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Weekly Case Digests — June 30-July 3, 2014

By: WISCONSIN LAW JOURNAL STAFF//July 3, 2014//

Weekly Case Digests — June 30-July 3, 2014

By: WISCONSIN LAW JOURNAL STAFF//July 3, 2014//

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Wisconsin Law Journal’s Case Digests, June 30-July 3, 2014

CIVIL OPINIONS

U.S. Supreme Court

Civil
FRFA — contraception mandate

As applied to closely held corporations, the HHS regulations imposing the contraceptive mandate violate RFRA.

HHS argues that the connection between what the objecting parties must do and the end that they find to be morally wrong is too attenuated because it is the employee who will choose the coverage and contraceptive method she uses. But RFRA’s question is whether the mandate imposes a substantial burden on the objecting parties’ ability to conduct business in accordance with their religious beliefs. The belief of the Hahns and Greens implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable. In fact, this Court considered and rejected a nearly identical argument in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707. The Court’s “narrow function . . . is to determine” whether the plaintiffs’ asserted religious belief reflects “an honest conviction,” id., at 716, and there is no dispute here that it does. Tilton v. Richardson, 403 U. S. 672, 689; and Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236, 248–249, distinguished.

No. 13–354, 723 F. 3d 1114, affirmed; No. 13–356, 724 F. 3d 377, reversed and remanded.

13-354 & 13-356 Burwell v. Hobby Lobby Stores Inc.

Alito, J.; Kennedy, J., concurring; Ginsburg, J., dissenting; Breyer, Kagan, JJ., dissenting.

Wisconsin Court of Appeals

Civil
Public Health — child care – certification — revocation

Lashana Buckner was a certified childcare provider whose certification was revoked after the legislature made changes to Wisconsin’s caregiver law in 2009. As a result of the changes to the law, Buckner is permanently barred under Wis. Stat. § 48.685(5)(br) (2011-12) from being a certified childcare provider because she has a felony conviction for uttering a forgery. Buckner contends that § 48.685(5)(br) is unconstitutional on equal protection and substantive due process grounds, both facially and as applied to her. We conclude that Buckner has not met her burden to prove that the statute is unconstitutional beyond a reasonable doubt. Accordingly, we affirm. Not recommended for publication in the official reports

2012AP2598 Buckner v. Heidke et al.

Dist IV, Dane County, Gaylord, J., Higginbotham, J.

Attorneys: For Appellant: Sullivan, Sheila, Milwaukee; For Respondent: Burke, Mary E., Madison; Blythe, Christopher J., Madison

CONSTITUTIONAL LAW

U.S. Supreme Court

Civil
Constitutional Law — freedom of association

The First Amendment prohibits the collection of an agency fee from partial public employees who do not want to join or support the union.

Extending Abood’s boundaries to encompass partial public employees would invite problems. State regulations and benefits affecting such employees exist along a continuum, and it is unclear at what point, short of full-fledged public employment, Abood should apply. Under respondents’ view, a host of workers who currently receive payments from a government entity for some sort of service would become candidates for inclusion within Abood’s reach, and it would be hard to see where to draw the line.

656 F. 3d 692, reversed in part, affirmed in part, and remanded.

11-681 Harris v. Quinn

Alito, J.; Kagan, J., dissenting.

CIVIL PROCEDURE

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

Civil
Civil Procedure — subject matter jurisdiction

Even though a case arises under the Patient Protection and Affordable Care Act, federal jurisdiction is lacking where all the issues involve state law.

“The removal of this litigation does not satisfy either part (1) or part (4) of Gunn. The school districts’ suit does not ‘necessarily’ raise any issue of federal law. Grable involved a quiet-title action under state law in which A contended that B’s title to real estate was invalid because it had been conveyed to B by the United States following a seizure to satisfy A’s tax liabilities. A insisted that the seizure and transfer were vitiated by inadequate notice. State law provided the remedy, a declaration of ownership, but it was impossible to decide who owned the land without deciding whether the federal government followed legal requirements when seizing the parcel from A and conveying it to B. Deciding an issue of federal law was inescapable, and the national government itself was vitally concerned about the outcome; an adverse decision could undercut its ability to collect taxes. Nothing remotely similar is true about the dispute between WEA and the school districts.”

