adopted the referee’s recommendations and suspended attorney’s license for 60 days, ordered that he pay restitution of $750 to his client and assessed costs.

2012AP60-D OLR v. Osicka

Per Curiam

Attorneys: For Complainant: Krohn, Robert G., Edgerton; Weigel, William J., Madison; For Respondent: Osicka, Timothy, Schofield

Wisconsin Supreme Court

Civil
Professional Responsibility – suspension

Attorney was the subject of a separate disciplinary proceeding wherein he was suspended for 60 days. The court agrees with the referee that, since the misconduct here could have been included in the complaint in the previously filed disciplinary proceeding against Attorney Osicka, Case No. 2012AP60-D, the proper level of discipline to be imposed is a 60-day suspension that is concurrent with the suspension imposed in that case. The instant case alleges Osicka practiced law when his license previously was suspended, failed to notify clients that he was suspended, and failed to cooperate with the OLR. Since Attorney Osicka initially disputed some portions of the OLR’s complaint and the stipulation he entered was only partial in nature, we require Attorney Osicka to pay the full costs of this proceeding.

2013AP434-D OLR v. Osicka

Per Curiam

Attorneys: For Complainant: Spoke, Julie Marie, Madison; For Respondent: Osicka, Timothy, Schofield

Wisconsin Supreme Court

Civil
Professional Responsibility – dismissed

The court agreed with the referee’s conclusion that Attorney Johns’ conduct resulting in a 2004 felony conviction did not reflect adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects so as to violate SCR 20:8.4(b). It disagreed with the referee’s conclusion that Attorney Johns violated SCR 21.15(5),] as enforced via SCR 20:8.4(f), by failing to notify the clerk of the supreme court and the OLR, in writing, of his conviction. We conclude that Attorney Johns’ violation of SCR 21.15(5) was too technical to justify the imposition of legal consequences. Accordingly, the complaint is dismissed.

2011AP2760-D OLR v. Johns

Per Curiam

Attorneys: For Appellant: Basting, Thomas J., Tucson, AZ; Weigel, William J., Madison; For Respondent: Dietrich, Dean R., Wausau; Johns, Dan Jr., Manitowish Waters

Wisconsin Supreme Court

Civil
Professional Responsibility – suspension

Prosecutor had inappropriate relationship with female crime victim, including text messages and unwelcome sexual overtures. The state Department of Justice found no criminal activity but recommended that attorney step aside from the case and self-report, which he did. After the incident became public he resigned as Calumet County District Attorney.

Prior to his resignation he made inappropriate statements of a sexual nature to county employees. The referee recommended a four-month suspension and the court agreed. “Attorney Kratz proved himself during the period in question to be sanctionably sophomoric.” It ordered the attorney to pay the full costs of the proceeding, which were $23,904.10 as of Aug. 29, 2012

2011AP2758-D OLR v. Kratz

Per Curiam

Attorneys: For Complainant: Basting, Thomas J., Tucson, AZ; Weigel, William J., Madison; For Respondent: Kratz, Kenneth R., Appleton

PROPERTY

Wisconsin Court of Appeals

Civil
Property — eminent domain — post-judgment interest

A condemnee is entitled to post-judgment interest pending appeal under sec. 32.06(10)(d).

“We conclude that the only reasonable way to read WIS. STAT. § 32.06(10)(d) is that: (1) a party required to pay a judgment must pay the judgment within sixty days after entry of judgment; (2) a party need not pay a judgment within that sixty-day period if the judgment is appealed to this court within that period or a condemnor petitions for and obtains an order to abandon the condemnation proceeding; and (3) if a judgment required to be paid is not paid within that period, the judgment bears interest from the date of entry of judgment at a rate of 10% per year until the judgment (if that judgment is not reversed on appeal) is paid in full. Thus, we read the statute to mean that a judgment that is appealed within sixty days after entry of judgment does not have to be paid within that time period; however, the judgment nonetheless bears interest from the date of entry of judgment if it is not paid within that time period, assuming the judgment, or some portion of it, is upheld on appeal. The necessary result of this reading is that interest accrues during the pendency of an appeal and post-judgment interest must be paid.”

Affirmed in part, and Reversed in part.

Recommended for publication in the official reports.

