Weekly Case Digests — Aug. 25-29, 2014

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Wisconsin Law Journal’s Case Digests — Aug. 25-29, 2014

CIVIL DIGESTS

CIVIL COMMITMENT

Wisconsin Court of Appeals

Civil
Civil Commitment – recommitment – mootness

This appeal and cross-appeal arise from orders authorizing involuntary commitment under WIS. STAT. ch. 51 and denying postdisposition relief. Mark J. argues that the circuit court lost competency to adjudicate his commitment petition because it failed to hold a hearing on the petition within seventy-two hours of his “arriv[al] at the facility” where he was detained—a hospital—as required by WIS. STAT. § 51.20(7)(a) (2011-12). The County contends that Mark did not arrive at the “facility” until he was transferred from the emergency room of the hospital to its mental health treatment unit, which occurred less than seventy-two hours before the probable cause hearing. The County also contends that Mark’s appeal has become moot because Mark has stipulated to, and did not appeal from, a recommitment order.

Affirmed.

This opinion will not be published.

2014AP479 Ozaukee County v. Mark T.J.

Dist. II, Ozaukee County, Malloy, J., Brown, J.

CIVIL PROCEDURE

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

Civil
Civil Procedure – class actions

The district court erred in denying class certification to plaintiffs alleging they were misled by defendant’s packaging instant coffee to resemble K-cups, and granting summary judgment to the defendant.

“Our de novo review of the summary judgment record satisfies us that there are genuine questions of material fact in each of the individual cases whether the GSC packaging was likely to mislead a reasonable consumer. Sturm consciously avoided use of the term ‘instant’ and designed the package to resemble Keurig products; several of the plaintiffs testified that they were misled; the packaging contained numerous statements that implied the product was premium fresh (i.e. unbrewed) coffee; and the package did not explain that it was little more than instant coffee. At least three independent expert surveys, all employing different methodologies, found that consumers were confused about the product. A jury should have decided the question whether the packaging was likely to mislead reasonable consumers.”

Reversed and Remanded.

13-3843 Suchanek v. Sturm Foods Inc.

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

Wisconsin Court of Appeals

Civil
Civil Procedure – default judgment — relief

Barbara and Thomas Anderson appeal an order denying a WIS. STAT. § 806.07 motion for relief from default judgment in a foreclosure action. We affirm.

Affirmed.

This opinion will not be published.

2013AP1726 Bank of America, NA, v. Anderson

Dist. III, Eau Claire County, Thiesen, J., Per Curiam.

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

Civil
Civil Procedure – arbitration

A provision in a payday loan contract that disputes be arbitrated under the supervision of an Indian tribe is invalid.

“The arbitration provision contained in the loan agreements is unreasonable and substantively and procedurally unconscionable under federal, state, and tribal law. The district court, therefore, erred in granting the Defendants’ motion to dismiss for improper venue based on that provision. Additionally, the courts of the Cheyenne River Sioux Tribe do not have subject matter jurisdiction over the Plaintiffs’ claims. Nor have the Defendants raised a colorable claim of tribal jurisdiction necessary to invoke the rule of tribal exhaustion. The district court’s dismissal, therefore, cannot be upheld on the alternative basis that this dispute belongs in tribal court. We therefore reverse the judgment of the district court granting the Defendants’ motion to dismiss and remand for further proceedings consistent with this opinion. The Plaintiffs may recover their costs in this court.”

Reversed and Remanded.

12-2617 Jackson v. Payday Financial LLC

Appeal from the United States District Court for the Northern District of Illinois; Ripple, Rovner, JJ.

FAMILY

Wisconsin Court of Appeals

Civil
Family – divorce – property division – child support

Ronald Schroeder, pro se, appeals from a March 23, 2010 trial court order that addressed post-judgment matters. On appeal, Schroeder raises numerous issues concerning the validity of the default divorce judgment, the property division, and child support. For reasons explained below, we affirm the trial court’s order.

Affirmed.

This opinion will not be published.

