Weekly Case Digests — Oct. 27-31, 2014

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Wisconsin Law Journal’s Case Digests

October 27-31, 2014

CIVIL OPINIONS

CIVIL PROCEDURE

Wisconsin Court of Appeals

Civil Procedure
substitution of parties

Charles Malecki, pro se, claims the circuit court erred when it denied his motion to substitute himself in place of his deceased father as the defendant in this foreclosure action, struck his answer to the complaint, and granted a default judgment of foreclosure to Marina Cliffs-Phase I, Inc. We affirm. This opinion will not be published.

2013AP2337 Marina Cliffs Phase I Inc. v. Malecki et al.

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

Attorneys: For Appellant: Malecki, Charles, pro se; For Respondent: Lovett, J. Timothy, Milwaukee; Darnieder, Mark C., Milwaukee; Sosnay, Michael, Milwaukee

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

Civil Procedure
compulsory counterclaims

Although the Department of Education did not seek to recover a student loan in a bankruptcy adversary proceeding, it is not barred from filing a counterclaim to recover, when the debtor later sought to enjoin recovery.

“Had the government filed a counterclaim in the adversary proceeding, seeking repayment of the Greenes’ student loans — as it could have done — and had lost, it could not have refiled its claim as a counterclaim in the present suit. Adams v. City of Indianapolis, 742 F.3d 720, 735–36 (7th Cir.2014). That would have been harassment. But the government had sound reasons for holding off from seeking affirmative relief in the adversary proceeding. Better to block discharge of Greene’s student loan debt, and thus reserve the right to sue later to collect the money owed it, than to try to draw water from a stone. So far as appears, the Greenes had(as suggested by their being allowed to discharge most of their debts)little in the way of assets on which the government could have levied in 2005. The government could and did pursue other remedies, such as garnishment, which are simpler and cheaper than suing; freed of their other debts the Greenes might have been able to begin, at least, to repay their student debt.”

Affirmed.

13-3257 Greene v. UDEC

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

Wisconsin Court of Appeals

Civil Procedure
prison mailbox rule

Anthony Ellis, an inmate at a state correctional center, appeals pro se from the circuit court’s order dismissing Ellis’s small claims trial demand as untimely. Ellis argues that his demand was timely under the “prison mailbox rule,” a tolling rule that courts have applied to certain types of filings by prisoners. See, e.g., State ex rel. Griffin v. Smith, 2004 WI 36, ¶¶36-37, 270 Wis. 2d 235, 677 N.W.2d 259. Assuming, without deciding, that the rule applies to small claims trial demands, I agree with the State that Ellis failed to submit the type of proof that is required to receive the benefit of the rule. I therefore affirm the circuit court’s dismissal order. This opinion will not be published.

2014AP1632 Ellis v. Miller et al.

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

Attorneys: For Appellant: Ellis, Anthony, pro se; For Respondent: Nitti, Jonathan M, Madison; Russomanno, Anthony, Madison

CIVIL RIGHTS

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

Civil Rights
malicious prosecution

A defendant released on a recognizance bond is not seized for purposes of a malicious prosecution claim.

“Moreover, even supposing we were to consider a broader scope for Fourth Amendment claims, the facts in the instant case are a poor fit for the continuing seizure approach because Welton’s freedom of movement restrictions do not rise to the level of a seizure. In fact, Welton presents no facts suggesting a restriction on his freedom of movement. Instead, he states he was arrested, processed, released on his own recognizance, and eventually criminally prosecuted. At best, these are de minimis restrictions. See Karam v. City of Burbank, 352 F.3d 1188, 1193–94 (9th Cir. 2003) (signing of own recognizance agreement which obligated woman to obtain court’s permission before leaving state and which compelled her appearance in court amounted to de minimis restrictions not constituting a Fourth Amendment seizure).”

Affirmed.

13-3336 Welton v. Anderson

Appeal from the United States District Court for the Southern District of Indiana, Magnus-Stinson, J., Bauer, J.