2011AP482 Geise v. American Transmission Co. LLC

Dist. IV, Jefferson County, Erwin, Hue, JJ., Higginbotham, J.

Attorneys: For Appellant: Martin, Michelle E., Waukesha; Stadler, Katherine, Madison; Smith, Patrisha A., Waukesha; Wheeler, Patricia L., Madison; For Respondent: Jablonski, Frank J., Madison

TORTS

Wisconsin Court of Appeals

Civil
Torts — damages

Karen Burris appeals an order of the circuit court denying her motion after the verdict. Burris contends that the circuit court erred in refusing to change the jury’s verdict to include compensation for a knee injury she claims was sustained as a result of a car accident. Burris also contends that sufficient evidence did not support the jury’s verdict. We affirm. Not recommended for publication in the official reports.

2013AP1656 Burris v. Markel Insurance Company et al.

Dist I, Milwaukee County, Witkowiak, J., Kessler, J.

Attorneys: For Appellant: Schelwat, Timothy W., Milwaukee; For Respondent: McCoy, John V., Waukesha; Christman, Andrew J., Waukesha

Wisconsin Supreme Court

Civil
Torts — independent contractors — inherently dangerous activities

A property owner is liable for negligence of an independent contractor hired to spray herbicides.

“The record contains uncontroverted evidence that the chemical used here is capable of killing 56 ‘woody plant’ species, including oak, birch, poplar and maple trees. It therefore poses a ‘naturally expected risk of harm’ to trees on neighboring properties. The record also contains undisputed testimony and exhibits showing that it is possible to reduce that risk by taking precautions. Therefore, both parts of the inherently dangerous test are satisfied, and we agree with the court of appeals that under Wisconsin law, under these circumstances, ‘spraying the herbicides was an inherently dangerous activity, and, as a result, the general rule of nonliability for an independent contractor’s torts did not apply.’”

Affirmed.

2012AP2085 Brandenburg v. Briarwood Forestry Services LLC

Crooks, J.

Attorneys: For Appellant: Arndt, Daniel C., Sparta; Ruud, Emily Eleanor, Sparta; For Respondent: Terwilliger, W. Thomas, Wausau; Burnett, Timothy J., Wausau

Wisconsin Court of Appeals

Civil
Torts — premises liability — statute of repose

Claims based upon the lack of a safety gate on an elevator are subject to the 10-year statute of repose set forth in sec. 893.89.

“The circuit court only dismissed Garrido-Crisanto’s claims to the extent that they were based on the single fact that the elevator did not have a safety gate. The circuit court specifically ruled that his claims based on negligent maintenance and repair as supported by Bertz’s expert report were not protected by the statute of repose. Garrido-Crisanto contends that although the failure to include a safety gate on the elevator is a design defect, that is, a structural defect that traditionally falls squarely within the statute of repose, the exemption set forth in WIS. STAT. § 893.89(4)(c) should apply because Heritage was negligent “for failing to inspect/repair/replace an unsafe elevator by adding a simple safety gate” and because Heritage knew the elevator was unsafe. However, like in Hocking, such a conclusion would create an exception that swallows the rule ‘because every improvement that is negligently designed could be considered an ongoing nuisance that the owner or operator negligently maintains by failing to correct.’ See id., 326 Wis. 2d 155, ¶47. Consequently, like the circuit court, we reject Garrido-Crisanto’s assertion that we should apply § 893.89(4)(c)’s exception ‘for damages resulting from negligence in the maintenance, operation or inspection of an improvement to real property’ to Garrido-Crisanto’s claims that the elevator should have had a safety gate.”

Affirmed.

Recommended for publication in the official reports.

2013AP1369 Crisanto v. Heritage Relocation Services Inc.

Dist. I, Milwaukee County, Pocan, J., Brennan, J.

Attorneys: For Appellant: Harding, Victor C., Milwaukee; For Respondent: Pytlik, Paul J., Waukesha; Tenebruso, Evan, Waukesha

Wisconsin Court of Appeals

Civil
Torts — premises liability – negligence — safe-place statute — notice

Sandra Eesley appeals an order for summary judgment dismissing her safe-place and negligence claims against The Howard Young Medical Center and its insurers (collectively, Howard Young). Eesley argues the circuit court erroneously determined that she could not prove actual or constructive notice and that an exception did not apply. We affirm. This opinion will not be published.

