Weekly Case Digests — Oct. 6-10, 2014

Listen to this article

Wisconsin Law Journal’s Case Digests, Oct. 6-10, 2014

CIVIL OPINIONS

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

Indians
night hunting

The state cannot prohibit Indians from hunting deer at night.

“A motion to modify a judgment under Fed. R. Civ. P. 60(b)(5) must, like any motion, be made in a reasonable time, since the rules specify no deadline. But what is reasonable depends on the circumstances. If reasonable reliance on a judgment is likely to grow over time, a motion to modify it should be made sooner rather than later. But in the case of regulatory decrees, such as the judgment in this case forbidding night hunting of deer, often the passage of time renders them obsolete, so that the case for modification or rescission actually grows with time, as in Horne v. Flores, 557 U.S. 433, 447–48 (2009), People Who Care v. Rockford Board of Education, 246 F.3d 1073, 1075–76 (7th Cir. 2001), and Alliance to End Repression v. City of Chicago, 237 F.3d 799, 801 (7th Cir. 2001). That’s what seems to have happened in this case. Based on almost no experience with night deer hunting in the 1980s, the district court at the beginning of the next decade upheld on safety grounds Wisconsin’s ban on off-reservation night deer hunting by Indians. Greater experience with deer hunting suggests that a total ban is no longer (if it ever was) necessary to ensure public safety. And as noted in Reich v. Great Lakes Indian Fish & Wildlife Commission, supra, 4 F.3d at 501, it is only safety (and conservation, which however is not an issue in this case) that can justify a state’s forbidding a normal Indian activity, authorized to the tribes on land ceded by them to the United States.”

Reversed and Remanded.

14-1051 Lad Courte Oreilles Band of Lake Superior Chippewa v. State of Wisconsin

Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Posner, J.

CIVIL PROCEDURE

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

Civil Procedure
motions to reconsider

A party cannot seek reconsideration under FRCP 54(b) based on a subsequent change in the law.

“The bottom line is that the January 27, 2010 judgment was final, and thus the district court did not err in concluding that Rule 54(b) was inapplicable. Presumably the City understood that the proper rules to use would have been 59(e) or 60(b); however, the City also probably knew that those motions would have been fruitless here. The City was too late to use Rule 59(e), and ‘Rule 60(b) cannot be used to reopen the judgment in a civil case just because later authority shows that the judgment may have been incorrect.’ Hill v. Rios, 722 F.3d 937, 938 (7th Cir. 2013) (citing Gonzalez v. Crosby, 545 U.S. 524, 536-38 (2005)); see also Nash v. Hepp, 740 F.3d 1075, 1078 (7th Cir. 2014) (‘[A] change in law showing that a previous judgment may have been incorrect is not an “extraordinary circumstance” justifying relief under Rule 60(b)(6).’). Moreover, ‘a party invoking Rule 60(b) must claim grounds for relief that could not have been used to obtain a reversal by means of a direct appeal.’ Kiswani v. Phoenix Sec. Agency, Inc., 584 F.3d 741, 743 (7th Cir. 2009). As set forth above, because Western World’s properly-filed Rule 59(e) motion tolled the time for appeal (see Fed. R. App. P. 4(a)(4)(A); Banks, 750 F.3d at 666; and Nat’l Cas. Co. v. McFatridge, 604 F.3d 335, 344-45 (7th Cir. 2010), was issued while Western World’s motion was still pending, the City Defendants could have filed a timely notice of appeal from district court’s January 27, 2010 judgment order. But it cannot now challenge that judgment — final then and now — under the artifice of Rule 54(b).”

Affirmed.

13-1699 Selective Insurance Company of South Carolina v. City of Paris

Appeal from the United States District Court for the Central District of Illinois, McCuskey, J., Dow, J.

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

Civil Procedure
Jurisdiction — Rooker-Feldman doctrine

A federal district court has no authority to interfere with a state court’s interpretation of its worker’s compensation laws.

“The Supreme Court of the United States is the only federal court with appellate authority over state courts; that is the Rooker-Feldman doctrine. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). But even the Supreme Court would have had no authority over the Indiana courts in Lodholtz v. Pulliam because no issue of federal law was involved in that litigation. Granite State has struck out. The jurisdictional issue on which its federal suit is based was resolved against it by the Indiana courts, and there is no ground for a collateral attack by another judicial system on that determination.”

