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Weekly Case Digests — Dec. 22-26, 2014

By: WISCONSIN LAW JOURNAL STAFF//December 26, 2014//

Weekly Case Digests — Dec. 22-26, 2014

By: WISCONSIN LAW JOURNAL STAFF//December 26, 2014//

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CIVIL CASES

Wisconsin Court of Appeals

Civil Procedure
waiver

APPEAL from a judgment of the circuit court for Waukesha County:  DONALD J. HASSIN, JR., Judge.  Affirmed.

Cassandra L. Gissal raises a new issue on appeal that was not raised in the trial court.  She has forfeited her right to raise the new issue.  We affirm the trial court.

2014AP001751-FT            City of Brookfield v. Cassandra L. Gissal

DISTRICT II, Waukesha County, DONALD J. HASSIN, JR., BROWN, C.J.

Attorneys: For Appellant: Gatzke, John D. For Respondent: Kershek, Kimberly M.

U.S. Court of Appeals For the Seventh Circuit

Civil Rights
Attorney fees

The district court properly awarded attorney fees to a prevailing plaintiff for time spent litigating attorney fees.

“We note at the outset that we need not consider Morjal’s argument that a request for fees on fees is distinct from the underlying action and therefore is not bounded by the Rule 68 judgment. Even assuming the applicability and limiting our review to the plain language of the offer of judgment, the defendants cannot prevail in this case. That is because the language of the offer of judgment limits the plaintiff to fees that had accrued as of that date (the date of acceptance of the offer) in return for the defendants’ agreement ‘to allow judgment to be taken against them … in the total amount of … reasonable attorney’s fees.’ To the extent that the defendants raised non-frivolous challenges to the amount of attorneys’ fees in determining what was ‘reasonable,’ they would still be in compliance with that obligation. But here, the district court determined that the defendants’ arguments went beyond legitimate challenges to reasonableness. The court held that the defendants’ opposition to fees was ‘overly aggressive’ and ‘arbitrary.’ Although Morjal sought $16,773.00 for fees incurred in litigating the fee petition, the court awarded only $2,000 for ‘time spent responding to challenges to the fees that were unsupported and improper.’ Accordingly, the court limited the fee award to the time spent responding to litigation that violated the terms of the offer of judgment itself in that it went beyond non-frivolous arguments as to whether the fees sought were reasonable. The defendants’ arbitrary, improper challenges failed to comply with their obligation to ‘allow judgment to be taken against them’ for reasonable attorneys’ fees, and therefore were not subject to the limitations on fees in that agreement. The court could properly award fees for those litigation costs under § 1988. See Sanchez, 709 F.3d at 692 (any ambiguities in the Rule 68 offer must be construed against the offering defendant).”

Affirmed.

14-1365 Morjal v. City of Chicago

Appeal from the United States District Court for the Northern District of Illinois, Lefkow, J., Rovner, J.

Wisconsin Supreme Court

Employment
Public employment – vested pensions

A CBA reducing government employees’ pension multiplier, prospectively only, did not breach the employees’ contract rights.

“We conclude that Milwaukee County did not breach the contract with Stoker when it amended the pension multiplier from 2% to 1.6%.  The amendment did not breach Stoker’s contractual right to retirement system benefits earned and vested because it had prospective-only application to future service credits not yet earned, specifically, on and after January 1, 2012.  We conclude that the legislature preserved Stoker’s rights and benefits already accrued but also gave Milwaukee County home rule authority with the flexibility to enact such prospective-only changes.  We conclude that Stoker does not have a vested right to have the 2% multiplier apply to her then-unearned post-2011 service.  In other words, Milwaukee County could so amend the formula and apply it prospectively because that prospective application does not ‘diminish or impair’ benefits accrued from service credits already earned.  Because we conclude that Milwaukee County did have the ability to make these prospective-only reductions of the multiplier without Stoker’s personal consent, we need not address whether the Federation lawfully consented, on Stoker’s behalf, to the reduction.”

Reversed and Remanded.

