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Weekly Case Digests — Nov. 24-28, 2014

By: WISCONSIN LAW JOURNAL STAFF//November 28, 2014//

Weekly Case Digests — Nov. 24-28, 2014

By: WISCONSIN LAW JOURNAL STAFF//November 28, 2014//

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Wisconsin Law Journal’s Case Digests — Nov. 24-28, 2014

CIVIL OPINIONS

ANTITRUST

U.S. Court of Appeals For the Seventh Circuit

Antitrust
Foreign trade

Foreign subsidiaries of American corporations cannot sue under the Sherman Act in American courts.

“It is fair to require foreign subsidiaries of American companies to seek remedy in the courts of the country in which they choose to incorporate. Companies operate overseas facilities to take advantage of many legal provisions of that country: labor law, environmental law, and tax law. In non-legal terms: ‘You take the good with the bad.’ By contrast, American consumers have no realistic choice but to buy finished goods that are assembled from components sold and assembled around the world. Therefore, the antitrust laws should be read—where possible— to allow governmental enforcement against international cartels that were meant to have, and have had, a substantial effect on domestic commerce. … A foreign subsidiary’s] position is more akin to an American citizen living overseas who buys price-fixed goods but then must seek any remedies under the laws [of the] country she has chosen to live in.”

Affirmed.

14-8003 Motorola Mobility, LLC, v. AU Optronics Corp.

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

EMPLOYMENT

U.S. Court of Appeals For the Seventh Circuit

Employment
ADA

An employer cannot be held liable under the ADA for decisions dictated by the State.

“We affirm the judgment of the district court. We conclude that, although Milwaukee County was Ms. Whitaker’s official employer and was responsible for her compensation, it had no involvement in the principal decisions that she claims violated the statute and no authority to override those decisions, made by the State of Wisconsin’s Department of Health Services personnel. Accordingly, the County cannot be held liable under the ADA for those decisions. Because the district court’s judgment in favor of the County on the termination and denial of accommodation claims must be upheld on this basis, we need not consider whether that court erred in determining the scope of the charge as it concerns State conduct. With respect to whether the County is liable for any of its own actions, we hold Ms. Whitaker’s allegations on these matters are outside the scope of her EEOC charge, and, therefore, we cannot consider them. We therefore affirm the district court’s grant of summary judgment to Milwaukee County.”

Affirmed.

13-3735 Whitaker v. Milwaukee County

Appeal from the United States District Court for the Eastern District of Wisconsin, Stadtmueller, J., Ripple, J.

FORFEITURE

Wisconsin Court of Appeals

Forfeiture
mistreatment of animals

On February 6, 2014, a judgment was entered authorizing Eau Claire County to sell, euthanize, or otherwise dispose of eighteen animals seized from Teresa Hestekin’s property on April 4, 2013.  The judgment also required Hestekin to pay the County $74,388.10 for costs incurred in the care, custody, and treatment of the animals.

Hestekin appeals that portion of the judgment requiring her to pay the County $74,388.10, and she also appeals an order denying her motion for reconsideration.  She argues the circuit court lacked authority under Wis. Stat. § 173.23(3) to enter a money judgment against her for costs incurred in the animals’ care, custody, and treatment.  She also argues Wis. Stat. § 173.24 did not authorize entry of a money judgment against her.  We agree on both counts.  Section 173.23(3) gave the circuit court authority to enter an order providing for payment for the custody, care, or treatment of the animals, but nothing in that statute permitted the court to enter a money judgment against Hestekin.  Section 173.24 did not authorize entry of the money judgment because Hestekin had not yet been convicted of a crime under Wis. Stat. ch. 951.  We therefore reverse that portion of the judgment requiring Hestekin to pay the County $74,388.10 and the entire order denying reconsideration.

Reversed.

2014AP952 Eau Claire County v. Teresa A. Hestekin

Dist III, Eau Claire County, WILLIAM M. GABLER, SR., Judge.; STARK, J.

