Please ensure Javascript is enabled for purposes of website accessibility

Weekly Case Digests — Sept. 8-12, 2014

By: WISCONSIN LAW JOURNAL STAFF//September 12, 2014//

Weekly Case Digests — Sept. 8-12, 2014

By: WISCONSIN LAW JOURNAL STAFF//September 12, 2014//

Listen to this article

Wisconsin Law Journal’s Case Digests — Sept. 8-12, 2014

CIVIL OPINIONS

Wisconsin Court of Appeals

Civil
Remedies — harassment orders — competency

Where the circuit court twice adjourned a hearing on issuance of a restraining order, the court lost competency to proceed.

“WISCONSIN STAT. § 813.125(3)(c) states as relevant: The temporary restraining order is in effect until a hearing is held on issuance of an injunction under sub. (4). A judge or circuit court commissioner shall hold a hearing on issuance of an injunction within 14 days after the temporary restraining order is issued, unless the time is extended upon the written consent of the parties or extended once for 14 days upon a finding that the respondent has not been served with a copy of the temporary restraining order although the petitioner has exercised due diligence. (Emphasis added.) The statute explicitly says that a temporary restraining order can be extended ‘once for 14 days upon a finding that the respondent has not been served with a copy of the temporary restraining order.’ Id. (emphasis added). ‘“It is an elementary rule of construction that effect must be given, if possible, to every word, clause, and sentence of a statute.”’ State v. Quintana, 2008 WI 33, ¶60, 308 Wis. 2d 615, 748 N.W.2d 447 (citations omitted). As such, we cannot ignore the legislature’s directive that courts only be permitted to extend a temporary restraining order once. It is not enough that the circuit court finally held the injunction hearing within the fourteen-day extension period permitted by the statute. The statute says a court may extend the temporary restraining order ‘once.’ See § 813.125(3)(c). To permit the circuit court to extend the temporary restraining order twice would be to ignore the statute’s plain words.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP1844 Hill v. D.C.

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

Attorneys: For Appellant: Habush, Laura, Brookfield; For Respondent: H, Tiffany, pro se

 

CIVIL COMMITMENT

Wisconsin Court of Appeals

Civil
Civil Commitment – competency — probable cause hearings

Steven R. C. appeals the circuit court’s final order of commitment, arguing that the court lost competency to proceed in this matter when a probable cause hearing on the related petition for examination was not held within seventy-two hours of his initial detention. We agree and reverse. This opinion will not be published.

2014AP1032-FT In the matter of the mental commitment of Steven R.C.

Dist II, Waukesha County, Domina, J., Gundrum, J.

Attorneys: For Appellant: Bates, Gregory, Kenosha; For Respondent: Mueller, Robert J., Waukesha

Wisconsin Court of Appeals

Civil
Civil Commitment — involuntary medication — sufficiency of the evidence

William A. M. appeals from an order for commitment and an order for involuntary medication and treatment. William argues that there was insufficient evidence to find him dangerous to himself or others. We disagree and affirm the circuit court. This opinion will not be published.

2014AP977-FT In the matter of the mental commitment and order for involuntary medication and treatment of William A. M.

Dist II, Winnebago County, Woldt, J., Neubauer, P.J.

Attorneys: For Appellant: Moses, Faun M., Madison; For Respondent: Kearney, James A., Neenah

CIVIL PROCEDURE

Wisconsin Court of Appeals

Civil
Civil Procedure — default judgment — excusable neglect

This appeal is from a judgment encompassing two default judgments entered for the failure to timely answer the complaint without a showing of excusable neglect or extraordinary circumstances necessary to justify relief under Wis. Stat. § 806.07(1)(h) (2011-12). We affirm. This opinion will not be published.

2013AP2753 Wisconsin State Prison Employees Waupun Local 18 et al. v. Meehan et al.