2012AP2466 Stoker v. Milwaukee County

Ziegler, J.

U.S. Court of Appeals For the Seventh Circuit Civil

Immigration
Removal – moral turpitude

The BIA did not unreasonably conclude that a Wisconsin conviction for fleeing or eluding a police officer in violation of sec. 346.04(3) categorically constituted a crime involving moral turpitude.

“The Board’s determination that Wisconsin Statute § 346.04(3) categorically qualifies as a crime involving moral turpitude is a reasonable one. It is also consistent with decisions our sister circuits have reached when evaluating similar statutes. See Idowu v. Attorney Gen., 512 Fed. Appx. 222, 225 (3rd Cir. 2013) (unpublished) (agreeing with immigration judge that New Jersey conviction for knowingly evading police and in the process creating a risk of death or injury to a third person is a crime of moral turpitude); Ruiz-Lopez v. Holder, 682 F.3d 513, 521 (6th Cir. 2012) (‘fleeing from a police vehicle qualifies as the type of societally condemned, reprehensible conduct that is reasonably encompassed by the BIA’s general definition of a [crime involving moral turpitude]’); Pulido-Alatorre v. Holder, 381 Fed. Appx. 355, 359 (5th Cir. 2010) (unpublished) (upholding the Board’s determination that misdemeanor conviction for evading arrest with a vehicle in violation of Texas Penal Code § 38.04(a) is crime involving moral turpitude where petitioner pled guilty to intentionally fleeing from an officer lawfully at-tempting to detain him and Board found ‘such conduct reflects an awareness and conscious disregard of a substantial and unjustifiable risk’).” Petition Denied.

13-2470 Cano-Oyarzabal v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Williams, J.

Wisconsin Court of Appeals

Juveniles
TPR – unfitness

APPEAL from an order of the circuit court for Winnebago County:  SCOTT C. WOLDT, Judge.  Reversed.

Henry S.A. appeals from an order terminating his parental rights to Alandria A.O.  The circuit court granted summary judgment on the question of Henry’s unfitness as a parent because Henry was denied physical placement for more than one year.  See Wis. Stat. § 48.415.  The underlying order denying physical placement was based upon Henry’s incarceration.  We reverse because the record does not show that the circuit court made the individualized determination of unfitness that the state and federal constitutions require before termination.

2014AP002404 Winnebago County DHS v. Ashley A. O.

DISTRICT II, Winnebago County, SCOTT C. WOLDT, BROWN, C.J.

Attorneys: For Appellant: Bowe, Ann T. For Respondent: Been, David G.

Wisconsin Court of Appeals

Juveniles
delinquency – restitution

APPEAL from an order of the circuit court for Racine County:  MICHAEL J. PIONTEK, Judge.  Affirmed in part; reversed in part and cause remanded with directions.

Lance F. appeals from that portion of a dispositional order directing him to pay restitution for a missing iPod.  For the following reasons, we reverse the circuit court’s order of restitution relating to the iPod and remand for entry of a modified order.

2014AP001881-FT            State v. Lance F.

DISTRICT II, Racine County, MICHAEL J. PIONTEK, GUNDRUM, J.

Attorneys: For Appellant: Alesia, Susan E. For Respondent: Weber, Gregory M., Lewis, Lillian V

Wisconsin Court of Appeals

Juveniles
TPR – jury demand

APPEALS from orders of the circuit court for Racine County:  CHARLES H. CONSTANTINE, Judge.  Affirmed.

In these consolidated appeals from orders terminating her parental rights to Saryah M. and Sunai M.,  Latasia M. argues that she is entitled to a new fact-finding and/or dispositional hearing as the court erred when it failed to permit her to withdraw her jury demand, admitted evidence of her battery conviction, and failed to properly consider the “substantial relationship” factor in the dispositional phase.  Additionally, Latasia argues that Wis. Stat.

§ 48.415 is facially void for vagueness.  We disagree and affirm the circuit court in all respects.

2014AP001673 Racine County HSD v. Latasia D. M.

