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Weekly Case Digests — May 27-30, 2014

By: WISCONSIN LAW JOURNAL STAFF//May 30, 2014//

Weekly Case Digests — May 27-30, 2014

By: WISCONSIN LAW JOURNAL STAFF//May 30, 2014//

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Wisconsin Law Journal’s Case Digests — May 27-30, 2014

CIVIL OPINIONS

Wisconsin Court of Appeals

Civil
Civil Commitment — videoconferencing

Sondra F. appeals a Wis. Stat. ch. 51 mental health commitment order and an order denying her motion for postdisposition relief. Sondra appeared at the final hearing from the Winnebago Mental Health Institute via videoconferencing technology. On appeal, she argues that she had a statutory and constitutional right to be physically present at the final hearing, that this right could only be affirmatively waived, and that the court violated this right by failing to engage her in a colloquy to confirm she affirmatively waived her right to be physically present. She also argues the error is not harmless. We affirm. This opinion will not be published.

2013AP2790 In the matter of the mental commitment of Sondra F.: Price County Department of Health and Human Services v. Sondra F.

Dist III, Price County, Fox, J., Stark, J.

Attorneys: For Appellant: Chapman, Dan, Hudson; For Respondent: Samardich, Leanna R, Phillips

U.S. Supreme Court

Civil
Indians – IGRA — sovereign immunity

A state cannot sue an Indian tribe for operating a casino on non-tribal land.

IGRA’s plain terms do not authorize this suit. Section 2710(d)(7)(A)(ii) partially abrogates tribal immunity with respect to class III gaming located “on Indian lands,” but the very premise of Michigan’s suit is that Bay Mills’ casino is unlawful because it is outside Indian lands. Michigan argues that the casino is authorized, licensed, and operated from within the reservation, and that such administrative action constitutes “class III gaming activity.” However, numerous other IGRA provisions make clear that “class III gaming activity” refers to the gambling that goes on in a casino, not the offsite licensing of such games. See, e.g., §§2710(d)(3)(C)(i), (d)(9). IGRA’s history and design also explain why Congress would have authorized a State to enjoin illegal tribal gaming on Indian lands but not on lands subject to the State’s own sovereign jurisdiction. Congress adopted IGRA in response to California v. Cabazon Band of Mission Indians, 480 U. S. 202, 221–222, which held that States lacked regulatory authority over gaming on Indian lands but left intact States’ regulatory power over tribal gaming outside Indian territory. A State therefore has many tools to enforce its law on state land that it does not possess in Indian territory, including, e.g., bringing a civil or criminal action against tribal officials rather than the tribe itself for conducting illegal gaming. A State can also use its leverage in negotiating an IGRA compact to bargain for a waiver of the tribe’s immunity.

695 F. 3d 406, affirmed and remanded.

12-515 Michigan v. Bay Mills Indian Community

Kagan, J.; Sotomayor, J., concurring; Scalia, J., dissenting; Thomas, j., dissenting; Ginsburg, J., dissenting.

CIVIL PROCEDURE

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

Civil
Civil Procedure — sanctions

Where a litigant repeatedly files new lawsuits based on the same conduct, sanctions are appropriate.

“Averhart has abused the judicial process by attempting to relitigate the outcome of her earlier suits. Refusal to take no for an answer, and a campaign of unending litigation, are intolerable and sanctionable. See, e.g., Homola v. McNamara, 59 F.3d 647 (7th Cir. 1995). We give her 14 days to show cause why the court should not impose sanctions under Fed. R. App. P. 38. The potential sanctions include but are not limited to a financial penalty and an order revoking her privilege of proceeding in forma pauperis. Any financial penalty must be paid promptly, or Averhart will be subject to a preclusion order under Support Systems International, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995). See also, e.g., In re Chicago, 500 F.3d 582 (7th Cir. 2007).”

Affirmed.

