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Weekly Case Digests — March 20-24, 2017

By: WISCONSIN LAW JOURNAL STAFF//March 24, 2017//

Weekly Case Digests — March 20-24, 2017

By: WISCONSIN LAW JOURNAL STAFF//March 24, 2017//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Randy Joseph Netzer v. Office of Lawyer Regulation et al

Case No.: 16-3236; 16-3713

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

Focus: Bankruptcy

Randy Netzer, a debtor in bankruptcy, asked the court to discharge a debt to Wisconsin’s Office of Lawyer Regulation. Bankruptcy Judge Furay concluded in this adversary proceeding that the approximately $9,200 the Supreme Court of Wisconsin imposed as costs in a disciplinary proceeding against a member of the state’s bar is a “fine, penalty, or forfeiture” under 11 U.S.C.

  • 523(a)(7) and therefore is not dischargeable. 545 B.R. 254 (Bankr. W.D. Wis. 2016). 016, and Netzer had 14 days to appeal. Fed. R. Bankr. P. 8002(a)(1). He took 41, filing a notice on March 15. He asked the district judge to excuse his tardiness, contending that until a few days earlier he had not known of the bankruptcy court’s decision. But the district court dismissed the appeal as untimely. 2016 U.S. Dist. LEXIS 84260 (W.D. Wis. June 29, 2016), reconsideration denied, 2016 U.S. Dist. LEXIS 129476 (Sept. 22, 2016). The judge stated that he lacks authority to extend the time on equitable grounds, because the 14-day period is jurisdictional.

Affirmed

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7th Circuit Court of Appeals

Case Name: Estate of William J. Burford v. Accounting Practice Sales, Inc. et al

Case No.: 16-1871

Officials: BAUER, SYKES, and HAMILTON, Circuit Judges

Focus: Termination of Contract – New Trial

Defendant Accounting Practice Sales (APS) terminated its brokerage contract with William Burford after he failed, in his exclusive territory for APS, to meet his minimum yearly sales volume for four consecutive years. Burford sued. APS defended on the grounds that Burford failed to meet his sales requirement and that his contract was terminable at will. The case was tried after an earlier appeal in the case, and the jury ruled in favor of APS. While this appeal by Burford was pending, he passed away. His estate has carried on the appeal, arguing that the district court erred by permitting APS to defend on the basis of Burford’s failure to meet his sales volume requirement, by refusing to admit an exhibit, and by refusing to order a new trial on the theory that the jury verdict was contrary to the weight of the evidence as to whether APS waived its right to terminate the contract. None of these arguments warrants a new trial. We affirm the judgment of the district court in favor of APS.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Antwon D. Jenkins

Case No.: 15-3068

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

Focus: Motion to Suppress – Sentencing

Appellant sentence was not over broad or an abuse of discretion.

“As discussed above, the court clearly identified the § 3553(a) factors that it believed warranted the imposition of a consecutive sentence: Jenkins’ “substantial” criminal history; the seriousness of the offense; the need for just punishment; and to promote respect for the law. The court remarked that Jenkins “thumbs his nose at the rules” and believes that “the rules and laws don’t apply to him.” As a result, the court believed that a consecutive rather than concurrent sentence

was most appropriate. We have held that “undoubtedly a sentencing court enjoys broad discretion in deciding whether to run concurrent or consecutive terms.” United States v. Bour, 804 F.3d 880, 885 (7th Cir. 2015) (citation and quotation marks omitted). We do not find Jenkins’ sentence to be an abuse of that broad discretion. Consequently, Jenkins’ sentence is substantively reasonable.”

Affirmed

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7th Circuit Court of Appeals

Case Name: Michael Shamrock et al v. Commissioner of Internal Revenue

Case No.: 16-3811

Officials: POSNER and KANNE, Circuit Judges.