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

Civil Rights
qualified immunity — Vienna Convention

An arrestee cannot sue the officers under Section 1983 for failure to comply with Article 36 of the Vienna Convention.

“Perhaps, as the materials from the State Department included in the Appendix to this opinion might suggest, it would be desirable to impose a duty to notify on every law enforcement officer who encounters a possible non-U.S. citizen. But it is possible that such a rule would lead to substantial duplication of effort and confusion in the consular services. One officer might call the Chicago office of a particular country; another might call the St. Louis office; a third might call Washington, D.C. If Mordi had sued the booking officers, we might need to consider this question in greater detail, but they are no longer in the case. The interpretation and implementation of the Convention touch on the diplomatic relations of the United States, and so we think it prudent to tread carefully here. All we need to say to resolve this case is that the details of how to implement the Article 36 duty to inform the arrestee of his rights without delay have yet to be fixed. There is no clearly established law that the three Officers before us violated, and thus they are entitled to qualified immunity from suit.”   Reversed and Remanded.

13-3188 Mordi v. Zeigler

Appeal from the United States District Court for the Southern District of Illinois, Reagan, J., Wood, J.

Wisconsin Court of Appeals

Civil Rights
ADA — state courts

When Mark Belokon did not appear for trial, the circuit court granted his counsel’s motion to withdraw and declined to let Belokon offer his discovery deposition at trial in lieu of his testimony. The circuit court properly exercised its discretion. Accordingly, we affirm the judgment of foreclosure from which Belokon appeals. This opinion will not be published.

2013AP2314 Baytree Lending Company v. Belokon

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

Attorneys: For Appellant: Hanson, Rollie, West Allis; Nusbaum, Jared M., West Allis; For Respondent: Salzer, Robert C., Brookfield

FAMILY

Wisconsin Court of Appeals

Family
notice – residence — overtrial

A circuit court can order a parent to reside in a particular school district as a condition of retaining primary placement.

“We conclude that Groh and Derleth do not control this case due to the unique fact situation here. To begin, neither Groh nor Derleth say anything about a situation where a circuit court is ordering a parent to move to Wisconsin, and Shulka does not address that issue. More importantly, however, the facts in both Groh and Derleth were that the circuit court was making an initial decision ordering the mother to establish or maintain residency closer to the father. Groh, 110 Wis. 2d at 119-21; Derleth, 352 Wis. 2d 51, ¶¶5-6. In this case, however, the circuit court’s decision ordering Shulka to move back to the Wood School District was made in the context of the initial approval of her move to Illinois and the fact that the approval, as the circuit court noted, ‘was conditioned upon certain facts that never came true’ and that the FCC’s 2012 order, which was based on Shulka’s represented facts, was ‘frustrated.’ Although Sikraji’s motion was filed as a motion to modify instead of a motion for reconsideration, the circuit court was also appropriately considering the FCC’s initial order approving Shulka’s move to Illinois in light of Shulka’s representations to the FCC, which she never brought to fruition. Further, with a waiting list for out-of-district children to enroll in Woods School and the new school year about to begin when the de novo hearing concluded on August 9, 2013, Shulka never suggested to the circuit court (or us) how else the court could have accomplished its best-interests-of-the-children goals of getting the children into the Wood School District schools to properly address their autistic and educational needs and maintaining primary placement with Shulka. Based on the unique facts of this case, the court did not err in ordering that the children be re-enrolled in the Wood School District schools and that Shulka return to that district so their enrollment could be accomplished while continuing their primary placement with her.”

Affirmed.

Recommended for publication in the official reports.

2013AP2080 Shulka v. Sikraji

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

Attorneys: For Appellant: Ziemer, David, Glendale; For Respondent: Johnson, Daniel Steven, Lake Geneva; Thelen, Martha Jane, Lake Geneva

Wisconsin Court of Appeals

Family
marital counseling

Bruce Larson, pro se, appeals a divorce judgment. Bruce contends that the circuit court erred by granting Beverly Larson’s petition for a divorce from Bruce without first ordering the parties to participate in marital counseling. Bruce also claims that various circuit court errors during the divorce proceedings warrant reversal. For the reasons that follow, we reject these contentions. Accordingly, we affirm the judgment of divorce.