13-2949 Averhart v. Sheriff of Cook County

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

Wisconsin Court of Appeals

Civil
Civil Procedure — declaratory judgments — justiciability — ripeness — subject matter jurisdiction

Soo Line Railroad Company d/b/a Canadian Pacific Railway appeals an order of the circuit court dismissing its declaratory judgment action on the ground that the action was not ripe. The parties to this action are Soo Line and its liability insurers (collectively, the “insurers”). The Environmental Protection Agency gave Soo Line notice in the form of a letter informing Soo Line that it was potentially responsible for the cleanup of a lakeshore site in Ashland. Soo Line filed a declaratory judgment action under the Uniform Declaratory Judgments Act (Act), Wis. Stat. § 806.04 (2011-12), seeking a determination of its right to coverage under various insurance policies for all costs to Soo Line that might arise from the cleanup. Earlier on the same day that Soo Line filed the lawsuit in the circuit court, Soo Line placed in the mail notices of claim and tenders of defense (collectively referred to as “notices of claim” or “the notices”) to its insurers.

We address three issues in this appeal. First, when is justiciability to be determined in an action brought under the Act; second, was Soo Line’s declaratory judgment action ripe for judicial determination and thus justiciable; and, third, did the circuit court lack competency to exercise its subject matter jurisdiction because this action was not ripe for judicial determination.

We conclude that justiciability is determined at the time of the filing of the summons and complaint in the circuit court; that under the facts of this case, this action was not ripe when Soo Line filed it; and that the circuit court did not have competency to exercise its jurisdiction over this action because the action was not ripe at the time of filing. We therefore affirm. Not recommended for publication in the official reports.

2012AP1422 Soo Line Railroad Company v. Admimarl Insurance Co., et al.

Dist III, Ashland County, Eaton, J., Higginbotham, J.

Attorneys: For Appellant: Fauerbach, Michael F., Ashland; Thavis, Robert P., Minneapolis; Davis, Andrew W., Minneapolis; For Respondent: Dykeman, Stephanie L., Brookfield; Anich, Matthew Ashland; F., Dunne, Roderick T., Chicago; O’Brien, Michael F., Eau Claire; Strong, Daneille M., Eau Claire; Jensen, Thomas D., Minneapolis; McAndrews, John G., New York; Anderson, Matthew B., New York

Wisconsin Court of Appeals

Civil
Civil Procedure – appeal — incomprehensible briefs

In a 39-page brief, Donald Minniecheske, pro se, accuses a circuit court judge, Village of Tigerton and Shawano County officials, various attorneys, the Department of Natural Resources, and surveyors Robert and Michael Nordin of various criminal acts, including fraud, racketeering, perjury, and theft, in what amounts to an alleged two-decade conspiracy to deprive him of land.

We conclude Minniecheske has not presented any valid arguments for relief from any of the challenged judgments and orders. Minniecheske’s brief is incomprehensible, with facts, argument, and opinion scattered in no apparent order. The basis for his appeals is unclear, as his primary concern appears to be events that occurred over twenty years ago. His arguments are undeveloped themes reflecting no legitimate legal reasoning. On the whole, we conclude whatever issues Minniecheske wished to raise regarding the orders and judgments subject to this appeal have been inadequately briefed, and we therefore need not address them. This opinion will not be published.

2012AP2297, 2012AP2298, 2012AP2299, 2012AP2300, 2012AP2301, 2012AP2302, 2012AP2463, 2012AP2625 Village of Tigerton v. Minniecheske, et al.

Dist III, Shawano County, Habeck, J., Per Curiam

Attorneys: For Appellant: Minniecheske, Donald J., pro se; For Respondent: Bohl, Charles H., Milwaukee; Schmid, Timothy J., Shawano

CIVIL RIGHTS

U.S. Supreme Court

Civil
Civil Rights — unreasonable force

Where a motorist engaged in a high-speed chase, and intended to resume it, officers did not use unreasonable force in using deadly force.

The officers acted reasonably in using deadly force. A “police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” Scott, supra, at 385. Rickard’s outrageously reckless driving — which lasted more than five minutes, exceeded 100 miles per hour, and included the passing of more than two dozen other motorists — posed a grave public safety risk, and the record conclusively disproves that the chase was over when Rickard’s car came to a temporary standstill and officers began shooting. Under the circumstances when the shots were fired, all that a reasonable officer could have concluded from Rickard’s conduct was that he was intent on resuming his flight, which would again pose a threat to others on the road.