Reversed.

14-8015 In re: Lodholtz

Petition for Permission to Appeal from the Northern District of Indiana, Lozano, J., Posner, J.

CIVIL RIGHTS

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

Civil Rights
right to remain silent

Where the plaintiff’s conviction remains unreversed, summary judgment was properly granted to the officers on his claim that the officers violated his right to remain silent.

“We conclude, like the district court, that success on Matz’s Fifth Amendment claim would necessarily imply the invalidity of Matz’s sentence. At sentencing, the judge relied heavily on Matz’s confession as well as his subsequent decision to recant his admissions. Specifically, Matz explained to the judge that he confessed out of loyalty to his fellow Latin King codefendants in the hopes that he could take the fall and the rest of them ‘would be able to go home.’ The sentencing judge rejected the notion that Matz confessed because ‘it was the right thing to do,’ and opined instead that Matz thought he could be out in ‘five — ten years’ and emerge in his ‘rightful spot’ as the leader of the Latin Kings brotherhood because he had stepped up and taken responsibility for the ‘weaklings’ beneath him. The judge believed that when the reality of the prison sentence Matz was facing set in and it came to light that his fellow Latin Kings had inculpated him in the crime, he was scared and realized that it was not worth taking the fall for his confederates. The court accordingly concluded that Matz had only a ‘sort of a selfish, self-centered remorse’ and thus posed a high risk of reoffending. Matz’s confession and the sentencing judge’s assessment of the reasons behind it thus figured prominently in the court’s decision to sentence Matz consecutively on the two counts of conviction. Because that sentence remains intact, Matz cannot pursue a § 1983 claim for damages premised on his allegedly coerced confession because success on his claim would call into question his sentence. Heck thus bars Matz’s Fifth Amendment claim. See Davis v. Kan. Dep’t of Corr., 507 F.3d 1246, 1249 (10th Cir. 2007) (barring claim challenging sentencing calculation); cf. Muhammad v. Close, 540 U.S. 749, 751 (2004) (per curiam) (summarizing Heck bar as applicable to any § 1983 damages action that ‘would implicitly question the validity of conviction or duration of sentence’ that has not been previously invalidated) (emphasis added).”

Affirmed.

12-1674 Matz v. Klotka

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Rovner, J.

CONSTITUTIONAL LAW

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

Constitutional Law
Voter ID

Wisconsin’s law requiring photo identification to vote is not unconstitutional.

“Photo ID laws have been politically contentious. Crawford remarked on the apparently partisan nature of the disagreement between those who favor and those who oppose these statutes. The lead opinion stated: ‘if a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators. … The application of the statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting “the integrity and reliability of the electoral process.”’ 553 U.S. at 204. That is true of Wisconsin as well.”

Reversed.

14-2058 & 14-2059 Frank v. Walker

Appeals from the United States District Court for the Eastern District of Wisconsin, Adelman, J., Easterbrook, J.

FAMILY

Wisconsin Court of Appeals

Family
child placement — child support — overtrial

Christopher Trentadue appeals from a circuit court order disposing of multiple motions affecting the placement of and child support for his minor children and awarding his former spouse, Mary Beth Trentadue, reasonable attorney’s fees for overtrial. We affirm. This opinion will not be published.

2013AP1479 In re the marriage of: Trentadue v. Trentadue

Dist II, Waukesha County, Dreyfus, J., Per Curiam

Attorneys: For Appellant: Zales, Nicholas C., Milwaukee; For Respondent: Gay, Julie M., Waukesha

Wisconsin Court of Appeals

Family
child support — imputed income — shirking

Kristin Roekle, f/k/a Kristin Virnoche, appeals an order modifying child support. She contends the trial court erred when it concluded that she is shirking and that child support therefore should be based on her earning capacity. We affirm the order. This opinion will not be published.

2014AP187 In re the marriage of Roekle v. Virnoche

Dist II, Manitowoc County, Rohrer, J., Per Curiam

Attorneys: For Appellant: Lambert, Michael E., Manitowoc; For Respondent: Krajnek, Andrew J., Manitowoc

JUVENILES

Wisconsin Court of Appeals

Juveniles
custodial statements — recording

Where a juvenile was in the back of an ambulance during questioning, recording the statement was not feasible, and the statement is admissible.

