Weekly Case Digests — July 7-July 11, 2014

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Wisconsin Law Journal’s Case Digests, July 7-July 11, 2014

CIVIL OPINIONS

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

Civil

Public Health — disability benefits

It was reversible error for the ALJ to find a disability claimant incredible without asking her any questions.

“That’s it, so far as the administrative law judge’s analysis is concerned. It was deeply flawed. One flaw was in assessing Townsend’s credibility without asking any questions of her and her father even though both of them were present at the hearing. It’s true that her lawyer told us at argument that he hadn’t wanted either of them to testify, lest they contradict the testimony they had given at the earlier hearings. That is a very poor reason, but in any event the administrative law judge could and should have questioned daughter and father on her own initiative, as she could do without impropriety because a social security disability hearing is not adversarial. And it’s not as if the administrative law judge had decided to rely on the credibility assessments of her predecessor; she never mentioned the proceedings before that judge.”

Reversed and Remanded.

13-3607 Williams v. Colvin

Appeal from the United States District Court for the Northern District of Indiana, Martin, Mag. J., Posner, J.

CIVIL PROCEDURE

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

Civil

Civil Procedure — class actions

Commonality of damages is not a requirement for class certification.

“We do not say that a district court is required to certify a class action on all four of these subjects, or on a class-wide damages theory, or indeed on any issue. A district judge has discretion to evaluate practical considerations that may make class treatment unwieldy despite the apparently common issues. On occasion the problems are so grave that it is an abuse of discretion to certify a class. See, e.g., Parko v. Shell Oil Co., 739 F.3d 1083 (7th Cir. 2014). But when exercising its discretion the court must apply the correct legal standards. The district court denied plaintiffs’ motion to certify under a mistaken belief that ‘commonality of damages’ is legally indispensible. With that error corrected, the district court can proceed using the proper standards.”

Vacated and Remanded.

14-1532 In the Matter of: IKO Roofing Shingle Products Liability Litigation

Appeal from the United States District Court for the Central District of Illinois, Baker, J., Easterbrook, J.

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

Civil

Civil Procedure — correction of judgment

Where the district court had held a contract unenforceable, a subsequent correction of the judgment ordering return of earnest money was proper.

“[T]he judge’s correction of her judgment just made explicit what the parties must have assumed — that with the draft agreement rescinded the earnest money had to be returned. The judge’s failure to mention Rule 60(a) when she made the correction was inconsequential. But she did rather muddy the waters when she said that Shuffle Tech’s ‘obligation to repay the earnest money arises not out of any claim by [Wolff], but out of [Shuffle Tech’s] own claim for declaratory relief. If all [Shuffle Tech] wanted out of this action was a declaration that it was not bound by the Draft Agreement, it could have limited its declaratory claim to that issue and remained silent about any obligations it believed it had under the Letter of Intent. It did not. Instead, [it] invoked the court’s authority to declare specifically that it was obligated to return the earnest money.’ This makes it seem as if Shuffle Tech wanted to refund the earnest money; obviously it did not. It merely recognized that it could not obtain rescission of the contract, as sought in its claim for declaratory relief, without acknowledging an obligation to return the earnest money, for otherwise rescission would not place the parties in the position they would be occupying had there never been a contract. Shuffle Tech’s attempt to back out of that concession, merely because the district judge had initially failed to mention it, was a tactic rightly blocked by Rule 60(a).”

Affirmed.

13-3576 Shuffle Tech Int’l. LLC v. Wolff Gaming Inc.

Appeal from the United States District Court for the Northern District of Illinois, Bucklo, J., Posner, J.

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

Civil

Civil Procedure – dismissal — failure to prosecute

Where the plaintiff missed multiple status hearings and failed to comply with discovery, the case was properly dismissed for failure to prosecute.

“In this case, Elrabadi’s failure to appear at multiple status hearings and Salata’s ongoing failure to provide outstanding discovery to Weyerhaeuser even after being compelled by the court to do so provided the district court with more than enough reason to dismiss Salata’s case for failure to prosecute. The ‘pattern of delay and indifference’ evinced by Salata and her counsel strongly supports the district court’s dismissal, and we find no abuse of discretion. Ryer v. Russell, 974 F.2d 1340, *3 (7th Cir. 1992).”

Affirmed.

13-3136 Salata v. Weyerhaeuser Co.

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

CIVIL RIGHTS

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

Civil

Civil Rights — unlawful searches

Even if an affidavit in support of a search warrant was misleading, it does not support a Section 1983 claim where probable cause was nevertheless present.

“But candor in the affidavit would not have undermined the existence of probable cause. Curtis had, so far as appears, seen marijuana plants in Jennifer’s basement just a few days earlier. Her possession of them had been criminal even if she’d been planning to get rid of the plants and just hadn’t gotten around to doing so yet (though in fact she had). What was wrong with the affidavit was the motivation — Curtis’s spite, his desire to see his daughter-in-law arrested just four days after the death of her child (his grandchild) and maybe even prosecuted (though that would be an unlikely sequel to the search even if the plants had still been in her basement) — though if she were prosecuted he might be as well, as her accomplice in the growing of the marijuana.”