This opinion will not be published.

2014AP465 In re the marriage of: Larson v. Larson

Dist IV, Rock County, Dillon, J., Per Curiam

Attorneys: For Appellant: Larson, Bruce E., pro se; For Respondent: Holznecht, Charles A., Janesville

Wisconsin Court of Appeals

Family
maintenance — property division — attorney fees

Jennifer Ann Dworak appeals from a judgment of divorce, arguing that the trial court erroneously exercised its discretion by awarding (1) maintenance from Jennifer to Matthew Dworak, (2) a property division equalization payment to Matthew, (3) the majority of the parties’ debt to Jennifer, and (4) a contribution to Matthew’s attorney fees. We conclude that the trial court’s orders were supported by its findings of fact and the record as a whole. We affirm. This opinion will not be published.

2013AP2371 In re the marriage of: Dworak v. Dworak

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

Attorneys: For Appellant: Rose, Christopher William, Kenosha; For Respondent: Dworak, Matthew Robert, pro se

IMMIGRATION

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

Immigration
cancellation of removal

Where no evidence supported a finding that an alien had maintained continuous residence for ten years, the denial of cancellation of removal must be vacated.

“Even if this is wrong, it would not save the ruling denying Lopez-Esparza’s petition for review. Our ground for setting aside that ruling is not that the administrative law judge erred in finding that Lopez-Esparza had failed to carry his burden of proof, but that the judge applied the wrong standard — the standard, of his invention, that imperfect recollection precludes a finding of continuous residence. That was a legal error. Perfect recollection isn’t part of the burden of proving continuous residence, and it couldn’t be because it would be inconsistent with the preponderance standard. 8 C.F.R. § 1240.8(d). A witness‘s testimony may reveal a bad memory without necessarily vitiating his testimony and so preventing him from carrying his burden of proof. The order of the Board of Immigration Appeals is vacated and the case remanded to the Board.”

Vacated and Remanded.

13-3376 Lopez-Esparza v. Holder

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

INSURANCE

Wisconsin Court of Appeals

Insurance
CGL policies — incorporation

An insured suppliers’ negligent provision of an ingredient that renders the other ingredients and the final product unusable when incorporated constitutes an occurrence resulting in property damage under a CGL policy.

“American Girl also makes clear that, to the extent an insurer seeks to exclude contract claims associated with the insured’s defective product, it is by operation of the business risk exclusions, not by reading what is not there into the insurance contract’s initial coverage grant. See id., ¶¶39, 41 & n.6, 43-47. The exclusions generally limit coverage for the insured’s own product, for the loss of use of property that has not been physically injured, and for impaired property where the insured’s product can be removed, repaired, or replaced. These exclusions do not apply here to defeat coverage for third-party property damage. See 9A LEE R. RUSS, ET AL., COUCH ON INSURANCE 3d § 129:21, at 129-44 (rev. ed. 2009) (‘[T]he [impaired property] exclusion does not apply where there is physical damage to the other property into which the insured’s work or product has been incorporated ….’). If insurers want to exclude coverage for physical injury to other third-party component property caused by incorporation of the wrong product (i.e., to import the economic loss/integrated product doctrine into the policy), they can do so by writing their business risk exclusions accordingly. ‘It is entirely possible that one could do a negligent act, which would form the basis for a breach of contract claim. It would be an easy matter to have the insurance policy state that is does not cover facts that arise out of what is a breach of contract, if that was indeed [the insurer’s] intention.’ 1325 N. Van Buren, 293 Wis. 2d 410, ¶62.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP613 & 2013AP687 Wisconsin Pharmacal Co. LLC v. Nebraska Cultures of California Inc.

Dist. II, Ozaukee County, Wolfgram, J., Neubauer, J.

