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Weekly Case Digests — March 6-10, 2017

By: WISCONSIN LAW JOURNAL STAFF//March 10, 2017//

Weekly Case Digests — March 6-10, 2017

By: WISCONSIN LAW JOURNAL STAFF//March 10, 2017//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. Martez Dickson

Case No.: 16-1039

Officials: EASTERBROOK, KANNE, and HAMILTON, Circuit Judges.

Focus: Motion to Suppress

Martez Dickson appeals his conviction for being a felon in possession of a gun. 18 U.S.C. § 922(g)(1). He argues that the district court erred by denying his motion to suppress evidence and by imposing vague conditions of supervised release. We find no error in the court’s evidentiary ruling but agree with Dickson that two of his conditions of supervision are problematic. Consequently, we affirm in part, vacate in part, and remand for a limited resentencing hearing.

Affirmed in part

Vacated and remanded in part

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7th Circuit Court of Appeals

Case Name: United States of America v. Rakesh Wahi

Case No.: 15-2094

Officials: BAUER, FLAUM, and SYKES, Circuit Judges

Focus: Expungement

Circuit precedent holds that a district court has inherent authority to reopen a closed criminal case to consider a request to expunge the judicial record based on an equitable balancing test that weighs the public and private interests at stake. See United States v. Flowers, 389 F.3d 737, 739 (7th Cir. 2004); United States v. Janik, 10 F.3d 470, 472 (7th Cir. 1993). We’re asked to decide whether this precedent is sound in light of Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375 (1994). Kokkonen clarified that ancillary jurisdiction exists for two limited purposes: (1) to permit claims that are factually interdependent to be resolved in a single proceeding; and (2) to enable the court to “manage its proceedings, vindicate its authority, and effectuate its decrees.” Id. at 380. Ancillary jurisdiction is the formal name for the inherent power recognized in Flowers and Janik. But a petition for equitable expungement satisfies neither of Kokkonen’s criteria for the assertion of ancillary jurisdiction. Because Flowers and Janik cannot be reconciled with Kokkonen, they are overruled. This holding brings our circuit into conformity with a growing appellate consensus: Every circuit that has specifically addressed this question in light of Kokkonen has held that the district court lacks ancillary jurisdiction to hear requests for equitable expungement. Doe v. United States, 833 F.3d 192, 199 (2d Cir. 2016); United States v. Field, 756 F.3d 911, 916 (6th Cir. 2014); United States v. Coloian, 480 F.3d 47, 52 (1st Cir. 2007); United States v. Meyer, 439 F.3d 855, 859–60 (8th Cir. 2006); United States v. Dunegan, 251 F.3d 477, 479 (3d Cir. 2001); United States v. Sumner, 226 F.3d 1005, 1014 (9th Cir. 2000). These decisions recognize that expungement authority is not inherent but instead must be grounded in a jurisdictional source found in the Constitution or statutes. Here, however, the district judge was bound by existing circuit precedent. She acknowledged the force of Kokkonen but nonetheless took jurisdiction over Rakesh Wahi’s expungement petition, weighed the equities under the balancing test approved in Flowers and Janik, and concluded that his circumstances did not warrant expungement. We vacate that decision and remand with instructions to dismiss the petition for lack of jurisdiction.

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: Billy Cannon v. Dean Newport

Case No.: 16-1339; 16-3216

Officials: WOOD, Chief Judge, and POSNER and HAMILTON, Circuit Judges

Focus: Prison Litigation Reform Act – 8th Amendment Violation

Billy Cannon appeals the dismissal of two civil rights complaints, see 42 U.S.C. § 1983, that accuse Milwaukee police, prosecutors, and judges of having violated his constitutional rights during a series of investigations and prosecutions.

“Because all his claims are barred, he has incurred four strikes under the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), one for each complaint and one for each appeal. He therefore is no longer permitted to file a civil action or appeal in any federal court without prepaying all fees, un‐ less he is in imminent danger of serious injury”

Affirmed

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WI Court of Appeals

WI Court of Appeals – District III

Case Name: State of Wisconsin v. William K. McNew

Case No.: 2015AP2248-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Sentence Modification

William McNew, pro se, appeals an order denying his motion for sentence modification. Contrary to the circuit court’s conclusion, McNew’s motion was timely filed. However, we conclude he is not entitled to relief because none of the information he presents on appeal constitutes a “new factor” warranting sentence modification. Accordingly, we affirm the circuit court’s order, albeit on different grounds.