Affirmed.

13-1992 Scherr v. City of Chicago

Appeal from the United States District Court for the Northern District of Illinois, Der-Yeghiayan, J., Posner, J.

CONSTITUTIONAL LAW

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

Civil

Constitutional Law — equal protection — redistricting

A deviation of 8.7 percent in aldermanic district size is insufficient to violate the Equal Protection Clause.

“The Equal Protection Clause principle of ‘one person, one vote’ requires that officials be elected from voting districts with substantially equal populations. Reynolds v. Sims, 377 U.S. 533, 577 (1964). Thus, ‘one man’s vote in a[n] … election is to be worth as much as another’s.’ Wesberry v. Sanders, 376 U.S. 1, 8 (1964). To achieve this result, the government must ‘make an honest and good-faith effort to construct its districts as nearly of equal population as is practicable,’ but mathematical precision is not required. Gaffney v. Cummings, 412 U.S. 735, 743 (1973) (internal quotation marks omitted).”

Affirmed.

13-2977 League of Women Voters of Chicago v. City of Chicago

Appeal from the United States District Court for the Northern District of Illinois, Coleman, J., Kanne, J.

CONSUMER PROTECTION

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

Civil

Consumer Protection – FDCPA — venue

The correct interpretation of “judicial district or similar legal entity” in § 1692i is the smallest geographic area that is relevant for determining venue in the court system in which the case is filed.

“The alternative approach, favored by the panel majority, would be for the court in an FDCPA case to defer to each state’s definition of ‘judicial district.’ One problem with that approach is that ‘judicial district’ is not a defined term in state law. A deeper problem is that, had Congress been content to adopt the states’ rules governing jurisdiction and venue, there would have been no reason to impose venue limitations on debt collectors, as the federal Act does; the debt collector could have sued wherever state law permitted him to sue. The presence of the venue provision in the Act shows congressional dissatisfaction with allowing state law to determine where suits to collect consumer debts can be filed.”

Reversed.

13-1821 Suesz v. Med-1 Solutions LLC

Appeal from the United States District Court for the Southern District of Indiana, Lawrence, J., Hamilton & Posner, J.

FAMILY

Wisconsin Court of Appeals

Civil

Family — contempt

This is a contempt case. Cheryl Marie Brown-Doney, p/k/a Cheryl Oldenhoff, appeals from an order finding her in contempt of court and imposing sanctions in favor of the respondent, Quinn Oldenhoff. Because the scope of our review is limited to mistake or misuse of discretion, and there is evidence supporting the circuit court’s findings, we affirm. This opinion will not be published.

2014AP513-FT In re the finding of contempt in In re the marriage of: Brown-Doney v. Oldenhoff

Dist II, Waukesha County, Van De Water, J., Neubauer, P.J.

Attorneys: For Appellant: Wolff, Peter M., Waukesha; For Respondent: Buehler, Chad, Jefferson

IMMIGRATION

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

Civil

Immigration — cancellation of removal — moral turpitude

Where the BIA made no finding that an alien seeking cancellation of removal committed a crime of moral turpitude, the denial was erroneous.

“Instead, the Board moved straight to the second Silva-Trevino step and found that Sanchez ‘did not meet his bur-den of proving … that his criminal conviction is not a CIMT’ because he ‘has not established that he was not convicted under a portion of the statute that does not qualify.’ Again, it seems that the Board reached this conclusion because it found the case chronology printout inconclusive regarding Sanchez’s charge. But if the record of conviction does not answer the question, it does not follow that the alien has failed to carry his burden and the inquiry is over. It only means that the adjudicator should exercise its discretion to consider additional evidence (or else explain why it declined to do so). Only if the matter is still inconclusive after that step—perhaps because the evidence is closely balanced, or the ad-judicator finds that the alien’s account lacks credibility—will the burden of proof come into play. But just because Sanchez may ultimately lose in the event of a tie does not mean that the Board can end the inquiry early.”

Petition Granted.

13-2653 Sanchez v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Flaum, J.

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

Civil

Immigration — illegal aliens — cancellation of removal — good moral character

Where an illegal alien had an aggravated traffic record, including multiple drunken driving convictions, he could not show the good moral character required for cancellation of removal.

“By the time he was placed in removal proceedings in 2010 he had accumulated an impressive string of sanctions for a variety of traffic offenses committed in the previous decade. He had received a citation for violating traffic laws and driving in an ‘aggravated manner’ after his license had been revoked. He had received citations for driving without a valid license, driving on three occasions under the influence of alcohol, driving with a revoked driver’s license and on another occasion with a revoked or suspended license, violating a license-revocation order, twice lacking required proof of financial responsibility, and running a traffic light. He had also received suspensions for disregarding a stop/yield sign, for failing to fasten his seat belt, and for his previous violations.”