Dist II, Winnebago County, Jorgenson, J., Per Curiam

Attorneys: For Appellant: Stix, Sally A., Madison; Scheffler, Timothy M., Madison; For Respondent: Lautenschlager, Peggy A., Madison; Blumin, Matthew Stark, Washington D.C.

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

Civil
Civil Procedure — notice of appeal — timeliness

There is no unique circumstances exception for failure to file a timely notice of appeal.

“Moreover, Satkar hasn’t shown that it actually relied on what the district court said. It’s undisputed that Satkar knew the court had entered a Rule 54(b) final judgment on September 21, so it cannot claim to have been genuinely confused when the judge misstated the record a week later. When the judge invited a request for a Rule 54(b) finding on September 27 — mistakenly, as Satkar admits it knew at the time — Satkar’s counsel did nothing to correct the court’s misapprehension or otherwise clear up the confusion. The appeal clock was already running, but Satkar let the deadline pass, waiting until after the next status conference to move for an extension of time and blaming its own neglect on confusion supposedly created by the judge.”

“That’s not excusable neglect; it is instead an attempt to seek refuge in a momentary memory lapse by a busy judge juggling a heavy caseload. Satkar points out that waiting until after the appeal deadline has passed to request an extension is not automatically a bar to appeal. That’s true. Rule 4(a)(5) explicitly contemplates a motion for extension of time after the 30- day period has run. And the extension rule is not confined to ‘circumstances beyond the control of the filer.’ Prizevoits, 76 F.3d at 134 (quotation marks omitted) (explaining that ‘plausible misinterpretations’ and ‘“confusion” concerning the scope of the applicable rule’ can constitute excusable neglect in appropriate cases). But an extension of time requires a reason, not just a request for a favorable exercise of discretion. The rule requires excusable neglect, after all — not just plain neglect — and Satkar offered no basis for an extension other than the judge’s mistaken September 27 comment.”

“Because the district court granted an extension of time based on an overruled legal doctrine, and the record supports no other basis for a finding of excusable neglect, Satkar’s notice of appeal was untimely. The appeal must be dismissed for lack of jurisdiction.”

Dismissed.

11-3572 Satkar Hospitality Inc. v. Fox Television Holdings

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

Wisconsin Court of Appeals

Civil
Civil Procedure — service

Section 990.001(4)(c) applies to service on a government entity, regardless whether service can be accomplished in person, by mail, or by some other means.

“The School District points out that ‘service upon’ is not further defined and, in particular, is not limited to service that must be accomplished in person at a government entity office. And, DPI does not dispute that the last day for the School District to accomplish ‘service upon’ DPI fell on a Saturday and that DPI had no official office hours that day. Thus, we agree with the School District that the statute as applied here plainly extends the last day for ‘service upon’ DPI to the next business day, regardless whether such service can be accomplished on the Saturday in question. The same holds true for any other act listed in the statute. For example, if the last day to make a payment to a government entity fell on a Saturday, and the government entity had no official office hours on that Saturday, the last day for payment would be extended to the next business day.”

Reversed and Remanded.

Recommended for publication in the official reports.

2014AP394 Madison Metropolitan School District v. Evers

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

Attorneys: For Appellant: Bell, Matthew William, Madison; For Respondent: Gibson, Charlotte, Madison