“At the time he was questioned by Officer French, Joel was not at the police station where his statement could easily be recorded. Rather, he was in the back of an ambulance on the way to the hospital for treatment. Officer French testified that ‘[b]ased on [his] previous experience in ambulances,’ he did not believe they were equipped with recording equipment. And the hospital is not a place that would logically have police recording equipment available. Officer French testified that, at the time he questioned Joel, he believed it would be a ‘lengthy amount of time’ before Joel would be taken to the police station where recording equipment was available. Given the urgency of apprehending the armed robbers potentially still at large in the community, Officer French reasonably concluded that there was no time to wait hours for recording equipment; in other words, the circumstances made recording the statement infeasible.”

Affirmed.

Recommended for publication in the official reports.

2014AP610 State v. Joel I.N.

Dist. I, Milwaukee County, Dwyer, J., Brennan, J.

Attorneys: For Appellant: Hirsch, Eileen A., Madison; For Respondent: Stoiber, John M., Milwaukee

LABOR AND EMPLOYMENT

Wisconsin Supreme Court

Employment
LIRC

The court is evenly divided upon the question of affirmance or reversal. That results in affirmance of the judgment of the court of appeals and thus of the Labor and Industry Review Commission. Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley and Justice N. Patrick Crooks would affirm. Justice Patience Drake Roggensack, Justice Annette Kingsland Ziegler, and Justice Michael J. Gableman would reverse. Justice David T. Prosser did not participate. Accordingly, the decision of the court of appeals is affirmed.

2012AP2566 Sohn Mfg. Inc. v. LIRC

Per Curiam.

Attorneys: For Appellant: Palmer, Charles B., Waukesha; Greathouse, Denise, Waukesha; Nigh, Steven A., Milwaukee; For Respondent: Russomanno, Anthony, Madison

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

Labor
duty of fair representation

A union that represented the employees of both employers involved in a merger did not violate its duty of fair representation.

“The Court in O’Neill found the union’s decision not discriminatory because, with different pilots on different sides of a strike, a strike-ending compromise that favored some over others was inevitable. The Justices saw the union’s negotiating position as rational (= not arbitrary) for essentially the same reason, adding that a different position (the one favored by the court of appeals) would have jeopardized labor peace and dropped the striking pilots into a lawsuit that they might well have lost outright to the pilots who crossed the picket lines. Likewise there was need of compromise here. Combining work forces following an airline merger is not for the faint-hearted. The Union and United worked out a series of deals, large and small, that have enabled two groups of pilots to work as one without undue friction. That’s a significant accomplishment, not a source of legal liability.”

Affirmed.

14-1453 Cunningham v. Air Line Pilots Association Int’l.

Appeal from the United States District Court for the Northern District of Illinois, Holderman, J., Easterbrook, J.

Wisconsin Court of Appeals

Employment
workers’ compensation

The Boldt Company appeals a circuit court judgment affirming a decision of the Labor and Industry Review Commission concerning liability to pay worker’s compensation benefits. The employee entitled to compensation, Roger Hollister, worked for The Samuel’s Group, Inc., and subsequently for Boldt. Hollister had a progressive knee condition that worsened over his career as a result of occupational exposure as a carpenter. LIRC held that Boldt bore the liability for the occupational disease because Hollister first suffered a wage loss caused by the medical condition only after working for Boldt. We affirm. This opinion will not be published.

2014AP649 The Boldt Company v. Labor & Industry Review Commission et al.

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

Attorneys: For Appellant: Sachse, William R., Jr., Milwaukee; Van Den Elzen, Ahndrea Renae, Milwaukee; For Respondent: Russomanno, Anthony, Madison; Siedow, Thomas A., Eau Claire; Strande, Jeffrey J., Wausau

PROFESSIONAL RESPONSIBILITY

Wisconsin Supreme Court

Professional Responsibility
revocation

Where attorney Michael G. Trewin took advantage of his clients’ financial conditions in doing business with them, revocation is appropriate discipline.