Petition Denied.

13-2536 Ortiz-Estrada v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Posner, J.

JUVENILES

Wisconsin Court of Appeals

Civil

Juveniles – TPR — ineffective assistance

Mable K. appeals orders of the circuit court terminating her parental rights to Isaiah H. and May K. and an order denying her motion for a new trial. On appeal, Mable K. makes two arguments. First, she argues that her trial counsel was ineffective for failing to prevent the introduction, or reduce the impact on the jury, of evidence regarding Mable K.’s lack of contact with her children after the period of alleged abandonment. Second, she argues that the circuit court erred in allowing evidence of specific instances of prior untruthful conduct on her part to be used at trial. For the following reasons, I affirm the challenged orders. This opinion will not be published.

2014AP398, 2014AP399 In re the termination of parental rights to Isaiah H.

Dist IV, Dane County, Smith, J., Blanchard, P.J.

Attorneys: For Appellant: Brehm, Philip J., Janesville; For Respondent: Rehfeldt, Gary, Madison

Wisconsin Court of Appeals

Civil

Juveniles – TPR – default — motions to reopen

This is a continuation of Ricky V.’s appeal of the order terminating his parental rights to his daughter Liliana V. The order terminating Ricky V.’s parental rights was entered on Ricky V.’s default as a result of his twice not appearing for the termination-of-parental-rights evidentiary hearing under Wis. Stat. § 48.424. Retaining jurisdiction, we remanded this matter to the circuit court on Ricky V.’s request for an evidentiary hearing on whether there was “good cause” to reopen his default. The circuit court determined that there was not. We affirm. This opinion will not be published.

2014AP334 In re the termination of parental rights to Liliana V.

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

Attorneys: For Appellant: Bates, Gregory, Kenosha; For Respondent: Mueller, Elisabeth Andrews, Milwaukee

LABOR AND EMPLOYMENT

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

Civil

Employment — age discrimination

Where the employee showed no nexus between her age and any adverse employment action, summary judgment was properly granted to the employer on her age discrimination claim.

“Hutt focuses her briefing on Solvay’s treatment of Hutt and Craig, so it deserves mention why this is not circumstantial evidence that can be used to make a case for age discrimination under the direct method. Simply, there are no facts about Solvay’s treatment of Hutt or Craig to suggest that the company’s employment actions had anything to do with their ages. Hutt wants us to extrapolate that, because Hutt and Craig were respectively 54 and 59 at the time of the employment actions — the two oldest sales representatives to be placed on warning status, and also the two sales representatives to be placed on the longest terms of warning status — Solvay must have acted with age-based discriminatory intent. But the circumstantial evidence in this case does not point directly to a discriminatory reason for the employer’s actions. No evidence is presented in support of the contention that the younger employees on warning status, or indeed other younger Solvay employees in general, are similarly? situated comparators, ‘directly comparable’ to Hutt ‘in all material respects,’ and with ‘other possible explanatory variables’ eliminated, whose differential treatment from Hutt would allow an inference of age-based discrimination. See Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 675 (7th Cir. 2012); Coleman v. Donahoe, 667 F.3d 835, 841 (7th Cir. 2012) (‘[T]he proposed comparator must be similar enough to permit a reasonable juror to infer, in light of all the circumstances, that an impermissible animus motivated the employer’s decision.’). Instead, the theory that Hutt and Craig were singled out for worse treatment based on their age is only asserted with ‘reliance on speculation.’ Good, 673 F.3d at 676. ‘[O]ne might guess or speculate that perhaps [Hutt’s age] might have made a difference in the decision, but guesswork and speculation are not enough to avoid summary judgment.’ Id. at 675. For this reason, her claim fails under the direct method.”

Affirmed.

13-1481 Hutt v. Abbvie Products LLC

Appeal from the United States District Court for the Northern District of Indiana, Van Bokkelen, J., Tinder, J.

Wisconsin Court of Appeals

Civil

Employment – workers’ compensation — exclusive remedy provision

Dean Hurt and Hurt’s Recycling, LLC (collectively, Hurt) appeal a summary judgment dismissing their negligence claims against Josh Cole, Joel Hegna, their businesses, and their insurers. The circuit court dismissed Hurt’s negligence claims after concluding the claims were barred by the Worker’s Compensation Act’s exclusive remedy provision, Wis. Stat. § 102.03(2). On appeal, Hurt argues § 102.03(2) cannot bar his claims because the exclusive remedy provision applies only when conditions exist for an employer’s liability and the conditions do not exist in this case. He also argues Cole and Hegna are not employees. We conclude the conditions for employer liability are satisfied and Cole and Hegna are employees. Accordingly, we conclude the negligence claims are barred because of Cole’s and Hegna’s co-employee immunity. We therefore affirm the grant of summary judgment. Not recommended for publication in the official reports.