2013AP2537-FT Eesley v. The Howard Young Medical Center Inc. et al.

Dist III, Oneida County, O’Melia, J., Per Curiam

Attorneys: For Appellant: Cossi, Anthony D., Ironwood, Mich.; O’Dea, Raymond J., Marquette, Mich.; For Respondent: Meierbachtol, Gina Diane James, Green Bay; Hibbard Boero, Lisa Suzanne, Marshfield

CRIMINAL OPINIONS

Wisconsin Court of Appeals

Criminal
Forfeiture — innocent owner exception

John and Melanie Bickley, father and daughter, appeal from an order of forfeiture of the captioned 2010 Nissan Altima. They argue the circuit court erred in ordering that the Altima, which Melanie utilized in the sale of illegal drugs, be forfeited. They contend the Altima should not be subject to forfeiture because John is the “innocent owner” of the vehicle. The circuit court ultimately found that while John did not know about or consent to the drug transactions, he was not the owner of the vehicle for purposes of the forfeiture statute and thus the “innocent owner” exception did not apply. Because we conclude that the circuit court did not clearly err, we affirm. Not recommended for publication in the official reports.

2013AP2176 State v. One 2010 Nissan Altima et al.

Dist II, Walworth County, Carlson, J., Gundrum, J.

Attorneys: For Appellant: Owens, Joseph F., New Berlin; For Respondent: Rea, Haley, Elkhorn

CRIMINAL PROCEDURE

Wisconsin Supreme Court

Criminal
Criminal Procedure — double jeopardy

A defendant’s constitutional protection against double jeopardy was not violated when the circuit court increased her sentence one day after initially imposing it.

“Here, Judge Van Grunsven noticed he had misunderstood Robinson’s prior criminal record during the original sentencing hearing on the same day it occurred and scheduled a new sentencing hearing for the following day. This was not a case where the circuit court judge decided, after further deliberating on the initial sentence imposed, that a different sentence length was more appropriate. Here, as Judge Van Grunsven explained on the record, he misunderstood Robinson’s lengthy criminal record, failed to sentence Robinson in a way that matched his intention, and acted to remedy the error as expeditiously as possible. We hold that the record supports this explanation, considering the complexity of the defendant’s prior criminal history as recited on the record, Judge Van Grunsven’s lengthy remarks regarding the ‘despicable’ nature of Robinson’s conduct and the need to protect the public, and the promptness with which the sentence was rectified.”

Affirmed.

2011AP2833-CR State v. Robinson

Gableman, J.

Attorneys: For Appellant: Haskell, Dustin C., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Larson, Sara Lynn, Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance

Troy E. Lang, pro se, appeals from a trial court order denying his Wis. Stat. § 974.06 (2011-12) motion for postconviction relief. He argues that his postconviction counsel provided ineffective assistance by not alleging that his trial counsel provided ineffective assistance in a number of ways, including failing to visit Lang in jail and using coercion to induce Lang to plead guilty. We affirm the order. This opinion will not be published.

2013AP1633 State v. Lang

Dist I, Milwaukee County, Rothstein, J., Per Curiam

Attorneys: For Appellant: Lang, Troy Edward, pro se; For Respondent: Loebel, Karen A., Milwaukee; Larson, Sarah K., Madison

U.S. Court of Appeals for the 7th Circuit

Criminal
Criminal Procedure – appeals — motions to dismiss

The government’s filing of a separate motion, in advance of full briefing, to dismiss a criminal appeal as frivolous should be, though not forbidden, discouraged.

“The appellant’s counsel suggests a sensible compromise: that before filing a motion to dismiss on the basis of waiver of appeal the government file a notice of intent to file such a motion. The notice would constitute an early warning to the appellant’s counsel — who in many cases will not have been counsel in the district court — that there is an appeal waiver and that the government intends to enforce it (it can waive the waiver if it wants; see Nunez v. United States, 546 F.3d 450, 452 (7th Cir. 2008)). Counsel will thus be prompted to discuss with the appellant whether the appeal should be dismissed voluntarily. See Fed. R. App. P. 42(b); 7th Cir. R. 51(f). If the appellant wants to fight it, counsel can either file an Anders brief if he thinks the fight futile or try to show that the appeal waiver does not apply. The government’s notice of intent to enforce the appeal waiver will have the same accelerating effect as a motion to dismiss, while requiring less work for both sides and preserving the briefing schedule.”

