Weekly Case Digests — Sept. 15-19, 2014

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Wisconsin Law Journal’s Case Digests — Sept. 15-19

CIVIL DIGESTS

CORPORATIONS

Wisconsin Court of Appeals

Civil
Corporations — derivative actions — written demands

Essential Homecare, Inc., and Pang Lor appeal a grant of partial summary judgment. The circuit court concluded Lor failed to demonstrate compliance with the statutory requirement to make a written demand upon a corporation prior to commencement of a derivative proceeding under Wis. Stat. § 180.0742(1). We affirm. This opinion will not be published.

2014AP267 Essential Homecare Inc. et al. v. Yang et al.

Dist III, Marathon County, Huber, J., Per Curiam

Attorneys: For Appellant: Ruffi, Sarah Lynn, Wausau; O’Connor, Brandon P., Wausau; For Respondent: Flood, Brian T., Green Bay

IMMIGRATION

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

Civil
Immigration — cancellation of removal

Where an alien was present for seven years before IIRIRA, he is entitled to seek cancellation of removal.

“Applying § 1229b(d)(1)(B) in this case would impose a new disability on pre-IIRIRA conduct without a clear statement from Congress indicating its intent to impose that disability. We therefore hold that Jeudy’s 1995 drug conviction did not ‘stop time’ for his continuous residence in the United States. His period of continuous residence for purposes of discretionary relief began with his admission as a lawful permanent resident in 1989, and he accrued the required seven years in 1996, before IIRIRA’s stop-time rule took effect. He is eligible to request cancellation of removal under § 1229b(a).”

Petition Granted.

13-3174 Jeudy v. Holder

On Petition for Review of a Final Order of the Board of Immigration Appeals, Hamilton, J.

INSURANCE

Wisconsin Court of Appeals

Civil
Insurance — bad faith

Pro se appellants Laurance and Jessica Chmielewski suffered a house fire in 2009. The jury determined the actual cash value (ACV) of their damaged personal property to be $148,000 and concluded that the $142,486.72 in ACV payments American Family Mutual Insurance Company made did not breach the contract. American Family obtained a judgment for costs against the Chmielewskis because the approximately $5,500 difference between the two amounts was less favorable to the Chmielewskis than American Family’s offer of settlement. See Wis. Stat. § 807.01(1) (2011-12). The two judgments offset and American Family paid the Chmielewskis $141.00 to satisfy the jury’s verdict.

The Chmielewskis appeal from the money judgment entered in their favor. We affirm. This opinion will not be published.

2013AP272 Chmielewski v. American Family Mutual Insurance Company et al.

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

Attorneys: For Appellant: Chmielewski, Laurance J, pro se; For Respondent: Burrell, Robert C., Milwaukee; Cronin, Joshua B., Milwaukee; Juedes, Dieter J., Milwaukee

Wisconsin Court of Appeals

Civil
Insurance – settlement — interest

A court may impose a reasonable time for an insurer to pay a settlement, and impose interest at a rate of 5 percent.

“We agree with Zurich that WIS. STAT. § 628.46 does not apply when an insurance company fails to pay an amount required by a settlement agreement resolving a disputed claim within thirty days after the agreement is reached. Nevertheless, we conclude the circuit court properly imposed a thirty-day time limit for payment of the settlement amount. A reasonable time for payment is implied when a contract does not specify a time for performance. Here, the circuit court concluded a thirty-day time limit was reasonable under the circumstances, and Zurich has not convinced us that finding was clearly erroneous. We therefore affirm in part.”

“However, we agree with Zurich that the circuit court should have calculated the interest due using a rate of five percent per year, pursuant to WIS. STAT. § 138.04, instead of twelve percent. Accordingly, we reverse in part and remand with directions that the court recalculate the amount of interest using an annual interest rate of five percent.”

Affirmed in part, and Reversed in part.

Recommended for publication in the official reports.

2014AP391 Singler v. Zurich American Ins. Co.

Dist. III, Outagamie County, Gage, J., Stark, J.

Attorneys: For Appellant: Pytlik, Paul J., Waukesha; Versnik, Andrew, Waukesha; For Respondent: Siddall, Michael S., Appleton; Menghini, Michael C., Appleton

INTELLECTUAL PROPERTY

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

Civil
Intellectual Property – copyright — fair use

The fair use exception applies to defendants’ use of a copyrighted photograph taken from the Internet to create T-shirts mocking the subject of the photograph.