Attorneys: For Appellant: Waterman, R. Michael For Respondent: Zehms, Keith R.

PROPERTY

Wisconsin Court of Appeals

Property
foreclosure
settlement

Scott L. Berggren and Victoria W. Berggren (“Scott and Victoria”) appeal a circuit court order denying their motion to reopen a default judgment and foreclosure.  Scott and Victoria argue that a Settlement Agreement and Release entered between Floyd Berggren (Scott’s father) and Community Bank and Trust (“Community Bank”) released the claim on which Community Bank’s foreclosure action was based.  We affirm.

2013AP2474 Community Bank & Trust v. Scott L. Berggren

Dist I, Milwaukee County, DANIEL A. NOONAN; KESSLER, J.

Attorneys: For Appellant: Kravit, Stephen E. For Respondent: Hahn, Richard; Levinson, Jeremy P.;

CRIMINAL

1st-DEGREE INTENTIONAL HOMICIDE
Wisconsin Court of Appeals

1st-degree intentional homicide
sufficiency of the evidence

APPEAL from a judgment of the circuit court for Waukesha County:  KATHRYN W. FOSTER, Judge.  Affirm.

Billy J. Ingram appeals his conviction for first-degree intentional homicide, armed robbery with use of force, possession of a firearm by a felon, and possession of tetrahydrocannabinols (THC).  Ingram challenges the trial court’s denial of his suppression motion and also the sufficiency of the evidence to support the jury’s verdict.  We affirm.

Affirmed.

2014AP000356-CR      State v. Billy J. Ingram

DISTRICT II, Waukesha County, KATHRYN W. FOSTER, Judge.  Affirm. Before Brown, C.J., Neubauer, P.J., and Reilly, J. PER CURIAM.

Attorneys: For Appellant: Jensen, Jeffrey W. For Respondent: Schimel, Brad; Larson, Sara Lynn

CRIMINAL PROCEDURE

U.S. Court of Appeals For the Seventh Circuit

Criminal Procedure
Sentencing in abstentia

Where the defendant refused to come to court for seven consecutive appearances, the district court did not err in sentencing him in abstentia.

“After examining the facts of this case, we find that the district court did not clearly err in finding that this is one of those—perhaps rare—times when a defendant in custody has knowingly and voluntarily waived his right to be present during sentencing. By the date of sentencing, Velazquez had a long-standing and well-documented aversion to appearing voluntarily in court, and it was apparent that Velazquez’s absence had not made his heart grow fonder toward the district court. Velazquez’s pro se filings in the weeks leading up to sentencing asserted that he would “never” consent to the roceedings, nor consent to be 4 We employ the same standard for determining whether a defendant is voluntarily absent during sentencing and during trial. See Achbani, 507 F.3d at 601.”

Affirmed.

14-1034 & 14-1153 U.S. v. Velazquez

Appeals from the United States District Court for the Northern District of Illinois, Zagel, J., Tinder, J.

Wisconsin Court of Appeals

Criminal Procedure
plea withdrawal — immigration warning

APPEAL from an order of the circuit court for Milwaukee County:  CLARE L. FIORENZA, Judge.  Affirmed.

Rohit Chand appeals the order denying his petition for writ of coram nobis and the denial of his postconviction motion for plea withdrawal.  Chand argues that he is entitled to withdraw his guilty plea because the circuit court did not state verbatim the immigration warning set forth in Wis. Stat. § 971.08(1)(c) (2011-12). Additionally, Chand argues that he is entitled to a writ of coram nobis as a result of factually erroneous information regarding the immigration ramifications of his guilty plea.  The postconviction court concluded Chand was not entitled to plea withdrawal because the circuit court substantially complied with the immigration warning.  In a separate order, the postconviction court denied Chand’s petition for writ of coram nobis explaining that Chand was really making an ineffective-assistance-of-counsel claim, which exceeded the scope of the writ.  We agree with both conclusions and affirm.