DISTRICT II, Racine County, CHARLES H. CONSTANTINE, REILLY, J.

Attorneys: For Appellant: Lamb, Kaitlin A. For Respondent: Weber, Gregory M., Bishop-Buchanan, MacKenzie

Wisconsin Court of Appeals

Property
foreclosure – authentication

APPEAL from a judgment of the circuit court for Milwaukee County:  MICHAEL GUOLEE, Judge.  Affirmed.

Carl E. and Linda M. Segebrecht appeal a judgment of foreclosure entered in favor of Ocwen Loan Servicing, LLC, as servicer for U.S. Bank, N.A.  The Segebrechts argue the circuit court erred by granting Ocwen’s summary judgment motion.  They contend there are disputed issues of material fact as to whether Ocwen has the right to enforce the underlying note, claiming:  Ocwen did not prove standing or that it was the real party in interest to foreclose on their mortgage loan; and Ocwen’s affidavits did not satisfy the “made on personal knowledge” requirement.  We affirm.

2014AP000764 Ocwen Loan Servicing, LLC as servicer for U.S. Bank, N.A. v. Carl E. Segebrecht

DISTRICT I, Milwaukee County, MICHAEL GUOLEE, CANE, J.

Attorneys: For Appellant: Nusbaum, Jared M. For Respondent: Cummings, Shannon K., Karnes, Russell J.

Wisconsin Court of Appeals

Property
regulatory takings

APPEAL from a judgment of the circuit court for St. Croix County:  SCOTT R. NEEDHAM, Judge.  Affirmed.

Joseph Murr, Michael Murr, Donna Murr and Peggy Heaver (collectively, the Murrs) appeal a judgment dismissing their regulatory takings claim upon motions for summary judgment by the State of Wisconsin and St. Croix County.  We agree with the circuit court that the challenged regulatory action, an ordinance that effectively merged the Murrs’ two adjacent, riparian lots for sale or development purposes, did not deprive the Murrs of all or substantially all practical use of their property.  Accordingly, we affirm.

2013AP002828 Joseph P. Murr v. State of Wisconsin

DISTRICT III, St. Croix County, SCOTT R. NEEDHAM, PER CURIAM

Attorneys: For Appellant: Waterman, R. Michael, Lundeen, Jonathan B., For Respondent: Potts, Abigail, Bitar, Remzy D., Reginato, Matteo

Wisconsin Court of Appeals

Torts
negligence – causation

APPEAL and CROSS-APPEAL from a judgment of the circuit court for St. Croix County:  SCOTT R. NEEDHAM, Judge.  Affirmed; Cross-appeal dismissed.

Chelsea Betz and her parents, James Betz and Kelli Betz (collectively the Betzes), appeal a judgment dismissing their negligence claims against West Bend Mutual Insurance Company (West Bend).  The judgment was entered following a jury verdict finding that Hannah Nielsen did not cause injuries sustained by Chelsea when she fell from a tree in which the two girls were playing.  We conclude the special verdict answer regarding causation was supported by reasonable inferences drawn from the evidence at trial.  In addition, we conclude the verdict answer was not contrary to the great weight and clear preponderance of the evidence so as to entitle the Betzes to a new trial in the interest of justice.  Accordingly, we affirm.

2014AP000049 Chelsea L. Betz v. West Bend Mutual Insurance Company

DISTRICT III, St. Croix County, SCOTT R. NEEDHAM, PER CURIAM

Attorneys: For Appellant: Bye, Charles M., Heidt, Martha H., Larimore, Joel K. For Respondent: Waterman, R. Michael

U.S. Court of Appeals For the Seventh Circuit

Transportation
Preemption

Federal law preempts claims against airlines based on violates of state consumer protection law.

“We close with a word about the common-sense argument that Lagen presents and our dissenting colleague emphasizes: that United must be accountable under some body of law because its representation that it was bestowing ‘lifetime’ benefits on its Million-Mile flyers is irreconcilable with its reserved right under the MileagePlus Program Rules to modify and cancel those benefits at any time. This point does not depend on the existence of a separate contract for Million-Mile Flyer benefits. Instead, Lagen argues, it illustrates United’s misleading—perhaps even fraudulent—advertising practices.