Vacated and Remanded.

13-3787 Hartland Lakeside Joint No. 3 School District v. WEA Ins. Co.

Appeal from the United States District Court for the Eastern District of Wisconsin, Callahan, Mag. J., Easterbrook, J.

JUVENILES

Wisconsin Court of Appeals

Civil
Juveniles – TPR — plea withdrawal

Connie P. appeals from an order terminating her parental rights to her daughter Nevaeh P. She contends that her no-contest plea at the grounds phase of the termination of parental rights proceeding was involuntary and that she should be permitted to withdraw her plea. We disagree and affirm. This opinion will not be published.

2013AP2854 In re the termination of parental rights to Nevaeh P.

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

Attorneys: For Appellant: Earle, Jane S., Shorewood; For Respondent: Mueller, Elisabeth Andrews, Milwaukee

LABOR AND EMPLOYMENT

Wisconsin Court of Appeals

Civil
Employment — unemployment insurance — refusal to work

Patricia McLish, pro se, appeals an order affirming the Labor and Industry Review Commission’s (Commission) decision to deny her claim for unemployment insurance benefits. McLish argues she is entitled to benefits because there was good cause for her refusal to accept an offer of work within the meaning of Wis. Stat. § 108.04(8). Because there is credible and substantial evidence to support the Commission’s decision concluding otherwise, we affirm the order. This opinion will not be published.

2013AP2056 McLish v. Labor and Industry Review Commission et al.

Dist III, Douglas County, Thimm, J., Per Curiam

Attorneys: For Appellant: McLish, Patricia J., pro se; For Respondent: Castelaz, Kim T., Madison; Prell, Harley LeRoy, III, Superior

Wisconsin Court of Appeals

Civil
Labor — public employment — vested rights

Christine Chialiva sued the City of New Berlin to obtain the type of health insurance benefits she believed she was entitled to after she retired as a City of New Berlin police officer. The circuit court ruled against Chialiva, and she appeals from the order granting summary judgment to the City of New Berlin. We agree with the City that certain of Chialiva’s appellate arguments are waived because they were not raised in the circuit court. On the issues the circuit court was asked to address relating to Chialiva’s right to health insurance, we affirm. This opinion will not be published.

2013AP1191 Chialiva v. City of New Berlin

Dist II, Waukesha County, Kieffer, J., Per Curiam

Attorneys: For Appellant: Pines, Lester A., Madison; Lynch, Sean P., Madison; For Respondent: Seneczko, Alan E., Oconomowoc

MUNICIPALITIES

Wisconsin Court of Appeals

Civil
Municipalities – public nuisance — uncut lawns

Dwayne Pasternak appeals a forfeiture judgment for violating Forest County’s nuisance ordinance. Pasternak argues the evidence was insufficient to establish that his uncut lawn constituted a public nuisance. He also argues the circuit court erred by failing to allow him to present a defense. We conclude the evidence supporting Pasternak’s conviction was insufficient. We therefore reverse and remand with directions to vacate the judgment and dismiss the citation. This opinion will not be published.

2013AP2632 County of Forest v. Pasternak

Dist III, Forest County, Stenz, J., Mangerson, J.

Attorneys: For Appellant: Kennedy, Robert A., Jr., Crandon; For Respondent: Payant, Paul J., Antigo; Rhode, John B., Antigo

PROFESSIONAL RESPONSIBILITY

Wisconsin Supreme Court

Civil
Professional Responsibility – suspension

Where attorney Richard A Kranitz was convicted of federal securities fraud, a two-year suspension is appropriate.