Affirmed.

2014A1874-CR State v. Rohit Chand

Dist I, Milwaukee County, CLARE L. FIORENZA, Judge

Attorneys: For Appellant: Block, Harold D. For Respondent: Loebel, Karen A.; Noet, Nancy A.; Hauer, Paul M.

Wisconsin Supreme Court

Criminal Procedure
Plea withdrawal

A guilty or no-contest plea entered to avoid a penalty enhancer attached to a felony charge when that penalty enhancer was indisputably a legal impossibility, is invalid.

“[I]t is undisputed in the present case that the persistent repeater enhancer attached to the armed robbery charge could not, as a matter of law, have been applied to the defendant.  The law required the State to drop the persistent repeater enhancer.  The State’s offer to drop the persistent repeater enhancer as part of the plea agreement provided no benefit to the defendant.”

“In the present case, the plea offer was significantly less valuable than the defendant believed because the persistent repeater enhancer was a legal impossibility.  Dropping the enhancer provided an illusory benefit to the defendant.  When entering his plea of no contest, the defendant failed to understand ‘the actual value’ of the plea offer he accepted.”

Affirmed.

2012AP2044-CR State v. Dillard

Abrahamson, C.J.

Wisconsin Court of Appeals

Criminal Procedure
ineffective assistance

Michael A. Farrell appeals a judgment, entered upon a jury’s verdicts, convicting him of three counts of repeated sexual assault of a child and one count of exposing a child to harmful materials.  He also appeals an order denying his postconviction motion for a new trial.  Farrell contends that trial counsel was ineffective for failing to cross-examine the State’s expert and failing to call an expert witness to contradict a particular portion of the State’s expert’s testimony.  Farrell has not shown prejudice from either alleged error, so we affirm the judgment and order.

2014AP330-CR State v. Michael A. Farrell

Dist I, Milwaukee County, RICHARD J. SANKOVITZ; JEFFREY A. WAGNER; PER CURIAM

Attorneys: For Appellant: Backes, Michael J. For Respondent: Loebel, Karen A.; Winter, Tiffany M.

SEARCH AND SEIZURE

Wisconsin Court of Appeals

Search and Seizure
warrantless searches — exigent circumstances

Desmond Maurice Cornelius appeals from a judgment of conviction for two counts of physical abuse of a child (intentionally causing bodily harm), and one count of possession of THC as a repeater, contrary to Wis. Stat. §§ 948.03(2)(b), 961.41(3g)(e) and 939.62(1)(a) (2011-12).  Cornelius argues that the trial court should have granted his pretrial motion to suppress evidence related to the THC (marijuana) charge.  We affirm.

2014AP43-CR State v. Desmond Maurice Cornelius

Dist I, Milwaukee County, JEFFREY A. WAGNER; PER CURIAM

Attorneys: For Appellant: Wiemer, Graham P. For Respondent: Loebel, Karen A.; Sanders, Michael C.

U.S. Court of Appeals For the Seventh Circuit

Search and Seizure
Search warrants — mistaken information

Even though a search warrant mistakenly referred to a duplex unit as an upper unit, and the duplex was actually divided into front and rear, rather than upper and lower, the warrant was valid.

“The Garrison Court nowhere suggested that if, after discovering the mistaken layout, the officers had been able to confirm that they were in the targeted apartment (McWebb’s), a continued search of that apartment would have been improper. In fact, the Court concluded that ‘[i]f the officers had known, or should have known, that the third floor contained two apartments …, and thus had been aware of the error in the warrant, they would have been obligated to limit their search to McWebb’s apartment.’ Id. at 86 (emphasis added). Therefore, contrary to Kelly’s contention, Garrison supports the reasonableness of the search conducted here. The officers limited their search to the targeted apartment8 and, because only one apartment was accessible from the door through which they entered the building, there was no risk that they might inadvertently have searched the wrong unit. As a result, Detective Jimenez was not constitutionally required to seek a modified warrant before continuing his search of all three levels of Kelly’s residence.”