Unfortunately for Lagen, this argument runs squarely into the Airline Deregulation Act of 1978 (ADA), 49 U.S.C. § 41713, which preempts any claim based on violations of state consumer protection law. See Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 228 (1995) (the ADA preempts claims under the Illinois

Consumer Fraud and Deceptive Business Practices Act related to frequent flyer programs). See also Northwest, Inc. v. Ginsberg, 134 S. Ct. 1422, 1432 (2014) (claim for breach of state-imposed covenant of good faith and fair dealing is preempted); Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378, 391 (1992) (the ADA ‘preempts the States from prohibiting allegedly deceptive airline fare advertisements through enforcement of their general consumer protection statutes’). Naturally, the ADA ‘does not give the airlines carte blanche to lie to and deceive consumers.’ Morales, 504 U.S. at 390. What it does do, however, is channel grievances of this type to the Department of Transportation, which is authorized to regulate such activities. See id. at 391.

That may not be as satisfying as a private right of action for the disappointed consumer, but that is the choice Congress made.”

Affirmed.

14-1375 Lagen v. United Continental Holdings, Inc.

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

Wisconsin Court of Appeals

Trusts and Estates
life insurance proceeds – constructive trusts

APPEAL from an order of the circuit court for Trempealeau County:  JOHN A. DAMON, Judge.  Affirmed.

Carly McDonah and Nellie McDonah seek a constructive trust over life insurance proceeds disbursed upon their father’s death to their stepmother, Candice McDonah.  Carly and Nellie argue the circuit court misinterpreted a divorce order and settlement agreement, which they contend required their father to maintain them as named life-insurance beneficiaries into perpetuity.  We reject Carly’s and Nellie’s argument and affirm.

2014AP000712 Carly M. McDonah v. Candice K. McDonah

DISTRICT III, Trempealeau County, JOHN A. DAMON, HOOVER, P.J.

Attorneys: For Appellant: Doherty, Francis M., Pankratz, Garett T. For Respondent: Steiner, Erwin H.

U.S Court of Appeals For the Seventh Circuit

Veterans
Benefits – breach of fiduciary duty

A claim alleging breach of fiduciary duty by a veteran’s appointed fiduciary was properly dismissed.

“The complaint here is really a challenge to a federal fiduciary appointment and to veteran benefits distribution and as such, we lack jurisdiction over it. Decisions made by the Secretary regarding benefits about which the plaintiffs take issue can be challenged in accordance with the statutorily prescribed process. Indeed, the plaintiffs did just that in the Veterans Court and Federal Circuit, and now recast allegations made against the Secretary as allegations against the Bank. The district court was right to grant the motion to dismiss the case. This conclusion makes it unnecessary for us to address the Secretary’s sovereign immunity argument.”

Affirmed.

13-3054 Evans v. Greenfield Banking Co.

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

CRIMINAL CASES

Wisconsin Court of Appeals

Criminal Procedure
Miranda warnings – ineffective assistance

APPEAL from a judgment and an order of the circuit court for Manitowoc County:  GARY L. BENDIX, Judge.  Affirmed.

Dean J. Koenig appeals from a judgment of conviction and an order denying his motion for postconviction relief.  He argues that he is entitled to a new trial because the circuit court erred when it denied his motion to suppress his statements to police, erroneously admitted the expert testimony of two state witnesses, and inadvertently informed the jury of a prior conviction when reading the unredacted information during instructions.  He also argues that his trial counsel was ineffective.  We reject Koenig’s claims and affirm the judgment and order.

2014AP000366-CR           State v. Dean J. Koenig

DISTRICT II, Manitowoc County, GARY L. BENDIX, PER CURIAM

Attorneys: For Appellant: Bizzaro, Amelia L. For Respondent: Kassel, Jeffrey J., LaBre, Jacalyn C.