2013AP2339 Hurt et al. v. Cole et al.

Dist III, Barron County, Bitney, J., Mangerson, J.

Attorneys: For Appellant: Sempf, Timothy T., Amery; Whitley, Jason W., Amery; For Respondent: Pelish, James A., Rice Lake; Thrasher, Joe, Rice Lake

MUNICIPALITIES

Wisconsin Court of Appeals

Civil

Municipalities – zoning — setbacks

Jackson County brought a zoning enforcement action against Sherrie Wollin, alleging that Wollin violated the County’s setback zoning ordinance by constructing a two-car garage that lies closer to a county highway than the ordinance permits. The circuit court granted summary judgment in favor of the County and issued an injunction requiring Wollin to remove the garage. Wollin argues on appeal that the circuit court erroneously exercised its discretion in ordering Wollin to remove the garage without first considering and weighing the applicable equitable factors set forth in Forest County v. Goode, 219 Wis. 2d 654, 684, 579 N.W.2d 715 (1998). We disagree and conclude that Wollin failed to preserve the issue before the circuit court, fails to present a developed legal argument on appeal, and also fails to persuade us that the circuit court did not properly exercise its discretion in granting injunctive relief to the County. Accordingly, we affirm. Not recommended for publication in the official reports.

2011AP1986 Jackson County v. Wollin et al

Dist IV, Jackson County, Damon, J., Higginbotham, J.

Attorneys: For Appellant: Skemp, William G., La Crosse; Zalewski, Richard W., Wausau; For Respondent: Millis, Paul B., Black River Falls; Steffes, Ryan, Eau Claire

Wisconsin Court of Appeals

Civil

Municipalities – appeal — jurisdiction

Brian E. Davis appeals an order of the circuit court affirming an order of the municipal court. We affirm. This opinion will not be published.

2014AP355 City of Milwaukee v. B. Davis Investment Co. LLC

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

Attorneys: For Appellant: B Davis Investment Co LLC, pro se; For Respondent: Unora, Jay A., Milwaukee

NATURAL RESOURCES

Wisconsin Court of Appeals

Civil

Natural Resources – wolves — hunting dogs

Six animal welfare organizations and three individuals, whom we refer to collectively as “the Societies” for ease of reference, appeal the circuit court’s order denying declaratory and injunctive relief that the Societies sought relating to emergency rules that were promulgated by the Wisconsin Department of Natural Resources. More specifically, the Societies sought a declaration invalidating DNR rules to the extent that the rules authorize the training and use of dogs to hunt wolves, and an injunction prohibiting DNR from authorizing the training or use of dogs to track or trail wolves until further “reasonable restrictions” are promulgated.

The circuit court denied the Societies’ requested relief as it relates to the use of dogs to hunt wolves. In the appeal before us, the Societies make multiple arguments challenging this denial. We identify and reject these arguments. Not recommended for publication in the official reports.

2013AP902 Wisconsin Federated Humane Society Inc. et al. v. Stepp et al.

Dist IV, Dane County, Anderson, J., Lundsten, J.

Attorneys: For Appellant: Habush, Robert L., Milwaukee; Sinderbrand, Carl A., Madison; Habush, Jodi L., Milwaukee; For Respondent: Dawson, Thomas J., Madison; Hirsch, Cynthia R., Madison; Janczewski, Thomas A., Milwaukee

PROFESSIONAL RESPONSIBILITY

Wisconsin Supreme Court

Civil

Property — equitable assignment

A mortgage automatically passes by operation of law upon the assignment of a mortgage note.

“We agree with the circuit court and the court of appeals that the doctrine of equitable assignment is alive and well in Wisconsin. The doctrine’s existence is evidenced in our case law, and we are convinced that the case law we rely upon should not be distinguished or discredited due to its age or changes in banking practices. We further conclude that the language of Wis. Stat. § 409.203(7) (2011-12), which governs liens securing the right to payment, codifies equitable assignment. Finally, the application of equitable assignment in this case results in no unfairness to Dow.”

“We further hold that the doctrine of equitable assignment does not conflict with the statute of frauds outlined in Wis. Stat. § 706.02. Equitable assignment occurs by operation of law, which satisfies Wis. Stat. § 706.001(2)(a), a statutory exception to the statute of frauds.”

“Therefore, under the doctrine of equitable assignment, we hold that a mortgage automatically passes by operation of law upon the assignment of a mortgage note, which, as we noted above, satisfies a statutory exception to the statute of frauds. Accordingly, we affirm the court of appeals decision, which affirmed the circuit court, in part, reversed in part, and remanded the cause. Like both the circuit court and court of appeals, we conclude that the doctrine of equitable assignment applies and does not violate the statute of frauds; however, the issue of whether PHH has the necessary documents to enforce the note in question must be determined by the circuit court.”