Affirmed.

14-1015 U.S. v. Kelly

Appeal from the United States District Court for the Northern District of Illinois, Kapala, J., Flaum, J.

Wisconsin Court of Appeals

Search and Seizure
probable cause — scope

APPEAL from an order of the circuit court for Sheboygan County:  JAMES J. BOLGERT, Judge.  Affirmed.

The State of Wisconsin appeals from an order suppressing drug evidence found during the search of the billfold compartment of Ashley L. Eirich’s wallet.  The circuit court granted the suppression motion on grounds that the arresting officer’s probable cause to search the vehicle based on the odor of raw marijuana did not extend to a search of the bill compartment of Eirich’s wallet where the officer found Suboxone strips.  We affirm.

Affirmed.

2014AP001901-CR      State v. Ashley L. Eirich

DISTRICT II, Sheboygan County,  JAMES J. BOLGERT, Judge.; BROWN, C.J.

Attorneys: For Appellant: Weber, Gregory M.; Wagner, Mary T. For Respondent: Fite, Shelley

SENTENCING

Wisconsin Court of Appeals

Sentencing
modification

Clifton Lee Williams, Jr., appeals a judgment of conviction entered upon his guilty pleas to second-degree reckless homicide with use of a dangerous weapon as a party to a crime and two counts of felon in possession of a firearm.  See Wis. Stat. §§ 940.06(1), 939.63, 939.05, 941.29(2)(a) (2009-10).  He also appeals an order denying his postconviction motion seeking sentence modification.  He argues that the circuit court erroneously exercised its discretion when it sentenced him to thirty years of initial confinement and twenty years of extended supervision.  We disagree and affirm.

2014AP244-CR State v. Clifton Lee Williams, Jr.

Dist I, Milwaukee County, ELLEN R. BROSTROM; PER CURIAM

Attorneys: For Appellant: Loeb, Basil M. For Respondent: Remington, Debra L.; Loebel, Karen A.

Wisconsin Court of Appeals

Sentencing
modification — inaccurate information

Luis A. Gamboa appeals from a judgment of conviction, entered on a jury verdict, for one count of physical abuse of a child (recklessly causing great bodily harm), one count of neglecting a child resulting in great bodily harm, and one count of neglecting a child resulting in bodily harm, contrary to Wis. Stat. §§ 948.03(3)(a), 948.21(1)(c), and 948.21(1)(b) (2009-10).[1]  Gamboa also appeals from a trial court order denying his motion for resentencing or sentence modification.  Gamboa argues that he is entitled to resentencing or sentence modification because his trial counsel provided deficient representation at sentencing and because the trial court erroneously exercised its discretion and violated Gamboa’s due process rights by relying on “incorrect information” at sentencing.  We affirm.

2013AP842-CR State v. Luis A. Gamboa

Dist I, Milwaukee County, JEFFREY A. WAGNER; PER CURIAM

Attorneys: For Appellant: Shellow, Robin For Respondent: Loebel, Karen A.; Wren, Christopher G.

THEFT BY FRAUD

Wisconsin Court of Appeals

Theft by Fraud
sufficiency of the evidence

APPEAL from a judgment of the circuit court for Grant County:  ROBERT P. VANDEHEY, Judge.  Affirmed.

Sandee Sue Turner appeals a judgment of conviction.  The issue is whether the evidence was sufficient to prove one count of theft by fraud.  We conclude the evidence was sufficient, and therefore we affirm.

Affirmed.

2013AP000686-CR      State v. Sandee Sue Turner

DISTRICT IV, Grant County, ROBERT P. VANDEHEY, Before Blanchard, P.J., Sherman and Kloppenburg, JJ. PER CURIAM

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