2010AP1555 Schroeder v. Schroeder

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

Wisconsin Court of Appeals

Civil
Family – maintenance — property division

Victor Vassallo appeals the circuit court’s judgment divorcing Victor and Adeline Vassallo after a trial contesting maintenance and property division issues. Victor’s primary challenge is to the circuit court’s maintenance decision. Victor complains that the court’s determination that he pay Adeline $2,500 per month in indefinite maintenance unreasonably requires him to liquidate assets to meet his maintenance and personal ongoing financial obligations. Victor also challenges property division. Although the division of divisible property was roughly equal, Victor challenges the circuit court’s decision to also award to Adeline a non-divisible asset valued at $28,333.

So far as we can tell from the record before us, the court’s maintenance decision unfairly required Victor to liquidate significant assets while allowing Adeline to retain all assets awarded to her. If there is a reasonable explanation for this result, the circuit court’s decision does not reveal what it is. Also, the circuit court does not explain, and we are unable to detect, a basis for the “hardship” determination necessary to support invading Victor’s non-divisible property. Accordingly, we reverse and remand for the circuit court to reconsider maintenance and property division in a manner consistent with our decision. Not recommended for publication in the official reports.

2013AP2479 In re the marriage of: Vassallo v. Vassallo

Dist IV, Adams County, Pollex, J., Lundsten, J.

Attorneys: For Appellant: Perreault, Michele, Madison; For Respondent: Vassallo, Adeline Frances, pro se

Wisconsin Court of Appeals

Civil
Family – contempt

Jeffrey Clark appeals from a contempt order for his failure to pay guardian ad litem fees as required by his judgment of divorce. We affirm as Clark’s refusal to pay was willful and with the intent to avoid payment.

Affirmed.

This opinion will not be published.

2013AP2879 Clark v. Clark

Dist. II, Ozaukee County, Williams, J., Reilly, J.

INSURANCE

Wisconsin Court of Appeals

Civil
Insurance – UIM coverage

Bonnie Hahn appeals the trial court’s grant of declaratory judgment on her claim for underinsured motorist coverage against Harleysville Insurance Company. Hahn sought underinsured motorist coverage from Harleysville after her husband, Edward Hahn, was tragically killed in an automobile accident. After Harleysville denied coverage, Hahn filed the instant claim with the trial court, seeking a declaration of coverage. The trial court instead granted declaratory judgment in Harleysville’s favor, finding that there was no coverage for the accident because the vehicle Edward was driving when he was hit — a Kawasaki Mule — was not a covered vehicle under the Hahns’ policy. Hahn argues we should reverse the trial court because there was in fact coverage under the policy, but we disagree and affirm.

Affirmed.

Not recommended for publication in the official reports.

2013AP2429 Hahn v. Harleysville Ins. Co.

Dist. I, Milwaukee County, Guolee, J., Curley, J.

MUNICIPALITIES

Wisconsin Court of Appeals

Civil
Municipalities – tavern licenses – judicial review

The City of Milwaukee appeals the judgment and order vacating the decision of the City of Milwaukee Common Council not to renew Robert F. Smith’s Class B tavern license for Mixx Night Club. After the City decided not to renew Smith’s license, the trial court — reviewing the nonrenewal decision de novo, pursuant to Nowell v. City of Wausau, 2012 WI App 100, 344 Wis. 2d 269, 823 N.W.2d 373 (Nowell I), which has since been overturned, see Nowell v. City of Wausau, 2013 WI 88, 351 Wis. 2d 1, 838 N.W.2d 852 (Nowell II) — vacated the City’s decision and instead ordered that the City renew Smith’s license and suspend it for fifteen days. On appeal, the City, arguing that we should review its decision under the four-part certiorari review outlined in Nowell II, contends that its nonrenewal must be affirmed because it meets the four-part Nowell II test. In other words, the City argues that its decision: kept within its jurisdiction; was lawful; was not arbitrary, oppressive, unreasonable or representative of its will rather than its judgment; and was supported by substantial evidence. Smith, on the other hand, argues that because Nowell I was in effect when the trial court reviewed the City’s decision de novo, we should not apply the Nowell II standard of review here, but should instead review and affirm the trial court’s decision rather than the City’s. We agree with the City, and therefore must reverse the trial court and affirm the City’s decision not to renew Smith’s Class B tavern license.

