Weekly Case Digests — Jan. 26-30, 2015

Listen to this article

CIVIL

U.S. Court of Appeals For the Seventh Circuit
Civil Procedure – EAJA

An attorney seeking enhanced fees under the EAJA need only show that the requested rate is consistent with those charged in the area for comparable work.

“While the CPI suffices as proof of an increase in the cost of living, claimants must still produce satisfactory evidence that the increase in the cost of living ‘justifies’ the rate re-quested. 28 U.S.C. § 2412(d)(2)(A)(ii). So claimants must produce evidence that the rate they request is in line with those prevailing in the community for similar services by lawyers of comparable skill and experience. The affidavits submitted in this case are more than sufficient for this purpose. Indeed, a district court might find, in its discretion, a single sworn statement from a claimant’s attorney, setting forth the prevailing market rate, to be sufficient in some cases. But to avoid the possibility of a ‘windfall,’ courts may not award an inflation-adjusted rate that is higher than the prevailing market rate in the community for comparable le-gal services. See Brungardt v. Comm’r of Soc. Sec., 234 Fed. App’x 889, 891 (11th Cir. 2007) (unpublished) (per curiam) (approving district court’s decision ‘to account for the cost of living’ in its fee award, ‘but not to exceed the fair market rate’).”

Vacated and Remanded.

13-3654 Sprinkle v. Colvin

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

U.S. Court of Appeals For the Seventh Circuit
Civil Rights – Unlawful searches

Where plaintiffs alleged that officers entered the curtilage of their home without a warrant, the district court erred in dismissing their civil rights suit.

“On multiple occasions, the defendants protest that the officers were looking for large items, and that there was no need to disturb small personal items in order to search for these large items. The size of the items is entirely irrelevant, though, if the officers were in areas where they were not authorized to be when they conducted their search. Certainly, if the officers were standing on the public way or at the front door and the objects sought were in plain sight, there would be no unlawful search. But that is not what the plaintiffs alleged; they asserted that the officers entered areas of the home that they were not authorized to enter, including the curtilage and the inside of an attached garage. Both of these areas, as we noted earlier, are well within the protections of the Fourth Amendment. The defendants also fault the plaintiffs for not describing the window through which the officer peered when he told C.A.V. that he “had to” conduct a search. Neither Rule 8 nor Iqbal require that level of detail in a complaint. A fair reading of the complaint is that the officers approached the house not through the usual path of a visitor, e.g. by approaching the front door and knocking, but by driving up to the attached garage on the private driveway and walking through the curtilage before peering through a window. This is the kind of behavior for which the average citizen might call the police, not the kind of behavior one would expect from the police. See Jardines, 133 S. Ct. at 1416 (noting that to find a visitor knocking on the door is routine but to spot that same visitor exploring the front path with a metal detector before asking permission would inspire many people to call the police, because ‘the background social norms that invite a visitor to the front door do not invite him there to conduct a search.’). Most parents would want their fourteen-year-old daughters to call the police if an unknown man approached the house and stared at the teen through a window. No one needs a description of that window to know that something is terribly amiss in that behavior. The defendants also complain that there was no forced entry and nothing was seized. But of course neither of these factors are necessary to sustain a Fourth Amendment claim for an improper search.”

Reversed and Remanded.

12-3790 Vinson v. Vermilion County

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

U.S. Court of Appeals For the Seventh Circuit
Civil Rights – Qualified immunity

Where an officer made misrepresentations to keep a person detained for a mental health examination, he is not entitled to qualified immunity.

“While arguable probable cause is a relatively flexible standard, it does not bend so far as to encompass Guernsey’s actions at this early stage in the case. Recall that for mental-health seizures, the question is whether there is probable cause to believe that the subject of the seizure is a danger to

herself or others. This record does not establish as a matter of law that Guernsey, whose only indication that Bruce might commit suicide was the nowledge that someone had said Bruce was potentially suicidal, reasonably believed that he had probable cause to continue to seize her. When determining

whether arguable probable cause exists, we must take into consideration the particular circumstances facing the officer. Guernsey faced a calm and undisturbed high school student who was at a friend’s house with several other companions and whose father was present and objecting to Guernsey’s actions. Not only did Guernsey take Bruce from D.F.’s home to the hospital against both her will and that of her father, but he also made is representations on the petition for involuntary judicial admission and thus made it more likely that Bruce’s confinement would continue. On this view of the facts, Guernsey is not entitled to qualified immunity.”