“Defendants removed so much of the original that, as with the Cheshire Cat, only the smile remains. Defendants started with a low-resolution version posted on the City’s website, so much of the original’s detail never had a chance to reach the copy; the original’s background is gone; its colors and shading are gone; the expression in Soglin’s eyes can no longer be read; after the posterization (and reproduction by silk-screening), the effect of the lighting in the original is almost extinguished. What is left, besides a hint of Soglin’s smile, is the outline of his face, which can’t be copyrighted. Defendants could have achieved the same effect by starting with a snap-shot taken on the street.”

Affirmed.

13-3004 Kienitz v. Sconnie Nation LLC

Appeal from the United States District Court for the Western District of Wisconsin, Crocker, Mag. J., Easterbrook, J.

JUVENILES

Wisconsin Court of Appeals

Civil
Juveniles – TPR — discretion

Jevon S. appeals the order terminating his parental rights to two of his children. Because the circuit court properly exercised its discretion, we affirm. This opinion will not be published.

2014AP1426, 2014AP1427 In re the termination of parental rights to Terayonnia S. et al.: State v. Jevon S.

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

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

Wisconsin Court of Appeals

Civil
Juveniles – TPR — foster placement — discretion

Latoya M. appeals the orders terminating her parental rights to her children Terayonnia S. and Treveon S. She argues that the trial court erroneously exercised its discretion in placing the children with their respective foster families rather than with Wilma S.-H., their paternal grandmother. This court disagrees and affirms. This opinion will not be published.

2014AP1424, 2014AP1425 In re the termination of parental rights to Terayonnia S. et al.: State v. Latoya M.

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

Attorneys: For Appellant: Chesshir, Carl W., Eagle; For Respondent: Mueller, Elisabeth Andrews, Milwaukee

Wisconsin Court of Appeals

Civil
Juveniles – TPR — best interests

Samantha J. appeals the dispositional order that terminated her parental rights to three of her daughters, Shawnise J., Sieanna J., and Skye J. Samantha argues that the circuit court: (1) erroneously determined that termination was in the children’s best interest because two of the children became “legal orphans” as a result of the court’s order; (2) erroneously found Samantha in default for failure to appear and for failure to comply with discovery orders; and (3) erroneously denied Samantha relief for excusable neglect. We affirm. This opinion will not be published.

2014AP988, 2014AP989, 2014AP1017 In re the termination of parental rights to Sieanna J. et al. State v. Samantha J.

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

Attorneys: For Appellant: Swimmer, John S., Milwaukee; For Respondent: Karas, Jenni Spies, Wauwatosa

LABOR AND EMPLOYMENT

Wisconsin Court of Appeals

Civil
Employment — sex discrimination

Where an employer gave inconsistent explanations for disparity in pay between a male and female employee, LIRC reasonably found the employer guilty of discrimination.

“During the administrative proceedings, Rice Lake Harley attempted to explain why it did not reduce Dodge’s salary when he was demoted in January 2005. However, LIRC found that Rice Lake Harley’s explanations were inconsistent, and therefore not credible. For instance, Brekken initially testified he paid no attention to Dodge’s salary after Dodge was hired, but he later stated it was ‘very important’ to ‘maintain [Dodge’s] salary at a point where he would continue to be employed by Rice Lake Harley[.]’ Elsewhere, Rice Lake Harley stated it ‘felt [it] owed it to [Dodge] to maintain his salary … when his management responsibilities were eliminated’ because Dodge had ‘left a well-paying management position to become sales manager[.]’ In its amended answer to Mack’s complaint, Rice Lake Harley asserted Dodge’s higher salary was based on his superior knowledge, experience, and reputation. We defer to LIRC’s determination that Rice Lake Harley’s inconsistent explanations for failing to reduce Dodge’s pay were not credible. See Bucyrus-Erie Co., 90 Wis. 2d at 418.”

Affirmed in part, and Reversed in part.

Recommended for publication in the official reports.