FAMILY

Wisconsin Court of Appeals

Civil
Family — contempt

Tulga Ozbaki appeals from a circuit court order finding him in contempt for failure to report substantial changes in his income as required by his divorce judgment and ordering him to purge the contempt by the payment of an amount compensating his ex-wife for the lost opportunity to seek increased child support and for her attorney fees. Ozbaki points out that the divorce judgment failed to inform him, as the statutes mandate, that he and his ex-wife should annually exchange financial information and that he should inform his ex-wife of substantial changes in his income within ten days. See Wis. Stat. §§ 767.27 and 767.263 (2003-04). He claims that he cannot be held in contempt for something he did not know he had to do. We reject that argument. Even though the omission was contrary to the clear import of the statutes, the judgment did order him “to notify the Sheboygan County Clerk of Courts of any change of employer or any change in the amount of income such that his ability to pay child support is affected, within ten (10) days of such change.” Ozbaki was not entitled to sit on his hands and tell no one about his increased income. His responsibility was to let the court know, through the clerk of courts. It is no answer that he claims not to have willfully violated this order. The order was as plain as day. We conclude that the underlying order imposed a clear obligation to inform the court of his changed income, that Ozbaki willfully violated that portion of the order, and that there was no error in the court’s exercise of its discretion in exercising its contempt power here. We affirm. This opinion will not be published.

2014AP813 In re the finding of contempt in In re the marriage of: Ozbaki v. Altass

Dist II, Sheboygan County, Sutkiewicz, J., Brown, C.J.

Attorneys: For Appellant: Moir, William W., III, Sheboygan; For Respondent: Simon, Thomas C., Delafield

Wisconsin Court of Appeals

Civil
Family — child support – maintenance — attorney fees

Sharon Larsen appeals a divorce judgment. Sharon argues that the circuit court improperly exercised its discretion in: (1) calculating the income of her ex-husband, Richard Larsen, for the purpose of setting child support; (2) failing to award her maintenance; and (3) denying her request for a contribution from Richard toward her attorney fees. Because we conclude that the circuit court properly exercised its discretion in each instance, we affirm. This opinion will not be published.

2013AP2046 In re the marriage of: Larsen v. Larsen

Dist IV, Crawford County, Czajkowski, J., Per Curiam

Attorneys: For Appellant: Pittman, Galen W., La Crosse; For Respondent: Frantz, Ellen M., La Crosse

INSURANCE

Wisconsin Court of Appeals

Civil
Insurance — duty to defend — CGL policies

Peninsula Builders LLC and Jeffrey Harding (collectively, “Peninsula”) appeal a judgment declaring Erie Insurance Exchange had no duty to defend or indemnify Peninsula and dismissing all claims against Erie. Peninsula argues that there was an occurrence triggering coverage and that the court erroneously determined several exclusions in the Erie policy barred coverage. We conclude there was no occurrence giving rise to coverage and therefore do not address the exclusions. Accordingly, we affirm. This opinion will not be published.

2014AP270 Dahl et al. v. Peninsula Builders LLC et al.

Dist III, Door County, Morrison, J., Per Curiam

Attorneys: For Appellant: Nesbitt, Randall J., Sturgeon Bay; For Respondent: Rottier, Catherine, Madison

JUVENILES

Wisconsin Court of Appeals

Civil
Juveniles – TPR — plea withdrawal

Phillip L. appeals the denial of his motion to withdraw his no-contest plea at the fact-finding stage of his termination of parental rights proceeding. Phillip alleges the circuit court committed a technical error in taking his plea in that the court did not take sworn testimony. As Phillip has not alleged that the court’s error resulted in any prejudice or any lack of understanding on his part as to the plea he entered, we affirm. This opinion will not be published.

2014AP780 In re the termination of parental rights to Samuel D.L.

Dist II, Sheboygan County, Bourke, J., Reilly, J.

Attorneys: For Appellant: Kachinsky, Leonard D., Appleton; For Respondent: Stock, Christopher W., Sheboygan

Wisconsin Court of Appeals

Civil
Juveniles – TPR

Tanya G. appeals the circuit court’s order terminating her parental rights to Autumn B.A. Tanya G. challenges three jury instructions given to the jury and contends that she was denied effective assistance of counsel when her trial counsel failed to object to the challenged jury instructions. Tanya G. also requests that we exercise our discretionary power of reversal under Wis. Stat. § 752.35, because the real controversy has not been fully tried. For the reasons explained below, we reject Tanya G.’s arguments, and affirm. This opinion will not be published.

2014AP86 In re the termination of parental rights to Autumn B.A.