Reversed.

Not recommended for publication in the official reports.

2013AP2599 Smith v. City of Milwaukee

Dist. I, Milwaukee County, Sankovitz, J., Curley, J.

PROPERTY

Wisconsin Court of Appeals

Civil
Property – foreclosure

Sandra Kasza, pro se, appeals a judgment in favor of Bank of America, N.A. Kasza raises several arguments for the first time on appeal, but the dispositive issue is whether Bank of America was entitled to summary judgment in this foreclosure action. We affirm.

Affirmed.

This opinion will not be published.

2013AP458 Bank of America, NA, v. Kasza

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

Wisconsin Court of Appeals

Civil
Property – condemnation — evidence

This is a condemnation case. The Wisconsin Department of Transportation condemned property owned by Forbes SRE, LLC and Forbes SRE II, LLC (collectively, “Forbes,” except when otherwise noted), located along U.S. Highway 151, including a private gravel driveway that connected the property to the highway. A jury trial was held to determine the value of the Forbes’ properties before and after their taking. In pre-trial motions in limine, Forbes sought to exclude testimony from the DOT’s expert appraiser that the taking of the driveway did not affect the value of the subject property because the DOT had authority to require the owner of the property to obtain a permit in order to change the use of the driveway, and that the DOT likely would have declined to issue such a permit. Forbes also sought to admit evidence regarding the amount the DOT and others had previously paid for property across the highway from the Forbes property, which also had access to Highway 151. The circuit court denied both motions.

On appeal, Forbes renews the arguments made in the circuit court. Forbes also contends that the real controversy has not been fully tried, and therefore requests that we exercise our discretionary power to reverse under Wis. Stat. § 752.35. We conclude that the circuit court properly exercised its discretion in making its evidentiary rulings and that the real controversy has been fully tried. Accordingly, we affirm. Not recommended for publication in the official reports.

2012AP626 In Re Acquisition of Property of Forbes SRE II LLC

Dist IV, Dane County, Niess, J., Higginbotham, J.

Attorneys: For Appellant: Southwick, Benjamin, Richland Center; For Respondent: Potts, Abigail, Madison

PUBLIC HEALTH

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

Civil
Public Health — disability benefits

Where a claimant suffered from a variety of medical conditions, including degenerative discs, spinal stenosis, sleep apnea, hypertension, arthritis, atrial fibrillation, and restless leg syndrome, his claim for disability benefits was improperly denied.

“We now reverse the judgment of the district court and remand for further proceedings. In our view, the ALJ’s methodology was flawed in several respects. The ALJ impermissibly ignored a line of evidence demonstrating the progressive nature of Mr. Scrogham’s degenerative disc disease and arthritis. As a result, the ALJ inappropriately undervalued the opinions of Mr. Scrogham’s treating physicians, whose longitudinal view of Mr. Scrogham’s ailments should have factored prominently into the ALJ’s assessment of his disability status. Second, even if we confined our review of the record to the snapshots of evidence that the ALJ considered, we do not think that this limited evidence builds the required logical bridge to her conclusions. Specifically, the ALJ seems to have misapprehended or at least to have considered only partially some of the evidence about Mr. Scrogham’s daily activities, rehabilitation efforts and physicians’ evaluations. This lapse affected both the ALJ’s credibility determination and her residual functional capacity assessment. Because the ALJ’s opinion reflects a flawed evaluation of the record evidence, we reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.”

Reversed and Remanded.

13-3601 Scrogham v. Colvin

Appeal from the United States District Court for the Southern District of Indiana, Pratt, J., Ripple, J.

CRIMINAL DIGESTS

Wisconsin Court of Appeals

Criminal
Probation – revocation

Quinell Smith appeals a trial court order affirming a decision of the Administrator of the Division of Hearings and Appeals that revoked Smith’s probation. We reverse and remand to the Division for further proceedings. Affirmed.

This opinion will not be published.