Attorneys: For Appellant: Baxter, James A., Milwaukee; Schepp, Rachel N., Milwaukee; For Respondent: Schrimpf, Thomas R., Milwaukee; Odian, Elizabeth, Milwaukee

LABOR AND EMPLOYMENT

Wisconsin Court of Appeals

Employment
wage claims — attorney fees

The trial court determined that Christopher Kuchler was the prevailing party in his wage claim against Paragon Tank Truck Equipment LLC. Paragon appeals the judgment determining that Kuchler therefore was entitled to expenses and attorney’s fees under Wis. Stat. § 109.03(6) (2011-12). Kuchler cross-appeals the dismissal of his invasion-of-privacy claim and the reduction in the expenses and fees award. We affirm in all regards. This opinion will not be published.

2013AP1469 Paragon Tank Truck Equipment LLC v. Kuchler

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

Attorneys: For Appellant: Hammis, James E., Stoughton; For Respondent: Lanphier, Sean, Milwaukee

PROFESSIONAL RESPONSIBILITY

Wisconsin Supreme Court

Professional Responsibility
public reprimand

Where attorney Mark S. Tishberg failed to timely serve a defendant, and tried to hide his failure from his clients, a public reprimand is appropriate.

“With respect to the discipline to be imposed, we determine the appropriate level of discipline given the particular facts of each case, independent of the referee’s recommendation, but benefiting from it. See In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686. We agree with the referee that Attorney Tishberg’s misconduct warrants a public reprimand. Attorney Tishberg’s attempts to cover up the effects of his failure to timely serve J.D.’s and L.D.’s personal injury lawsuit were undeniably foolish. However, there is no evidence that Attorney Tishberg attempted or expected to obtain any personal gain as a result of his conduct. In addition, because Attorney Tishberg used his own retirement funds to pay J.D. and L.D. the apparent value of their personal injury claim plus their subsequent attorney fees, there was no monetary loss to the client. Attorney Tishberg cooperated completely in the investigation of this matter, has expressed genuine remorse for his misconduct, and has no previous history of misconduct. Under these circumstances, we are satisfied that a public reprimand of Attorney Tishberg is sufficient to impress upon him the seriousness of his professional misconduct and to protect the public from similar misconduct in the future.”

2013AP2230-D OLR v. Tishberg

Per Curiam.

Attorneys: For Complainant: Weigel, William J., Madison; Bedker, William F., Watertown; For Respondent: Tishberg, Mark S., Milwaukee

Wisconsin Supreme Court

Professional Responsibility
suspension

Where attorney Michael J. Briggs engaged in multiple misconduct offenses, intentionally failed to comply with disciplinary rules and orders, and made misrepresentations to the OLR during the course of its investigations, a 90-day suspension is appropriate.

“After our independent review of the matter, we approve the stipulation and determine that the seriousness of Attorney Briggs’s misconduct warrants a 90-day suspension of his license to practice law. Attorney Briggs’s admitted acts are serious violations of the Rules of Professional Conduct governing lawyers in this state. We deem a 90-day suspension sufficient to protect the public from Attorney Briggs’s unacceptable professional behavior, to ensure that he will not repeat it, and to deter others from engaging in similar misconduct.”

2014AP1443-D OLR v. Briggs

Per Curiam.

Attorneys: For Complainant: Krohn, Robert G., Edgerton; Weigel, William J., Madison; For Respondent: Briggs, Michael J., Oregon

PROPERTY

Wisconsin Court of Appeals

Property
foreclosure

Bret Bogenschneider appeals a judgment of foreclosure entered by the circuit court upon summary judgment relating to a note and mortgage securing commercial real property he owned in Winnebago county, Wisconsin. He also appeals the denial of his motion to dismiss alleging the complaint was “unripe” and the dismissal of his counterclaims against Community First Credit Union. We affirm. This opinion will not be published.

2014AP637 Community First Credit Union v. Bogenschneider

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

Attorneys: For Appellant: Bogenschneider, Bret N., pro se; For Respondent: Van Lieshout, David J., Little Chute; Keitel, Amanda, Little Chute

CRIMINAL OPINIONS

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

CCTA
constitutionality

The Contraband Cigarette Trafficking Act is not unconstitutional.