Focus: Unauthorized Practice of Law – Tax Assessment

After the Commissioner of Internal Revenue assessed tax deficiencies and penalties against Michael Shamrock and his wife Victoria Bigg, the couple filed a pro se petition in the Tax Court for review of the Commissioner’s actions. Though not represented by a lawyer eligible to practice at this time before the Tax Court, the couple was assisted in its Tax Court proceeding by one Grant Niehus, who was and is a lawyer, but at the time was not eligible to practice in Illinois

On the basis of Niehus’s advice, the couple stipulated that only half of the tax relief they sought was appropriate. But discovering that Niehus wasn’t a member of the Illinois bar, they asked the court to set aside the stipulation. The court refused and entered judgment against the couple. They appealed, and we reversed and remanded because Niehus had indeed not been authorized to represent them, and we were concerned that he might not have been competent to advise them. We criticized the Tax Court for enforcing the stipulation without even considering Niehus’s deceit, and vacated the court’s opinion. But on remand (with the couple now represented by a CPA, Sheldon Drobny, who was authorized to practice before the Tax Court), the court after a hearing ruled in a 99-page opinion that the couple had not been prejudiced by Niehus’s ineligibility to practice before it—that the advice he had given them had been valid—and so the court again dismissed the taxpayers’ suit, precipitating this second appeal to us.

Affirmed

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7th Circuit Court of Appeals

Case Name: Christopher Colbert et al v. City of Chicago, et al

Case No.: 16-1362

Officials: BAUER, FLAUM, and HAMILTON, Circuit Judges.

Focus: 4th Amendment – Malicious Prosecution

Plaintiffs‐appellants Christopher Colbert and Jai Crutcher were arrested after a search of their apartment, in which police officers and parole agents found an unregistered firearm and ammunition. After Colbert’s and Crutcher’s acquittals and dismissal of the gun‐possession charges, plaintiffs‐appellants brought malicious‐prosecution, Fourth Amendment, and false‐arrest claims against the officers and the City of Chicago. The district court granted summary judgment in defendants‐appellees’ favor. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Norvell Moore

Case No.: 16-1991

Officials: POSNER, FLAUM, and ROVNER, Circuit Judges.

Focus: Sentencing

Norvell Moore is before us for the third time, challenging the sentence he received following a retrial on two of the three offenses with which he was charged in connection with a 2010 carjacking. He was acquitted of both of those offenses, and then re-sentenced on a felon-in-possession conviction (see 18 U.S.C. § 922(g)(1)) that we affirmed in a prior appeal. See United States v. Moore, 763 F.3d 900, 914 (7th Cir. 2014) (“Moore I”). Unhappily for Moore, the district judge imposed the same sentence—240 months—that he had been given after the first trial, when he was convicted of both the felon-in-possession charge and a second weapons charge. Moore contends that the sentence is flawed for two reasons. First, he argues that because he was originally sentenced to a term of 120 months on the felon-in-possession conviction (to be served consecutively with an identical term on the companion firearm conviction), the district judge was obliged to impose the same term on that charge when he was re-sentenced. Second, although it is now clear that, as an armed career criminal, he was and is subject to a minimum term of 180 months on the felon-in-possession charge, the government waived any reliance on that enhanced minimum term by not pursuing it when he was originally sentenced. Beyond these two arguments, Moore pursuesno challenge to the substantive reasonableness of the sentence imposed. We find neither of the arguments he does make to be meritorious and affirm the sentence.

Affirmed

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7th Circuit Court of Appeals

Case Name: McKinley Kelly v. Richard Brown

Case No.: 17-1244

Officials: WOOD, Chief Judge, POSNER, and MANION, Circuit Judges.

Focus: Sentencing

McKinley Kelly has filed an application pursuant to 28 U.S.C. § 2244(b)(3), seeking authorization to file a second or successive petition for a writ of habeas corpus under § 2254. Kelly is serving a 110‐year sentence (two consecutive terms of 55 years) for two murders he committed when he was 16 years old. He will first be eligible for parole on February 1, 2050, when he will be 70 years old. Kelly wants to challenge his sentence under Miller v. Alabama, 132 S. Ct. 2455 (2012) (mandatory life sentences for juvenile offenders is unconstitutional), which was made retroactive by Montgomery v. Louisiana, 136 S. Ct. 718 (2016). Miller applies not just to sentences of natural life, but also to sentences so long that, although set out as a term of years, they are in reality a life sentence. McKinley v. Butler, 809 F.3d 908 (7th Cir. 2016).