509 Fed. Appx. 388, reversed and remanded.

12-1117 Plumhoff v. Rickard

Alito, J.

U.S. Supreme Court

Civil
Civil Rights — freedom of speech — qualified immunity

Where protesters’ location posed a potential security risk to the president, their displacement did not violate the First Amendment.

The protesters allege that, in directing their displacement, the agents acted not to ensure the President’s safety, but to insulate the President from their message. These allegations are undermined by a map of the area, which shows that, because of the protesters’ location, they posed a potential security risk to the President, while the supporters, because of their location, did not. The protesters’ counterarguments are unavailing. They urge that, had the agents’ professed interest in the President’s safety been sincere, the agents would have screened or removed from the premises persons already at the Inn when the President arrived. But staff, other diners, and Inn guests were on the premises before the agents knew of the President’s plans, and thus could not have anticipated seeing the President, no less causing harm to him. The agents also could keep a close watch on the relatively small number of people already inside the Inn, surveillance that would have been impossible for the hundreds of people outside the Inn. A White House manual directs the President’s advance team to “work with the Secret Service . . . to designate a protest area . . . preferably not in view of the event site or motorcade route.” The manual guides the conduct of the political advance team, not the Secret Service, whose own written guides explicitly prohibit “agents from discriminating between anti-government and pro-government demonstrators.” Even assuming, as the protesters maintain, that other agents, at other times and places, have assisted in shielding the President from political speech, this case is scarcely one in which the agents lacked a valid security reason for their actions. Moreover, because individual government officials “cannot beheld liable” in a Bivens suit “unless they themselves acted [unconstitutionally],” Iqbal, 556 U. S., at 683, this Court declines to infer from alleged instances of misconduct on the part of particular agents an unwritten Secret Service policy to suppress disfavored expression, and then attribute that supposed policy to all field-level operatives.

711 F. 3d 941, reversed.

13-115 Wood v. Moss

Ginsburg, J.

CONSUMER PROTECTION

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

Civil
Consumer Protection – TILA — rescission

The district court did not abuse its discretion in giving borrowers 90 days to repay their loans as a consequence of TILA violations.

“There are several factors supporting the district court’s rejection of this installment plan. First, the Defendants here are not the wrongdoers. They are subject to liability as assignees, but they were not the ones responsible for the deficiencies in the disclosures giving rise to the Iroanyahs’ claims. Second, these TILA violations were hyper-technical disclosure deficiencies, which Iroanyahs’ admitted caused no actual harm. Third, since they remained in their home despite not making mortgage payments since 2008, the Iroanyahs have actually benefitted from the lengthy resolution of these TILA violations. Finally and decisively, the proposed installment plan would have been extremely inequitable for the Defendants, since it would effectively reform the original transaction to become an interest free loan. The district court had ample reason to reject the Iroanyahs’ wholly unreasonable installment plan, which would create a windfall for the Iroanyahs. Nothing in the district court’s opinion suggests an abuse of discretion in weighing these equitable factors and rejecting the Iroanyahs’ installment plan.”

Affirmed.

13-1382 Iroanyah v. Bank of America

Appeal from the United States District Court for the Northern District of Illinois, Feinerman, J., Cudahy, J.

EMPLOYMENT

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

Civil
Employment – ADA — accommodation

Where an employer assigned a legally blind employee only to those tasks he could perform, summary judgment was properly granted to the employer on the employee’s failure to accommodate claim.