Court of Appeals

Criminal Procedure
ineffective assistance

APPEAL from a judgment and an order of the circuit court for Milwaukee County:  MARY E. TRIGGIANO and LINDSEY CANONIE GRADY, Judges.  Affirmed.

John D. Harris appeals a judgment of conviction for battery and disorderly conduct in a domestic violence case, and an order denying postconviction relief.

Harris argues there is insufficient evidence to uphold the disorderly conduct conviction because the trial court used the wrong date in the jury instruction on disorderly conduct and there is no evidence that he ransacked the victim’s apartment or held a knife to her throat, that a jury instruction error demands a new trial in the interest of justice, and that he deserves a Machner hearing on his claim that trial counsel was ineffective for not objecting to the erroneous jury instruction. This court disagrees with Harris’ arguments and affirms the judgment and order.

2014AP001292-CR           State v. John D. Harris

DISTRICT I, Milwaukee County, MARY E. TRIGGIANO, LINDSEY CANONIE GRADY, CANE, J.

Wisconsin Court of Appeals

Criminal Procedure
double jeopardy

APPEAL from an order of the circuit court for Fond du Lac County:  GARY R. SHARPE, Judge.  Affirmed.

Martin V. Yanick, Jr., appeals from an order denying his postconviction motion to vacate the six-year bifurcated sentence imposed following the revocation of his probation on the ground that the trial court’s original sentence was invalid and caused him to reasonably believe that his probation had discharged prior to the date on which it was revoked.  We conclude that the trial court’s original sentence was valid, that Yanick’s consecutive probationary term was not made concurrent by virtue of an error by the department of corrections (DOC), and that the sentence does not violate principles of double jeopardy.  We affirm.

2014AP000473 State v. Martin V. Yanick, Jr.

DISTRICT II, Fond du Lac County, GARY R. SHARPE, PER CURIAM

Attorneys: For Respondent: Toney, Eric, Johnson-Karp, Gabe

Wisconsin Court of Appeals

Criminal Procedure
new trials – newly discovered evidence – postconviction discovery

APPEAL from an order of the circuit court for Waukesha County:  PATRICK C. HAUGHNEY, Judge.  Affirmed.

Ronald W. Wolfe, Jr. appeals from an order denying his Wis. Stat. § 974.06 (2011-12) postconviction motion for a new trial on the grounds of newly discovered evidence, ineffective assistance of postconviction counsel, and in the interest of justice.  Wolfe additionally argues that the trial court erred by denying his motions for the appointment of counsel and postconviction discovery.  We reject each of Wolfe’s claims and affirm.

2013AP001114 State v. Ronald W. Wolfe, Jr.

DISTRICT II, Waukesha County, PATRICK C. HAUGHNEY, PER CURIAM

Attorneys: For Appellant: Schimel, Brad For Respondent: Balistreri, Thomas J.

Wisconsin Court of Appeals

Criminal Procedure
successive appeals

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

Martie D. Berry, pro se, appeals an order of the circuit court denying his motion for postconviction relief.  Berry contends his trial counsel improperly counseled him regarding a plea offer.  We agree with the circuit court that the motion is procedurally barred, so we affirm the order.

2014AP000286 State v. Martie D. Berry

DISTRICT I, Milwaukee County, DANIEL L. KONKOL, PER CURIAM

Attorneys: For Appellant: Johnson-Karp, Gabe For Respondent: Loebel, Karen A.

Wisconsin Court of Appeals

Criminal Procedure
plea withdrawal

APPEAL from a judgment and an order of the circuit court for Racine County:  ALLAN B. TORHORST, Judge.  Affirmed.

Michael Wright, pro se, appeals a judgment, entered upon his guilty pleas, convicting him of robbery by use of force and operating a motor vehicle in an attempt to flee or elude an officer.  Wright also appeals the order denying his motion for postconviction relief.  To the extent we can discern Wright’s various arguments, they are rejected and the judgment and order are affirmed.