Because Kelly stated a possible claim to relief under Mil‐ ler, we invited the State to respond, which it has done. It argues that Kelly cannot state a claim to relief under Miller because his sentencing judge was afforded significant discretion by the Indiana Code to fashion an appropriate sentence and, in fact, considered Kelly’s age at the time of the offense in mitigation.   In resolving Kelly’s direct appeal, the Supreme Court of Indiana explained that IC § 35‐50‐2‐3 set a presumptive sentence of 55 years for murder and allowed a sentencing court to increase or decrease the presumptive sentence by no more than ten years for special circumstances. The court also was allowed to decide whether sentences for multiple convictions should run concurrently or consecutively. IC § 35‐38‐1‐7.1. Kelly v. State, 719 N.E. 2d 391, 394‐95 (Ind. 1999). In other words, Kelly’s sentence could have been as low as 45 years (55 minus 10 for each count, with the two sentences running concurrently) or as high as 130 years (55 plus 10 for each count, with the two sentences running consecutively).

Petition Denied

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7th Circuit Court of Appeals

Case Name: Jason Ostby et al v. Manhattan School District

Case No.: 16-1901

Officials: EASTERBROOK and ROVNER, Circuit Judges, and SHADID, District Judge

Focus: Court Error – Individuals With Disabilities Education Act

Jason and Jill Ostby sued Manhattan School District 114 (“District”) under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“Act”), for review of an administrative decision regarding their son’s individualized educational program. With the exception that we note below, we vacate the district courtʹs judgment and remand the case with directions to dismiss it as moot.

Vacarted and Remanded in Part

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7th Circuit Court of Appeals

Case Name: David B. Shiner v. Bernard Turnoy

Case No.: 14-2999

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

Focus: Court Error – Tax Fraud

Bernard Turnoy, the appellant, is an insurance broker who had sold insurance policies to Da‐ vid Shiner’s in‐laws for decades. After Shiner (a successful lawyer in Chicago whose practice focuses on tax and estate planning) demanded that Turnoy split with him the com‐ missions on new policies on the life of Shiner’s mother‐in‐ law, Turnoy sent him a check for $149,000, which was about half the commissions that Turnoy had thus far obtained. Insisting that $149,000 was too little, Shiner sued Turnoy in an Illinois state court for breach of contract. While that suit was pending, Shiner brought a second suit against Turnoy, this one a suit in federal district court, charging that Turnoy had committed tax fraud, in violation of 26 U.S.C. § 7434 by re‐ porting to the IRS on Form 1099 his payment of the $149,000 to Shiner as income to Shiner when in fact, Shiner argued, he (Shiner) had refused to accept the check because had he done so he would have forfeited his claim to be owed more than $149,000 by Turnoy. The district judge, convinced by this very weak argument and unaccountably hostile to Turnoy, ruled in favor of Shin‐ er and ordered Turnoy to pay Shiner damages of $16,000 for the alleged fraud. That ruling was erroneous, because the state court had rejected Shiner’s breach of contract claim the day before the district court’s decision (though in fairness to the district judge, we point out that he would not yet have been aware of the state court’s decision), thus establishing that Shiner was entitled to no more than the $149,000 that he’d already received from Turnoy.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Jeffrey Rothbard

Case No.: 16-3996

Officials: WOOD, Chief Judge, and BAUER and POSNER, Circuit Judges.

Focus: Sentencing

Jeffrey Rothbard pleaded guilty to one count of wire fraud in connection with his participation in a scheme to defraud companies that were interested in obtaining loans for environmentally friendly upgrades to their facilities. He committed this offense, which yielded more than $200,000 for him, while he was on probation for a felony forgery conviction in Indiana. The district court sentenced him to 24 months’ imprisonment, despite the fact that Rothbard is an older man with serious health problems and the Probation Office thought that incarceration was not necessary. On appeal, Rothbard urges us to find that his sentence is substantively unreasonable, both because he has stayed out of trouble for nearly three years and because he fears that the Bureau of Prisons (BOP) may be unable to furnish the medication on which his health critically depends. Perhaps, had we been the sentencing judges, we would have accepted his arguments. But the district court here gave sound reasons for its chosen sentence. In addition, both the evidence in the record before the district court, and supplemental information that we requested about BOP’s ability to provide appropriate care, satisfy us that the nominal 24- month sentence will not, in reality, spell doom for Rothbard. We therefore affirm the district court’s judgment.