“We conclude that the revocation of Attorney Trewin’s license to practice law in this state is appropriate and required. Attorney Trewin was already put on notice of the perils of engaging in transactions with clients in the Trewin disciplinary proceeding. He nonetheless continued to engage in such transactions without meeting the very strict requirements that protect clients from overreaching by more sophisticated attorneys. Moreover, he used the knowledge he had gained from handling the clients’ legal matters to structure those transactions in a manner that ensured he would benefit and the clients would not. Those transactions ultimately resulted in Attorney Trewin acquiring the clients’ property and enriching himself at their expense. It is clear that the public needs to be protected from this type of conduct and that, as the referee commented, Attorney Trewin is unfit to engage in the practice of law in this state.”

2012AP1949-D OLR v. Trewin

Per Curiam.

Attorneys: For Appellant: Trewin, Michael G., New London; For Respondent: Spoke, Julie Marie, Madison

Wisconsin Supreme Court

Professional Responsibility
suspension

Where attorney Louis Andrew Stockman received a six-month suspension in Minnesota, reciprocal discipline is appropriate.

“Under SCR 22.22(3), in reciprocal discipline matters, this court shall impose the identical discipline unless one of the enumerated exceptions is shown. There is no indication that any of those exceptions apply in this case.”

2014AP516-D OLR v. Stockman

Per Curiam.

Attorneys: For Complainant: Spoke, Julie Marie, Madison; For Respondent: Stockman, Louis A., Duluth, Minn.

Wisconsin Supreme Court

Professional Responsibility
reinstatement

Where attorney Jevon Jones Jaconi represented he had paid restitution to his clients, when he had not, reinstatement is denied.

“The referee said the restitution payments ordered by this court were nominal. Although Attorney Jaconi claimed that financial issues prevented him from making restitution, the referee said the discretionary expenditures on his books, as well as his testimony at the hearing, contradicted that claim. The referee found that Attorney Jaconi had the means to make restitution and, by Attorney Jaconi’s own admission, financial difficulties did not prevent him from doing so. Attorney Jaconi also claimed that his prior attorney caused some confusion about whether he should pay restitution immediately or wait. The referee said that although this may have been the reason Attorney Jaconi failed to pay restitution, it was not an excuse for misrepresenting in his reinstatement petition that he had in fact paid all required restitution to his former clients.”

2003AP2039-D OLR v. Jaconi

Per Curiam.

Attorneys: For Complainant: Sellen, Keith L., Madison; For Respondent: Hazelbaker, Mark, Madison; Jaconi, Jevon Jones, Green Bay

TORTS

Wisconsin Court of Appeals

Torts
public officer immunity

Robert and Judy Jacoby appeal a judgment from the circuit court granting summary judgment in favor of Kevin A. Dudley on the basis of public officer immunity. We reverse and remand for further proceedings consistent with this opinion. Not recommended for publication in the official reports.

2014AP32 Jacoby v. Dudley

Dist I, Milwaukee County, Conen, J., Kessler, J.

Attorneys: For Appellant: Trebatoski, Chris J., Milwaukee; For Respondent: Wirth, Ann C., Wauwatosa; Wolfgang, John A., Wauwatosa

Wisconsin Court of Appeals

Torts
negligence — truck drivers — duty of care

Even if it was error to instruct the jury that semi-truck drivers have a higher duty of care than other drivers, the error was harmless.

“‘Everybody’ has the same duty of care in following the specific rules of the road provided by the court. However, when ‘you’re driving a 40,000-pound semi’ and have experience doing so, then that is a relevant circumstance. The driver with the CDL needs a CDL because he or she is operating a much larger, less maneuverable, more dangerous vehicle that he or she learns to operate in a safe manner. Read in context, the reference to experts appears to have been an invitation for the jury to consider what those experts had to say about the pertinent skills and experience possessed by someone who has operated trucks for thirty-one years, such as Cavallino, as part of their deliberation as to whether Cavallino violated the ordinary standard of care.”

“Moreover, in his closing argument, counsel for Cavallino took the opportunity to remind the jury that there is only one standard of care in this ‘very simple case.’ He argued that ‘Mr. Dakter has got a duty of lookout, all drivers do, in fact, even Mr. Cavallino.’ Addressing the expert testimony contrary to Cavallino’s theory of the case, his attorney asked the jury to consider Cavallino to be the most authoritative voice on safety issues, arguing that Cavallino had ‘more experience than all the experts combined in this case, even [Cavallino’s experts].’”