Affirmed and Remanded.

2013AP221 Dow Family LLC v. PHH Mortgage Corp.

Crooks, J.

Attorneys: For Appellant: Thrasher, Joe, Rice Lake; For Respondent: Anderson, Mary Susan, Wausau

Wisconsin Supreme Court

Civil

Professional Responsibility — public reprimand

Where attorney Mark Alan Ruppelt had sexual relations with a client, and failed to disclose that to his firm and the OLR, a public reprimand is appropriate.

“We adopt the referee’s findings of fact and conclusions of law that Attorney Ruppelt violated the supreme court rules as alleged in Counts One, Two, and Three of the OLR’s complaint. We also agree with the referee that a public reprimand is an appropriate sanction for Attorney Ruppelt’s misconduct.”

2012AP2341-D OLR v. Ruppelt

Per Curiam.

Attorneys: For Complainant: Weigel, William J., Madison; MacArthur, Anne, Lake Mills; For Respondent: Johnson, Terry E., Milwaukee; Ruppelt, Mark A., Milwaukee

PROPERTY

Wisconsin Supreme Court

Civil

Property — adverse possession

Evidence regarding a possessor’s subjective intent to claim title may be relevant in an adverse possession claim to rebut the presumption of hostility that arises when all other elements of adverse possession are satisfied.

“We hold that a party’s subjective intent to claim title to property is relevant to rebut the presumption of hostility that arises when all other elements of adverse possession are established. Wisconsin Stat. § 893.25 requires that property be possessed ‘under claim of title’ to establish adverse possession. The plain meaning of the ‘claim of title’ requirement is that a party must intend to claim possession of the disputed property. Therefore, in order to gain title by adverse possession, the adverse claimant and all predecessors in interest must have the actual intent to possess the property under a claim of ownership. The Somas’ express declarations of non-ownership and requests for permission to use the lakefront strip were sufficient to support the circuit court’s conclusion that they lacked the requisite hostile intent to adversely possess the property. Because the circuit court properly considered the Somas’ subjective intent and concluded that the Wilcoxes failed to establish adverse possession for the requisite statutory period, we affirm the judgment of the circuit court, and we need not remand for further proceedings. For these reasons, the decision of the court of appeals is reversed.”

Reversed.

2012AP1869 Wilcox v. Estate of Ralph Hines

Gableman, J.

Attorneys: For Appellant: Corcoran, Edward A., Madison; For Respondent: Bartzen, James E., Madison; Schmidt, Richard L., Madison

TAX

Wisconsin Court of Appeals

Civil

Tax — income tax – refunds — mandamus

Nazir Al-Mujaahid, pro se, appeals an order dismissing his petition for a writ of mandamus to compel the Secretary of the Wisconsin Department of Revenue to disburse Al-Mujaahid’s 2011 income tax refund. We conclude that Al-Mujaahid filed the petition prematurely, before the Secretary had an obligation to disburse the refund. Therefore, we affirm. This opinion will not be published.

2013AP1655 Al-Mujaahid v. Chandler

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

Attorneys: For Appellant: Al-Mujaahid, Nazir, pro se; For Respondent: Kawski, Clayton Patrick, Madison

CRIMINAL OPINIONS

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

Criminal

Use of a cell phone to facilitate a conspiracy — sufficiency of the evidence

Even if it was error to admit the cell phone as evidence, the evidence was sufficient to convict the defendant of using a cell phone to facilitate a conspiracy.

“However, Arrellano stipulated that the phone was subscribed in his name, and GPS data showed that it moved from the house he owned in Lula, Georgia, to the house where he was arrested in Harvey, Illinois. Thus, even if the physical phone had been suppressed, no reasonable jury could have concluded that someone other than Arrellano possessed and used the phone during the relevant period. Moreover, the government proved that the same voice was heard on all of the calls that were intercepted to or from that phone, so no reasonable jury could have doubted that Arrellano was the person speaking on those calls. Therefore, any error in admitting the phone was clearly harmless.”

Affirmed.

13-1474 U.S. v. Arrellano

Appeal from the United States District Court for the Northern District of Illinois, Kennelly, J., Tinder, J.

CRIMINAL PROCEDURE

Wisconsin Court of Appeals

Criminal

Criminal Procedure — breach of plea agreement — sentencing

Quran R. Hereford appeals from a judgment of conviction, entered upon his guilty plea, on one count of burglary as party to a crime. Hereford also appeals from an order denying his postconviction motion for resentencing. Hereford contends that the State breached the plea agreement, that a new factor warranted sentence modification, and that the circuit court sentenced him on inaccurate information. We reject these arguments and affirm the judgment and order. This opinion shall not be published.