Affirmed in part, and Reversed in part.

14-1352 Bruce v. Guernsey

Appeal from the United States District Court for the Central District of Illinois, Myerscough, J., Wood, J.

Wisconsin Court of Appeals
Corporations – LLCs – personal liability

APPEAL from a judgment of the circuit court for Washington County:  JAMES K. MUEHLBAUER, Judge.  Affirmed.

In this collection action, William Vander Pas, d/b/a Komp Bros. Market, appeals pro se from a judgment in favor of Harold Gabbei Wholesale Meats, Inc.  Vander Pas claimed he was not liable for the debt because he ran the business as an LLC.  We conclude sufficient evidence supported the trial court’s finding that Vander Pas was personally liable.  We affirm.

DISTRICT II; Washington County; JAMES K. MUEHLBAUER; Brown, C.J., Neubauer, P.J., Gundrum, J.

2014AP000693 Harold Gabbei Wholesale Meats Incorporated v. William Vander Pas

U.S. Court of Appeals  For the Seventh Circuit
Employment – discrimination –  retaliation

Where the employee had a lengthy history of job-related injuries, the district court properly granted summary judgment in favor of the employer on her claims that her demotion to less dangerous work was the result of discrimination and retaliation.

“The statement in the affidavit that ‘too many First Aid Visits’ are not a ‘real reason’ why a welder is demoted is hardly credible, since a high accident rate would get Jeffboat into trouble with OSHA; but in any event the affidavit does not indicate how a human resources officer would know the ‘real reason’ for demotion of a welder with injury problems. The affidavit fails also to indicate what basis the affiant had for thinking that white welders and male welders (white or black?) who made many First Aid Visits because of over-heating were not punished by being demoted, or how the affiant learned that the company’s labor relations manager was trying to fire the plaintiff in stages—did he tell the affiant that? Did she overhear him tell someone else? There is no evidence to suggest that Miller had personal knowledge of the manager’s supposed scheming.”

Affirmed.

14-2155 Ani-Deng v. Jeffboat, LLC

Appeal from the United States District Court for the Southern District of Indiana, Barker, J., Posner, J.

U.S. Supreme Court
Employment – ERISA

It was error to assume that retirement benefits in a CBA are intended to be vested rights.

The inferences applied in Yard-Man and its progeny do not represent ordinary principles of contract law. Yard-Man distorts the attempt to ascertain the intention of the parties by placing a thumb on the scale in favor of vested retiree benefits in all collective-bargaining agreements. Rather than relying on known customs and usages in a particular industry as proven by the parties, the Yard-Man court relied on its own suppositions about the intentions of parties negotiating retiree benefits. It then compounded the error by applying those suppositions indiscriminately across industries. Furthermore, the Sixth Circuit’s refusal to apply general durational clauses to provisions governing retiree benefits distorts an agreement’s text and conflicts with the principle that a written agreement is presumed to encompass the whole agreement of the parties.

733 F. 3d 589, vacated and remanded.

13-1010 M&G Polymers USA, LLC, v. Tackett

Thomas, J.; Ginsburg, J., concurring.

U.S. Court of Appeals For the Seventh Circuit
Employment – Public employment

The Social Security Administration’s goal that ALJs decide at least 500 cases per year is not actionable under the Administrative Procedure Act.

“We are mindful that the District of Columbia Circuit, in Mahoney v. Donovan, 721 F.3d 633 (D.C. Cir. 2013), went even further, ruling that any action alleged to interfere with an administrative law judge’s decisional independence is a personnel action governed exclusively by the Civil Service Re-form Act even though that Act provides no remedy for personnel actions that interfere—even that intentionally interfere—with decisional independence. That ruling, if sound, would nullify the express protection of such independence in the Administrative Procedure Act. We doubt that it’s sound but need not pursue the issue in this case. The other cases cited in Judge Ripple’s concurring opinion do not involve claims relating to the infringement of decisional independence. But we are mindful of his suggestion that administrative law judges whose decisional independence is interfered with by their superiors might have a constitutional remedy. Although the suggestion opens up a rather frightening vista of constitutional claims by administrative law judges employed by the federal government, of whom some 1400 are employed by the Social Security Administration alone, we can imagine a case in which a change in working conditions could have an unintentional effect on decisional independence so great as to create a serious issue of due process. Suppose that solely for the sake of administrative efficiency the Social Security Administration ordered that disability hearings were to last no more than 15 minutes. The quality of justice meted out by the administrative law judges would be dangerously diminished. But all that matters for the decision of the present case is that the administrative law judges’ remedy under the Administrative Procedure Act for interference with their decisional independence does not ex-tend to the incidental consequences of a bona fide production quota.