2014AP13 Rice Lake Harley Davidson v. LIRC

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

Attorneys: For Appellant: Schwartz, Michael D., Oakdale, Minn.; For Respondent: Rice, David C., Madison; Fox, Peter J., Monona

MUNICIPALITIES

Wisconsin Court of Appeals

Civil
Municipalities — notice of claim

Parkland Venture, LLC, its managing member Arthur Dyer, and members Norman Dyer, Jr., William Fink, D.D.S., Valerie Esler and Kim Ellis (jointly, Parkland) appeal from an order granting summary judgment in favor of the City of Muskego, the City’s Community Development Authority (CDA), and former alderman and city council president Domonic D’Aquisto, and former mayors Mark Slocomb, David DeAngelis, and John Johnson. We affirm. This opinion will not be published.

2013AP940 Parkland Venture LLC et al. v. The City of Muskego et al.

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

Attorneys: For Appellant: Cade, Nathaniel , Jr., Milwaukee; Reynolds, Thomas S., II, Milwaukee; Hansen, Timothy M., Milwaukee; For Respondent: Anderson, R. Valjon, Waukesha; Braithwaite, Ryan, Milwaukee; Bitar, Remzy D., Milwaukee

Wisconsin Court of Appeals

Civil
Municipalities — public nuisances — abatement orders

Roderick Flowers, pro se, appeals the circuit court’s order permanently closing R Place on Park to abate the public nuisance created by its operation, directing The Family Business LLC and Flowers to cease all operation of R Place on Park, dismissing the supplemental counterclaim brought by Flowers against the City of Madison, and dismissing the third-party complaint brought by Flowers against Madison City Attorney Michael May, Madison Police Chief Noble Wray, Madison Police Captain Joseph Balles, City Clerk Meribeth Witzel-Behl and Assistant City Attorney Jennifer Zilavy. The issues on appeal are: (1) whether the circuit court properly concluded that R Place is a public nuisance pursuant to Wis. Stat. § 823.02 (2011-12), and properly ordered R Place permanently closed to abate the public nuisance caused by its operation; (2) whether the circuit court misused its discretion in finding Flowers in contempt of court for violating a temporary injunction; and (3) whether the circuit court properly dismissed Flowers’ supplemental counterclaim and third-party complaint. We affirm. This opinion will not be published.

2012AP2179 City of Madison v. Family Business LLC et al.

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

Attorneys: For Appellant: Flowers, Roderick, pro se; For Respondent: Zilavy, Jennifer, Madison; Rottier, Catherine, Madison; Hebl, Andrew Bryant, Madison

OPEN RECORDS

Wisconsin Court of Appeals

Civil
Open Records — corporations

The Wisconsin Counties Association is not subject to the open records law.

“We reject the Police Association’s argument based on the decision in Beaver Dam, because it is not supported by any language in that decision. In Beaver Dam, the court held that ‘a quasi-governmental corporation is a corporation that resembles a governmental corporation,’ and applied the totality of circumstances test to determine whether the private Beaver Dam Area Development Corporation in that case was ‘quasi-governmental.’ 312 Wis. 2d 84, ¶¶3, 9, 44-45. While the court also referred to the issue as being whether an ‘entity is a quasi-governmental corporation,’ see, e.g., id., ¶¶7, 9, 45, the Police Association points to no language in that decision that indicates that the court intended to extend the reach of either its holding or WIS. STAT. § 19.32(1) to embrace entities that are not corporations. As the Counties Association notes, ‘to be a “quasi-governmental corporation,” an entity must first be a “corporation,”’ and the Counties Association is not a corporation.”

Affirmed.

Recommended for publication in the official reports.

2014AP249 Wisconsin Professional Police Association Inc. v. Wisconsin Counties Association

Dist. IV, Dane County, Niess, J., Kloppenburg, J.

Attorneys: For Appellant: Palek, Roger W., Madison; Palmer, James L., Madison; For Respondent: Borowski, Daniel J., Mequon; Phillips, Andrew T., Mequon; Henneger, Patrick Casey, Mequon

Wisconsin Court of Appeals

Civil
Open Records — staff management planning exemption

In this open records law dispute, The Lakeland Times and its publisher, Gregg Walker (Lakeland Times), seek a record allegedly used by Lakeland Union High School (LUHS) and members of the board of education while hiring a new basketball coach, Rich Fortier. Lakeland Times suspects the record contains fabricated or selectively edited comments from Fortier’s former employers and seeks discovery — confidential or otherwise — so it may prove the record is not truthful and its author engaged in misconduct. Following an in camera review of the document, the circuit court granted summary judgment for LUHS.