2013AP001691-CR           State v. Michael A. Wright

Attorneys: For Appellant: Larson, Sarah K. For Respondent: Chiapete, W. Richard

Wisconsin Court of Appeals

Evidence
other acts – hearsay

APPEAL from a judgment and an order of the circuit court for Racine County:  ALLAN B. TORHORST, Judge.  Affirmed.

Michael Wright, pro se, appeals a judgment, entered upon his guilty pleas, convicting him of robbery by use of force and operating a motor vehicle in an attempt to flee or elude an officer.  Wright also appeals the order denying his motion for postconviction relief.  To the extent we can discern Wright’s various arguments, they are rejected and the judgment and order are affirmed.

2013AP001618-CR           State v. Darren M. Wold

DISTRICT II, Racine County, ALLAN B. TORHORST, PER CURIAM

Attorneys: For Appellant: Mullison, Helen M. For Respondent: Weinstein, Warren D.; Schimel, Brad

Court of Appeals

Motor Vehicles
OWI – reasonable suspicion

APPEAL from a judgment of the circuit court for Washington County:  JAMES G. POUROS, Judge.  Affirmed.

In this eighth-offense operating a motor vehicle while intoxicated (OWI) case, Peter J. Long argues that his stop and arrest were unconstitutional because the police relied on unverified claims of an anonymous informant, the facts known by the police were insufficient to justify Long’s stop, and the police conduct in executing the stop was “overbearing and harassing,” turning the stop into an arrest for which the police did not have probable cause.  We conclude that the police had reasonable suspicion to stop Long and affirm.

2014AP000707-CR State v. Peter J. Long

DISTRICT II, Washington County, JAMES G. POUROS, NEUBAUER, P.J.

Attorneys: For Appellant: Jensen, Jeffrey W. For Respondent: Remington, Debra L., Bensen, Mark

Wisconsin Court of Appeals

Motor Vehicles
OWI – probable cause

APPEAL from an order of the circuit court for Chippewa County:  JAMES M. ISAACSON, Judge.  Affirmed.

Douglas Buchli appeals the final order denying his motion to suppress evidence relating to his arrest for first-offense operating while intoxicated (OWI).

We affirm.

2014AP001422 City of Chippewa Falls v. Douglas M. Buchli

DISTRICT III, Chippewa County, JAMES M. ISAACSON, HOOVER, P.J.

Attorneys: For Appellant: Rajek, Michael M. For Respondent: Ferg, Robert A.

Wisconsin Court of Appeals

Motor Vehicles
OWI – seizure

APPEAL from an order of the circuit court for Kenosha County:  MARY KAY WAGNER, Judge.  Reversed and cause remanded for further proceedings.

In this operating a motor vehicle while intoxicated (OWI) case, the State appeals the circuit court’s suppression of evidence gathered subsequent to a police encounter with Joseph S. Cali.  We conclude that Cali was not seized for the purposes of the Fourth Amendment when the police officer approached him and talked to him.  We reverse.

2014AP000493-CR State v. Joseph S. Cali

DISTRICT II, Kenosha County, MARY KAY WAGNER, NEUBAUER, P.J.

Attorneys: For Appellant: Weber, Gregory M., McNeill, Carli Ann For Respondent: Kmiec, Theodore B., III

Wisconsin Court of Appeals

Motor Vehicles
OWI – reasonable suspicion

APPEAL from a judgment of the circuit court for Brown County:  WILLIAM M. ATKINSON, Judge.  Reversed.

Cody Nolan appeals a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant (OWI), second offense, and resisting or obstructing a police officer.  Nolan contends the arresting officer lacked reasonable suspicion to stop his vehicle.  I agree and therefore reverse the judgment of conviction.

2014AP001359-CR           State v. Cody J. Nolan

DISTRICT III, Brown County, WILLIAM M. ATKINSON, SHERMAN, J.