“After closely reviewing this matter, we accept the stipulation and determine that Attorney Kranitz did engage in criminal acts in violation of SCR 20:8.4(b). We determine that a two-year suspension of his license to practice law in this state is an appropriate level of discipline to impose in light of the nature of the misconduct and the other factors present in this case. We have already determined that a two-year suspension was the proper level of discipline to be imposed on Attorney Berman, and we do not see a significant distinction between their situations. Although they played different roles, they were both co-conspirators in the same illegal scheme.”

2013AP2128-D OLR v. Kranitz

Per Curiam.

Wisconsin Supreme Court

Civil
Professional Responsibility – public reprimand

Where attorney Patrick J. Hudec engaged in a pattern of inattention to details, a public reprimand is appropriate.

“There is no showing that any of the referee’s findings of fact are erroneous. Accordingly, we adopt them. We also agree with the referee’s conclusions of law that Attorney Hudec violated the supreme court rules set forth above. We further agree with the referee that a public reprimand is an appropriate sanction for the misconduct at issue here. Finally, we agree with the referee that Attorney Hudec should be required to pay the full costs of the proceeding, which are $1,625.14.”

2013AP360-D OLR v. Hudec

Per Curiam.

Wisconsin Supreme Court

Civil
Professional Responsibility – suspension

Where attorney Geneva E. McKinley was convicted of two counts of filing false tax returns, a 60-day suspension is appropriate.

“In light of these mitigating factors, we accept the stipulation and impose the jointly requested sanction of a 60-day suspension of Attorney McKinley’s license to practice law in this state. We are confident that Attorney McKinley recognizes the seriousness of her misconduct. Filing tax returns that a person knows or believes are not true because they do not include all of a person’s income is a grave matter. Attorney McKinley’s criminal convictions and the resulting loss of her job have demonstrated that fact. The suspension of her license to practice law in this state, even though tempered in this instance because of mitigating factors, is a further indication that such conduct carries serious consequences.”

2013AP2685-D OLR v. McKinley

Per Curiam.

PROPERTY

Wisconsin Court of Appeals

Civil
Property — eminent domain — attorney fees

David Lewis appeals a judgment awarding him $46,200 in reasonable attorney fees in this condemnation action. Lewis asserts the actual cost of his representation was much higher, and the circuit court erred by applying the rebuttable presumption contained in Wis. Stat. § 814.045(2) that a reasonable fee is no greater than three times the amount of compensatory damages. He also asserts that § 814.045, which was enacted after this action was commenced, cannot be applied retroactively. We reject Lewis’s arguments and affirm. This opinion will not be published.

2013AP2048 Lewis v. Village of Hobart

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

Attorneys: For Appellant: Biersdorf, Dan; Keady, E. Kelly, Minneapolis; For Respondent: Kowalkowski, Frank, Green Bay

Wisconsin Court of Appeals

Civil
Property — foreclosure

Edward and Laurie Hornby appeal a summary judgment of foreclosure. They assert Wells Fargo failed to make a prima facie showing that it is entitled to enforce the note and mortgage. They also assert the circuit court erroneously rejected their unclean hands defense and dismissed their counterclaims, alleging they made all required payments under a trial period plan and were therefore entitled to a permanent loan modification under the Home Affordable Modification Program.

We conclude the circuit court properly granted Wells Fargo’s summary judgment motion and dismissed the Hornbys’ counterclaims. No genuine issue of material fact exists concerning Wells Fargo’s ability to enforce the note and mortgage. In addition, the Hornbys have not submitted any documentary evidence that they were entitled to a permanent loan modification, and their assertion of an oral promise from Wells Fargo officials was made for the first time on appeal — too late to save their counterclaims and affirmative defense. This opinion will not be published.

2013AP833 Wells Fargo Bank NA v. Hornby et al.