We conclude summary judgment was appropriate because the complaint’s allegations, taken as true, establish all elements of LUHS’s defense. Specifically, LUHS relies on Wis. Stat. § 19.36(10)(d), which prohibits an authority from releasing information “relating to one or more specific employees that is used … for staff management planning.”

We further conclude the circuit court erroneously determined genuine issues of material fact existed as to whether the record was an honest representation of Fortier’s former employers’ comments. Whether a record accurately captures information from former employers is irrelevant under Wis. Stat. § 19.36(10)(d). Accordingly, Lakeland Times was not entitled to discovery on that matter. We affirm. Not recommended for publication in the official reports.

2014AP95 The Lakeland Times et al. v. Lakeland Union High School

Dist III, Vilas County, Stenz, J., Cane, J.

Attorneys: For Appellant: Dreps, Robert J., Madison; For Respondent: Cieslewicz, Michael J., Milwaukee; Woehl, Dustin, Milwaukee

PROPERTY

Wisconsin Court of Appeals

Civil
Property – foreclosure — claim preclusion

These consolidated cases arise out of a foreclosure action commenced against Robin and Karen Zahran. The Zahrans appeal pro se from an order denying their motions for reconsideration of the foreclosure judgment entered against them. They also appeal from an order dismissing their subsequent complaint against various parties allegedly involved in obtaining the foreclosure judgment. For the reasons that follow, we affirm. This opinion will not be published.

2012AP2676, 2013AP1489 Woodford State Bank v. Zahran et al.

Dist II, Manitowoc County, Fox, Sutkiewicz, JJ., Per Curiam

Attorneys: For Appellant: Zahran, Robin, Zahran, Karen A., pro se; For Respondent: Smith, Ann U., Madison

CRIMINAL DIGESTS

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

Criminal
Controlled Substances – conspiracy — sufficiency of the evidence

The evidence was sufficient to support a conviction of the defendants for conspiracy, and that they had more than a buyer-seller relationship with the co-conspirators.

“We disagree and find sufficient evidence on the record to establish that McDowell conspired with Harris, Cooper, and Presley to buy and sell heroin. Donia testified, in the excerpt of her grand jury statement admitted at trial, that McDowell, Harris, Cooper, and Presley all sold drugs together, that she heard McDowell discuss the conspiracy’s drug operations with them, and that she knew McDowell financed their drug buys twice a week. Add Breedlove’s testimony that the bags of heroin he received from Harris, Cooper, and Presley out of McDowell’s mother’s apartment were similar to the drug packages he had previously received from McDowell him-self and that McDowell was able to take control whenever there was a problem with the drugs Breedlove bought from Longwood, and a reasonable jury could conclude that McDowell participated in the heroin distribution conspiracy with Harris, Cooper, and Presley.”

Affirmed.

12-3349 & 13-1524 U.S. v. Cooper

Appeals from the United States District Court for the Northern District of Illinois, Kapala, J., Williams, J.

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

Criminal
Mandamus – dismissal — extradition

The government’s failure to extradite an international fugitive does not entitle him to dismissal of the charges.

“It’s not as if he wants to be extradited to stand trial in the United States on the very serious criminal charges against him but hasn’t just so he won’t have to pay for his plane ticket to Chicago. One of his codefendants was sentenced to 10 years in prison. If Kashamu was indeed the ringleader of the drug conspiracy, as he may have been, he might if convicted be given an even heavier sentence–quite possibly a life sentence; 21 U.S.C. § 960(b)(1)(A), authorizes a life sentence for a conspiracy to import at least a kilogram of heroin. If he wants to fight the charges, he has only to fly from Lagos to Chicago; there are loads of reasonably priced flights. See Priceline.com, ‘Cheap Flights from Lagos, Nigeria, to Chicago, IL,’ www.priceline.com/insideTrack/flights/Lagos-LOS-Chicago-CHI.html (visited Sept. 9, 2014).”

“How then can he argue with a straight face that the failure of the United States to extradite him entitles him to dismissal of the charges? He can’t; and the petition for a writ of mandamus is therefore DENIED.”

Petition Denied.