Affirmed.

14-1953 Association of Administrative Law Judges v. Colvin

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

U.S. Court of Appeals For the Seventh Circuit
International Law – Comity

Suits by Holocaust survivors against Hungarian entities for genocide were properly dismissed under principles of international comity.

“We affirm all the dismissals. First, as we held in 2012, international law does not require exhaustion of domestic remedies before plaintiffs can say that international law was violated. But principles of international comity make clear that these plaintiffs must attempt to exhaust domestic remedies before foreign courts can provide remedies for those violations. These plaintiffs have not exhausted available Hungarian remedies, and the district court did not abuse its discretion when it found that plaintiffs should not be excused from doing so. In addition, because the national bank was properly dismissed from the case against the banks, the district court properly granted Erste Bank’s motion to reconsider dismissal for forum non conveniens. Nevertheless, while the doors of United States courts are closed to these claims for now, they are not locked forever. All dismissals are without prejudice. If plaintiffs find that future attempts to pursue remedies in Hungary are frustrated unreasonably or arbitrarily, a United States court could once again hear these claims.”

Affirmed.

13-3073 & 14-1319 Fischer v. Magyar Allamvasutak Zrt.

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

Wisconsin Court of Appeals
Prisons – prison discipline

APPEAL from an order of the circuit court for Dane County:  FRANK D. REMINGTON, Judge.  Reversed and cause remanded with directions.

Walter Kuranda, Jr., pro se, appeals a circuit court order that dismissed Kuranda’s petition for certiorari review of a prison disciplinary decision.  Kuranda argues that the circuit court erred in its determination that Kuranda’s petition was untimely and that the Department of Corrections (DOC) erred in imposing restitution.  We agree that Kuranda’s petition was timely and that the restitution order does not withstand certiorari review.  We reverse the circuit court’s order and DOC’s restitution award, and direct the circuit court to remand to the hearing officer for further proceedings.

DISTRICT IV; Dane County; FRANK D. REMINGTON, Lundsten, Higginbotham and Kloppenburg, JJ.

2013AP002591 Walter J. Kuranda, Jr. v. Gary H. Hamblin

Wisconsin Supreme Court
Professional Responsibility – Revocation

Where attorney Ryan D. Lister has a lengthy history of discipline, and committed 34 violations including conversion of client funds, having engaged in an impermissible sexual relationship with a client, refusing to cooperate with the OLR, failing to keep clients reasonably informed, and breaching client confidences, revocation is appropriate discipline.

“Attorney Lister’s significant disciplinary history includes a 60-day suspension in 2010, a five-month suspension in 2007, and a court-ordered public reprimand in 1986.  In addition, in 2012 he was the subject of an enforcement proceeding for intentionally failing to pay court-ordered restitution.  Moreover, a number of aggravating factors are present.  In addition to the significant disciplinary history noted, Attorney Lister’s conduct reflects a dishonest or selfish motive; multiple offenses; intentional violation of the rules; submittal of false information to the OLR; refusal to acknowledge the wrongful nature of his conduct; and vulnerable clients.”

2013AP746-D OLR v. Lister

Per curiam.

Wisconsin Supreme Court
Professional Responsibility – Suspension

Where attorney Andrew J. Bryant committed 37 acts of misconduct, a three-year suspension is appropriate discipline.

“Turning to the sanction, we accept the parties’ stipulation that a three-year suspension is an appropriate level of discipline in light of the facts of this case.  Given the presence of prior discipline, the number of counts of misconduct, the number of clients affected by the misconduct, and the seriousness of the misconduct, a lengthy suspension is clearly required.”

2013AP312-D OLR v. Bryant

Per curiam.

Wisconsin Court of Appeals
Torts – Asbestos – statue of repose

Where the deceased’s exposure to asbestos was the result of routine maintenance rather than improvements, his estate’s personal injury claim is not barred by the builder’s statute of repose.