“I therefore order decision on the government’s motion to dismiss the appeal deferred to the merits panel.”

So Ordered.

14-1479 U.S. v. Manning

Appeal from the United States District Court for the Southern District of Illinois, Herndon, J., Posner, J.

Wisconsin Court of Appeals

Criminal
Criminal Procedure — successive appeals

Rufus Patterson West, pro se, appeals the circuit court’s order denying his collateral postconviction motion brought pursuant to Wis. Stat. § 974.06. The issue is whether West’s motion, which raises eighteen issues, is barred pursuant to State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157, 163–164 (1994). We conclude that it is barred. Therefore, we affirm. This opinion will not be published.

2013AP1121 State v. West

Dist I, Milwaukee County, Moroney, J., Per Curiam

Attorneys: For Appellant: West, Rufus Patterson, pro se; For Respondent: Loebel, Karen A., Milwaukee; Whelan, Maura F.J., Madison

U.S. Court of Appeals for the 7th Circuit

Criminal
Criminal Procedure — IAD

As long as the original charges are not lodged in bad faith or fraudulently as a basis for obtaining a detainer, or the later-added charges are not improperly delayed to avoid the strictures of the IAD, nothing prevents the addition of new charges.

“Suppose the government had taken Clark’s view of the matter and had tried him only on the charges that supported the detainer. Surely Clark does not mean that the government was forever barred from bringing the additional charges related to the other five bank robberies. Once the first trial was over, the government could have sought a new indictment (assuming no statute-of-limitations problem) and proceeded with a new trial, maybe even under a new detainer. But what sense would there be in such a rule? The purpose of the IAD is to ‘prevent competing jurisdictions from transferring prisoners back and forth, because such transfers can undermine the prisoner’s right to a speedy trial and the rehabilitative process of the system in which the prisoner is currently serving a sentence.’ United States v. Jones, 938 F.2d 447, 448 (3d Cir. 1991).”

Affirmed.

12-2627 U.S. v. Clark

Appeal from the United States District Court for the Eastern District of Wisconsin, Gilbert, J., Wood, J.

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance

The State of Wisconsin appeals from an order of the circuit court, granting Donald Ray Michael’s motion for a new trial on the basis of ineffective assistance of counsel. Because we agree with the circuit court that Michael’s trial counsel rendered ineffective assistance, we affirm. Not recommended for publication in the official reports.

2012AP2738-CR State v. Michael

Dist I, Milwaukee County, Kahn, J., Kessler, J.

Attorneys: For Appellant: Loebel, Karen A., Milwaukee; Pray, Eileen W., Madison; Apollo, Antoni J., Milwaukee; For Respondent: Vandermeuse, Jennifer L., Madison; Gabrielson, Kerry L., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — plea withdrawal

Daniel Jackson, pro se, appeals a judgment of conviction for felony bail jumping. Jackson argues: (1) the circuit court erred by not allowing him to withdraw his plea; (2) the court was obligated to enforce the terms of a prior plea offer; and (3) the court erroneously exercised its sentencing discretion. We reject Jackson’s arguments and affirm. This opinion will not be published.

2013AP2109-CR State v. Jackson

Dist III, Brown County, Hammer, J., Per Curiam

Attorneys: For Appellant: Jackson, Daniel, pro se; For Respondent: Lasee, David L., Green Bay; Wittwer, Jacob J., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — successive appeals

Anthony Miller, pro se, appeals an order denying reconsideration of the denial of his Wis. Stat. § 974.06 motion for post-conviction relief. Miller raises several challenges to his conviction. To the extent we have jurisdiction to review any claims arising from his reconsideration motion, we conclude they are procedurally barred. We therefore affirm the order. This opinion will not be published.

2013AP2032 State v. Miller

Dist III, St. Croix County, Vlack, J., Per Curiam

Attorneys: For Appellant: Miller, Anthony T., pro se; For Respondent: Gansner, William L., Madison; Johnson, Eric G., Hudson

EVIDENCE

Wisconsin Court of Appeals

Criminal
Evidence — relevance

The State appeals the circuit court’s order excluding evidence that Jonathan Rehdantz had ingested methadone shortly before an accident that resulted in a charge of homicide by negligent operation of a vehicle. The State contends that the evidence is relevant to provide context and to establish the element of criminal negligence, and that its probative value is not substantially outweighed by the danger of unfair prejudice. We conclude that the court properly exercised its discretion by excluding the evidence. We affirm. This opinion will not be published.