Affirmed

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7th Circuit Court of Appeals

Case Name: Sabina Burton v. Board of Regents of the University of Wisconsin System, et al

Case No.: 16-2982

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

Focus: Retaliatory Action – Title VII

Sabina Burton, a professor in the criminal justice department at the University of Wisconsin‐ Platteville, sued the school’s Board of Regents and three individual defendants. She claims that her superiors took several retaliatory actions against her over the course of about two years. She seeks relief under Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. The district court granted summary judgment to the Board and the individual defendants. For the reasons set forth be‐ low, we affirm the judgment of the district court.

Affirmed

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7th Circuit Court of Appeals

Case Name: Esmeralda Y. Morfin and Adrian Ulloav. Rex W. Tillerson and John F. Kelly

Case No.: 15-3633

Officials: WOOD, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges

Focus: Immigration – Visa Application

In 2009 Adrian Ulloa, a citizen of Mexico, married Esmeralda Morfin, a citizen of the United States. She began the process of getting approval for his permanent residence (and ultimately citizenship). But because Ulloa was present in the United States without authority, this process required him to return to Mexico and obtain a visa for a lawful entry. In 2014 he applied at the consulate in Ciudad Juarez. After twice interviewing Ulloa, the State Department denied his request for a visa, stating that it had reason to believe that he is (or was) involved in drug trafficking. In 2001 Ulloa had been indicted for possessing more than 500 grams of cocaine, with intent to distribute. See 21 U.S.C. §841(a)(1). The U.S. Attorney dismissed the indictment a few months later (the record does not show why), and Ulloa denies the charge, but the absence of a trial means that he lacks a favorable adjudication In this suit under the Administrative Procedure Act, 5 U.S.C. §702, Morfin and Ulloa asked the district court to find that the decision not to give Ulloa a visa is arbitrary and not supported by substantial evidence. Defendants (the Secretaries of State and Homeland Security) replied that decisions to grant or deny visa applications are committed to agency discretion and so are outside the scope of judicial review under the APA. See 5 U.S.C. §701(a)(2). The district court agreed and dismissed the suit for lack of subject-matter jurisdiction. That was a misstep. As we explain in Builders Bank v. FDIC, 846 F.3d 272 (7th Cir. 2017), §701(a)(2) does not curtail jurisdiction granted by other laws. Commitment of a topic to agency discretion is a reason to decide in the agency’s favor but does not imply that a court lacks adjudicatory competence. We concluded in Builders Bank that §701(a)(2) “is no more a limit on subject-matter jurisdiction than are doctrines of absolute and qualified immunity, statutes of limitations, and many other rules that prevent courts from deciding whether the defendant acted properly.” 846 F.3d at 275.

Affirmed

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7th Circuit Court of Appeals

Case Name: Samira Hazama & Ahmed Abdel Hafiz Ghneim v. Rex W. Tillerson

Case No.: 15-2982

Officials: WOOD, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges

Focus: Petition for Mandamus – Failure on the Merits

In an effort to seek judicial review of a consular official’s unfavorable decision on a visa application, Samira Hazama and Ahmed Abdel Hafiz Ghneim filed a petition for a writ of mandamus in the district court for the Northern District of Illinois, where Hazama resides. The district court concluded that it lacked subject-matter jurisdiction over the petition, because it thought that review was precluded under the Supreme Court’s decisions in Kleindienst v. Mandel, 408 U.S. 753 (1972), and Kerry v. Din, 135 S. Ct. 2128 (2015). The district court was correct that this case cannot go forward, but mistaken to think that the problem was jurisdictional. In Morfin v. Tillerson, No. 15-3633, decided today, we concluded that plaintiff loses on the merits. The same result is proper here, both for the reasons stated in Morfin and because the criteria for mandamus relief have not been met. See United States v. Vinyard, 529 F.3d 589, 591 (7th Cir. 2008) (mandamus proper only if the order would inflict irreparable harm, is not effectively reviewable at the end of the case, and so far exceeds the bounds of judicial discretion that it is usurpative, in violation of a clear and indisputable legal right, or patently erroneous).