Dist IV, Portage County, Flugaur, J., Higginbotham, J.

Attorneys: For Appellant: Zaleski, Steven, Madison; For Respondent: McKenna, Michael J., Stevens Point

LABOR AND EMPLOYMENT

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

Civil
Employment — race discrimination — retaliation

Where an employee engaged in no protected activity, and her work was deficient, summary judgment was properly granted to the employer on her discrimination and retaliation claims.

“The indirect method of proof for retaliation mirrors that for discrimination. Specifically, Moultrie must show that he: (1) engaged in statutorily protected activity; (2) met his employer’s legitimate expectations; (3) suffered an adverse employment action; and (4) was treated less favorably than similarly situated employees who did not engage in protected activity. Alexander v. Casino Queen, Inc., 739 F.3d 972, 983 (7th Cir. 2014). Several problems with Moultrie’s theory are readily apparent. First, he struggles to identify any evidence of protected activity. And as we discussed in analyzing his discrimination claims, his on-the-job performance was seriously inadequate, and he has failed to point to similarly situated employees who received more favorable treatment. Because Moultrie cannot show retaliation under either method of proof, summary judgment on this claim also was proper.”

Affirmed.

13-2206 Moultrie v. Penn Aluminum International LLC

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

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

Civil
Employment — hostile work environment

Where the employer promptly acted in response to the employee’s complaints of racially offensive graffiti, summary judgment was properly granted to the employer on the employee’s hostile work environment claim.

“Even though the graffiti never resurfaced after the threat to terminate offenders, Muhammad insists that Caterpillar should have done more to identify who was responsible for the graffiti and to punish all coworkers who harassed him. But Title VII requires only that employers take action reasonably calculated to stop unlawful harassment; that requirement does not necessarily include disciplining the employees responsible for past conduct. See Porter v. Erie Foods Int’l, 576 F.3d 629, 637 (7th Cir. 2009)(‘In assessing the corrective action, our focus is not whether the perpetrators were punished by the employer, but whether the employer took reasonable steps to prevent future harm.’); Lapka v. Chertoff, 517 F.3d 974, 984–85 (7th Cir. 2008). Given that Caterpillar’s prompt response halted the harassment that Muhammad brought to its attention, the company is not liable under Title VII for not doing more to hunt down the guilty coworkers for punishment.”

Affirmed.

12-1723 Muhammad v. Caterpillar Inc.

Appeal from the United States District Court for the Central District of Illinois, McCuskey, J., Rovner, J.

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

CivilEmployment — breach of contract

Where the employer offered the employee the agreed-to position, but the employee claims it assigned him different duties, summary judgment was properly granted to the employer.

“In the employment discrimination context, we have recognized that it would not be prudent for a court to micro-manage an employer’s need for flexibility in assigning specific job duties, at least where they do not materially and adversely alter an employee’s position for discriminatory rea-sons. See e.g. Barton v. Zimmer, Inc., 662 F.3d 448, 457 (7th Cir. 2011); Stephens v. Erickson, 569 F.3d 779, 790–92 (7th Cir. 2009); Herrnreiter v. Chicago Housing Auth., 315 F.3d 742, 744–46 (7th Cir. 2002). Abraham is before us with a contract claim, and not an employment discrimination claim, but the policy considerations can be extrapolated. Washington Group entered into a contractual agreement to give Abraham a specific salary and job title at the Weston project. There are many reasons why an employer might decline to elaborate specific job duties in a contract, and the need for flexibility in managing the tasks of any particular project would be chief among them. It is the court’s job to respect the terms of the contract and not manufacture additional terms that are missing. Seitzinger v. Comty Health Network, 676 N.W.2d 426, 41 (Wis., 2004)”

Affirmed.

13-2050 Abraham v. Washington Group International Inc.

Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Rovner, J.