“Congress may regulate three categories of activity under the Commerce Clause: (1) the use of channels of interstate commerce; (2) the use of instrumentalities of interstate commerce, or persons or things in interstate commerce; and (3) activities that have a substantial relation to interstate commerce. United States v. Stokes, 726 F.3d 880, 894 (7th Cir. 2013), cert. denied, 134 S. Ct. 833, 187 L. Ed. 2d 573 (2013) (discussing United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995)). The CCTA fits comfortably within the second and third categories. See, e.g., United States v. Abdullah, 162 F.3d 897 (6th Cir. 1998) (contraband cigarettes have a substantial effect on interstate commerce). Therefore, the CCTA is a valid exercise of Congressional authority under the Commerce Clause.”

“Further, the CCTA does not violate the principles of federalism contained in the Tenth Amendment. The CCTA does not interfere with the states’ ability to tax or regulate cigarettes. Cf. N. Ill. Chapter of Associated Builders & Contractors, Inc. v. Lavin, 431 F.3d 1004, 1006 (7th Cir. 2005) (‘The national government lacks the authority to regulate how states behave; it cannot direct them to pass or enforce laws.’). Nor does the CCTA compel or commandeer the states to do anything. See United States v. Kenney, 91 F.3d 884, 891 (7th Cir. 1996) (proper exercise of authority under the Commerce Clause that does not compel state action does not violate the Tenth Amendment).”

Affirmed.

13-2662 & 13-2681 U.S. v. Khan

Appeals from the United States District Court for the Eastern District of Wisconsin, Adelman, J., Kendall, J.

CRIMINAL PROCEDURE

Wisconsin Court of Appeals

Criminal Procedure
ineffective assistance

In these consolidated appeals, Jesse James Anderson, pro se, appeals the order denying his Wis. Stat. § 974.06 motion. We affirm. This opinion will not be published.

2014AP415, 2014AP416 State v. Anderson

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

Attorneys: For Appellant: Anderson, Jesse James, pro se; For Respondent: Loebel, Karen A., Milwaukee; Tarver, Sandra L., Madison

Wisconsin Court of Appeals

Criminal Procedure
ineffective assistance

Juan Able Roman, pro se, appeals judgments of conviction, entered upon his guilty pleas, and orders denying his claims for postconviction relief from his sentences. He asserts that his trial counsel was ineffective during the plea bargaining process. The circuit court rejected his claims, and we affirm. This opinion will not be published.

2014AP404-CR, 2014AP405-CR State v. Roman

Dist I, Milwaukee County, Rothstein, Pocan, JJ., Per Curiam

Attorneys: For Appellant: Zaffiro, Richard L., Wauwatosa; For Respondent: Loebel, Karen A., Milwaukee; Burgundy, Sarah, Madison

Wisconsin Court of Appeals

Criminal Procedure
ineffective assistance

Isaiah N. Triggs appeals the judgment convicting him of first-degree reckless homicide, as party to a crime, contrary to Wis. Stat. §§ 940.02(1) and 939.05 (2011-12). He also appeals the order denying his postconviction motion. On appeal, Triggs argues that the trial court erred in denying his postconviction motion without a hearing because: (1) trial counsel was ineffective; (2) the plea colloquy was defective; and (3) in the alternative, the trial court erroneously exercised its discretion at sentencing. We affirm. Not recommended for publication in the official reports.

2014AP204-CR State v. Triggs

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

Attorneys: For Appellant: Lee, Esther Cohen, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Latorraca, Donald V., Madison

Wisconsin Court of Appeals

Criminal Procedure
plea withdrawal — ineffective assistance

Lawrence Holmes appeals judgments of conviction for felony stalking (as a repeater) and misdemeanor victim intimidation, as well as an order denying his postconviction motion for plea withdrawal. Holmes sought to withdraw his pleas based on the alleged ineffectiveness of his trial counsel for failing to pursue a motion to dismiss misdemeanor charges filed against him, including the misdemeanor charge to which he pled. We conclude that Holmes failed to demonstrate that he suffered any prejudice and, therefore, affirm. Not recommended for publication in the official reports.