2013AP2469 State ex rel. Smith v. Schwarz

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

Wisconsin Court of Appeals

Criminal
1st-degree Reckless Homicide – jury instructions

Kou Yang appeals a judgment convicting him of first-degree reckless homicide, first-degree reckless injury, and possession of a firearm by a felon, all as a repeater. We conclude that there is no reasonable likelihood that the jury applied the instruction on the utter-disregard-for-human-life element in an unconstitutional manner. We also conclude that the court properly exercised its discretion in ordering restitution. We affirm.

Affirmed.

This opinion will not be published.

2013AP1976-CR State v. Yang

Dist. II, Sheboygan County, Stengel, J., Per Curiam.

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

Criminal
Due Process – sentencing

The sentencing judge’s failure to order mandatory supervision after imprisonment does not entitled the defendant to a lower sentence of imprisonment.

“We can imagine an argument that due process encompasses procedures the violation of which has no tangible consequences. But the argument would founder on the fact that the due process clause does not guaranty due process; it forbids government to deprive a person of life, liberty, or property without due process. The failure to mention supervised release in Carroll’s sentence did not deprive him of life, liberty, or property. And Carroll isn’t interested in purely symbolic victories. Remember that he wanted his sentence changed to 23 years in prison followed by three years of supervised release, thus swapping three years of prison for an equivalent term of supervised release, a trade obviously advantageous to a prisoner. He has no constitutional right to such a trade just because the judge left something out of the sentence that doesn’t have to be in it in order to authorize the full measure of punishment that Carroll has been ordered to undergo.”

Affirmed.

12-3332 Carroll v. Daugherty

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

CRIMINAL PROCEDURE

Wisconsin Court of Appeals

Criminal
Criminal Procedure – ineffective assistance

Montgomery Walker appeals a judgment of conviction for first-degree sexual assault (intercourse) of a child under twelve, and an order denying postconviction relief. Walker argues his trial counsel did not properly inform him of the definition of sexual intercourse prior to trial, and but for counsel’s alleged errors he would have accepted the State’s offer to plead to second-degree sexual assault of a child, which lacked the mandatory minimum 25-years’ initial incarceration. Walker also claims the circuit court erred by denying counsel’s motion to withdraw. We reject Walker’s arguments and affirm.

Affirmed.

This opinion will not be published.

2013AP2193-CR State v. Walker

Dist. I, Milwaukee County, Dallet, Wagner, JJ., Per Curiam.

Wisconsin Court of Appeals

Criminal
Criminal Procedure – ineffective assistance – new trials

Robert Kentrell Gant appeals the judgment entered on a jury verdict convicting him of first-degree intentional homicide. See WIS. STAT. § 940.01(1)(a). He also appeals the trial court’s denial of his motion for postconviction relief. He argues here that: (1) the trial court erred when it denied without hearing his claim that his trial lawyer gave him constitutionally deficient representation; (2) State witness Ashlee Bell’s recantation after his conviction was newly-discovered evidence; and (3) the real controversy was not tried. We affirm.

Affirmed.

Not recommended for publication in the official reports.

2013AP1842-CR State v. Gant

Dist. I, Milwaukee County, Martens, Wagner, JJ., Fine, J.

EVIDENCE

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

Criminal
Evidence — other acts

Where the defendant’s defense to a heroin charge is that he did not possess it at all, it was error to admit evidence of a prior heroin conviction.

“We agree with Chapman’s first claim of error: The judge should not have admitted the details of Chapman’s heroin-trafficking conviction under Rule 404(b). As explained in our recent en banc opinion in United States v. Gomez, No. 12-1104, 2014 WL 4058963 (7th Cir. Aug. 18, 2014) (en banc), evidence of other bad acts is inadmissible to show character or propensity but may be admitted for another purpose provided that the evidence is relevant under a theory that does not rely on an inference about the actor’s propensity. See FED. R. EVID. 404(b)(1). Here, the judge allowed the government to use the specifics of Chapman’s prior heroin conviction to prove knowledge and intent, but the relevance of the evidence on those issues depends entirely on a forbidden propensity inference. Even if the evidence was relevant in a non-propensity way, its probative value was substantially outweighed by the risk of unfair prejudice given that Chapman’s defense was that he did not possess the bag at all. See FED. R. EVID. 403. The jury’s inconsistent verdict shows that the Rule 404(b) error was not harmless.”