Attorneys: For Appellant: Heyne, Peter R. For Respondent: Weber, Gregory M., Lasee, David L., Belair, Sarah Elyse, Bohnert, Kristen Kelley

Wisconsin Court of Appeals

Probation and Parole
parole – certiorari

APPEAL from an order of the circuit court for Milwaukee County:  RICHARD J. SANKOVITZ, Judge.  Affirmed.

Maximiliano Mejia, pro se, appeals from a circuit court order denying his petition for certiorari review.  Mejia argues that his petition should not have been denied because the Wisconsin Parole Commission “did not act according to law,” acted arbitrarily and unreasonably, and “exceeded its jurisdiction,”

and because his parole is being denied based on his detainer from the Bureau of Immigration and Customs.  We affirm the order denying Mejia’s petition for certiorari review.

2014AP000607 Maximiliano Mejia v. Wisconsin Parole Commission

DISTRICT I, Milwaukee County, RICHARD J. SANKOVITZ, PER CURIAM

Attorneys: For Respondent: Keckhaver, Karla Z.

Wisconsin Court of Appeals

Search and Seizure
community caretaker exception

APPEAL from a judgment of the circuit court for Kenosha County:  WILBUR W. WARREN III, Judge.  Reversed and cause remanded with directions.

Charles V. Matalonis appeals from a judgment of conviction for one count of manufacturing or delivering tetrahydrocannabinol (THC), contrary to Wis. Stat. § 961.41(1)(h)1.  Matalonis argues the circuit court erred in denying his motion to suppress evidence obtained after police officers searched his home without a warrant and without his consent.  The circuit court denied the motion, concluding that the search was justified under the community caretaker exception to the general rule that warrantless searches and seizures violate the Fourth Amendment to the United States Constitution.  We disagree and, therefore, reverse the court’s denial of Matalonis’s motion to suppress and remand for further proceedings.

2014AP000108-CR           State v. Charles V. Matalonis

DISTRICT II, Kenosha County, WILBUR W. WARREN III, SHERMAN, J.

Attorneys: For Appellant: Richards, Mark D. For Respondent: Zapf, Robert D., Latorraca, Donald V.

Court of Appeals

Search and Seizure
postconviction Franks hearings

APPEAL from a judgment and an order of the circuit court for Walworth County:  ROBERT J. KENNEDY and JOHN R. RACE, Judges.  Affirmed.

Paul Babcock appeals a judgment convicting him of possession of child pornography and an order denying his postconviction motion seeking a suppression hearing and/or resentencing.  For the reasons discussed below, we affirm.

2013AP002655-CR State v. Paul J. Babcock

DISTRICT II, Walworth County, ROBERT J. KENNEDY and JOHN R. RACE, PER CURIAM

Attorneys: For Appellant: Grass, Gary For Respondent: Balistreri, Thomas J.; Necci, Daniel A.

Wisconsin Court of Appeals

Sentencing
restitution

APPEAL from a judgment and an order of the circuit court for Milwaukee County:  DENNIS P. MORONEY, Judge.  Judgment affirmed in part, reversed in part; order reversed and cause remanded with directions.

Kenneth R. Wamser appeals from that portion of a judgment of conviction requiring him to pay $4698.32 in restitution, and from an order denying his postconviction motion to reduce the restitution amount by $4000.  Wamser contends that there is insufficient evidence establishing a causal nexus between his burglary and the victim’s claimed $4000-loss of two necklaces.  We agree, so we reverse the order and the portion of the judgment imposing restitution for the jewelry, and we remand this matter to the circuit court with directions to amend the judgment of conviction to reflect an obligation of $698.32.

2014AP001054-CR State v. Kenneth R. Wamser

DISTRICT I, Milwaukee County, DENNIS P. MORONEY, PER CURIAM

Attorneys: For Appellant: Todd, Leon W., III For Respondent: Loebel, Karen A., Latorraca, Donald V.

Wisconsin Court of Appeals

Sentencing
accurate information – restitution

APPEAL from a judgment and an order of the circuit court for Milwaukee County:  DAVID A. HANSHER, Judge.  Affirmed.