PROPERTY

Wisconsin Court of Appeals

Civil
Property – foreclosure — prima facie case

Thomas Biehn and Sherry Biehn appeal from a judgment of foreclosure entered in favor of U.S. Bank National Association on the Biehns’ residential mortgage and note. The Biehns argue that (1) summary judgment was inappropriate for several reasons, including that the Bank failed to establish a prima facie case, (2) the trial court erred by prioritizing U.S. Bank’s interest over that of another lienholder, Talmer Bank, LLC, (3) U.S. Bank was not entitled to seek judgment for the full amount due and owing on the note, and (4) this court should exercise its discretionary reversal authority to grant a new trial. We conclude that the trial court properly entered summary judgment because the Bank established a prima facie case for summary judgment based on admissible evidence, the Biehns failed to identify a genuine issue of material fact, and the trial court’s written judgment constituted an appropriate exercise of discretion. We further determine that the Biehns lack standing to raise the lien priority issue and that their arguments concerning the judgment amount are baseless. Given that we find no error, we decline to grant a new trial in the interest of justice. We affirm. This opinion will not be published.

2013AP1898 US Bank National Association v. Biehn et al.

Dist II, Kenosha County, Schroeder, J., Per Curiam

Attorneys: For Appellant: Thompson, Gary W., Milwaukee; For Respondent: Ragatz, Ronald R., Madison; Barragry, Andrew, Milwaukee

TAX

Wisconsin Court of Appeals

Civil
Tax — property taxes

Ronald L. Collison, pro se, appeals the circuit court order affirming, in part, the 2012 property tax assessment on land that he owns. Collison argues: (1) the City of Milwaukee Environmental Contamination Standards conflict with Wis. Stat. § 70.32; (2) the assessor’s valuation was arbitrary; and (3) the Milwaukee Board of Review committed jurisdictional error when it ignored evidence of material adverse facts. We affirm. This opinion will not be published.

2013AP2130 State ex rel. Collison v. City of Milwaukee Board of Review

Dist I, Milwaukee County, Van Grunsven, J., Per Curiam

Attorneys: For Appellant: Collison, Ronald L., pro se; For Respondent: Miller, Thomas D., Milwaukee

CRIMINAL OPINIONS

CRIMINAL PROCEDURE

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance

Michael M. Moffett appeals pro se from an order denying his Wis. Stat. § 974.06 (2011-12) motion without an evidentiary hearing. He contends that he was denied the effective assistance of counsel. He further contends that he was denied a fair trial because of certain security measures ordered by the circuit court. We reject Moffett’s claims and affirm the order. This opinion will not be published.

2013AP2187 State v. Moffett

Dist II, Sheboygan County, Van Akkeren, J., Per Curiam

Attorneys: For Appellant: Moffett, Michael M., pro se; For Respondent: Balistreri, Thomas J., Madison; DeCecco, Joseph R., Sheboygan

Wisconsin Court of Appeals

Criminal
Criminal Procedure — successive appeals

Willie L. Winters, pro se, appeals the circuit court order denying his Wis. Stat. § 974.06 motion for postconviction relief. The circuit court determined that the motion was barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). We affirm. This opinion will not be published.

2013AP2199 State v. Winters

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

Attorneys: For Appellant: Winters, Willie L., pro se; For Respondent: Loebel, Karen A., Milwaukee; Wren, Christopher G., Milwaukee

Wisconsin Court of Appeals

Criminal
Criminal Procedure — successive appeals

Kevin Lee Banister, pro se, appeals an order denying his motion for postconviction relief brought under Wis. Stat. § 974.06 (2011-12). The circuit court determined that the motion was procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), and State v. Tillman, 2005 WI App 71, 281 Wis. 2d 157, 696 N.W.2d 574. We affirm. This opinion will not be published.