“For these reasons, assuming without deciding that it was error to give the truck driver instruction as phrased, we are confident that the result would have been the same if it had not been given.”

Affirmed.

Recommended for publication in the official reports.

2013AP1750 Daktar v. Cavallino

Dist. IV, Juneau County, Roemer, J., Blanchard, J.

Attorneys: For Appellant: Curtis, Paul D., Madison; Barber, Timothy M., Madison; For Respondent: Orton, John R., Mauston

TRUSTS AND ESTATES

Wisconsin Court of Appeals

Trusts and Estates
irrevocable trusts

Debra James was appointed conservator for her father, Norman Wicke. Thereafter, she petitioned the circuit court for approval of an “Asset Preservation Plan” that would transfer Norman’s assets into several irrevocable trusts. The circuit court approved the plan over an objection by Debra’s brother, Robert Wicke. Robert now appeals, arguing: (1) the court lacked legal authority to approve the asset preservation plan; and (2) Debra failed to comply with Wis. Stat. § 54.21(2) when petitioning for court approval. We reject these arguments and affirm. Not recommended for publication in the official reports.

2014AP78 In re the conservatorship of Norman Wicke

Dist III, Taylor County, Bauer, J., Stark, J.

Attorneys: For Appellant: Grunewald, William A., Medford; Jensen, Corliss V., Medford; Markham, Sarah, Medford; For Respondent: Kehoe, Jennifer J.; Studinski, Jason T., Stevens Point

Wisconsin Court of Appeals

Trusts and Estates
POD designations

This case is about the validity of certain payable on death designations on decedent Lucetta Mayer’s bank accounts. The documents at issue designated the accounts as P.O.D. to the decedent’s daughter, Lynn Marie Klink, the personal representative of Lucetta’s estate. Patrick Mayer, Lucetta’s son, questions the genuineness of Lucetta’s signatures on the P.O.D. designations. It is undisputed that the bank’s business records were properly authenticated, and Patrick has not presented any evidence to rebut the prima facie showing that Lucetta signed the P.O.D. designations in the bank. We affirm the circuit court’s grant of summary judgment in favor of Lynn Marie. Not recommended for publication in the official reports.

2014AP322 In re the estate of Lucetta M. Mayer: Klink v. Mayer

Dist II, Washington County, Muehlbauer, J., Neubauer, P.J.

Attorneys: For Appellant: Demet, Kevin J., Milwaukee; For Respondent: Cavey, Patricia M., Milwaukee

CRIMINAL OPINIONS

Wisconsin Court of Appeals

Alcoholic Beverages
underage drinking — accompanied by parent

The City of Monroe issued a citation to Connar Steven Koch for underage possession or consumption of alcohol, contrary to Monroe City Code § 3-4-1, which adopts Wis. Stat. § 125.07(4)(b). Following a trial to the court, the court found Koch not guilty of underage drinking on the ground that Koch was “accompanied” by a parent, his father, within the meaning of a statutory exception to the prohibition to underage drinking. The issue on appeal is whether the circuit court properly interpreted and applied the term “accompanied” within the meaning of § 125.07(4)(b) to the instant facts, in finding Koch not guilty of the charged offense. We conclude that the court erred in interpreting and applying the term “accompanied” found in § 125.07(4)(b) to the instant facts. Accordingly, we reverse and remand with directions to the court to find Connar Steven Koch guilty of violating Monroe City Code § 3-4-1, adopting Wis. Stat. § 125.07(4)(b), and to proceed to sentencing, consistent with this opinion. This appeal will not be published.

2014AP540 City of Monroe v. Koch

Dist IV, Green County, Beer, J., Higginbotham, J.

Attorneys: For Appellant: Nolen, Craig R., Monroe; For Respondent: Koch, Connar Steven, pro se

Wisconsin Court of Appeals

Theft
sufficiency of the evidence — intent

Adam Gajeski appeals a judgment of conviction for misdemeanor theft. He challenges the sufficiency of the evidence to support his conviction, contending there is no evidence or reasonable inference to support a finding that he intended to permanently deprive his wife, Lydia Gajeski, of her cell phones. The judgment is affirmed. This opinion will not be published.