Timothy D. Russell appeals from a judgment of conviction entered after he pled guilty to one count of theft, see Wis. Stat. § 943.20(1)(b) (2011-12),[1] and from an order denying his motion for postconviction relief.  Russell argues that: he was deprived of due process when the circuit court allegedly erroneously sentenced him for the crime of misconduct in public office; and the circuit court erred when it ordered Russell to pay restitution for a West Milwaukee office space because he alleges that the State failed to demonstrate a causal nexus between the office space and his crimes.  Because the record belies Russell’s assertions in both instances, we affirm.

2014AP000451-CR State v. Timothy D. Russell

Attorneys: For Appellant: Cornwall, Andrea Taylor For Respondent: Balistreri, Thomas J., Loebel, Karen A.

DISTRICT I, Milwaukee County, DAVID A. HANSHER, BRENNAN, J.

Wisconsin Court of Appeals

Sentencing
inaccurate information – discretion

APPEAL from a judgment and an order of the circuit court for Racine County:  ALLAN B. TORHORST, Judge.  Affirmed.

Johnnie E. Russell appeals from a judgment of conviction entered after revocation of his probation and the circuit court’s denial of his postconviction motion relating to his sentencing after revocation.  He contends the court sentenced him based upon inaccurate information and erroneously exercised its discretion in its imposition of the maximum penalty.  We affirm.

2014AP000924-CR State v. Johnnie E. Russell

DISTRICT II, Racine County, ALLAN B. TORHORST, PER CURIAM

Attorneys: For Appellant: Marion, Colleen For Respondent: Chiapete, W. Richard, Murphy, Anne Christenson

U.S. Court of Appeals For the Seventh Circuit

Sentencing
Amount of loss

The district court did not clearly err in calculating amount of loss from a Ponzi scheme in sentencing the defendant for mail fraud.

“The district court did not clearly err in crediting the government’s evidence despite Nelson’s insistence that Galvin was an unreliable witness, that Kuzlik had inconsistently reported the amount of his investment in the fraud, and that Lagori may have used both JNL and Maxim Mortgage to invest in the fraud. A loss calculation is clearly erroneous only if it is ‘outside the realm of permissible computations.’ See United States v. Littrice, 666 F.3d 1053, 1060 (7th Cir. 2012) (citation and internal quotation marks omitted). The district court’s loss calculation has adequate evidentiary support and is well within the realm of permissible computations. Because the court did not clearly err in calculating the loss amount, Nelson’s due-process argument also fails.”

Affirmed.

13-2648 U.S. v. Nelson

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

U.S. Court of Appeals For the Seventh Circuit

Criminal Procedure
Self-representation

It was not error for the district court to revisit whether a defendant was competent to represent himself, even though a magistrate judge had earlier found him competent to do so.

“Clark argues Faretta held that a court may not revisit the issue since the Supreme Court said a knowing and intelligent waiver ‘must be honored out of “that respect for the individual which is the lifeblood of the law.”’ Faretta, 422 U.S. at 834 (quoting Illinois v. Allen, 397 U.S. 337, 350–51 (1970) (Brennan, J., concurring)). We do not read Faretta that way and also reject the premise of Clark’s argument, namely, that the district court revisited the issue. The magistrate judge’s ruling was that Clark’s waiver of counsel was valid ‘at this point, this juncture.’ If the district court had not conducted a Faretta colloquy, it is likely that Clark would now be arguing that the magistrate judge’s ruling was unclear and that Clark did not know whether his waiver was valid for the entire proceedings or whether he had to revisit the issue later. Instead, the district court judge took it upon herself to ensure that the waiver was valid and not to accept the limited finding. The role of determining whether the waiver was valid falls squarely on the judge, and she took that role seriously. Von Moltke, 332 U.S. at 723–24. We commend the district court in her efforts to protect that right and make sure it was properly invoked.”

Affirmed.

12-1417 U.S. v. Clark

Appeal from the United States District Court for the Southern District of Indiana, Barker, J., Williams, J.

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