2014AP66 State v. Banister

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

Attorneys: For Appellant: Banister, Kevin Lee, pro se; For Respondent: Loebel, Karen A., Milwaukee; Winter, Tiffany M., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance

Dameon Dimario Highshaw appeals the judgment of conviction for first-degree recklessly endangering safety, use of a dangerous weapon, as a party to a crime, conspiring to commit bribery of a witness, and conspiring to commit obstruction of justice. Highshaw also appeals the orders denying his postconviction motion for a Machner hearing and for sentence modification. Because Highshaw’s trial counsel was not ineffective and because sentence modification is not warranted, we affirm. This opinion will not be published.

2014AP55-CR State v. Highshaw

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

Attorneys: For Appellant: Kay, Timothy T., Brookfield; For Respondent: Loebel, Karen A., Milwaukee; Winter, Tiffany M., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance — new trials

Leon Banks, pro se, appeals the judgment entered on a jury verdict convicting him of second-degree recklessly endangering safety while armed. He also appeals the order denying his postconviction claims. Banks argues that in determining that his trial lawyer did not give him constitutionally deficient representation, the trial court committed clear error when it considered a letter Banks wrote at the time of his sentencing admitting his guilt and expressing his remorse. Additionally, Banks argues that the trial court erred when it denied his request for a new trial based on newly discovered evidence. Finally, Banks submits that he should be granted a new trial in the interest of justice. We affirm. This opinion will not be published.

2013AP1814-CR State v. Banks

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

Attorneys: For Appellant: Banks, Leon, pro se; For Respondent: Loebel, Karen A., Milwaukee; Noet, Nancy A., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance

Jacquese Franklin Harrell, pro se, appeals an order of the circuit court denying his Wis. Stat. § 974.06 (2011-12) motion without a hearing. Harrell complains that trial counsel was ineffective for not objecting to or directly challenging the State’s ballistics expert’s testimony. We agree with the circuit court’s conclusion that the motion is insufficiently pled, so we affirm. This opinion will not be published.

2012AP1192 State v. Harrell

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

Attorneys: For Appellant: Harrell, Jacquese Franklin, pro se; For Respondent: Loebel, Karen A., Milwaukee; Weinstein, Warren D., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance — successive appeals

Cedric S. Dean, pro se, appeals from an order of the circuit court denying his Wis. Stat. § 974.06 motion. We affirm the order. This opinion shall not be published.

2011AP2835 State v. Dean

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

Attorneys: For Appellant: Dean, Cedric, pro se; For Respondent: Loebel, Karen A., Milwaukee; Larson, Sara Lynn, Madison

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

Criminal
Criminal Procedure – dismissal — appeal

The government cannot appeal a dismissal without prejudice.

“In sum, none of these cases persuades us that we should abandon our analysis in Clay. As we have said, we are particularly concerned that allowing appeals from invited dismissals without prejudice would grant to the government a right to appeal interlocutory orders that section 3731 otherwise does not authorize except as to orders suppressing or excluding evidence. Our decision in Reise v. Bd. of Regents of Univ. of Wis. Sys., 957 F.2d 293, 295–96 (7th Cir. 1992), sets out all of the reasons why a district court’s discovery orders ordinarily are not and should not be subject to interlocutory review; those reasons are as pertinent in the criminal context as they are in the civil. See, e.g., United States v. Butler, 316 F. App’x 503, 504–05 (7th Cir. 2009) (nonprecedential decision). Inviting dismissal of the indictment with prejudice, and thus surrendering the ability to reindict the defendants, would make clear that the government views the disputed discovery order (or other interlocutory order) as dispositive of the case; appellate review would therefore be confined to a truly final order. Cf. John’s Insulation, Inc. v. L. Addison & Assocs., 156 F.3d 101, 107 (1st Cir. 1998) (correct way for plaintiff in civil litigation to create final judgment permitting review of interlocutory order is to voluntarily dismiss complaint with prejudice). Inviting dismissal without prejudice, on the other hand, presents the problem that we noted in Lewis: appellate review of a wide range of interlocutory orders not otherwise authorized by statute. 745 F.3d at 286. To the extent that the government, in contrast to the defendant, lacks the practical ability to challenge discovery and other interlocutory orders at the close of the case, we note that mandamus also remains available as a means of obtaining review of such orders in exceptional cases.”