Vacated and Remanded.

12-1415 U.S. v. Chapman

Appeal from the United States District Court for the Northern District of Illinois, Kendall, J., Sykes, J.

HABEAUS CORPUS

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

Criminal
Habeas Corpus — ineffective assistance

Where the evidence of guilt was overwhelming, state courts did not unreasonably find that any deficient performance by the prisoner’s attorney was not prejudicial.

“In light of this overwhelming evidence, the precise location of Smith’s gloves is a trivial concern. Smith makes much of the fact that no one correctional officer witnessed the entire incident, from Smith’s approach until the discovery of the scissors under the table. But combined, overlapping testimony of three individuals that is consistent on all major issues provides powerful corroboration. Nor does Smith point to any potential evidence in his favor. Although he claims he had witnesses he wanted to call, he does not indicate what these individuals would have said, or how that evidence could have cast doubt on the eyewitness testimony of three correctional officers. This distinguishes this case from the one Smith cites, Stitts v. Wilson, 713 F.3d 887 (7th Cir. 2013), cert. denied, 134 S. Ct. 1282 (2014), in which an attorney failed to call alibi witnesses that could have under-mined the state’s case. Finally, even if Cupp had vigorously pursued a self-defense theory, it would have assuredly failed in light of the unprovoked nature of the attack. Smith has not advanced any argument as to how a self-defense argument could have prevailed. In short, he has offered us ‘no reason to believe that the trial would have come out differently’ had his representation been satisfactory. United States v. Kamel, 965 F.2d 484, 499 (7th Cir. 1992). The state court did not err in finding a lack of prejudice and did not apply the law unreasonably.”

Affirmed.

12-3731 Smith v. Brown

Appeal from the United States District Court for the Northern District of Indiana, Moody, J., Tinder, J.

OWI

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI – probable cause

The State appeals from an order granting Jeanmarie Carini’s motion to suppress the evidence of the result of a preliminary breath test (PBT) Carini was asked to take shortly after she was involved in a car accident. The circuit court concluded that a police officer lacked probable cause to request the PBT even though the other driver said that Carini had caused the accident and the officer smelled intoxicants on the driver’s breath. We agree with the State that this conclusion was a misapplication of WIS. STAT. § 343.303 and reverse.

Reversed.

Not recommended for publication in the official reports.

2014AP526-CR State v. Carini

Dist. II, Waukesha County, Dorow, J., Brown, J.

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — motorized bicycles

A bicycle with a motor is a motor vehicle under the OWI statute.

“This case involves an allegation that Thomas Koeppen consumed alcohol and operated a particular type of vehicle defined in the traffic statutes. The vehicle at issue is a motor bicycle and, for the unfamiliar reader, it is sufficient to say in this introduction that a motor bicycle is essentially a bicycle with a motor added, such that the bicycle can be pedaled or can be self-propelled using the motor. The question posed here is whether the operator of a motor bicycle who is either operating while under the influence of an intoxicant (OWI) or operating with a prohibited alcohol concentration (PAC) violates the OWI/PAC statute, WIS. STAT. § 346.63(1). The answer to this question hinges on whether a ‘motor bicycle’ as defined in WIS. STAT. § 340.01(30) is a ‘motor vehicle’ as that term is defined in § 340.01(35) and used in the OWI/PAC statute. Unlike the circuit court, we conclude that a plain-language reading of the statutes leads to the conclusion that a ‘motor bicycle’ is a ‘motor vehicle’ within the meaning of these statutes, at least when the motor bicycle being operated is self-propelled, rather than pedaled.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP2539-CR State v. Koeppen

Dist. II, Waukesha County, Bohren, J., Lundsten, J.