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jose A. Adames

Case No.: 2015AP2410-CR

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

Focus: Ineffective Assistance of Counsel

Jose A. Adames appeals a judgment convicting him of one count of first-degree sexual assault, one count of false imprisonment, and two counts of armed robbery, all as a party to a crime. He also appeals the circuit court’s order denying his postconviction motion. Adames argues that he

received ineffective assistance of counsel when his trial lawyer failed to object to testimony from a Sexual Assault Nurse Examiner (SANE) who treated B.G.-T., one of the victims, and failed to object to police testimony about heroin found in the home of Julio Quiles-Guzman, one of his co-defendants. Adames also argues that the circuit court erred in denying his postconviction motion without a hearing. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. John L. Alwin

Case No.: 20156AP2454-CR

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

Focus: Motion to Suppress

John Alwin appeals a judgment, entered upon his guilty pleas, convicting him of possessing methamphetamine and possessing THC. Alwin argues the circuit court erred by denying his motion to suppress evidence seized during the execution of what Alwin argues was an invalid search warrant. We reject Alwin’s argument and affirm the judgment.

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WI Court of Appeals – District III

Case Name: Essa Shoukry Yacoub v. Mary Elena Yacoub

Case No.: 2015AP2557

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

Focus: Divorce – Child Support – Maintenance

Essa Yacoub appeals a postdivorce order modifying child support and dismissing his motion for modification of spousal maintenance. He argues the circuit court erroneously exercised its discretion. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: Martin Jones v. Michael Haller

Case No.: 2016AP4

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

Focus: Landlord Tenant – Court Error – Wisconsin Open Housing Law

Martin Jones appeals an order granting Michael Haller’s motion for summary judgment and dismissing Jones’s claim with prejudice. On appeal, Jones argues that he entered into a landlord-tenant relationship with Haller and that the residence he moved into—located at 2209 East Vollmer Avenue in Bay View, Milwaukee—is comprised of two dwelling units and is therefore subject to WIS. STAT. § 106.50(2)(f) (2015-16), the Wisconsin Open Housing Law. Jones further argues that the circuit court erred when it ruled that 2209 East Vollmer was a single dwelling unit and that his claim, as a result, was excluded from the Wisconsin Open Housing Law. We disagree and affirm

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WI Court of Appeals – District III

Case Name: Town of Star Prairie v. Warren Slocum

Case No.: 2016AP281

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

Focus: Tax Assessments

Following Warren Slocum’s egregious and flagrant barrage of pro se serial litigation regarding his property tax assessments, the circuit court granted a request to restrict Slocum’s access to the judicial system. We affirm.

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WI Court of Appeals – District I

Case Name: Ricochet On, Inc. v. City of Milwaukee, et al

Case No.: 2016AP418

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

Focus: Court Error – Arbitrary Decision – Tavern License

Ricochet On, Inc., appeals a circuit court order upholding the City of Milwaukee Common Council’s decision to deny renewal of Ricochet’s tavern license and public entertainment premises license. Ricochet argues that the circuit court erred because the Common Council’s decision was arbitrary and capricious and not supported by credible evidence. We reject the arguments and affirm.

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WI Court of Appeals – District III

Case Name: Robert H. Shugarts, II et al v. Dennis M. Mohr, et al

Case No.: 2016AP983

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

Focus: Underinsured Motorist Coverage

Robert H. Shugarts, II, was injured in an automobile accident. More than four years after the accident and over one year after commencing a lawsuit against the other driver and that driver’s insurer, Shugarts wrote to his underinsured motorist (UIM) carrier, Allstate Property and Casualty Insurance Company, notifying it of an underinsured motorist claim arising from the accident. The circuit court ultimately granted Allstate summary judgment, concluding as a matter of law that Shugarts failed to provide Allstate with timely notice of his UIM claim, and that Shugarts had not rebutted the presumption that Allstate was prejudiced by the untimely notice. We agree with the circuit court’s conclusions. We therefore affirm the judgment dismissing Shugarts’ UIM claim against Allstate.