“Sprinkmann argues that its work at Pabst was not repairs or routine maintenance, but instead was ‘multiple installations’ of insulation over and over and because installation of insulation is an improvement to real property, it falls under the protection of the statute.  We agree that the initial installation of insulation into a building or house may be considered an improvement to real property.  However, that is not the situation that we have before us.  Peter does not claim that Donald was exposed to asbestos from the initial installation of all the insulation on the Pabst pipes.  Rather, her claim is that his injury occurred during the daily exposure when Sprinkmann’s employee performed regular maintenance and repair work to the insulation around the pipes.  This is a significant and determinative factor in this case.  As Peter explains, ‘[i]t is Sprinkmann’s act of disturbing the insulation during maintenance and repair activities and the failure to warn the plaintiff when disturbing that insulation which caused the harm in this case.’”

Reversed and Remanded.

Recommended for publication in the official reports.

2014AP923 Peter v. Sprinkmann Sons Corp.

Dist. I, Milwaukee County, Noonan, J., Cane, J.

CRIMINAL

U.S. Court of Appeals For the Seventh Circuit
Bribery – Sufficiency of the evidence

Public officials can be guilty of violating 18 U.S.C. 666, even if they did not intend to perform the favor for which they accepted money.

“They do not complain about the jury instruction on this element, which told the jury that it must find that they acted with one of the two forbidden intents: an intent to be influenced, or an intent to be rewarded. Their theory of defense—that they took the money planning to deceive Haleem—amounted to a confession of accepting payment with intent to be ‘rewarded’ for their positions. This part of §666 forbids taking gratuities as well as taking bribes. See United States v. Anderson, 517 F.3d 953, 961 (7th Cir. 2008); United States v. Ganim, 510 F.3d 134, 150 (2d Cir. 2007); United States v. Zimmerman, 509 F.3d 920, 927 (8th Cir. 2007); United States v. Agostino, 132 F.3d 1183, 1195 (7th Cir. 1997). Contra, United States v. Fernandez, 722 F.3d 1, 22–26 (1st Cir. 2013). (Defendants have not asked us to overrule Anderson and Agostino in favor of the position taken in Fernandez.) The record shows that the payments were, if not bribes, then gratuities (from defendants’ perspectives) even if Haleem would have preferred to get something for his money. The jury may well have found that defendants intended to be influenced; but if they did not, then they intended to be rewarded for the positions they held, if not for services delivered. They are guilty either way.”

Affirmed in part and Vacated in part.

14-1892 & 14-1908 U.S. v. Hawkins

Appeals from the United States District Court for the Northern District of Illinois, Tharp, J., Easterbrook, J.

Wisconsin Court of Appeals
Criminal Procedure – ineffective assistance

APPEAL from a judgment and an order of the circuit court for Winnebago County:  SCOTT C. WOLDT, Judge.  Affirmed.

Nicholas Selk appeals a judgment of conviction and an order denying postconviction relief.  Selk argues that he was entitled to an evidentiary hearing on his claim of ineffective assistance of counsel for failing to properly argue Selk’s suppression motion.  We disagree.  For the reasons set forth below, we affirm.

DISTRICT II; Winnebago County; SCOTT C. WOLDT, Blanchard, P.J., Higginbotham and Sherman, JJ.

2014AP000584-CR State v. Nicholas J. Selk

Wisconsin Court of Appeals
Criminal Procedure – ineffective assistance

APPEALS from judgments and an order of the circuit court for Dane County:  JULIE GENOVESE, Judge.  Affirmed.

Tyshaun Robinson appeals judgments of convictions for second-degree recklessly endangering safety, burglary, and armed robbery.  Robinson also appeals an order denying his postconviction motion.  He argues that his motion to withdraw his guilty plea to armed robbery on the grounds of ineffective assistance of trial counsel and coercion should have been granted and that he was sentenced on the basis of inaccurate information.  We affirm the judgments and order.

DISTRICT IV; Dane County; JULIE GENOVESE, Blanchard, P.J., Higginbotham and Sherman, JJ.

2013AP002430-CR           State v. Tyshaun D. Robinson

U.S. Court of Appeals For the Seventh Circuit
Evidence – Harmless error

Although evidence that the defendant’s co-conspirator had pleaded guilty was inadmissible, the error was harmless.