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WI Court of Appeals – District III

Case Name: Carol Wilmet et al v. Liberty Mutual Insurance Company et al

Case No.: 2015AP2259

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Recreational Immunity

Carol and Gerald Wilmet appeal an order dismissing their claims against the City of De Pere and its insurer as being barred by the recreational immunity statute, WIS. STAT. § 895.52 (2015-16). The sole issue on appeal is whether that statute confers immunity against the claims of a person who is injured while undisputedly on the property to supervise a child engaged in “recreational activity.” Like the circuit court, we conclude supervision of a child engaged in a recreational activity falls within the statute’s ambit. Supervision, by definition, involves overseeing and directing another’s performance of an activity, and it is similar in meaning to “practice” and “instruction”—two activities that are expressly within § 895.52’s scope. Accordingly, we hold the City is entitled to immunity, and we affirm

Recommended for publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Dwayne T. Freeman

Case No.: 2016AP232-CR

Officials: Brennan P.J., Kessler and Brash, JJ.

Focus: Ineffective Assistance of Counsel

Dwayne T. Freeman appeals from a judgment of conviction, following a jury trial, for armed robbery as party to the crime and as a repeater, burglary with use of a dangerous weapon as party to the crime, and possession of a firearm by a felon. See WIS. STAT. §§ 943.32(2), 943.10(1m)(a), 941.29(2)(a), 939.05, 939.62(1)(c) & 939.63(1)(b) (2013-14). He also appeals from the order denying his postconviction motion. Because the trial court properly excluded the testimony of one of Freeman’s witnesses and the postconviction court properly denied Freeman’s ineffective assistance of counsel claims without holding a hearing, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jeramie Joseph Mason

Case No.: 2016AP637-CR

Officials: Brennan, P.J., Kessler and Brash, JJ.

Focus: Plea Withdrawal

Jeramie Joseph Mason appeals from an amended judgment of conviction for one count of possession of heroin with intent to deliver (more than fifty grams) and one count of keeping a drug trafficking place, both as a second and subsequent offense, contrary to WIS. STAT. §§ 961.41(1m)(d)4., 961.42(1), and 961.48(1)(b) (2013-14). Mason also appeals from an order partially denying his motion for postconviction relief. Mason argues that he should be allowed to withdraw his guilty pleas because his trial counsel provided ineffective assistance by “advising Mason that the trial court would have to accept Mason’s story regarding the drugs being for personal use.” (Bolding and some capitalization omitted.) Mason argues in the alternative that his sentence should be modified because he believes the trial court relied on an improper factor— Mason’s race—at sentencing. We affirm.

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WI Court of Appeals – District III

Case Name: Marathon County v. R.O.

Case No.: 2016AP1898-FT

Officials: Hruz, J.

Focus: CH. 51 Commitment

R.O. appeals an order for involuntary WIS. STAT. ch. 51 commitment. She argues Marathon County failed to present sufficient evidence under WIS. STAT. § 51.20(1)(a)2. showing that she was a danger to herself. We disagree and affirm

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Timothy T. Murry

Case No.: 2015AP1745

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Harmless Error

Timothy Murry appeals from an order denying his WIS. STAT. § 974.06 (2015-16) motion seeking postconviction relief. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Daniel J.H. Bartelt

Case No.: 2015AP2506

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Motion to Suppress

Daniel J.H. Bartelt was convicted of the firstdegree intentional homicide of Jessie Blodgett upon a jury verdict and first-degree recklessly endangering safety of M.R. upon Bartelt’s plea of guilty. During the course of the investigations, detectives from the Washington County Sheriff’s

Office interviewed Bartelt and he implicated himself in the attack of M.R. Following these oral admissions, the detectives asked if Bartelt would make a written statement, at which point he asked if he should or can talk to a lawyer, and, when told that was an option, he indicated that he preferred that. The detectives left the interview room and a few minutes later placed Bartelt under arrest. The following day, detectives from the City of Hartford met with Bartelt to question him about Blodgett’s death. After Bartelt was advised of his Miranda rights, he waived them and stated that he was at Woodlawn Union Park on the morning of Blodgett’s murder. The detectives then went to Woodlawn Union Park and uncovered evidence connecting Bartelt to Blodgett’s murder. The circuit court denied Bartelt’s motion to suppress the statements he made and the evidence that resulted from those statements, concluding that Bartelt was not in custody at the time he asked about counsel. Because Bartelt asked about counsel before he was in custody, the detectives from the City of Hartford were not prohibited from interviewing Bartelt. Bartelt now challenges the circuit court’s determination of his motion to suppress. We affirm.