2013AP735-CR State v. Rehdantz

Dist IV, Dane County, DeChambeau, J., Per Curiam

Attorneys: For Appellant: Jenswold-Schipper, Tara M., Madison; Thompson, Emily, Madison; Burgundy, Sarah, Madison; For Respondent: Eisenberg, Mark, Madison

OWI

Wisconsin Court of Appeals

Criminal
Motor Vehicles — controlled substances

Section 346.63(1)(am), prohibiting operating a motor vehicle with a detectable amount of a controlled substance in the blood, does not unconstitutionally create a strict liability offense.

“This court already concluded that WIS. STAT. § 346.63(1)(am) does not violate substantive due process. Smet, 288 Wis. 2d 525, ¶1. In Smet, we held that in enacting § 346.63(1)(am), the legislature determined that public safety is endangered when a person operates a motor vehicle with a detectable amount of a restricted controlled substance in his or her blood. Smet, 288 Wis. 2d 525, ¶13. The court found it reasonable to punish every person who drove with a detectable amount of a restricted controlled substance in the blood, regardless of impairment. Id., ¶16. In addressing the problem of drugged driving, the legislature could have reasonably and rationally concluded that ‘proscribed substances range widely in purity and potency and thus may be unpredictable in their duration and effect.’ Id., ¶17. Furthermore, because no reliable measure of impairment exists for many illicit drugs, the legislature reasonably could conclude that the more prudent course was to ban any amount in the driver’s system. Id. Ultimately, in Smet, this court was “satisfied that prohibiting operation of a motor vehicle while having a detectable amount of a restricted controlled substance in one’s blood bears a reasonable and rational relationship to the purpose or objective of the statute, and that the statute is not fundamentally unfair.” Id., ¶20. Section 346.63(1)(am) presents ‘no due process violation.’ Smet, 288 Wis. 2d 525, ¶20. While Smet addressed the absence of an impairment requirement, the rationale is equally applicable to the lack of a scienter requirement. Section § 346.63(1)(am) is a reasonable and rational means for the legislature to address a serious societal harm. The legislature could rationally conclude that a strict liability, zero-tolerance approach is the best way to attack the problem of drugged driving.”

Affirmed.

Recommended for publication in the official reports.

2013AP1737-CR State v. Luedtke

Dist. II, Winnebago County, Seifert, J., Neubauer, J.

Attorneys: For Appellant: Lang, Donald T., Madison; For Respondent: Gossett, Christian A., Oshkosh; Remington, Christine A., Madison

SEARCH AND SEIZURE

Wisconsin Court of Appeals

Criminal
Search and Seizure — warrantless searches — exigent circumstances

Where officers were lawfully present at the scene when they were apprised that there was a shotgun in a backpack associated with the men who were being questioned, exigent circumstances were present, giving justification for the officer to seize the shotgun.

“In the case at hand, exigent circumstances that developed during this investigation justified the warrantless search and seizure of the backpack with the sawed-off shotgun in it. This officer was in the midst of completing her interview of several men suspected of involvement in a fight nearby. She was even readying to leave with the admonition to tell the men to ‘knock it off.’ Then, she received information that the men possessed a black backpack with weapons in it — a sawed-off shotgun and a handgun. There was already a previous report that the chief aggressor in the fight, who fit Kirby’s description, had threatened to return to the scene with a weapon. The officer initially saw no weapon at the scene, but then received a report that these men involved in the fight had a black backpack with a sawed-off shotgun and a handgun in it. Importantly, even had the officer been outside the threshold of the apartment instead of having crossed over it, this new information would have created the same exigent circumstances justifying entry into the apartment to see if there was a black backpack near these men like the one described.

Affirmed.

Recommended for publication in the official reports.

2013AP876-CR State v. Kirby

Dist. II, Racine County, Torhorst, J., Brown, J.

Attorneys: For Appellant: La Fleur, Catherine A., Milwaukee; For Respondent: Cochrane, Drew J., Madison; Corning, Jordan C.A., Madison

SENTENCING

U.S. Court of Appeals for the 7th Circuit

Criminal
Sentencing — relevant conduct

In sentencing a defendant for a 2010 drug conspiracy, it was error to include drug transactions from 2008 as relevant conduct.

“The 2008 conduct was not part of the same course of conduct as the 2010 drug conspiracy to which Purham pled guilty. To determine whether two acts are part of the same course of conduct, we look for ‘a strong relationship between the uncharged conduct and the convicted offense, focusing on whether the government has demonstrated … significant similarity, regularity, and temporal proximity.’ United States v. Bacallao, 149 F.3d 717, 719 (7th Cir. 1998). The government did not make the required demonstration here. A gap longer than a year stretches between the purportedly relevant conduct, which occurred before Purham went to jail in August 2008, and the offense of conviction, which began in July 2010. Where a temporal gap like this exists, we require ‘a stronger showing regarding the other course of conduct factors, such as regularity and similarity of acts.’ United States v. Ortiz, 431 F.3d 1035, 1041 (7th Cir. 2005). The PSR and the testimony at sentencing did not include sufficient information to support such a showing. In 2008, Purham did transport crack cocaine from Chicago to Quincy. But that is the only similarity we can discern between the 2008 and 2010 conduct. The 2008 transactions generally involved much larger amounts of cocaine than the 2010 transactions. And although the PSR makes clear that the Purhams used Amtrak during the charged offense, there are no details about the mode of transit used for the 2008 conduct. Testimony at Purham’s sentencing hearing did not expand upon the meager PSR details.”

Reversed and Remanded.

13-2916 U.S. v. Purham

Appeal from the United States District Court for the Central District of Illinois, Myerscough, J., Kanne, J.

U.S. Court of Appeals for the 7th Circuit

Criminal
Sentencing – restitution — rule of abatement

A restitution order that is part of a criminal judgment does not survive when the defendant dies before his appeal can be resolved.

“The rule of abatement terminates criminal proceedings ab initio, ‘vacating the conviction entered against [the defendant].’ Moehlenkamp, 557 F.2d at 128; Logal, 106 F.3d at 1552 (‘Under the doctrine of abatement ab initio … the defendant stands as if he never had been indicted or convicted. The absence of a conviction precludes imposition of the restitution order against [defendant] or his estate pursuant to § 3663.’) (citation and quotation marks omitted). The fact that criminal restitution serves a compensatory purpose does not enable it to be imposed in the absence of a final conviction.”

Vacated.

11-3020 U.S. v. Volpendesto

Appeal from the United States District Court for the Northern District of Illinois, Guzmán, J., Wood, J.

Wisconsin Court of Appeals

Criminal
Sentencing – modification — new factors

Sean P. Tate, a/k/a Shawn P. Tate, pro se, appeals an order denying his motion for sentence modification without a hearing. He also appeals an order denying his motion for reconsideration. Tate argues: (1) that he was improperly sentenced to a much longer prison term than his co-defendants; (2) that a change in the law pertaining to mandatory release dates that took effect several years before his sentencing is a “new factor” entitling him to sentence modification; (3) that he is entitled to relief because the presentence investigation report contained incorrect information regarding his Minnesota criminal record; and (4) that the circuit court should not have denied his motion without an evidentiary hearing. We affirm. This opinion will not be published.

2012AP2571-CR State v. Tate

Dist I, Milwaukee County, Wagner, J., Per Curiam

Attorneys: For Appellant: Tate, Sean P., pro se; For Respondent: Balistreri, Thomas J., Madison; Loebel, Karen A., Milwaukee

SEXUALLY VIOLENT PERSONS

Wisconsin Court of Appeals

Criminal
Sexually Violent Persons — ineffective assistance

Jamie Stephenson appeals a judgment and commitment order for a sexually violent person, and an order denying postdisposition relief. Stephenson claims he is entitled to a new trial because his trial counsel was ineffective by failing to object to the State’s expert witness’s hearsay testimony. We reject his argument and affirm. This opinion will not be published.

2013AP1948 In re the commitment of Jamie Lane Stephenson

Dist III, Dunn County, Smeltzer, J., Per Curiam

Attorneys: For Appellant: Schertz, Dennis, Hudson; For Respondent: Peterson, James M., Menomonie; Johnson-Karp, Gabe, Madison