Dismissed.

14-1124 U.S. v. Davis

Appeal from the United States District Court for the Northern District of Illinois, Darrah, J., Rovner, J.

EVIDENCE

Wisconsin Court of Appeals

Criminal
Evidence — other acts — rape shield law — relevance

John Lattimore was convicted on one count of second-degree sexual assault with the use of force and one count of false imprisonment, both relating to one incident involving victim S.M. Lattimore appeals, in five respects, the judgment of conviction and the order denying his postconviction motions. First, Lattimore argues that the circuit court erroneously admitted other acts evidence of an alleged second and separate sexual assault against M.H., and that the allegations of the two sexual assaults were improperly joined. Second, Lattimore argues that the circuit court erroneously excluded the text of a Facebook message that was sent to Lattimore by S.M.’s brother after the alleged assault against S.M. Third, Lattimore argues that the circuit court erroneously allowed evidence of changes in S.M.’s demeanor after the alleged assault. Fourth, Lattimore argues that his trial counsel was ineffective for failing to sufficiently object to evidence of changes in S.M.’s demeanor and for failing to introduce evidence that S.M. lied to the nurse examiner about whether the alleged assault was her first sexual encounter. Fifth, Lattimore argues that these errors resulted in the real controversy not being tried, and therefore entitle him to a new trial in the interest of justice. We reject all of Lattimore’s arguments and affirm. Not recommended for publication in the official reports.

2013AP911-CR State v. Lattimore

Dist IV, La Crosse County, Bjerke, J., Kloppenburg, J.

Attorneys: For Appellant: Ruby, Cole Daniel, Baraboo; For Respondent: Kassel, Jeffrey J., Madison; Gruenke, Tim, La Crosse

OWI

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — warrantless blood draws — good faith exception

Travis Daniel Thom appeals a judgment convicting him of one count of operating with a prohibited alcohol concentration (PAC) — second offense. Thom argues the circuit court erred by denying his suppression motions. First, he argues his vehicle was unlawfully stopped without reasonable suspicion. Second, he argues the circuit court improperly applied the good faith exception to the exclusionary rule when it refused to suppress the results of a warrantless blood draw. We reject Thom’s arguments and affirm. This opinion will not be published.

2014AP613 State v. Thom

Dist III, Pierce County, Boles, J., Stark, J.

Attorneys: For Appellant: Murray, Matthew, Sheboygan; For Respondent: Weber, Gregory M., Madison; Froelich, Sean E., Ellsworth; O’Sullivan, Rory E., Ellsworth

Wisconsin Court of Appeals

Criminal
Motor Vehicles — implied consent — probable cause

Alpesh D. Shah appeals the trial court’s order finding that his refusal to submit to a chemical test of his blood was not reasonable. Although other matters were discussed before the trial court, the only issue on this appeal is whether the police had probable cause to arrest him. We affirm. This opinion will not be published.

2013AP2755 In the Matter of the Refusal of Alpesh D. Shah

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

Attorneys: For Appellant: Anderegg, Rex, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Dague, Ronald S., Milwaukee

SEARCH AND SEIZURE

Wisconsin Court of Appeals

Criminal
Search and Seizure – reasonable suspicion — protective searches

Elisa Estrada appeals from a judgment of conviction and the circuit court’s denial of her motion to suppress evidence related to a search of her vehicle following a traffic stop. She argues that the police lacked reasonable suspicion to extend the traffic stop detention and perform a protective search of her vehicle. We disagree and affirm. Not recommended for publication in the official reports.