14-2093 In re: Kashamu

Petition for Writ of Mandamus to the Northern District of Illinois, Norgle, J., Posner, J.

CRIMINAL PROCEDURE

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance

Travanti Schmidt appeals a judgment convicting him of disorderly conduct and an order denying his motion for a new trial based on his claim of ineffective assistance of counsel. Schmidt argues that the circuit court erred in denying him a Machner evidentiary hearing on his claim. I conclude that, even if Schmidt could have established at a Machner hearing that counsel performed deficiently, Schmidt cannot satisfy the prejudice prong of the test for ineffective assistance of counsel. I therefore disagree that the circuit court erred, and affirm. This opinion will not be published.

2014AP718-CR State v. Schmidt

Dist IV, Grant County, Van De Hey, J., Lundsten, J.

Attorneys: For Appellant: Zick, Vicki, Johnson Creek; For Respondent: Pozorski, Anthony J., Lancaster; Weber, Gregory M., Madison; Riniker, Lisa A., Lancaster

Wisconsin Court of Appeals

Criminal
Criminal Procedure – jurisdiction — ineffective assistance

James Wilson appeals a judgment of conviction entered after a jury found him guilty of four counts of armed robbery and one count of robbery, all as a party to a crime. He also appeals an order denying postconviction relief. He contends that the circuit court lost subject matter jurisdiction over this matter and erroneously exercised its sentencing discretion, and that his trial counsel gave him constitutionally ineffective assistance. We reject his contentions and affirm. This opinion will not be published.

2013AP2747-CR State v. Wilson

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

Attorneys: For Appellant: Lee, Esther Cohen, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Sanders, Michael C., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — new trials

Jerry Simone Wilson, pro se, appeals an order of the circuit court denying his Wis. Stat. § 974.06 (2011-12) motion without a hearing. Wilson claimed he was entitled to a new trial because of (1) newly discovered evidence; (2) insufficient evidence; (3) jury bias; and (4) ineffective counsel. We conclude the circuit court properly denied the motion, so we affirm the order. This opinion shall not be published.

2013AP2590 State v. Wilson

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

Attorneys: For Appellant: Wilson, Jerry Simone, pro se; For Respondent: Gansner, William L., Madison; Loebel, Karen A., Milwaukee

Wisconsin Court of Appeals

Criminal
Criminal Procedure — double jeopardy

Bernard Adams appeals a judgment convicting him of first-degree sexual assault of a child and an order denying his motion to withdraw his guilty plea. The complaint charged Adams with two counts of sexual assault of a child and one count of causing a child to view sexual activity, with all three offenses occurring between October 1, 2005 and December 2007. Adams contends his trial counsel was ineffective for not challenging the charging periods and the sexual assault allegations were multiplicitous. We reject these arguments and affirm the judgment and order. This opinion will not be published.

2013AP2387-CR State v. Adams

Dist III, Shawano County, Kussel, J., Per Curiam

Attorneys: For Appellant: Petit, Gregory A., Menasha; For Respondent: Sanders, Michael C., Madison; Parker, Gregory A., Shawano

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance

Donald Lawrence Kobleske appeals a judgment convicting him of attempted second-degree sexual assault with use of force. He also appeals an order denying his postconviction motion. Kobleske argues that his trial lawyer ineffectively represented him during his jury trial: (1) by failing to introduce police officer testimony or a police report to show that there was no physical evidence of the assault found at the scene of the crime; and (2) by failing to introduce evidence that the victim reported a “similar assault under similar conditions” in the past. We affirm. This opinion will not be published.

2013AP1246-CR State v. Kobleske

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

Attorneys: For Appellant: Backes, Michael J., Shorewood; For Respondent: Loebel, Karen A., Milwaukee; Larson, Sarah K., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — successive appeals

Daniel D. King, pro se, appeals an order that denied his petition for a writ of habeas corpus on the ground that his claims are procedurally barred. He also appeals the order that denied his motion for reconsideration. We affirm. This opinion will not be published.

2013AP1639 State v. King

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

Attorneys: For Appellant: King, Daniel D., pro se; For Respondent: Loebel, Karen A., Milwaukee; Whelan, Maura F.J., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — competency

Where postconviction proceedings cast into doubt whether the defendant was competent at the time of trial, it was error to deny the defendant’s motion for a new trial.