2013AP2015-CR State v. Hereford

Dist I, Milwaukee County, Hansher, Witkowiak, JJ., Per Curiam

Attorneys: For Appellant: Loeb, Basil M., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Pray, Eileen W., Madison

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

Criminal

Criminal Procedure — fugitive disentitlement doctrine

Although a defendant left the country, the fugitive disentitlement doctrine does not bar consideration of an interlocutory appeal.

“This is a rare case. Most fugitive disentitlement decisions handed down by district courts involve defendants who have since been caught and returned; these rulings are typically entered with prejudice. See, e.g., United States v. Morgan, 254 F.3d 424, 426 (2d Cir. 2001). But we are persuaded on these facts that Bokhari must be able to appeal the district court’s decision to invoke the doctrine, because otherwise an erroneous application would be reviewable only through use of an extraordinary writ. In the case of In re Hijazi, 589 F.3d 401 (7th Cir. 2009), the district court held the defendant’s motion in abeyance pending his arraignment, thereby requiring the defendant to seek mandamus. We think it is unnecessary to resort to that writ to obtain this court’s review of a decision that is, for all intents and purposes, final.”

Dismissed and Affirmed.

14-1103 U.S. v. Bokhari

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Tinder, J.

Wisconsin Supreme Court

Criminal

Criminal Procedure — breach of plea agreement

The state did not implicitly violate the plea agreement.

“In the case at issue, the prosecutor in no way undermined or distanced himself from a recommendation at the ‘high end range’ of the PSI. The prosecutor’s quotation of the jail incident report supplied the court with relevant information which the prosecutor explicitly tied to a proper sentencing factor: the ‘need to protect the public from William Bokenyi.’ The prosecutor’s comment that the report was ‘frightening’ was, at most, an editorial comment akin to those made in Ferguson and Naydihor. Further, immediately after discussing the jail incident report, the prosecutor explicitly endorsed a sentence that comported with the plea agreement. The prosecutor in the case at issue in no way expressed second thoughts about the agreement with the defendant, nor did he express any indication that he thought the defendant was getting an undeserved ‘break’ from the system, as in Liukonen. If anything, counsel should feel the compunction to advise the court of relevant information regarding the defendant’s conduct.”

Reversed.

2012AP2557-CR State v. Bokenyi

Ziegler, J.

Attorneys: For Appellant: Hagopian, Suzanne L., Madison; For Respondent: Kassel, Jeffrey J., Madison; Steffen, Daniel P., Balsam Lake

Wisconsin Supreme Court

Criminal

Criminal Procedure — ineffective assistance

The defendant receive ineffective assistance of trial counsel when defense trial counsel failed to present testimony at trial of potentially exculpatory witnesses, namely an eyewitness other than the State’s witness and witnesses with evidence that another person committed the homicide for which the defendant was convicted.

“In the particular credibility contest in the present case, in which both eyewitnesses had inconsistencies in their statements; the prosecution eyewitness had an extensive criminal record and (as far as the record shows) the defense eyewitness had none; the entire basis of the prosecution’s case rested on its eyewitness identification; and         no physical or other evidence directly tied the defendant to the crime; we hold that the failure to call Jones as a witness at trial to give testimony contradictory to that of the State’s eyewitness had a reasonable probability of affecting the result of the case.”

Reversed and Remanded.

2012AP46-CR State v. Jenkins

Abrahamson, C.J.

Attorneys: For Appellant: Swartz, Melinda A., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; O’Neil, Aaron R., Madison

Wisconsin Court of Appeals

Criminal

Criminal Procedure — ineffective assistance — new trials

Andrew M. Greenwood appeals a judgment convicting him after a jury trial of felony murder and possession of a firearm by a felon, both as a party to a crime. He also appeals an order denying his motion for postconviction relief. Greenwood argues that: (1) he is entitled to a new trial because one of the witnesses against him recanted; (2) he received constitutionally ineffective assistance from his trial lawyer; and (3) he is entitled to a new trial in the interest of justice. We affirm. This opinion will not be published.

2013AP706-CR State v. Greenwood

Dist I, Milwaukee County, Martens, Wagner, JJ., Per Curiam

Attorneys: For Appellant: Lochowicz, Bradley J., Elkhorn; For Respondent: Loebel, Karen A., Milwaukee; Whelan, Maura F.J., Madison

Wisconsin Supreme Court

Criminal

Criminal Procedure — preliminary hearings — hearsay

Wis. Stats. sec. 970.038, which permits hearsay evidence at preliminary examinations, does not violate the constitution.

“We determine that petitioners have failed to meet the heavy burden of showing beyond a reasonable doubt that Wis. Stat. § 970.038 is unconstitutional. The scope of preliminary examinations is limited to determining whether there is probable cause to believe that a defendant has committed a felony. Following precedent, we conclude that there is no constitutional right to confrontation at a preliminary examination. Further, due to the limited scope of preliminary examinations, we determine that the admission of hearsay evidence does not violate petitioners’ rights to compulsory process, effective assistance of counsel, or due process.”