2013AP2803-CR State v. Estrada

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

Attorneys: For Appellant: Marion, Colleen, Madison; For Respondent: Latorraca, Donald V., Madison; Chiapete, W. Richard, Racine

SENTENCING

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

Criminal
Sentencing — possession of a firearm in furtherance of a drug offense

Where the defendant possessed a firearm and controlled substances at the same time, his sentence was properly enhanced pursuant to U.S.S.G. 2K2.1(c).

“[N]umerous courts and the Sentencing Commission itself have recognized the potential for § 2K2.1 to sweep within its reach wide-ranging offenses that may be connected only tenuously. Firearms may be possessed over a long period of time and that raises the potential for the use of a felon-in-possession conviction as an anchor to reach all kinds of other conduct through that enhancement provision. Courts have long recognized the potential for abuse, and many have limited that reach by holding that other offenses must fall within relevant conduct in order to trigger the § 2K2.1(c) enhancement. See, e.g., United States v. Jones, 313 F.3d 1019, 1022–23 (7th Cir. 2002); United States v. Kulick, 629 F.3d 165, 169 (3rd Cir. 2010) and cases cited therein. The Sentencing Commission also has addressed that concern in an amendment effective November 1, 2014, which eliminates the incorporation of offenses that involved a firearm other than the firearm used in the offense of conviction, and clarifies that courts must consider the relationship between the offense of conviction and the other offense consistent with relevant conduct principles. U.S.S.G. § 2K2.1 Proposed Application Note 14(E), effective November 1, 2014. The limitations of the relevant conduct consideration will protect against some of the feared abuse. Those legitimate concerns with overreaching, however, are simply not present here because the firearm offense involved the possession of a weapon that was also in the defendant’s possession hours earlier in the course of drug sales, and clearly falls within the scope of relevant conduct. Harper therefore has raised no meritorious challenge to his sentence.”

Affirmed.

13-3161 U.S. v. Harper

Appeal from the United States District Court for the Southern District of Illinois, Murphy, J., Rovner, J.

Wisconsin Court of Appeals

Criminal
Sentencing – modification — new factors

Adam Olson appeals the denial of postconviction relief seeking sentence modification or resentencing based upon an alleged new factor. We affirm. This opinion will not be published.

2013AP2869-CR State v. Olson

Dist III, Polk County, Anderson, J., Per Curiam

Attorneys: For Appellant: Pray, John A., Madison; Wiercioch, Gregory W., Madison; For Respondent: Steffen, Daniel P., Balsam Lake; Winter, Tiffany M., Madison

Wisconsin Court of Appeals

Criminal
Sentencing – modification — new factors

Anthony Mahowald appeals a judgment sentencing him after revocation of probation and an order denying his motion for sentence modification. He contends a new factor justifies a reduction of his sentence. The circuit court denied the motion without a hearing. Because we conclude Mahowald’s motion failed to establish a new factor by clear and convincing evidence, and the circuit court properly exercised its discretion when it concluded Mahowald’s alleged new factor would not justify modification of the sentence, we affirm the judgment and order. This opinion will not be published.

2013AP2675-CR State v. Mahowald

Dist III, Eau Claire County, Gabler, J., Per Curiam

Attorneys: For Appellant: Moses, Faun M., Madison; For Respondent: Noet, Nancy A., Madison; King, Gary M., Eau Claire

Wisconsin Court of Appeals

Criminal
Sentencing — modification

Trevor Olsen appeals a judgment of conviction for possession of heroin with intent to deliver, as a party to a crime, and an order denying a postconviction motion seeking sentence modification. Olsen makes a variety of sentencing arguments on appeal. We reject his arguments and affirm. This opinion will not be published.

2013AP2625-CR State v. Olsen

Dist III, Marinette County, Morrison, J., Per Curiam

Attorneys: For Appellant: Thomas, Chad R., Wrightstown; For Respondent: Brey, Allen R., Marinette; Larson, Sarah K., Madison

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests