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Weekly Case Digests — Nov. 23-25, 2015

By: WISCONSIN LAW JOURNAL STAFF//November 25, 2015//

Weekly Case Digests — Nov. 23-25, 2015

By: WISCONSIN LAW JOURNAL STAFF//November 25, 2015//

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Wisconsin Court of Appeals – Criminal

Criminal

WI Court of Appeals: District I

Officials: Higginbotham, Sherman and Blanchard, JJ.

Ineffective Assistance of Counsel

2014AP1943 State of Wisconsin v. Allen Dell Vaughn

Allen Vaughn appeals from an order that denied, without a hearing, his motion for a new trial on a conviction for attempted first- degree intentional homicide. Vaughn contends that counsel provided ineffective assistance by not pursuing at trial a claim of unnecessary defensive force after having previously raised a claim of perfect or imperfect self-defense in a motion in limine. For the reasons explained below, we conclude that counsel had an insufficient basis to meet the burden of production on a claim of unnecessary defensive force, and therefore acted within professional norms in abandoning the claim at trial.

Affirmed. Per Curiam.

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Criminal

WI Court of Appeals: District IV

Officials: Kloppenburg, P.J., Sherman and Blanchard, JJ.

Right to New Trial  – Ineffective Assistance of Counsel

2014AP2813-CR State of Wisconsin v. Jeffrey P. Lepsch

Jeffrey Lepsch appeals a judgment of conviction and an order denying postconviction relief. Lepsch contends that he is entitled to a new trial because: (1) the administration of the oath to the jury venire by the clerk of the circuit court in the jury assembly room violated Lepsch’s rights to be present at critical stages of his trial, to a public trial, and to receive a trial by a jury sworn to be impartial; (2) Lepsch was denied his right to an impartial jury because the jury panel included biased jurors; and (3) Lepsch was denied due process when the circuit court failed to provide Lepsch with the proper number of peremptory strikes and failed to remove biased jurors for cause. Lepsch also contends that his trial counsel was ineffective by failing to correct those errors at trial. For the reasons set forth below, we reject these contentions. We affirm.

Affirmed. Per Curiam

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Criminal

WI Court of Appeals: District I

Officials: Higginbotham, Sherman and Blanchard, JJ.

Ineffective Assistance of Counsel

2015AP708-CR State of Wisconsin v. Antyon R. Turner

Antyon Turner appeals a judgment of conviction and orders denying his motions for postconviction relief. He raises several claims of ineffective assistance of counsel. We conclude that an evidentiary hearing was required on one of those claims. Therefore, we reverse the order denying the supplemental postconviction motion, and remand for a hearing.

Reversed and Remanded. Per Curiam

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Criminal

WI Court of Appeals: District IV

Officials:LUNDSTEN, J.

Termination of Parental Rights

2015AP1800 Dane County DHS v. J.D.

J.D. appeals the circuit court’s order terminating her parental rights to D.O. based on the parental unfitness ground of “continuing denial of periods of physical placement or visitation.” See WIS. STAT. § 48.415(4). J.D. argues that this statutory ground is unconstitutional as applied to her. I reject J.D.’s constitutional challenge, and affirm.

Affirmed.

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Wisconsin Court of Appeals – Civil

Civil

WI Court of Appeals: District IV

Officials: Lundsten, Sherman and Blanchard, JJ.

Insurance – Dismissal

2013AP2344 Donald Martin v. Midwest Medical Insurance Company

Donald Martin, Bobbie Jo Martin, and two minors appeal a judgment dismissing their claims against Dr. Thomas Stauss, the Advanced Pain Management (APM) practice that he was part of, and their insurers. We affirm.

Affirmed. Per Curiam

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Civil

WI Court of Appeals: District IV

Officials: Kloppenburg, P.J., Higginbotham and Sherman, JJ.

Property – Easements

2014AP2278; 2014AP2279 Ricardo M. Garza v. American Transmission Co.

Ricardo and Julie Garza appeal summary judgments in favor of American Transmission Company, LLC (ATC). ATC brought a declaratory judgment action against the Garzas seeking declarations that ATC has an easement to clear vegetation within forty feet of the center line of a transmission line that was installed in 1995, and that the Garzas are enjoined from interfering with ATC’s removal of vegetation that is located on that portion of the Garzas’ property that lies within the forty-foot easement. The circuit court agreed with ATC that it has an easement to remove the vegetation on the Garzas’ property and entered summary judgments in favor of ATC. For the reasons discussed below, we reverse and remand for further proceedings.

Reversed and Remanded. Per Curiam

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Civil

WI Court of Appeals: District IV

Officials: Lundsten, Higginbotham and Sherman, JJ.

Court Error – Summary Judgment

2015AP285 Randy J. Keefe v. Antoinette P. Schaffrath

Randy Keefe appeals the circuit court’s order dismissing his tort claim for malicious prosecution against his now-ex-wife, Antoinette Schaffrath, and a man Schaffrath knew named Duane McClyman. Keefe, who is pro se, argues that the circuit court erred in granting summary judgment in several respects. Broadly speaking, Keefe’s brief presents a single issue: whether summary judgment against Keefe was improper because there exists a genuine issue of material fact relating to probable cause for the underlying prosecution. Because Keefe fails to point to evidence showing such a dispute, we affirm.