“Although obvious hazards attend retrospective competency hearings, including the passage of time, ‘“mere passage of time may not make the effort meaningless.”’ Johnson, 133 Wis. 2d at 225 (citation omitted). In fact, ‘[t]he passage of even a considerable amount of time may not be an insurmountable obstacle if there is sufficient evidence in the record derived from knowledge contemporaneous to trial.’ Id. (citation and quotation marks omitted). Here, although there was no pretrial competency evaluation done and Smith did not testify at the postconviction hearing, two medical experts each provided evaluations, based on numerous historical and legal documents, concluding that Smith was incompetent at the time of his trial and sentencing. Nonetheless, the postconviction court concluded that Smith’s experienced defense counsel, and the judge who presided over both the trial and the sentencing, were in better positions to observe Smith. Because neither raised concerns, the postconviction court concluded that Smith, in fact, was competent both during trial and at sentencing. The postconviction court weighed more heavily the uninformed competence opinions of defense counsel and the trial court — who knew nothing of Smith’s extensive mental health history, the DOC records, the jail records or the two experts’ opinions — and discounted the experts’ evaluations. In so doing, the postconviction court erred. As shown above, with regard to the substantive competence issue, the standard on review is whether the whole record reveals a reason to doubt Smith’s competence at trial and sentencing. See Pate v. Robinson, 383 U.S. 375, 386 (1966). The postconviction court was not the same court who observed Smith at trial and sentencing. The deference accorded the trial court’s competence assessment in Garfoot and Byrge does not apply to the postconviction court here because the basis for that deference does not exist here. See Byrge, 237 Wis. 2d 197, ¶45 (‘Because a competency determination depends on the [trial] court’s ability to appraise witness credibility and demeanor, “there are compelling and familiar justifications for leaving the process of applying law to fact to the trial court.”’) (citation omitted).”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP1228-CR State v. Smith

Dist. I, Milwaukee County, Conen, Borowski, JJ., Kessler, J.

Attorneys: For Appellant: Wasielewski, John T., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Remington, Christine A., Madison

OWI

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — warrantless blood draws

Walter Kugler appeals his judgment of conviction for operating while intoxicated-first offense following a jury trial and the circuit court’s denial of his motions to suppress evidence. For the following reasons, we affirm. This opinion will not be published.

2014AP220 State v. Kugler

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

Attorneys: For Appellant: Mishlove, Andrew, Milwaukee; Bell, Emily Jane, Glendale; For Respondent: Suha, Timothy, Waukesha

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — reasonable suspicion — warrantless blood draws

In these consolidated appeals from his conviction for drunk driving and the revocation of his driving privileges, Andrew Kuster challenges every step of the State’s handling of his case from the initial stop of his vehicle through the testing of his blood. We affirm. This opinion will not be published.

2014AP109-CR, 2014AP227 State v. Kuster

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

Attorneys: For Appellant: Witt, Michael C., Jefferson; For Respondent: Weber, Gregory M., Madison; Witt, Michael C., Jefferson

SEARCH AND SEIZURE

Wisconsin Court of Appeals

Criminal
Search and Seizure — Miranda warnings — exclusionary rule

Although a prison visitor was in custody when questioned without Miranda warnings, physical evidence seized need not be suppressed, where there was no intentional Miranda violation.

“Ezell expresses disbelief that ‘experienced correctional officers would not know that they were required’ to give the warnings, but in fact the officer who testified about the interrogation stated that while he had ‘heard of’ the Miranda warnings, ‘we don’t ever use them.’ Ezell also speculates that the officers had no reason to call police if they were not trying to get Ezell to incriminate herself, but we note that administrative rules require correctional institutions to refer contraband violations to law enforcement. See WIS. ADMIN. CODE § DOC 306.18(8) (Aug. 2014). Once the correctional officers learned from the phone conversation that Ezell was planning to carry in contraband, law enforcement was already going to be involved.”

“On this record, while the correctional officers did make a mistake by not following DOC protocol, it is farfetched to speculate that the correctional officers intentionally violated Miranda. As the administrative rules tell us, custodial interrogation of visitors to the prison is not part of a correctional officer’s job description. Suppressing the contraband would not deter what amounts to negligent violation of Miranda.”

Affirmed.

Recommended for publication in the official reports.