2013AP2342-CR State v. Holmes

Dist IV, Dane County, Genovese, J., Sherman, J.

Attorneys: For Appellant: LesMonde, Dana Lynn, Madison; For Respondent: Weinstein, Warren D., Madison; Throckmorton, Cara Jasmine, Madison

Wisconsin Court of Appeals

Criminal Procedure
plea withdrawal

Steven P. Osburn appeals from judgments of conviction for one count of second-degree intentional homicide and one count of intentionally pointing a firearm at another, contrary to §§ 940.05(1)(b) and 941.20(1)(c) (2009-10). Osburn also appeals from an order denying his postconviction motion to withdraw his guilty plea, which alleged that he misunderstood the legal significance of dismissing one count of strangulation as part of the plea agreement. We affirm. This opinion will not be published.

2014AP17-CR State v. Osburn

Dist II, Waukesha County, Gundrum, Dorow, JJ., Per Curiam

Attorneys: For Appellant: Pinix, Matthew S., Milwaukee; For Respondent: Schimel, Brad, Waukesha; O’Neil, Aaron R., Madison

Wisconsin Court of Appeals

Criminal Procedure
successive appeals

Lavonn Macon, pro se, appeals from an order that partially denied his Wis. Stat. § 974.06 (2011-12) motion for postconviction relief. We conclude that Macon’s postconviction motion did not provide a sufficient reason for waiting thirteen years after discovering new information to bring his § 974.06 motion and, therefore, we affirm. This opinion will not be published.

2013AP2467 State v. Macon

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

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

Wisconsin Court of Appeals

Criminal Procedure
ineffective assistance

Cesar O. Garcia appeals from a judgment of conviction and an order denying his motion for postconviction relief. He contends that his trial counsel was ineffective for failing to consider, request, and argue for lesser included offenses at his jury trial. We reject Garcia’s claim and affirm the judgment and order. This opinion will not be published.

2013AP2864-CR State v. Garcia

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

Attorneys: For Appellant: Hart, Richard H., Milwaukee; For Respondent: Zapf, Robert D., Kenosha; Probst, Robert, Madison

OWI

Wisconsin Court of Appeals

Motor Vehicles
OWI — reasonable suspicion

Eric Boettcher appeals a judgment, entered upon his guilty pleas, convicting him of operating while intoxicated, fifth offense, and felony bail jumping. Boettcher argues the circuit court erred by denying his suppression motion because the officer unlawfully stopped his vehicle. We reject Boettcher’s argument, and affirm. This opinion will not be published.

2014AP209-CR State v. Boettcher

Dist III, Barron County, Babler, J., Per Curiam

Attorneys: For Appellant: Larimore, Joel K., River Falls; For Respondent: Beranek, Angela L., Barron; Johnson-Karp, Gabe, Madison

SEARCH AND SEIZURE

Wisconsin Court of Appeals

Search and Seizure
probable cause — marijuana possession

Demarco Kristen Turman appeals from a judgment convicting him of possession of narcotic drugs. See Wis. Stat. § 961.41(3g) (am) (2011-12). Turman pled guilty after the circuit court denied his motion to suppress. We affirm. This opinion will not be published.

2013AP1838-CR State v. Turman

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

Attorneys: For Appellant: Bailey, Chris M., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Larson, Sarah K., Madison

Wisconsin Court of Appeals

Search and Seizure
reasonable suspicion

The State charged James Abbott with possession of a firearm as a felon, as a repeater. The circuit court denied Abbott’s motion to suppress the firearm, and Abbott entered a guilty plea. Abbott appeals, arguing that the court erred in denying his suppression motion. We conclude that the stop that yielded the firearm was justified by reasonable suspicion, and we therefore affirm. This opinion will not be published.