Recommended for publication

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WI Court of Appeals – District II

Case Name: J.T. v. E.T., & K.T.

Case No.: 2016AP585

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Petition to Appoint Guardian

J.T. (Jennifer) appeals an order dismissing her petition to appoint a permanent guardian of the person and estate for her eighty eight-year-old mother, E.T. Jennifer contends the trial court improperly dismissed the petition because E.T. executed conflicting powers of attorney (POAs) for health care and finances; should have revoked or significantly curtailed the POAs that named as agents two other of E.T.’s adult children, K.T. (Kenneth) and R.V. (Rebecca); and failed to recognize that appointing a guardian is in E.T.’s best interest. We disagree and affirm the order.

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WI Court of Appeals – District II

Case Name: City of Waukesha v. Derek R. Pike

Case No.: 2016AP1720

Officials: Gundrum, J.

Focus: Motion to Suppress

Derek Pike appeals from an order of the circuit court finding he improperly refused to submit to a chemical test. He argues the circuit court erred in denying a motion to suppress evidence he filed in relation to the refusal. We disagree and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Michael James Nichols

Case No.: 2015AP947-CR; 2015AP948-CR; 2015AP949-CR

Officials: Higginbotham, Reilly and Gundrum, JJ.

Focus: Ineffective Assistance of Counsel – Sentencing

Michael Nichols was charged with felony possession of a narcotic, heroin, stemming from a search of a motor vehicle in which Nichols was a passenger. He was also charged in two separate cases with felony bail jumping and failure to report to jail. The three cases were consolidated in the circuit court for plea and sentencing purposes and were also consolidated on appeal. Nichols entered guilty pleas to the felony possession of heroin charge in 2007, and guilty pleas to felony bail jumping and failure to report to jail at a separate hearing in 2012. Nichols seeks to withdraw his guilty plea only to the felony possession of heroin charge for a “fair and just reason” because his initial defense counsel, Joshua Klaff, provided ineffective assistance of counsel in failing to file a motion to suppress evidence, specifically the heroin. He also seeks resentencing on the felony bail jumping charge and the failure to report to jail charge by a different court and with a different prosecutor because his due process rights were violated at the sentencing hearing. For the reasons that follow, we conclude that Nichols has not demonstrated that the circuit court erroneously exercised its discretion in denying Nichols’ postconviction motion to withdraw his guilty plea to the heroin charge nor has he demonstrated a right to resentencing on the felony bail jumping and failure to report charges. We affirm

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WI Court of Appeals – District III

Case Name: Audrey M. Haas v. Eric F. Haas

Case No.: 2016AP182

Officials: Lundsten, Sherman, and Blanchard, JJ.

Focus: Divorce – Division of Property

Eric Haas appeals a judgment of divorce, arguing that the division of marital property that the circuit court ordered was based on erroneous legal conclusions, unfairly skewing the results in favor of Audrey Haas. Eric argues that the circuit court: (1) erred in classifying as non-divisible property a parcel of farmland that was originally gifted to Audrey, but which Eric argued had become commingled with the divisible assets; (2) erred in awarding solely to Audrey rental income and royalty payments generated by the gifted parcel; (3) erred in concluding that certain personal property was not subject to division; and (4) erroneously exercised its discretion in declining to sufficiently credit Eric for what he paid on a mortgage and toward property taxes and what he should not have to pay toward debt incurred on credit cards in Audrey’s possession that increased the marital debt. We affirm on the first, third, and fourth issues: the circuit court’s decisions regarding the division of the portion of the gifted parcel remaining after part of it was sold, the division of the personal property, and the division of the marital debt. However, we modify the circuit court’s decision with respect to the treatment of both rental income and royalty payments generated by the gifted parcel.

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