2014AP612-CR State v. Gajeski

Dist III, Brown County, Hock, J., Cane, J.

Attorneys: For Appellant: Miller, Steven L., River Falls; For Respondent: Weber, Gregory M., Madison; Lasee, David L., Green Bay; Miller, Carley N., Green Bay

CRIMINAL PROCEDURE

Wisconsin Court of Appeals

Criminal Procedure
successive appeals

Kwesi B. Amonoo, pro se, appeals an order of the circuit court denying his postconviction motion without a hearing. We agree with the circuit court that Amonoo’s Wis. Stat. § 974.06 (2011-12) motion is baseless and procedurally barred and that there is no newly discovered evidence to warrant a new trial. We therefore affirm the order. This opinion shall not be published.

2014AP56 State v. Amonoo

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

Attorneys: For Appellant: Amonoo, Kwesi B., pro se; For Respondent: Loebel, Karen A., Milwaukee; Remington, Christine A., Madison

Wisconsin Court of Appeals

Criminal Procedure
juror bias

Xiong Yang appeals a judgment, entered upon a jury’s verdict, convicting him on one count of first-degree sexual assault of a child and one count of second-degree sexual assault of a child. Yang contends the trial court erred in denying his motion for a mistrial based on juror bias. We conclude the trial court did not err, and we affirm the judgment. This opinion shall not be published.

2013AP2761-CR State v. Yang

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

Attorneys: For Appellant: Loeb, Basil M., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Wren, Christopher G., Madison

Wisconsin Court of Appeals

Criminal Procedure
plea withdrawal — ineffective assistance — immigration consequences

Fernando Ortiz-Mondragon appeals a judgment of conviction for several domestic abuse related charges and an order denying his motion for postconviction relief. Ortiz-Mondragon argues he is entitled to withdraw his plea because his attorney was ineffective for failing to inform Ortiz-Mondragon that his plea would result in mandatory deportation and permanent inadmissibility to this country. We conclude counsel performed adequately by informing Ortiz-Mondragon that his plea carried the possibility of these consequences. Accordingly, we affirm. This opinion will not be published.

2013AP2435-CR State v. Ortiz-Mondragon

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

Attorneys: For Appellant: Velasquez, Michelle L., Milwaukee; For Respondent: Noet, Nancy A., Madison; Lasee, David L., Green Bay

Wisconsin Court of Appeals

Criminal Procedure
plea withdrawal — custody

Lane Caskey, pro se, appeals an order denying his Wis. Stat. § 974.06 motion for postconviction relief. Caskey also appeals the order denying his motion for reconsideration. Caskey argues the circuit court erred by denying relief on the ground that Caskey failed to satisfy the custody requirement of § 974.06. The State concedes the circuit court erred. For the reasons outlined below, we reverse the orders and remand the matter to the circuit court for further proceedings. This opinion will not be published.

2013AP2333 State v. Caskey

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

Attorneys: For Appellant: Caskey, Lane P., pro se; For Respondent: Schneider, Carrie A., Appleton; Burgundy, Sarah, Madison

Wisconsin Court of Appeals

Criminal Procedure
ineffective assistance — new trials

Tai J. Minor appeals from an order denying his Wis. Stat. § 974.06 (2011-12) postconviction motion for a new trial or, in the alternative, a sentence modification. We conclude that Minor has failed to establish the ineffective assistance of either trial or postconviction/appellate counsel, and that the trial court properly exercised its discretion in determining that Minor did not demonstrate a new factor warranting sentence modification. We also decline to order a new trial in the interest of justice. We affirm. This opinion will not be published.

2013AP2424 State v. Minor

Dist II, Racine County, Ptacek, J., Per Curiam

Attorneys: For Appellant: Minor, Tai J., pro se; For Respondent: Chiapete, W. Richard, Racine; Johnson-Karp, Gabe, Madison

Wisconsin Court of Appeals

Criminal Procedure
ineffective assistance

Anthony E. Henderson appeals the judgment convicting him of two counts of second-degree sexual assault of a child. He also appeals the order denying his postconviction motion. He was charged with one count of sexually assaulting J.C. and two counts of sexually assaulting R.S., but was found guilty only for the two counts involving R.S. Henderson argues that the trial court erred by not allowing J.C.’s attorney to testify about a statement J.C. made to him about being a “lookout” for Henderson while he assaulted R.S. rather than an actual victim, and that the resulting error was not harmless. Henderson also argues that the trial court erred in denying his request for an evidentiary hearing on his ineffective assistance of counsel claim. We affirm. Not recommended for publication in the official reports.