Attorneys: For Appellant: Osborne, Kevin M., Waukesha; Sanders, Michael C., Madison; For Respondent: York, Katie R., Madison

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — warrantless blood draws

Victor Godard appeals the judgment of conviction for operating a motor vehicle while intoxicated as a third offense in violation of Wis. Stat. § 346.63(1)(a). Godard argues that the circuit court erred in denying his motion to suppress the results of his blood test because: (1) the arresting officer provided Godard with inaccurate and erroneous information, which caused Godard to refuse to submit to the implied consent blood test, and which thereby “denied [him] his right to a second test of his choosing;” and (2) the warrantless blood draw violated his constitutional rights. I conclude that the circuit court did not err in denying Godard’s motion to suppress, because the officer did not provide inaccurate and erroneous information, and because the officer acted in good faith reliance on established Wisconsin Supreme Court precedent at the time the blood draw was obtained. Accordingly, I affirm the judgment. This opinion will not be published.

2014AP396-CR State v. Godard

Dist IV, Dodge County, Bauer, J., Kloppenburg, J.

Attorneys: For Appellant: Rosenberg, Michael D., Madison; For Respondent: Weber, Gregory M., Madison; Sempf, James T., Juneau

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI – expert testimony – retrograde extrapolation

“We think Giese’s real dispute is not with the science the expert relied upon in his case but with the assumptions the expert made. It is true that the calculation would be more reliable if the expert had more facts about exactly when and what Giese drank. However, under the circumstances, we think Giese’s questions go to the weight of the evidence, not to its admissibility. See Burgess, 5 A.3d 911, 916 (‘concerns [about the reliability of retrograde extrapolation] relate to the proper weight to be afforded the evidence, not whether the evidence is admissible in the first place’). Giese remains free to challenge the accuracy of the expert’s assumptions. He may, for instance, propose competing scenarios—e.g., that Giese drank all the alcohol soon before driving. Or that he began drinking alcohol, or continued drinking, after the crash. In our adversary system, ‘[j]uries resolve factual disputes’ like those. State v. Abbott Labs., 2012 WI 62, ¶69, 341 Wis. 2d 510, 816 N.W.2d 145 (citation omitted); see also Daubert, 509 U.S. at 596 (‘Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.’). Giese still has the chance to undermine the assumptions that support the expert’s opinion by introducing evidence or arguing in favor of competing inferences from the known facts. But the expert’s opinion is admissible under Daubert.”

Affirmed.

Recommended for publication in the official reports.

2013AP2009-CR State v. Giese

Dist. II, Washington County, Muehlbauer, J., Brown, J.

SEARCH AND SEIZURE

Wisconsin Court of Appeals

Criminal
Search and Seizure – wiretapping – consent

A minor can consent to wiretapping under the WESCL.

“We conclude the proper test for minor one-party consent under the WESCL is set forth in State v. Tomlinson, 2002 WI 91, 254 Wis. 2d 502, 648 N.W.2d 367. Under that test, the ability of a minor to consent to police interception of his or her conversations is a question of voluntariness. To determine whether a minor voluntarily gave consent, courts should consider the totality of the circumstances, including, but not limited to, a minor’s age, intelligence, knowledge, and maturity. Fundamentally, a minor’s consent must be the product of an ‘essentially free and unconstrained choice.’ See Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973). We conclude it was in this case. “

Affirmed.

Recommended for publication in the official reports.

2013AP2101-CR State v. Turner

Dist. III, Outagamie County, Gage, J., Cane, J.

SENTENCING

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

Criminal
Sentencing — vulnerable victim enhancement

Where the defendants were selective regarding which customers they provided honest services, and which ones they stole from, the district court properly applied enhancements for targeting vulnerable victims.

“We find that there was sufficient testimony from the six victims at trial to support the district court’s finding that the victims qualified as vulnerable. Harold Ray, for instance, was a fifty-nine year old retiree dependent upon Social Security disability payments after suffering a stroke. There was also sufficient evidence to support the court’s finding that the appellants knew of their victims’ vulnerabilities. Kelliher’s testimony was direct evidence that the appellants targeted elderly and unsophisticated people for their refinancing scheme. Additionally, the appellants did not take advantage of all their customers, only the ones willing to refinance their homes. See United States v. Christiansen, 594 F.3d 571, 576 (7th Cir. 2010) (offering services selectively instead of to the general public at-large was evidence that a defendant knew her victims were susceptible to fraud). The appellants selectively targeted their victims, and the district court did not err in its application of this enhancement.”