“[T]he evidence against Garten was overwhelming. Conversely, the testimony that Picache had pleaded guilty was fleeting and was not stressed by the government or even mentioned during open or closing argument. Additionally, the jury had heard from Atorrasagasti, who had also pleaded guilty, and the district court instructed the jury that Atorrasagasti ‘has pled guilty to the same crime the defendant, Kathryn Garten, is charged with committing. You may not consider Ms. Atorrasagasti’s guilty plea as evidence against Ms. Garten … you must consider that testimony with caution and great care.’ While Garten stresses that the jury did not receive a similar instruction concerning Picache’s guilty plea, a reasonable jury hearing this instruction would infer that it likewise could not use the fact of Picache’s guilty plea against Garten. Coupled with the overwhelming evidence against Garten, and the fact that mention of Picache’s guilty plea was fleeting, it did not constitute plain error, ‘that is, the conviction of an innocent person … .’ United States v. Newman, 965 F.2d 206, 213 (7th Cir. 1992).”

Affirmed.

13-3593 U.S. v. Garten

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

Wisconsin Court of Appeals
Motor Vehicles – implied consent – due process

APPEAL from an order of the circuit court for Washington County:  ANDREW T. GONRING, Judge.  Affirmed

Kyle R. Christoffersen appeals an order of the circuit court revoking his driver’s license due to his refusal to submit to an evidentiary blood or breath test following his arrest for operating a motor vehicle while intoxicated.  Christoffersen argues that the circuit court erred when it limited his cross-examination of the arresting officer.  Christoffersen further argues that the circuit court did not allow him to make an offer of proof, and that this was error as well.  Christoffersen maintains that these alleged errors combine to violate his right to due process.  The circuit court did not err in limiting cross-examination because the testimony counsel sought to elicit was unnecessary to the finding of probable cause and therefore irrelevant.  We affirm.

DISTRICT II; Washington County; ANDREW T. GONRING; NEUBAUER, P.J.

2014AP001282 State v. Kyle R. Christoffersen

Wisconsin Court of Appeals
RES – sufficiency of the evidence

APPEAL from a judgment of the circuit court for Racine County:  WAYNE J. MARIK and EUGENE A. GASIORKIEWICZ, Judges.  Affirmed.

A jury found Sean Riker guilty of five counts of physical abuse of a child, three counts of first-degree recklessly endangering safety, two counts of causing mental harm to a child, and one count each of strangulation and suffocation, misdemeanor battery, repeated sexual assault of a child, first-degree sexual assault of a child, possession of a firearm by a felon, and possession of a short-barreled rifle.  All carried a repeater penalty enhancer.  The court imposed consecutive sentences on the sixteen counts for a total sentence of 269 years.[1]  Riker contends he merits resentencing because insufficient evidence supported the jury verdicts on the three counts of reckless endangerment, two of the five counts of physical abuse of a child, and the causing-mental-harm-to-a-child and sexual-assault counts.  We disagree and affirm the judgment.

DISTRICT II; Racine County; WAYNE J. MARIK; EUGENE A. GASIORKIEWICZ; Brown, C.J., Neubauer, P.J., Gundrum, J.

2013AP002541-CR           State v. Sean A. Riker

U.S. Court of Appeals For the Seventh Circuit
Sentencing – Supervised release – conditions

A sentencing court cannot impose the standard conditions of supervised release without explanation.

“The standard conditions are not mandatory; a sentencing judge needn’t impose them, or may if he prefers impose them in modified form. A sensible alternative to the language of standard condition 9 would be: ‘the defendant shall not meet, communicate, or otherwise interact with a person whom he knows to be engaged, or planning to be engaged, in criminal activity.’”

“In addition to considering the proper wording of the conditions he imposes, a sentencing judge must (as we said) include all the conditions he is imposing in his oral sentence, must give reasons for imposing them, and must consider the propriety of imposing them in light of the sentencing factors listed in 18 U.S.C.§ 3553(a), which apply to all nonmandatory aspects of the sentence, including conditions of supervised release. United States v. Goodwin, supra, 717 F.3d at 523– 26; United States v. Monteiro, 270 F.3d 465, 472–73 (7th Cir. 2001). None of that was done in this case.”

Affirmed in part, and Vacated in part.

13-3577 U.S. v. McMillian

Appeal from the United States District Court for the Eastern District of Wisconsin, Clevert, J., Posner, J.

U.S. Court of Appeals For the Seventh Circuit
Sentencing – SORNA

Where the judgment of conviction does not state that the defendant must register as a sex offender under SORNA, the defendant cannot appeal the district court’s oral statements on the issue.