Recommended for publication

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WI Court of Appeals – District III

Case Name: Andrew H. Selenske v. Richard P. Selenske, et al

Case No.: 2016AP1079

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

Focus: Enforcement of Judgment

Andrew Selenske obtained a money judgment against RnS Farms LLC and Peter Selenske Farms, Inc. Andrew subsequently attempted to enforce that judgment by execution against real property owned by JPR Farms, LLC, Black-Jack Rentals, LLC, and Ice Age Trail Alliance, Inc. (collectively, the Owners). The circuit court concluded that, despite Andrew’s previously filed lis pendens, Andrew could not execute against the Owners’ property because that property was not owned by the judgment debtors on the date the judgment was entered or at anytime thereafter. We agree and affirm.

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WI Court of Appeals – District III

Case Name: County of Marathon v. Armin James Balzar

Case No.: 2016AP1471

Officials: Stark, P.J.

Focus: OWI – Motion to Suppress

Armin Balzar appeals a judgment convicting him of first-offense operating a motor vehicle while intoxicated (OWI). Balzar contends the circuit court erred by denying his suppression motion because the officer who stopped his vehicle lacked reasonable suspicion for the stop. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Bruce T. Henningfield

Case No.: 2015AP1824-CR

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

Focus: OWI – Ineffective Assistance of Counsel

Bruce T. Henningfield appeals from a judgment entered after a jury found him guilty of operating a motor vehicle while intoxicated (OWI) and operating a motor vehicle with a prohibited alcohol concentration (PAC), both as his tenth offense and subsequent offense, and

resisting an officer. He further appeals from an order denying his motion for postconviction relief. On appeal, he argues that his trial counsel rendered ineffective assistance by implying during opening statements that Henningfield had multiple prior convictions for OWI, that he did not validly waive the element regarding his countable prior convictions, suspensions, or revocations under WIS. STAT. § 343.307(1) (2015-16) so as to lower his PAC to .02, and that his plea and sentence in 2011 to OWI as a fifth offense should have precluded the State from charging him, and the circuit court from sentencing him, to OWI as his tenth and subsequent offense. We reject Henningfield’s arguments and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Shaun M. Sanders

Case No.: 2015AP2328-CR

Officials: Reilly, P.J., Gundrum and Hagedorn, JJ.

Focus: Subject Matter Jurisdiction – Competency

Shaun M. Sanders appeals from a judgment of conviction for repeated sexual assault of the same child in violation of WIS. STAT. § 948.025 (2015-16),  incest with a child in violation of WIS. STAT. § 948.06(1), and child enticement in violation of WIS. STAT. § 948.07. He also appeals an order denying his motion for postconviction relief.

Recommended for publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. James Lamar Henderson

Case No.: 2016AP159

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

Focus: Ineffective Assistance of Counsel

James Lamar Henderson appeals pro se from an order denying his motion for postconviction relief. He contends that the circuit court erroneously admitted hearsay testimony in violation of his constitutional right to confrontation. He further contends that his trial counsel was ineffective. Finally, he contends that he is entitled to a new trial in the interest of justice. We reject Henderson’s arguments and affirm

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WI Court of Appeals – District II

Case Name: ALCO Capital Group, LLC v. David T. Whitehead

Case No.: 2016AP462

Officials: Reilly, P.J., Gundrum and Hagedorn, JJ.

Focus: FDCPA – Statute of Limitation

David T. Whitehead appeals from an order denying him summary judgment, dismissing his counterclaims, and entering summary judgment in favor of ALCO Capital Group, LLC. We affirm.

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WI Court of Appeals – District II

Case Name: Lee M. Bleecker v. Terence P. Cahill

Case No.: 2016AP1231

Officials: Neubauer, C.J., Gundrum and Hagedorn, JJ.

Focus: Court Error – Legal Malpractice

Lee Bleecker appeals from the circuit court’s grant of summary judgment to Terence P. Cahill, Brewer & Cahill, LLP and The Hanover Insurance Company. He contends the court erred in concluding his legal malpractice claim was barred on the basis the statute of limitations began to run in 2003 when he signed a lease agreement on which Cahill advised him, as opposed to in 2013 when he incurred actual damages in relation to the agreement. We agree with Bleecker that his cause of action accrued in 2013 and this suit was timely filed; we reverse.

Recommended for publication

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WI Court of Appeals – District II

Case Name: Racine County Human Services Department v. R.E.