“It is undisputed that, when it became clear that Bunn could not perform the rotating duties of a regular hourly employee, store manager Larry Johnson worked with him to determine which job functions he could perform and which he could not. Bunn was best able to perform the duties of an employee in the Expo department. Accordingly, instead of rotating Bunn through various departments, some of which were unsuitable for him, Johnson instructed Bunn’s immediate supervisors to schedule him exclusively in Expo. That ‘change … in the way things [were] customarily done’ enabled Bunn to enjoy equal employment opportunities, as evidenced by the undisputed fact that he was scheduled full-time in Expo from his hire date until his suspension. 29 C.F.R. pt. 1630 app. § 1630.2(o). It might also be called a ‘job restructuring,’ or a ‘modified work schedule.’ 29 C.F.R. § 1630.2(o)(2)(ii). In short, it was exactly the kind of accommodation envisioned by the regulations applicable to the ADA.”

Affirmed.

13-2292 Bunn v. Khoury Enterprises Inc.

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

Wisconsin Court of Appeals

Civil
Employment – FLSA — attorney fees

New Horizon Center, Inc., appeals an order awarding Tahnisha Lamb attorney’s fees and costs as the prevailing party in this action under the Fair Labor Standards Act and Wis. Stat. ch. 109 (2011-12). New Horizon Center argues that the circuit court misused its discretion in awarding Lamb attorney’s fees because: (1) the circuit court did not adequately explain its decision; (2) the number of hours the attorneys worked on the case was unreasonable; (3) Lamb’s award for unpaid wages is minimal compared to the award for attorney’s fees; and (4) Lamb rejected a reasonable settlement offer. We affirm. This opinion will not be published.

2013AP1688 In the Matter of Attorney Fees in: Lamb v. New Horizon Center Inc.

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

Attorneys: For Appellant: Coe, Rocky L., #2, Milwaukee; For Respondent: Cross, Nola Hitchcock, Milwaukee; Flanner, Mary C., Milwaukee

FAMILY LAW

Wisconsin Court of Appeals

Civil
Family — child placement — modification — substantial change of circumstances

Kevin Melahn appeals an order dismissing his motion for change of placement of his two daughters. Because the circuit court correctly concluded that the motion does not establish a substantial change of circumstances, we affirm the order. This opinion will not be published.

2013AP1368 In re the marriage of: Melahn v. Melahn

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

Attorneys: For Appellant: Hayes, William J., Beloit; For Respondent: Arrowood, Teresa M., Janesville

Wisconsin Court of Appeals

Civil
Family — attorney fees

Melissa Vande Voort appeals her divorce judgment. She argues the circuit court erroneously denied her request for a continuance. She also challenges the court’s custody and placement, property division, and maintenance decisions. We affirm on these issues. However, we agree with Melissa that the circuit court erroneously exercised its discretion on the issue of attorney fees and remand for further proceedings on that issue. This opinion will not be published.

2013AP1682 In re the marriage of: Vande Voort v. Vande Voort

Dist III, Brown County, Walsh, J., Per Curiam

Attorneys: For Appellant: Shaha, Dawn T., Menasha; For Respondent: Schipper, Alice F., De Pere

MUNICIPALITIES

Wisconsin Court of Appeals

Civil
Municipalities — open records

Where a municipal body denied that a record of motions and votes existed, it violated the Open Records law, and plaintiffs are entitled to attorney fees.

“In this case, the Newspaper reasonably relied on the statutory requirement that the Commission create, maintain, and release a record of the motions and votes at the February 20 meeting when it requested information regarding the motions and votes from that meeting. In providing the requested information following the initiation of this action, the Commission rendered moot the Newspaper’s request for a writ of mandamus. The fact that the Newspaper’s record request became moot when the Commission provided the information, however, does not mandate dismissal of the entire action. The Newspaper still has a viable claim for attorney fees and costs if the litigation ‘was a cause, not the cause’ of the Commission’s March 22 release. See WTMJ, Inc. v. Sullivan, 204 Wis. 2d 452, 458-59, 555 N.W.2d 140 (Ct. App. 1996). To hold otherwise in this case would undermine the purpose of both the Open Meetings and Open Records Laws — transparency in government. See State ex rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 595, 547 N.W.2d 587 (1996). We therefore remand to the trial court for an evidentiary hearing on whether the filing of the lawsuit was a cause of the March 22 release of information and, if so, for a determination of attorney fees and costs.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP1715 The Journal Times v. City of Racine Board of Police & Fire Commissioners

Dist. II, Racine County, Ptacek, J., Reilly, J.