“We appreciate that Taylor needs to know what his legal obligations are after his probation ends. Perhaps for this reason, SORNA requires that ‘[a]n appropriate official’ notify sex offenders of the duty to register ‘shortly before’ their release from custody, or if the offender is not in custody, ‘immediately after the sentencing of the sex offender[] for the offense giving rise to the duty to register.’ 42 U.S.C. § 16917(a). The statutory language contemplates notice from the Executive Branch, not the judiciary. The Department of Justice takes the position that Taylor must register under SORNA; that much is clear from the government’s argument at sentencing and on appeal. Taylor disputes the government’s position, of course, which is why he joined the prosecutor in asking the district court to decide the question. The federal courts can issue declaratory judgments to resolve concrete disputes, of which this is one. But the district court did not issue a declaratory judgment resolving the parties’ dispute about whether SORNA applies.”

“In short, because the judgment does not incorporate the judge’s SORNA ruling and the government has not filed a cross-appeal contesting that omission, there is nothing for us to review. See Azeez v. Fairman, 795 F.2d 1296, 1297 (7th Cir. 1986).”

Affirmed.

12-2916 U.S. v. Taylor

Appeal from the United States District Court for the Northern District of Indiana, Lozano, J., Sykes, J.

Wisconsin Court of Appeals
Sentencing – discretion

APPEAL from a judgment and an order of the circuit court for Racine County:  TIMOTHY D. BOYLE, Judge.  Affirmed.

Kerry L. Chase appeals his judgment of conviction for second-degree sexual assault of a child under sixteen, Wis. Stat. § 948.02(2) (2011-12),[1] for the sexual assault of his teenage daughter, whom he had repeatedly sexually assaulted since she was an infant.  Chase also appeals the court’s order denying his request for modification of his sentence.  We affirm the judgment and the order.

DISTRICT II; Racine County; TIMOTHY D. BOYLE; Neubauer, P.J., Reilly, Gundrum, JJ.

2014AP001235-CR           State v. Kerry L. Chase

U.S. Court of Appeals For the Seventh Circuit
Sentencing – Leader enhancement

The district court property enhanced the defendant’s sentence for being a leader or organizer.

“Haywood’s contention that he wasn’t an organizer or leader is preposterous. He admitted processing the applications for the 65 fraudulent mortgage loans listed in Exhibit A to the plea agreement. He told Young what phony documents he wanted and what specific information to include in those documents. He recruited Persaud and told her what valuations to use in her inflated appraisals. He instructed DeAngelo McMahan to bring particular documents to a loan closing and to fax him documents to prepare loans. And he recruited and paid at least five ‘bird dogs’ to find ‘buyers’ for fraudulent loans. This was more than enough for the court to conclude that Haywood ‘had direction and control during the pertinent transactions over what the others did.’”

Affirmed.

13-3815 U.S. v. Haywood

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

Wisconsin Supreme Court
Sentencing – Improper factors – reliance

Although it was error to attach statements that were made to the defendant’s probation officer to the PSI, the defendant failed to show that the circuit court actually relied on the statements in imposing sentence.

“Our conclusion, based on our review of the entire sentencing transcript, is supported by the circuit court’s order denying Alexander’s motion for resentencing.  The circuit court explained that ‘the court and the parties were aware of the bigger picture of what had been going on, and the defendant’s statement to his agent did not reveal anything not already known to the court.’ The court noted alternative sources for the information included in Alexander’s compelled statements.  First, the court noted that Alexander admitted to the Silver Mills forgeries when he entered his guilty plea.  Second, the court explained that the body of the PSI referred to an amount of loss suffered by U.S. Bank greater than the sum of the Silver Mills checks that were the basis for Alexander’s conviction.  In that regard, the court referred to a U.S. Bank senior fraud investigator’s statement in the Crime Victim Impact Statement section of the PSI.  The investigator placed the amount of loss from ‘Danny and his accomplices’ at $12,000, while Alexander was convicted of check forgeries totaling $3,210.32.  The circuit court explained that given the additional sources in the PSI indicating Alexander’s potential involvement in other forgeries, the attachment of Alexander’s compelled statements that also spoke of additional forgeries, did not affect the sentence it imposed.  The court termed the attachment, ‘harmless at best.’ Third, the circuit court’s order denying Alexander’s motion for resentencing reiterated that the court did not actually rely on Alexander’s compelled statements in sentencing him.”

Reversed.

2013AP843-CR State v. Alexander

Roggensack, J.