Case No.: 2016AP2039

Officials: Gundrum

Focus: Termination of Parental Rights

R.E. appeals from the circuit court’s grant of partial summary judgment to Racine County Human Services Department (“County”), which grant concluded there were grounds for termination of R.E.’s parental rights to her daughter, S.E., on the basis of abandonment. She also contends the circuit court erred in denying her motion to continue the dispositional hearing so as to afford another opportunity for a witness to testify. For the following reasons, we affirm.

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WI Court of Appeals – District IV

Case Name: Fun Services of Kansas City v. National Casualty Company

Case No.: 2015AP2367

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

Focus: Insurance Coverage – Duty to Deend

Fun Services of Kansas City sued National Casualty Company in Dane County Circuit Court, seeking payment of the unpaid amount of a Kansas judgment that incorporated a settlement reached between Fun Services and National Casualty’s insured, Hertz Equipment Rental Corporation, without National Casualty’s participation. The circuit court dismissed Fun Services’s complaint after reviewing cross motions for summary judgment. The court determined that the property damages exclusion in National Casualty’s policies precluded coverage. We affirm, but on a ground different from that of the circuit court, based on an interpretation of New Jersey law argued by National Casualty and unrefuted by Fun Services. According to that interpretation, one prerequisite for an insurer’s liability for the payment of a settlement reached by its insured without the insurer’s participation is the insurer’s wrongful refusal to defend. National Casualty did not wrongfully refuse to defend in the Kansas action because there is no evidence that Hertz requested a defense in the Kansas action under the policies under which Fun Services seeks payment in this action. Accordingly, having failed to establish a necessary prerequisite to payment, Fun Services fails to establish that it is entitled to payment of the Kansas settlement.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Roy A. Mitchell, Jr.

Case No.: 2016AP937-CR

Officials: Lundsten, J.

Focus: Restitution – Court Error

Roy A. Mitchell, Jr., appeals a criminal restitution order and an order denying reconsideration of that restitution order. Both orders were entered following Mitchell’s convictions for misdemeanor theft, prostitution, and resisting or obstructing an officer. Mitchell argues that the circuit court erred by including in the restitution order $11,059.43 to cover the alleged victim’s medical expenses resulting from a physical altercation between Mitchell and the alleged victim. As explained below, Mitchell fails to persuade me that the circuit court erred based on the arguments that Mitchell made in that court. Other arguments Mitchell makes for the first time on appeal I reject as forfeited. I affirm the circuit court’s orders.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Daniel P. Worzalla

Case No.: 2016AP1038-CR; 2016AP1039-CR

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

Focus: Sentencing

Daniel Worzalla appeals judgments of conviction and orders denying postconviction relief. Worzalla contends that the circuit court’s imposition of consecutive sentences on Worzalla’s bail jumping convictions impermissibly punished Worzalla twice for the same conduct, was based on inaccurate information, and was excessive. We conclude that the circuit court properly exercised its sentencing discretion. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Kenneth K. Kimpel

Case No.: 2016AP1441-CR

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

Focus: Waiver of Right to Counsel – Court Error

A jury found Kenneth K. Kimpel guilty of one count of repeated sexual assault of a child and one count of child enticement. See WIS. STAT. §§ 948.025(1)(e) and 948.07(1) (2013-14).

Kimpel represented himself at trial, with assistance from standby counsel, and the appellate issues concern Kimpel’s self-representation. He argues that his waiver of the right to counsel was not knowing and voluntary, that the circuit court did not adequately define the role of standby counsel, and that the circuit court erroneously exercised its discretion when it denied Kimpel’s request for an adjournment. He also requests that this court order a new trial in the interest of justice. Because none of Kimpel’s arguments are persuasive, we affirm.

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WI Court of Appeals – District IV

Case Name: Jefferson County Human Services Department v. V.B.

Case No.: 2016AP2468; 2016AP2469

Officials: Sherman, J.

Focus: Termination of Parental Rights

V.B. appeals from orders of the circuit court terminating her parental rights to J.I.M. and J.V.M. V.B. challenges the circuit court’s determination that grounds existed for the termination of her parental rights. For the reasons discussed below, I affirm.

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