Affirmed. Per Curiam

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Wisconsin Supreme Court

WI Supreme Court

Disciplinary Proceedings

2015AP680-D Office of Lawyer Regulation v. Amoun Vang Sayoavong

Attorney with numerous previous infractions fails to have valid address and fails to respond to OLR investigation;  has license suspended.

The clients filed a grievance with the OLR in May 2013. The OLR wrote to Attorney Sayaovong at several addresses via regular and certified mail, requesting certain information and a response to the grievance. The certified and regular mail letters were returned. Attorney Sayaovong never responded. In October 2013, the OLR made multiple attempts to have Attorney Sayaovong personally served. All attempts were unsuccessful. On November 5, 2013, the OLR emailed Attorney Sayaovong at his last known email address, notifying him of the clients’ grievance and requesting a response. Attorney Sayaovong did not respond.

License Suspended for 6 months

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7th Circuit Court of Appeals – Civil

Civil

7th Circuit Court of Appeals

Officials: BAUER, KANNE, and ROVNER, Circuit Judges.

Disclosure of Information

No. 15-1083 Cathleen Silha v. ACT, Inc.

Appellants lack standing to sue in case stemming from test scores allegedly being sold to educational organizations.

“Additionally, Plaintiffs have pled that Defendants profit- ed from the sale of their PII, but they did not establish how this profiteering deprived them of the economic value of this information. Plaintiffs’ only claim of economic value associated with their PII is a portion of the value created by Defendants after Plaintiffs authorized the sending or sharing of their information to educational organizations.In other words, Plaintiffs have claimed injury based solely on a gain to Defendants and without alleging a loss to themselves. Thus, we hold Plaintiffs’ well-pleaded allegations do not establish an injury in fact and consequently, do not plausibly support a claim of subject matter jurisdiction.”

Affirmed

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Civil

7th Circuit Court of Appeals

Officials: EASTERBROOK, MANION, and WILLIAMS, Circuit Judges.

Creditor/Debtor – Debt Collection

14-1329 Gregory Leeb v. Nationwide Credit Corporation

Debt collector failure to cease collection activities after debt disputed by appellant amounted to violation of FDCPA.

“To be sure, Leeb did not believe that he owed the debt. But that does not strip him of § 1692g(b)’s protection. To the contrary, § 1692g(b) specifically protects debtors like Leeb, who could be pressured by persistent collection efforts to pay debts that are not actually owed. It is also true that Nationwide sent its letter in response to Leeb’s demand for an acknowledgement of his dispute. But Leeb did not demand a letter “from a debt collector attempting to collect a debt,” stating his “balance” and instructing him to send payment. We conclude that, when the content and context are analyzed objectively, Nationwide’s January 5 letter was an at- tempt to collect a debt, so Nationwide failed to “cease collection,” thereby violating § 1692g(b).”

Affirmed.

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7th Circuit Court of Appeals – Criminal

Criminal

7th Circuit Court of Appeals

Officials: POSNER, SYKES, and HAMILTON, Circuit Judges.

Sufficiency of Evidence – Writ of Habeas Corpus

142320 Vernard Crockett v. Kim Butler

Appellant claims denied for default.

“Reversal of the attempted armed robbery conviction was a needed foundation for the Jackson challenge to the murder conviction, but the Illinois court did not act unfairly by find- ing that Crockett still could have raised both challenges in the same appeal. Parties frequently raise contingent arguments simultaneously. In fact, Crockett actually raised a different argument in his first appeal that, like his new Jackson challenge, hinged on a favorable outcome to his corpus delicti challenge to his attempted armed robbery conviction. He argued—successfully—that if the appellate court reversed his attempted armed robbery conviction, it should also remand the case for re-sentencing on the remaining murder conviction to ensure the improper robbery conviction did not influence the original sentence. There is no reason he could not have done the same with the contingent Jackson challenge he raised in the second appeal. The Illinois Appellate Court’s application of the First Appeal Rule to his case therefore was not “unexpected” or “freakish.” As an adequate and independent state law ground for the court’s decision, it bars federal review of the merits of Crockett’s Jackson challenge.”

Affirmed

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Criminal

7th Circuit Court of Appeals

Officials: POSNER, MANION, and HAMILTON, Circuit Judges.

Pleas & Sentencing – Court Error

14-3135 United States of America v. Jason Austin

The Court did not err by relying on key witness testimony for appellant sentencing.

“There is no dispute that the Kedzie–Ohio organization involved more than five persons. And there is ample evidence that Austin was the leader of the organization under § 3B1.1(a). Numerous co‐conspirators identified Austin in their plea agreements, statements to police, and testimony as maintaining control of the organization. The judge specifically determined this testimony to be credible. Further, Austin received a larger share of the drug profits than any other member of the organization. He used threats of violence against competitors and rivals in the drug‐trafficking business to defend the operation. He had decision‐making authority over the organization, determining the operation’s direction on strategy and marketing. In the face of such substantial evidence, Austin’s protests that Jeffrey Scott’s testimony is unreliable fall far short of showing plain error.

In the absence of some compelling evidence showing decisively that the aggravating role enhancement was wrong, this plain‐error challenge is particularly weak. Without an objection from Austin on the issue, the government had no reason to waste the court’s time building an even more ex‐ tensive record on the issue. A defendant cannot show plain error by merely pointing to possible gaps in evidence on an issue that was not disputed in the trial court.

Affirmed

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