“Finally, we decline petitioners’ invitation to impose new rules limiting the admissibility of hearsay at preliminary examinations. Wisconsin Stat. § 970.038 does not set forth a blanket rule that all hearsay be admitted. Circuit courts remain the evidentiary gatekeepers. They must still consider, on a case-by-case basis, the reliability of the State’s hearsay evidence in determining whether it is admissible and assessing whether the State has made a plausible showing of probable cause. Accordingly, we affirm the decision of the court of appeals.”

Affirmed.

2012AP1769-CR, 2012AP1770-CR & 2012AP1863-CR State v. O’Brien

Bradley, J.

Attorneys: For Appellant: Buting, Jerome F., Brookfield; Stilling, Kathleen B., Brookfield; For Respondent: Kassel, Jeffrey J., Madison; Donohoo, Diane M., Elkhorn

EVIDENCE

Wisconsin Supreme Court

Criminal

Evidence — statements in connection with plea

Where the defendant made incriminating statements at a preliminary hearing in connection with an offer to plead guilty, the statements are inadmissible against him.

“We conclude that Wis. Stat. § 904.10 prohibited the use of Myrick’s preliminary hearing testimony at trial. While it is true that the prosecutor made the initial overture to begin the plea bargaining process, Myrick offered to plead guilty and testified at Winston’s preliminary hearing in connection with that offer. We reach this conclusion not out of disregard for the distinction between offer and acceptance, but because only a defendant can offer to plead guilty. We also note that a defendant’s offer to plead guilty does not need to be express or explicit; it can be implied from words and conduct. See State v. Norwood, 2005 WI App 218, ¶¶13, 20, 287 Wis. 2d 679, 706 N.W.2d 683; State v. Nicholson, 187 Wis. 2d 688, 698, 523 N.W.2d 573 (Ct. App. 1994). In addition to reflecting the plain language of the statute, our conclusion is consistent with the statute’s purpose, which is to encourage free and open discussion between prosecutor and defendant during plea negotiations. See State v. Nash, 123 Wis. 2d 154, 159, 366 N.W.2d 146 (Ct. App. 1985). Accordingly, we affirm the decision of the court of appeals.”

Affirmed.

2012AP2513-CR State v. Myrick

Roggensack, J.

Attorneys: For Appellant: Zaleski, Steven, Madison; For Respondent: Balistreri, Thomas J., Madison; Loebel, Karen A., Milwaukee

Wisconsin Court of Appeals

Criminal

Evidence — other acts — sexual assault — expert testimony

Jose Reynosa appeals a judgment of conviction for first-degree sexual assault of a child and child enticement. He also appeals an order denying postconviction relief. Reynosa contends that: (1) the circuit court erroneously admitted other acts evidence of uncharged sexual assaults by Reynosa against the same victim; and (2) Reynosa was denied the effective assistance of counsel because his counsel did not raise the proper objection to the State’s expert testimony and did not request a unanimity instruction. We reject these contentions. We affirm the judgment of conviction and order denying postconviction relief. This opinion will not be published.

2013AP1780-CR State v. Reynosa

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

Attorneys: For Appellant: Jensen, Jeffrey W., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Moeller, Marguerite M., Madison

OWI

Wisconsin Court of Appeals

Criminal

Motor Vehicles – OWI — stop and detention

Mark Karlson appeals a forfeiture judgment for operating while intoxicated, first offense. Karlson argues the circuit court erred by denying his suppression motion because the officer unlawfully stopped his vehicle. We reject Karlson’s argument, and affirm. This opinion will not be published.

2013AP2627 City of Antigo v. Karlson

Dist III, Langlade County, Kawalski, J., Stark, J.

Attorneys: For Appellant: Ellison, Keith F., Wausau; For Respondent: Behrens, Shawn M., Antigo

Wisconsin Supreme Court

Criminal

Motor Vehicles — PBT results — harmless error

Even if was error to admit preliminary breath test results, the error is harmless.

“Although we assume without deciding that the circuit court erred in admitting the PBT result as evidence and in instructing the jury in regard to the PBT, we conclude that these alleged errors were harmless beyond a reasonable doubt. Even without the PBT evidence, the jury heard evidence of Rocha-Mayo’s level of intoxication from witnesses and from Rocha-Mayo himself. Rocha-Mayo admitted that he consumed two or three beers at home and an additional five or six beers at a bar, and that he was drinking alcohol in his car just prior to the collision. Dr. Falco and Steven Edwards, an ER nurse, testified that they could smell alcohol on Rocha-Mayo’s breath in the ER. Finally, Dr. Falco testified that Rocha-Mayo appeared to be intoxicated while being treated in the ER. We therefore conclude, beyond a reasonable doubt, that any error by the circuit court did not contribute to the verdict.”

Affirmed.

2011AP2548-CR State v. Rocha-Mayo

Crooks, J.