2013AP2515 State v. Henderson

Dist I, Milwaukee County, Kuhnmuench, J., Curley, P.J.

Attorneys: For Appellant: Haney, Robert E., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Latorraca, Donald V., Madison

EVIDENCE

Wisconsin Court of Appeals

Evidence
relevance — harmless error

Albert Lorenzo Finch, Sr., appeals the judgment convicting him of knowingly violating a domestic abuse injunction. He contends that the trial court erred when it admitted at trial a recording of a 911 cell phone call by R.I., the woman who had obtained a domestic abuse injunction against him. Because the admission of the 911 recording is immaterial and irrelevant to the actual charge for which Finch was found guilty, and because there is ample other evidence supporting the conviction, any error resulting from the admission of the 911 call was harmless. Therefore, we leave for another day the determination of whether calls such as this one are testimonial, and the judgment is affirmed. This opinion will not be published.

2014AP744-CR State v. Finch

Dist I, Milwaukee County, Dallet, J., Curley, P.J.

Attorneys: For Appellant: Marion, Colleen, Madison; For Respondent: Loebel, Karen A., Milwaukee; O’Byrne, Karine E., Milwaukee

OWI

Wisconsin Court of Appeals

Motor Vehicles
OWI — reasonable suspicion

Justin P. Brandl appeals from a judgment of conviction for a third offense of operating a motor vehicle while under the influence after the trial court denied his motion to suppress evidence. Brandl argues that the arresting officer did not have reasonable suspicion to justify an investigatory stop, but the circuit court found that reasonable suspicion was shown by the officer’s observations of Brandl’s motorcycle crossing over the fog line and nearly colliding with the motorcycle riding beside him. We affirm. This opinion will not be published.

2014AP1036-CR State v. Brandl

Dist II, Manitowoc County, Bendix, J., Brown, C.J.

Attorneys: For Appellant: Piel, Walter Arthur, Jr., Milwaukee; For Respondent: Weber, Gregory M., Madison; Prost, Gail A., Manitowoc; LaBre, Jacalyn C., Manitowoc

Wisconsin Court of Appeals

Motor Vehicles
OWI — littering

Jeramy Qualls appeals from a judgment convicting him of operating a motor vehicle while intoxicated, second offense. An officer pulled Qualls over because the officer was following Qualls when a cigarette butt hit the officer’s windshield. Qualls moved to suppress the evidence, arguing that the officer did not have probable cause to stop him because the officer was mistaken about the law regarding whether ash is litter under the municipal ordinance. The officer’s testimony supports probable cause to pull Qualls over for littering, and we affirm. This opinion will not be published.

2014AP141-CR State v. Qualls

Dist II, Kenosha County, Wilk, J., Neubauer, P.J.

Attorneys: For Appellant: Rose, Christopher William, Kenosha; For Respondent: Weber, Gregory M., Madison; Kraus, James Steven, Kenosha; Hinshaw, Jerrold Alan, West Allis

Wisconsin Court of Appeals

Motor Vehicles
OWI — reasonable suspicion

The State appeals from the circuit court’s order suppressing evidence of intoxication gathered subsequent to the stop of Robert Harris’s vehicle. We reverse as reasonable suspicion existed that Harris was operating his motor vehicle while intoxicated and the length of Harris’s detention was not unreasonable. Order reversed and cause remanded. This opinion will not be published.

2014AP965-CR State v. Harris

Dist II, Washington County, Gonring, J., Reilly, J.