Affirmed.

12-3631 & 12-3670 U.S. v. Sullivan

Appeals from the United States District Court for the Northern District of Illinois, Castillo, J., Bauer, J.

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

Criminal
Sentencing — supervised release

Written conditions of supervised release not announced orally must be vacated.

“It is well-established in this circuit that when there is a conflict between an oral and later written sentence, the oral judgment pronounced from the bench controls. United States v. Alburay, 415 F.3d 782, 788 (7th Cir. 2005). ‘[If] the oral version is unambiguous, there is no need to look beyond the oral version for any clarification from the written version … . The written version is thus a nullity, not requiring further discussion’ Id. Here, the district court unambiguously announced several specific conditions of supervised release at Johnson’s sentencing hearing and did not include any statement as to whether other standard conditions would apply. We conclude that the court exercised its discretion in selecting only some of the discretionary conditions to impose on Johnson. According to our holding in Alburay, any new conditions imposed in the later written judgment are inconsistent with the court’s oral order and must be vacated. Cf., Bonanno, 146 F.3d at 512 (when the district court orally informed the defendants that ‘all the standard conditions of supervised release adopted by this Court’ would apply, but did not enumerate those conditions until the written order, the written order was merely a clarification of the vague oral pronouncement and was not in conflict with the oral pronouncement).”

Affirmed in part, and Vacated in part.

13-3649 U.S. v. Johnson

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

Wisconsin Court of Appeals

Criminal
Sentencing – accurate information – modification

Demetrius Payne appeals a judgment, entered upon his guilty plea, convicting him of substantial battery, as domestic abuse, while using a dangerous weapon. Payne also appeals the order denying his postconviction motion for resentencing. Payne raises no challenge to his conviction but, rather, argues that the sentencing court’s reliance on inaccurate information entitles him to resentencing. Payne alternatively contends that new factors warrant sentence modification. We conclude that to the extent the sentencing court relied on inaccurate information, any error was harmless. We also reject Payne’s arguments for sentence modification based on new factors. Therefore, the judgment and order are affirmed. Affirmed.

This opinion will not be published.

2013AP2579-CR State v. Payne

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

Wisconsin Court of Appeals

Criminal
Sentencing – sentence credit

Travis Husnik appeals a judgment of conviction for two counts of manufacture/delivery of cocaine, second or subsequent offense. Husnik argues the circuit court erroneously calculated his sentence credit by not crediting time served to two separate cases that were ordered to be served consecutively. We reject Husnik’s argument, and affirm.

Affirmed.

This opinion will not be published.

2013AP2092-CR State v. Husnik

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

Wisconsin Court of Appeals

Criminal
Sentencing – discretion — undue harshness

Britton D. McKenzie, pro se, argues in effect that the circuit court erroneously exercised its sentencing discretion in imposing an excessive or unduly harsh sentence. While McKenzie appears to intend to make several arguments on appeal, I am limited by a prior order of this court to the argument that the sentence is excessive or unduly harsh given McKenzie’s health problems. For the following reasons, I reject this argument, and accordingly affirm. This opinion will not be published.

2014AP314-CR State v. McKenzie

Dist IV, Jefferson County, Wambach, J., Blanchard, P.J.

Attorneys: For Appellant: McKenzie, Britton D., pro se; For Respondent: Weber, Gregory M., Madison; Shock, Jeffrey M., Jefferson

SEXUALLY VIOLENT PERSONS

Wisconsin Court of Appeals

Criminal
Sexually Violent Persons – jury trials

Christopher Seeley appeals an order denying his petition for discharge and continuing his WIS. STAT. ch. 980 commitment. Seeley also appeals both the order denying his postcommitment motion for a new trial and the order denying his motion for reconsideration. Seeley argues the circuit court erred by ordering a jury trial under WIS. STAT. § 980.095(1) when no jury trial request was made by the parties. We reject Seeley’s argument and affirm the orders.

Affirmed.

This opinion will not be published.

2013AP2483 State v. Seeley

Dist. III, Eau Claire County, Gabler, J., Per curiam.