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

Attorneys: For Appellant: Pagel, Briane F., Jr., Madison; Baer, Anthony F., Madison; Shah, Rishi G., Madison; For Respondent: Dykeman, Stephanie L., Brookfield; Markvart, Brad A., Brookfield

TORTS

Wisconsin Court of Appeals

Civil
Torts — intentional infliction of emotional distress — battery

Jacob Brekken and his father, Christopher Brekken, appeal an order that granted Ann Knopf’s motion for judgment on a jury’s verdict and denied the Brekkens’ postverdict motion for a new trial. The jury found in Knopf’s favor on the Brekkens’ claims for battery — offensive bodily contact and intentional infliction of emotional distress. The Brekkens argue: (1) the circuit court should have answered certain questions on the special verdict as a matter of law; (2) the court erroneously instructed the jury regarding an element of the battery claim; (3) no credible evidence supports the jury’s verdict on the battery claim; and (4) no credible evidence supports the jury’s verdict on the intentional infliction of emotional distress claim. We conclude the Brekkens have forfeited their right to appellate review of each of these issues. Accordingly, we affirm the order granting judgment on the verdict and denying the Brekkens’ postverdict motion.

Knopf cross-appeals, arguing the circuit court erred by denying her motion to dismiss for failure to prosecute and her motion to dismiss the battery claim at the close of evidence. Because we affirm the order granting Knopf judgment on the verdict, her cross-appeal is moot, and we need not address it. This opinion will not be published.

2013AP1900 Brekken et al. v. Knopf et al.

Dist III, Pierce County, Boles, J., Per Curiam

Attorneys: For Appellant: Schwartz, Michael D., Oakdale, Minn.; Schwartz, Brandon M., Oakdale, Minn.; For Respondent: Runde, John P., Wausau; Koback, Todd Joseph, Wausau

Wisconsin Court of Appeals

Civil
Torts — legal malpractice — attorney-client relationship

Sieben, Grose, Von Holtum & Carey, Ltd., Attorney Paul F. Schweiger, and ABC Insurance Company (collectively, “Schweiger”) appeal a non-final order denying their summary judgment motion. They contend John and Arline Williamson have failed to satisfy their initial burden of showing the existence of an attorney-client relationship in this legal malpractice case. We agree, reverse, and remand for the circuit court to enter judgment in Schweiger’s favor. This opinion will not be published.

2013AP1777 Williamson v. Schweiger et al.

Dist III, Sawyer County, Wright, J., Per Curiam

Attorneys: For Appellant: Tomsche, Steven E.; Smith, Matthew R., Minneapolis; For Respondent: Steans, Phillip M., Menomonie

Wisconsin Court of Appeals

Civil
Torts — governmental immunity

Barbara and Roger Larsen appeal an order of summary judgment in favor of Portage County and its insurer, Wisconsin County Mutual Insurance Company (collectively, “Portage County”) on the basis of governmental immunity. The Larsens brought suit against Portage County seeking to recover damages for injuries Barbara allegedly sustained when she slipped and fell inside the building housing the Portage County Circuit Court. The circuit court granted Portage County’s motion for summary judgment, determining as a matter of law that Portage County is immune under Wis. Stat. § 893.80(4) from the Larsens’ claims. The Larsens argue that two exceptions to the immunity doctrine apply: the ministerial duty exception and the clear and compelling danger exception. We agree with the circuit court that neither applies. Accordingly, we affirm. Not recommended for publication in the official reports.

2013AP2395 Larsen et al. v. Wisconsin County Mutual Insurance Company et al.

Dist IV, Portage County, Taggart, J., Sherman, J.

Attorneys: For Appellant: Golla, Russell T., Stevens Point; For Respondent: Kurtz, Arthur E., Madison; Seiler, Gesina M., Madison

Wisconsin Court of Appeals

Civil
Torts — theft by bailee

The issue presented on appeal is whether the circuit court erred in granting summary judgment in favor of Town & Country Bank, dismissing a counterclaim for civil theft by bailee made by Phillip Buss, Nancy Buss, and the Watertown Auto Mart. We conclude that, viewing the evidence in the light most favorable to the Busses and Auto Mart by assuming that the jury accepted Buss’s averment that he never authorized the transfer of funds from Auto Mart’s line of credit, no reasonable jury could find that the bank had intent to transfer funds from the line of credit without the consent of Buss/Auto Mart. Accordingly, we affirm. Not recommended for publication in the official reports.