Attorneys: For Appellant: Anderegg, Rex, Milwaukee; For Respondent: Wellman, Sally L., Madison; Zapf, Robert D., Kenosha

SEARCH AND SEIZURE

Wisconsin Supreme Court

Criminal

Search and Seizure — warrantless searches – consent — withdrawal

After consent has been given for a warrantless search, a suspect’s question “Got a warrant for that?” is not an unambiguous withdrawal of consent; and police officers confronted with ambiguous statements are not under a duty to ask follow-up questions to clarify the ambiguity.

“Under the analysis of these cases, Wantland’s question ‘Got a warrant for that?’ must be deemed ambiguous. Such a question may constitute an inquiry regarding the officer’s lawful authority to search the briefcase, but it is far from an unequivocal withdrawal of consent. Deputy Brockway’s response, ‘I can, uh, open the laptop,’ was responsive to Wantland as Deputy Brockway already had legal authority for the search from the driver. Moreover, Wantland’s listing out the contents of the briefcase failed to clearly indicate that Deputy Brockway no longer had consent to search the briefcase.”

Affirmed.

2011AP3007-CR State v. Wantland

Ziegler, J.

Attorneys: For Appellant: Alesia, Susan E., Madison; Breedlove, Tristan , Madison; For Respondent: DeCecco, Joseph R., Sheboygan; Larson, Sarah K., Madison

SENTENCING

Wisconsin Court of Appeals

Criminal

Sentencing – modification — new factors — restitution

Anthony Volpendesto appeals from circuit court orders denying his motion to modify his 2005 sentence due to a new factor, denying his request for a restitution hearing, and rejecting his challenges to the restitution imposed at his 2005 sentencing. We affirm the circuit court. This opinion will not be published.

2013AP1679-CR State v. Volpendesto

Dist II, Washington County, Pouros, J., Per Curiam

Attorneys: For Appellant: Kachelski, Angela Conrad, Milwaukee; For Respondent: Bensen, Mark, West Bend; Lloyd, Katherine Desmond, Madison

Wisconsin Court of Appeals

Criminal

Sentencing — DNA surcharge — modification

Ceso Sprewell, pro se, appeals an order denying his motion to vacate a DNA surcharge and his motion for sentence modification. We reject Sprewell’s arguments and affirm. This opinion will not be published.

2013AP1974-CR State v. Sprewell

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

Attorneys: For Appellant: Sprewell, Ceso, pro se; For Respondent: Loebel, Karen A., Milwaukee; Wittwer, Jacob J., Madison

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

Criminal

Sentencing — obstruction of justice enhancement

Where the record is clear the defendant lied before the grand jury, the district court’s application of an enhancement for obstruction of justice is affirmed.

“[T]he error was harmless given the context of this case: Chychula was convicted following a court trial; the defendant’s only real dispute was whether her alleged diminished mental capacity prevented her from forming the intent to obstruct justice; and the district court previously rejected Chychula’s claim that her personality disorder rendered her ‘unable to distinguish truth from fiction or right from wrong,’ and ‘unable to form the [requisite] mental state’. And as we have noted, the record is clear that Chychula willfully lied about material matters while testifying before the grand jury. Moreover, the district judge imposed a sentence so far below the advisory guidelines range — almost 100 months below the bottom of that range — that there is no suggestion that the obstruction enhancement had an effect on the ultimate sentence imposed. See, e.g., Riney, 742 F.3d at 791 (concluding that the judge’s failure to make a willfulness finding was harmless ‘because the armed career criminal guideline trumped the effect of the obstruction enhancement’ and the district judge sentenced the defendant below the advisory guideline range); United States v. Hill, 645 F.3d 900, 906 (7th Cir. 2011) (‘Harmless error review “removes the pointless step of returning to the district court when we are convinced that the sentence the judge imposes will be identical to the one we remanded.”’) (quoting United States v. Abbas, 560 F.3d 660, 667 (7th Cir. 2009)). We have no doubt that if we remanded for more explicit findings, the judge would impose the same sentence again.”

Affirmed.

12-3695 U.S. v. Chychula

Appeal from the United States District Court for the Northern District of Illinois, Coleman, J., Tinder, J.

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

Criminal

Sentencing — reasonableness

Where the district court gave no explanation for the sentence it imposed, the sentence must be reversed.

“The judge summarily rejected the government’s recommendation (and the government has not appealed that rejection), but said very little to justify a 97-month sentence, and what he did say was in the nature of a conclusion rather than a reason. Perhaps he can be forgiven for being caught off guard by the defense attorney’s question, everyone’s attention having been focused up to then on whether 180 months was an appropriate sentence. Still, the 97-month sentence was unexplained and therefore must be vacated and the case remanded for resentencing. (The resentencing will be before a different judge because Judge Stiehl has retired.)”

Reversed and Remanded.

14-1013 U.S. v. Spann

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