Attorneys: For Appellant: Dreps, Robert J., Milwaukee; For Respondent: Letteney, Scott R., Racine

PROPERTY

Wisconsin Court of Appeals

Civil
Property — tenants in common — joint tenants — “death waivers”

This case requires us to interpret a novel agreement between tenants in common. The circuit court concluded that a 1972 agreement executed by the seven purchasers of real property in Marinette County created a joint tenancy and that, as the last surviving member, Daniel O’Connell is entitled to sole and exclusive ownership. Chris Brickson, the son of one of the original purchasers, asserts the agreement was ineffective to create a joint tenancy.

We conclude that, based on the agreement’s language, the parties did not intend to create a joint tenancy. Instead, they agreed to a present waiver of their interest in the property upon death. As a practical matter, this arrangement leaves O’Connell as the sole remaining owner. Accordingly, we affirm, but on different grounds. See Vanstone v. Town of Delafield, 191 Wis. 2d 586, 595, 530 N.W.2d 16 (Ct. App. 1995) (we may affirm on grounds different than those relied on by the trial court). This opinion will not be published.

2013AP1252 Brickson v. O’Connell, et al.

Dist III, Marinette County, Morrison, J., Per Curiam

Attorneys: For Appellant: Ostrow, Winston A., Green Bay; Smies, Jonathan T.; For Respondent: Gast, Randall L., Green Bay

Wisconsin Court of Appeals

Civil
Property — landlord-tenant — public housing — federal preemption

Federal law does not preempt the right-to-cure provision in WIS. STAT. § 704.17(2)(b).

“The Department of Housing and Urban Development’s one-strike policy is in a pamphlet in the Record here, ‘“One Strike and You’re Out” Policy in Public Housing.’ This type of agency manual, however, is not given the same type of deference to which courts give ‘regulations with the force of law.’ See Wos v. E.M.A. ex rel. Johnson, 568 U.S. ___, ___, 133 S. Ct. 1391, 1402 (2013): ‘We have held that “[i]nterpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do not warrant Chevron-style deference.”’ (referencing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984); quoted source omitted). In any event, ‘“One Strike and You’re Out” Policy in Public Housing’ only mentions federal preemption once—noting that proof of unlawful criminal activity by a tenant or a member of the tenant’s household need not be by conviction: ‘[A]ny provisions in state laws that require conviction in order to evict tenants are preempted by federal law.’ United States Department of Housing and Urban Development, ‘One Strike and You’re Out’ Policy in Public Housing, p.7 § III.2. (March 1996). Additionally, the pamphlet advises public-housing authorities to ‘consider additional language specifying that the [public-housing agency] has a One Strike or “zero tolerance” policy with respect to violations of lease terms regarding criminal activity.’ Id., § III.1. (Emphasis added.) Here, of course, Cobb’s lease with the Housing Authority not only does not have this ‘One Strike or “zero tolerance” policy’ clause but, as we have seen, the lease specifically binds the Housing Authority to comply with WIS. STAT. § 704.17(2)(b). Moreover, this is consistent with the manual’s recognition that ‘State or local law governing eviction procedures may give tenants procedural rights in addition to those provided by federal law. Tenants may rely on those state or local laws so long as they have not been preempted by federal law.’ United States Department of Housing and Urban Development, “One Strike and You’re Out” Policy in Public Housing, p.9 § III.7.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP2207 Milwaukee City Housing Authority v. Cobb

Dist. I, Milwaukee County, Colon, J., Fine, J.

Attorneys: For Appellant: Hartman, April A.G., Milwaukee; For Respondent: Heinen, John J., Milwaukee

Wisconsin Court of Appeals

Civil
Property — foreclosure — summary judgment

Veronika McCarthy, pro se, appeals a circuit court order that dismissed her counterclaims against Nekoosa Port Edwards State Bank in this foreclosure action. Veronika contends that: (1) the circuit court erred by resolving competing summary judgment motions without holding a hearing; and (2) Veronika, rather than the Bank, is entitled to summary judgment on Veronika’s counterclaims. We reject these contentions, and affirm. This opinion will not be published.