2012AP628 Town & Country Bank v. Buss et al.

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

Attorneys: For Appellant: Pagel, Briane F., Jr., Madison; For Respondent: Kreiter, Maria L., Milwaukee

CRIMINAL OPINIONS

Wisconsin Court of Appeals

Criminal
Homicide — sufficiency of the evidence

Ricky L. Perry appeals from a corrected judgment of conviction entered after a jury found him guilty of second-degree reckless homicide by use of a dangerous weapon. Perry also appeals the order denying his postconviction motion for a new trial. We affirm. This opinion will not be published.

2013AP1030-CR State v. Perry

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

Attorneys: For Appellant: Jensen, Jeffrey W., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Wellman, Sally L., Madison

Wisconsin Court of Appeals

Criminal
Disorderly conduct — fighting words — sufficiency of the evidence

Thomas Smith appeals a judgment convicting him, after a jury trial, of disorderly conduct and unlawful use of a computerized communication system. The convictions for these misdemeanor crimes were based on two comments Smith posted on a police department Facebook page. Smith argues that the circuit court should have granted his motion to dismiss because his Facebook comments were protected speech. The State argues that the comments are not protected speech because they are “fighting words.” The State does not persuade me that Smith’s comments can reasonably be construed as fighting words.

And, the State’s briefing provides no other basis on which to uphold Smith’s convictions. Accordingly, I reverse and remand for the circuit court to vacate the judgment and dismiss the charges against Smith. This opinion will not be published.

2013AP2516-CR State v. Smith

Dist IV, Iowa County, Dyke, J., Lundsten, J.

Attorneys: For Appellant: Hinkel, Andrew, Madison; For Respondent: Weber, Gregory M., Madison; Allen, Matthew, Dodgeville

CRIMINAL PROCEDURE

Wisconsin Court of Appeals

Criminal
Criminal Procedure — joinder

Daniel Vega appeals a judgment convicting him of two counts of intentionally abusing thirteen-month-old L.M.T. The jury acquitted Vega of first-degree reckless homicide of L.M.T. for a separate incident. Vega contends the charges were improperly joined for trial and the court erroneously exercised its discretion when it denied his motion to sever the physical abuse charges from the homicide charge. We reject those arguments and affirm the judgment. This opinion will not be published.

2013AP1929-CR State v. Vega

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

Attorneys: For Appellant: Wojan, Nathaniel J., Menasha; For Respondent: Pray, Eileen W., Madison; Lasee, David L., Green Bay

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

Criminal
Criminal Procedure – involuntary medication

A presentence detainee may be involuntarily medicated in order to restore competency for sentencing.

“The courts that have rejected involuntary treatment plans as insufficiently individualized seemingly did so to prevent the prison medical staff from having ‘carte blanche to experiment with … dangerous drugs or dangerously high dosages of otherwise safe drugs.’ Evans, 404 F.3d at 241; see also United States v. Chavez, 734 F.3d 1247 (10th Cir. 2013); Hernandez-Vasquez, 513 F.3d at 917. At the Sell hearing the government detailed a specific treatment plan, including dosage amounts, and a detailed plan to address any side effects. The district court discussed this treatment plan at length and left very little doubt that Breedlove would be medicated according to this plan. It did not reiterate every detail in the pro-posed treatment plan, including dosage levels, but those were clearly defined in the treatment plan. Given the detail of the treatment plan, we find that the district court’s analysis here is sufficient to ensure that the prison medical staff does not have unfettered authority to experiment with varying dosage levels or different medications. The cases Breedlove cites to support his argument that maximum dosage is an absolute requirement involve drastically different factual situations — those cases invariably involve unrestricted discretion to the medical staff or vague treatment plans based on little or no evidence of the defendant’s individual condition. See, e.g., Hernandez-Vasquez, 513 F.3d at 917; Chavez, 734 F.3d at 1253. Due to the government’s detailed treatment plan, the concerns the Ninth and Tenth Circuits dealt with in those cases are not implicated. We are therefore content that the district court’s instructions and reference to the government’s detailed treatment plan satisfied its burden under Sell, even if a maximum dosage was not explicitly included in the district court’s order.”