2013AP2178-CR State v. Ezell

Dist. II, Winnebago County, Bissell, J., Brown, J.

Attorneys: For Appellant: Breedlove, Tristan, Madison; For Respondent: Pray, Eileen W., Madison; Gossett, Christian A., Oshkosh

Wisconsin Court of Appeals

Criminal
Search and Seizure — arrest

Where a suspect was forcibly handcuffed by a warden and turned over to police, he was arrested, and probable cause was required for the arrest.

“Here, the circuit court determined Anker was arrested during the initial moments of his encounter with Horne. That conclusion is unassailably correct. Anker was ordered to stop, told he was under arrest, forcibly handcuffed, and taken to Horne’s vehicle to be given over to investigating authorities. There was no ambiguity in the situation; a reasonable person in those circumstances would consider himself or herself under arrest. The arrest was unreasonable in the absence of probable cause.”

Affirmed in part, and Reversed in part.

Recommended for publication in the official reports.

2014AP353-CR State v. Anker

Dist. III, Shawano County, Habeck, J., Cane, J.

Attorneys: For Appellant: Anderegg, Rex, Milwaukee; For Respondent: Parker, Gregory A., Shawano; Burgundy, Sarah, Madison

Wisconsin Court of Appeals

Criminal
Search and Seizure — reasonable suspicion

Miguel Lombrano appeals a judgment of conviction entered upon his guilty plea to possessing a firearm as a felon. The only issue is whether the trial court properly denied his motion to suppress evidence found during an investigative stop. We affirm. This opinion will not be published.

2013AP1575-CR State v. Lombrano

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

Attorneys: For Appellant: Thornton, J. Dennis, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Probst, Robert, Madison

SENTENCING

Wisconsin Court of Appeals

Criminal
Sentencing — sentence credit

Where a defendant is in custody both on a criminal charge and a civil commitment, he is entitled to sentence credit on the charge.

“From the date Trepanier began serving his six-month jail term under the civil commitment order until he was sentenced on the burglary charge, Trepanier had an incentive to pay the $1000 purge condition — doing so was one step he needed to take to be released from jail. That Trepanier also needed to pay his $500 cash bail on the burglary charge in order to be released does not obviate the civil commitment’s coercive effect. This is not a situation in which Trepanier had no reason to pay the $1000 purge condition because doing so would have no effect on his ability to get out of jail. Further, because the circuit court made Trepanier’s burglary sentence consecutive to the six-month jail term, the commitment continued to have a coercive effect after Trepanier was sentenced. Neither the circuit court nor the State has explained why it was also necessary to deny Trepanier sentence credit against his burglary sentence in order for the commitment to serve its coercive purpose.”

Reversed and Remanded.

Recommended for publication in the official reports.

2014AP178-CR State v. Trepanier

Dist. III, Sawyer County, Wright, J., Stark, J.

Attorneys: For Appellant: Bechtold, Frederick A., Taylor Falls, Minn.; For Respondent: O’Brien, Daniel J., Madison; Poquette, Bruce R., Hayward

Wisconsin Court of Appeals

Criminal
Sentencing – modification — new factors

Randy R. Dunbeck, Jr., appeals an order denying his motion for sentence modification. He asserts that a new factor, namely, the conclusions reflected in a psychiatric report prepared during his imprisonment, warrants relief. The circuit court disagreed, and we affirm. This opinion will not be published.

2013AP2574-CR State v. Dunbeck

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

Attorneys: For Appellant: Anderegg, Rex, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Remington, Christine A., Madison

SEXUALLY VIOLENT PERSONS

Wisconsin Court of Appeals

Criminal
Sexually Violent Persons — discharge

Michael L. McGee appeals an order dismissing his petition for discharge from a Wis. Stat. ch. 980 (2011-12) commitment and an order denying his motion for postcommitment relief. He contends that the circuit court erred in dismissing his petition without a trial. He further contends that the court’s decision deprived him of due process of law. We reject his claims and affirm the orders. This opinion will not be published.

2013AP2110 In re the commitment of Michael L. McGee

Dist II, Racine County, Torhorst, J., Per Curiam

Attorneys: For Appellant: Lang, Donald T., Madison; For Respondent: Chiapete, W. Richard, Racine; Lloyd, Katherine Desmond, Madison