2013AP955 Nekoosa Port Edwards State Bank v. McCarthy, et al.

Dist IV, Adams County, Voigt, J., Per Curiam

Attorneys: For Appellant: McCarthy, Veronika, pro se; For Respondent: Quinn, James T., Wisconsin Rapids

CRIMINAL OPINIONS

CRIMINAL PROCEDURE

Wisconsin Court of Appeals

Criminal
Criminal Procedure — juror coercion

Richard Phernetton appeals a judgment of conviction for repeated sexual assault of a child. On the third day of trial, after hearing six hours of evidence and deliberating for nine hours, the jury returned a guilty verdict at 12:03 a.m. During deliberations, the trial court twice inquired about the jury’s “numerical breakdown,” stated the jurors were making “progress” after some minority jurors apparently joined the majority, and, upon being asked by the jury whether it could “go home, sleep on it and come back with clearer heads,” erroneously advised the jurors they could not be separated after deliberations had begun, until a verdict had been reached. We conclude that under the totality of the circumstances, there was an impermissible risk that the jury’s verdict was coerced. Accordingly, we reverse and remand for a new trial. This opinion will not be published.

2013AP1790-CR State v. Phernetton

Dist III, Washburn County, Kutz, J., Per Curiam

Attorneys: For Appellant: York, Katie R., Madison; For Respondent: Frost, Thomas H., Shell Lake; Johnson-Karp, Gabe, Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — plea withdrawal — right to counsel; ineffective assistance

Carl Bennett appeals a judgment of conviction and an order denying his motion for postconviction relief. We affirm. This opinion will not be published.

2013AP92-CR State v. Bennett

Dist IV, Juneau County, Reynolds, J., Per Curiam

Attorneys: For Appellant: Bennett, Carl W., pro se; For Respondent: Kassel, Jeffrey J., Madison; Solovey, Michael T., Mauston

MOTOR VEHICLES

Wisconsin Court of Appeals

Criminal
Motor Vehicles — OWI — prior convictions

The State of Wisconsin appeals a judgment convicting Andre Chamblis of operating with a prohibited alcohol concentration, as a sixth offense. In this appeal, the State raises multiple arguments that fall into three main categories: (1) the circuit court erred in concluding that the documentation the State originally submitted to prove that Chamblis had been convicted of two prior operating-while-intoxicated-related offenses in Illinois was not sufficient to prove those convictions; (2) the circuit court erred in excluding, at the plea hearing, additional evidence that the State sought to submit to prove the purported Illinois convictions; and (3) the additional evidence was sufficient to prove the Illinois convictions. Chamblis cross-appeals, arguing that the circuit court erred in denying his motion to suppress because the police did not have reasonable suspicion to stop the vehicle that Chamblis was driving.

As to the issues the State raises in its appeal, we conclude that the circuit court erroneously exercised its discretion in excluding the additional evidence that the State sought to submit to prove the purported Illinois convictions, and the additional evidence is sufficient to prove the Illinois convictions. In light of the foregoing, we need not and do not address the sufficiency of the documentation the State originally submitted to prove the purported Illinois convictions. As to Chamblis’s cross-appeal, we conclude that the circuit court properly denied Chamblis’s motion to suppress because the stop was supported by reasonable suspicion.

Accordingly, we reverse and remand to the circuit court to issue an amended judgment of conviction convicting Chamblis of operating with a PAC, as a seventh offense, and to hold a resentencing hearing pursuant to the penalty ranges for a seventh offense set forth in Wis. Stat. § 346.65(2)(am)6. This opinion will not be published.

2012AP2782-CR State v. Chamblis

Dist IV, La Crosse County, Levine, J., Per Curiam

Attorneys: For Appellant: Weber, Gregory M., Madison; Gruenke, Tim, La Crosse; Sanders, Michael C., Madison; For Respondent: Zaleski, Steven, Madison

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OAR — reasonable suspicion

The State of Wisconsin appeals an order granting Joshua Winberg’s suppression motion. The circuit court granted the suppression motion after determining Winberg was unlawfully seized. We conclude Winberg was not unlawfully seized, and we reverse and remand for further proceedings. This opinion will not be published.