Affirmed.

13-3406 U.S. v. Breedlove

Appeal from the United States District Court for the Northern District of Illinois, Kapala, J., Cudahy, J.

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance

Thomas F. Glass, Jr. appeals from a judgment of conviction entered after a jury found him guilty of the second-degree sexual assault of his estranged wife, KG, and from an order denying his postconviction motion for a new trial. Glass argues that trial counsel was ineffective for failing to impeach the victim at trial with her allegedly inconsistent statements made or omitted in prior court proceedings, to police officers, and to an investigator retained by Glass. The State disagrees, contending that the prior statements complained of were either not inconsistent with the victim’s trial testimony, or immaterial to the disputed issues. Because we conclude that Glass has failed to establish trial counsel’s ineffectiveness, we affirm. This opinion will not be published.

2012AP2754-CR State v. Glass

Dist II, Fond du Lac County, Grimm, J., Per Curiam

Attorneys: For Appellant: Sczygelski, Ralph, Manitowoc; For Respondent: Balistreri, Thomas J., Madison; Toney, Eric, Fond du Lac

Wisconsin Supreme Court

Criminal
Criminal Procedure – right to jury

The defendant failed to adequately argue why African-American men are a distinctive group for purposes of jury selection.

“Beavers did not develop an argument in his opening brief as to why African-American men constitute a distinctive group in the community. Women are a distinctive group, see, e.g., Duren, 439 U.S. at 364, as are African Americans, see, e.g., Neighbors, 590 F.3d at 491. But the parties have cited no cases, and we have found none, addressing whether African-American men constitute a distinctive group under Duren. We have clearly set out the standards by which we decide 26 No. 13-3198 whether a group is ‘distinctive’ for Duren cross-section claims, see United States v. Raszkiewicz, 169 F.3d 459, 463 (7th Cir. 1999), but Beavers did not conduct that analysis or even cite that case until his reply brief.”

“Beavers waived this issue because he did not address this question of first impression in detail in his opening brief. See Mahaffey v. Ramos, 588 F.3d 1142, 1146 (7th Cir. 2009) (‘Perfunctory, undeveloped arguments without discussion or citation to pertinent legal authority are waived.’). His approach prevented the opposing party from having the opportunity in its brief to respond and fully air the arguments on the other side. We express no view on the merits of Beavers’ waived argument.”

Affirmed.

13-3198 U.S. v. Beavers

Appeal from the United States District Court for the Northern District of Illinois, Zagel, J., Flaum, J.

Wisconsin Court of Appeals

Criminal
Criminal Procedure — self-representation — speedy trials

Brian Maus, pro se, appeals a judgment of conviction for armed burglary with a dangerous weapon and armed robbery with threat of force, both as a party to a crime, and felony bail jumping. Maus also appeals an order denying his postconviction motion. Maus presents approximately eighteen separate claims for relief. We affirm. This opinion will not be published.

2013AP1529 State v. Maus

Dist III, Langlade County, Stenz, J., Per Curiam

Attorneys: For Appellant: Maus, Brian A., pro se; For Respondent: Uttke, Ralph M., Antigo; Wittwer, Jacob J., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — right to counsel — forfeiture

Mark Henning appeals an order denying his motion for postconviction relief under Wis. Stat. § 974.06. We affirm. This opinion will not be published.

2012AP2677 State v. Henning

Dist IV, Wood County, Counsell, J., Per Curiam

Attorneys: For Appellant: Henning, Mark, pro se; For Respondent: O’Brien, Daniel J., Madison; Constable, Eliz. R., Wisconsin Rapids

Wisconsin Court of Appeals

Criminal
Criminal Procedure — self-representation — compulsory process

Begoll Azizi appeals his conviction for operating a motor vehicle while intoxicated, sixth offense, and an order denying postconviction relief. Azizi contends that the trial court impermissibly denied him his right to self-representation and his right to compulsory process. We affirm. This opinion will not be published.

2013AP1651-CR State v. Azizi

Dist II, Fond du Lac County, Sharpe, J., Per Curiam

Attorneys: For Appellant: Azizi, Begoll, pro se; For Respondent: Tarver, Sandra L., Madison; Toney, Eric, Fond du Lac

OWI

Wisconsin Court of Appeals

Criminal
Motor Vehicles — implied consent — informed choice

Michael Grogan, pro se, appeals an order concluding he unlawfully refused to take a test for intoxication after arrest. Grogan argues the circuit court applied an improper legal standard when it determined Miranda warnings did not interfere with his ability to make an informed choice under the implied consent law. He contends that, because the officer gave him Miranda warnings after placing him under arrest, we must conclude he did not refuse the evidentiary chemical test. We reject Grogan’s arguments and affirm. This opinion will not be published.

2014AP172 In the matter of the refusal of Michael A. Grogan

Dist III, Eau Claire County, Schumacher, J., Stark, J.

Attorneys: For Appellant: Grogan, Michael A., pro se; For Respondent: Larson, Meri C., Eau Claire

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — probable cause — prior convictions

Andre Reggs appeals the circuit court’s judgment convicting him of operating a motor vehicle while under the influence of an intoxicant as a fourth offense. Reggs argues that the circuit court erred in denying his motion to declare a 2001 Illinois drunk driving conviction void for sentencing purposes. Reggs also argues that the circuit court erred in concluding that there was probable cause for the arrest that led to Reggs’ conviction here. I reject both arguments, and affirm. This opinion will not be published.

2013AP2367-CR State v. Reggs

Dist IV, Rock County, Forbeck, J., Lundsten, J.

Attorneys: For Appellant: Saperstein, David E., Madison; For Respondent: Weber, Gregory M., Madison; Urbik, Gerald A., Janesville

Wisconsin Court of Appeals

Criminal
Motor Vehicles — implied consent — probable cause

Thomas Wagenaar appeals a judgment of the circuit court imposing a one-year revocation of his operating privileges pursuant to Wis. Stat. § 343.305, based on Wagenaar’s refusal to submit to a chemical test to determine his blood alcohol concentration under Wisconsin’s implied consent law. Wagenaar argues that the circuit court erred in determining that there was probable cause to believe that he was operating a motor vehicle while under the influence of an intoxicant and that he had been properly informed of his rights and obligations under the implied consent law. For the reasons discussed below, I affirm. This opinion will not be published.

2013AP2454 In the matter of the refusal of Thomas J. Wagenaar

Dist IV, Marquette County, Wright, J., Sherman, J.

Attorneys: For Appellant: Anderegg, Rex, Milwaukee; For Respondent: Hendee, Chad A., Montello

SENTENCING

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

Criminal
Sentencing — relevant conduct

Where the district court made no findings as to the amount of drugs attributable to the defendant the sentence must be vacated.