2014AP554-CR State v. Abbott

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

Attorneys: For Appellant: Marion, Colleen, Madison; For Respondent: Gansner, William L., Madison; Loebel, Karen A., Milwaukee

SENTENCING

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

Sentencing
forfeiture

The evidence was sufficient to support a finding that a defendant’s properties were purchased with drug trafficking proceeds.

“Mr. Smith contends on appeal that ‘the only evidence’ that his rental income was linked to drug proceeds was his ‘improperly-admitted proffer statements.’ We explained earlier that those proffer statements were admitted properly. Even if the statements were not admitted properly, there is sufficient evidence to establish that Mr. Smith’s rental income was not a legitimate and sufficient source for his purchase of the disputed properties. Mr. Smith does not contest that his expenditures far exceeded his modest disability income during the relevant period. He offers no explanation of how he was able to purchase so many properties — either his rental properties or the properties disputed here — on his limited disability income. It therefore was not unreasonable for the district court to conclude, even absent the proffer statements, that Mr. Smith’s finances indicated that his rental income was tainted by illicit drug proceeds. There was certainly sufficient evidence to support the district court’s finding by a preponderance of the evidence that the disputed properties were subject to forfeiture because they were obtained in part through drug proceeds.”

Affirmed.

13-1375 U.S. v. Smith

Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J., Ripple, J.

Wisconsin Court of Appeals

Sentencing
probation — domestic abuse

Millard Reno Bandy, Sr., appeals from two judgments of conviction entered after he pled guilty to three counts of violating a domestic abuse temporary restraining order contrary to Wis. Stat. §§ 813.12(3) and 968.075(1)(a). As relevant here, the circuit court sentenced Bandy to three years’ probation for each count to be served consecutively. Bandy seeks commutation of his probation to two years on the grounds that his convictions were not acts of “domestic abuse” as defined in § 968.075(1)(a), and therefore, his maximum probation exposure was only two years. He argues that pursuant to Wis. Stat. § 973.09(2m) the third year is void and his term of probation is valid only to the extent of the two year maximum. We reject his argument and affirm the three year probation maximum because we conclude that Bandy’s convictions were for acts of domestic abuse within the meaning of § 968.075(1)(a)1. and 4. This opinion will not be published.

2014AP1055-CR, 2014AP1056-CR State v. Bandy

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

Attorneys: For Appellant: Haskell, Dustin C., Milwaukee; For Respondent: Weber, Gregory M., Madison; O’Byrne, Karine E., Milwaukee

Wisconsin Court of Appeals

Sentencing
domestic violence penalty enhancers

Douglas Ray Seuell, Jr., a/k/a Douglas Ray Sevell, Jr., pro se, appeals from an order denying his motion for sentence modification. Seuell argues that sentence modification is required because the trial court erroneously applied “the penalty enhancer to the extended supervision portion of [his] sentence[s].” We conclude that the trial court did not improperly apply the domestic violence penalty enhancer to the two sentences that were imposed. Therefore, we affirm. This opinion will not be published.

2013AP2414-CR State v. Seuell

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

Attorneys: For Appellant: Seuell, Douglas Ray, Jr., pro se; For Respondent: Loebel, Karen A., Milwaukee; O’Neil, Aaron R., Madison

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

Sentencing
supervised release — drug treatment

Where the defendant is indigent, it was error for the district court to order him to pay for his own drug treatment as a condition of supervised release.

“Yet, despite Hinds’s indigence, the district court imposed the payment condition — a condition, we note, that can be imposed and reimposed up to eight times per month. And unlike in Bull, 214 F.3d at 1279, the district court here did not make this payment condition contingent on Hinds’s ability to pay. Absent this contingency, the district court’s payment condition is not only unsupported, but also inconsistent with its previous findings regarding Hinds’s indigence.”

Affirmed in part, and Vacated in part.

13-3543 U.S. v. Hinds

Appeal from the United States District Court for the Southern District of Indiana, Pratt, J., Kanne, J.