Attorneys: For Appellant: Cannon, Peter J., West Bend; Weber, Gregory M., Madison; For Respondent: Borkowicz, Brian, West Bend

Wisconsin Court of Appeals

Motor Vehicles
OWI — reasonable suspicion — littering

The State of Wisconsin appeals from an order of the circuit court granting Iverson’s motion to suppress evidence and dismiss charges against him for first offense operating a motor vehicle while intoxicated and driving with a prohibited alcohol concentration. Iverson moved to suppress evidence gathered after his vehicle was stopped by Wisconsin State Patrol Trooper Michael Larsen. The circuit court determined that Trooper Larsen lacked sufficient reasonable suspicion to stop Iverson and granted Iverson’s motion. I affirm, although upon different reasoning than employed by the circuit court. This opinion will not be published.

2014AP515-FT State v. Iverson

Dist IV, La Crosse County, Gonzalez, J., Sherman, J.

Attorneys: For Appellant: Kellis, John W., La Crosse; For Respondent: Veenstra, Joseph G., La Crosse

SEARCH AND SEIZURE

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

Search and Seizure
Search incident to arrest

Where the defendant was arrested for operating a motor vehicle without owner’s consent, the officers could search the vehicle incident to the arrest.

“We reverse. Under Arizona v. Gant, 556 U.S. 332, 351 (2009), a warrantless search of a vehicle incident to the arrest of one of its occupants requires reason to believe that the vehicle contains evidence of the offense of arrest. Here, Edwards was arrested for (among other possible offenses) driving a vehicle without the owner’s consent; it was entirely reasonable to believe that evidence of the car’s ownership — its registration or title, for example — would be found in the car. The search was likewise valid under the automobile exception because there was probable cause that evidence of a crime — again, the crime of driving a vehicle without the owner’s consent — would be found in the car.”

Reversed and Remanded.

13-3397 U.S. v. Edwards

Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Sykes, J.

SENTENCING

Wisconsin Court of Appeals

Sentencing
discretion — lack of remorse

Clarence Ashford appeals a judgment convicting him of delivering cocaine base and an order denying his motion for resentencing. He contends the sentencing court impermissibly considered his continued denial of guilt. Because his argument places an unnecessarily negative spin on the court’s comments and mischaracterizes the law regarding proper consideration of lack of remorse, we affirm the judgment and order. This opinion will not be published.

2013AP2490-CR State v. Ashford

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

Attorneys: For Appellant: Schoenfeldt, Mark A., Milwaukee; For Respondent: Tarver, Sandra L., Madison; Lasee, David L., Green Bay

Wisconsin Court of Appeals

Sentencing
accurate information

Mamadou Bamba appeals a judgment of conviction and an order denying his motion for resentencing. He challenges only his sentences. Because we conclude that the circuit court erroneously exercised its sentencing discretion and that the circuit court sentenced Bamba on the basis of inaccurate information, we reverse in part and remand for resentencing before a different circuit court judge. This opinion will not be published.

2013AP2348-CR State v. Bamba

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

Attorneys: For Appellant: Moorshead, Pamela, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Johnson-Karp, Gabe, Madison

Wisconsin Court of Appeals

Sentencing
discretion — alien status — DNA surcharge

Leopoldo R. Salas Gayton appeals the judgment entered after he pled no contest to homicide by intoxicated use of a car and operating without a valid license, causing death. See Wis. Stat. §§ 940.09(1)(a), 939.50(3)(d), 343.05(5)(b) & 939.51(3)(a). He also appeals the circuit court’s denial of his motion for postconviction relief. He argues here that the circuit court: (1) did not consider the proper factors in connection with his sentence; and (2) did not sufficiently explain why he should pay a DNA surcharge, see State v. Cherry, 2008 WI App 80, 312 Wis. 2d 203, 752 N.W.2d 393. We affirm. Publication in the official reports is not recommended.

2013AP646-CR State v. Gayton

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

Attorneys: For Appellant: MacArdy, Amy Lynn, Milwaukee; Handelsman, Alexander, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Wren, Christopher G., Madison

Wisconsin Court of Appeals

Sentencing
modification — new factors

James Barkley appeals from a circuit court order denying his motion to modify his sentence due to new factors. We affirm. This opinion will not be published.

2013AP2303-CR State v. Barkley

Dist II, Waukesha County, Carter, J., Per Curiam

Attorneys: For Appellant: Barkley, James M., pro se; For Respondent: Schimel, Brad, Waukesha; Johnson-Karp, Gabe, Madison