“Our review is stymied because the court did not make a clear finding as to the quantity of drugs it found attributable to Garrett. It is undisputed that the evidence at trial concerned approximately 241 grams of cocaine. Adopting this quantity would have resulted in a base offense level of 30. But the sentencing court can increase a defendant’s sentence based on other relevant conduct not proven at trial, such as the amount of drugs attributable to defendant, so long as that conduct is proven by a preponderance of the evidence. See United States v. Johnson, 342 F.3d 731, 734 (7th Cir. 2003). The court is not limited by the rules of evidence at sentencing, but the evidence considered in determining the drug quantity attributable to the defendant must carry indicia of reliability. United States v. Westmoreland, 240 F.3d 618, 630 (7th Cir. 2001). The PSR, relying on Agent Labno’s statement that Garrett admitted to purchasing at least two kilograms of cocaine from Hicks, concluded that Garrett was responsible for at least 840 grams but less than 2.8 kilograms, resulting in a base offense level of 34. The PSR then applied a two-level enhancement for obstruction of justice for a final offense lev-el of 36. The court, at sentencing, stated its belief that 36 was the appropriate offense level. But it never gave any indication of the drug quantity for which it found Garrett person-ally responsible.” Affirmed in part, and Vacated in part.

13-1182 U.S. v. Garrett

Appeal from the United States District Court for the Northern District of Illinois, Zagel, J., Williams, J.

Wisconsin Court of Appeals

Criminal
Sentencing — Substance Abuse Program

Deonta Duncan, pro se, appeals an order denying sentence modification. Duncan argues the circuit court erred by finding him ineligible for Wisconsin’s Substance Abuse Program. We affirm. This opinion will not be published.

2013AP2563-CR State v. Duncan

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

Attorneys: For Appellant: Duncan, Deonta Lamar, pro se; For Respondent: Loebel, Karen A., Milwaukee; Winter, Tiffany M., Madison

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

Criminal

Sentencing – reasonableness
A 20-year sentence for unlawful possession of a firearm is not unreasonable.

“Pollock argues that ‘[t]he district court’s cursory attention to the § 3553(a) factors provides this Court with no in-formation as to why Pollock received a 20-year sentence and therefore hinders meaningful appellate review.’ Appellant Br. at 33. We disagree. A ‘district court is not required to re-cite and address each of the § 3553(a) sentencing factors, or all of a defendant’s arguments for a lighter sentence.’ United States v. Lyons, 733 F.3d 777, 785 (7th Cir. 2013). ‘[T]he sentencing judge can discuss the application of the statutory factors to the defendant not in checklist fashion but instead in the form of an adequate statement of the judge’s reasons, consistent with section 3553(a), for thinking the sentence that he has selected is indeed appropriate for the particular defendant.’ United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005). It is clear from reviewing the district court’s statements — including those noted below — that it found the serious nature of Pollock’s crimes to be a key factor.”

Affirmed.

13-2764 U.S. v. Pollock

Appeal from the United States District Court for the Central District of Illinois, Shadid, J., Lawrence, J.

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

Criminal
Sentencing — restitution

Even if a defendant has a valid claim for contribution against another party, he is not relieved of restitution to the victim.

“Wiley’s misconduct while a partial owner does not change the exchange’s victim status or the propriety of the calculation. Wiley’s encouraging Stein to undertake the risky check-kiting scheme may have created multiple transactions which initially benefitted the exchanges (the victims), and himself by virtue of his relation to the exchanges. But, again, the exchanges provided services to Stein to earn their fees and the exchanges suffered $440,000 in losses when Stein’s checks were not honored by his banks. Stein may have a civil claim against Wiley for contribution arising from Wiley’s facilitating conduct, but that does not relieve Stein of his obligation to compensate his victims. 18 U.S.C. §§ 3663A (making full restitution mandatory), 3664(h) (allowing the district court to apportion liability only among defendants). The district court’s decision to treat the exchanges as the victims and calculate the losses based on the dishonored checks was within ‘the realm of permissible computations.’ White, 737 F.3d at 1142. We will not disturb the district court’s decision to impose restitution under 18 U.S.C. § 3663A to make the exchanges whole.”

Affirmed.

13-2358 U.S. v. Stein

Appeal from the United States District Court for the Northern District of Illinois, Pallmeyer, J., Manion, J.

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