2013AP2661-CR State v. Winberg

Dist III, Eau Claire County, Theisen, J., Hoover, P.J.

Attorneys: For Appellant: Weber, Gregory M.; Larson, Meri C., Eau Claire; For Respondent: Cohen, Michael R., Eau Claire

SENTENCING

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

Criminal
Sentencing — supervised release conditions

Before imposing conditions of supervised release, district courts should follow the following best practices.

1. Require the probation service to communicate its recommendations for conditions of supervised release to defense counsel at least two weeks before the sentencing hearing. 2. Make an independent judgment (as required in fact by 18 U.S.C. § 3553(a)) of the appropriateness of the recommended conditions — independent, that is, of agreement between prosecutor and defense counsel (and defendant) on the conditions, or of the failure of defense counsel to object to the conditions recommended by the probation service. 3. Determine appropriateness with reference to the particular conduct, character, etc., of the defendant, rather than on the basis of loose generalizations about the defendant’s crime and criminal history, and where possible with reference also to the relevant criminological literature. 4. Make sure that each condition imposed is simply worded, bearing in mind that, with rare exceptions, neither the defendant nor the probation officer is a lawyer and that when released from prison the defendant will not have a lawyer to consult. 5. Require that on the eve of his release from prison, the defendant attend a brief hearing before the sentencing judge (or his successor) in order to be reminded of the conditions of supervised release. That would also be a proper occasion for the judge to consider whether to modify one or more of the conditions in light of any changed circumstances brought about by the defendant’s experiences in prison.”

Affirmed in part, and Reversed in part.

13-1633, 13-1640 & 13-1768 U.S. v. Siegel

Appeals from the United States District Court for the Central District of Illinois, Mihm, J., Posner, J.

Wisconsin Court of Appeals

Criminal
Sentencing — improper factors

Benjamin Burrill appeals a judgment of conviction for burglary and three counts of bail jumping, and an order denying his postconviction motion for resentencing or sentence modification. Burrill argues the circuit court relied on an improper factor at sentencing. We hold the court did not actually rely on the purportedly improper factor. Accordingly, we affirm. This opinion will not be published.

2013AP1881-CR State v. Burrill

Dist III, Outagamie County, Dyer, J., Per Curiam

Attorneys: For Appellant: Hirsch, Eileen A., Madison; For Respondent: Schneider, Carrie A., Appleton; Remington, Christine A., Madison

Wisconsin Court of Appeals

Criminal
Sentencing — positive adjustment time

Aleksey Ruderman, pro se, appeals an order denying his petition for positive adjustment time and for a corresponding reduction in his term of confinement in prison. Because we conclude that the trial court properly exercised its discretion when denying Ruderman’s petition, we affirm. This opinion will not be published.

2013AP313-CR State v. Ruderman

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

Attorneys: For Appellant: Ruderman, Aleksey, pro se; For Respondent: Loebel, Karen A., Milwaukee; Pray, Eileen W., Madison

SEXUALLY VIOLENT PERSONS

Wisconsin Court of Appeals

Criminal
Sexually Violent Persons — discharge

Phillip Gadzinski appeals an order denying his petition for discharge from a Wis. Stat. ch. 980 commitment. The circuit court denied Gadzinski’s petition without a discharge hearing, concluding the petition did not set forth any new evidence, not considered at the original commitment trial, from which a reasonable fact finder could conclude Gadzinski did not meet the criteria for commitment as a sexually violent person. Gadzinski argues his petition was sufficient to warrant a discharge hearing. We reject his argument and affirm. This opinion will not be published.

2013AP1789 In re the commitment of Phillip J. Gadzinski

Dist III, Brown County, Kelley, J., Per Curiam

Attorneys: For Appellant: Kachinsky, Leonard D., Appleton; For Respondent: Noet, Nancy A., Madison; Lasee, David L., Green Bay

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