Weekly Case Digests — Sept. 21 – Sept. 25, 2015

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7^th Circuit Court of Appeals – Civil

Civil

7^th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges

First Amendment

No.14-3325 Eugene Brown v. Larry Phillips

Treatment facility ban on movies and video games found not related to state’s interest in security and rehabilitation.

“Applying this standard, we conclude that the defendants’ evidence at summary judgment is too feeble to justify the ban on movies and video games. Defendants argue that “common sense” justifies prohibiting sex offenders from viewing sexually explicit materials. See Waterman v. Farmer, 183 F.3d 208, 214–15 (3d Cir. 1999) (although expert testimony and research showed an adequate connection between keeping pornography from incarcerated sex offenders and rehabilitating them, “common sense” also supports the ban). But, as we’ve recently said in other contexts, some data is needed to connect the goal of reducing the recidivism of sex offenders with a ban on their possessing legal adult pornography. See United States v. Taylor, No. 14-3790, 2015 WL 4653148, *4 (7th Cir. Aug. 6, 2015) (overturning a condition of supervised release that prohibited a person convicted of trafficking child pornography from possessing legal adult pornography; no evidence suggested that the legal material contributed to the illegal activity); United States v. Siegel, 753 F.3d 705, 709 (7th Cir. 2014) (observing that allowing a rapist of adult women access to legal pornography can decrease likelihood of recidivism because research shows that viewing legal pornography can be a safe outlet for sexual behavior).”

Vacated and remanded in part

Affirmed in part

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Civil

7^th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and KANNE and TINDER, Circuit Judges

Writ of Habeas Corpus – Harmless Error

No. 13-3723 Percell Dansberry v. Randy Pfister

Trial court erroneous warning to appellant regarding mandatory minimum sentence faced was harmless error.

“Similarly, we think an erroneous admonishment of the kind we have here—an incorrect statement of a defendant’s mandatory minimum sentence—is nonstructural. It does not affect the entire proceedings in the way that, e.g., an outright denial of counsel would. Cf. Gonzalez-Lopez, 548 U.S. at 149 (giving examples of structural errors). And its effects are likely to be identifiable and measurable. Cf. id. at 150 (finding structural error where the effects are “necessarily unquantifiable and indeterminate”). In short, an erroneous admonishment about a mandatory minimum sentence does not defy analysis for harmless error.”

Affirmed.

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Civil

7^th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges

Protection of Prisoners – Dismissal with Prejudice

No.14-3441 Mario Reyes v. Thomas J. Dart

Circuit court dismissal of appellant-prisoner’s claim alleging prison guard ignored appellants pleas for help while appellant was being stabbed was a miscarriage of justice.

“The judge erred. Rule 41(b) authorizes dismissal of a suit if the “plaintiff fails to prosecute [it] or to comply with these rules or a court order.” There was no failure to comply with any rule or any court order. Nor in refusing to sign the re‐ lease was the plaintiff failing to prosecute his suit—he was prosecuting it in part by challenging the defendants’ demand for unlimited access to and unlimited use of his medical records (albeit only such records as counsel might find in the files of the enumerated medical institutions). The demand for so comprehensive a release was improper, and the plaintiff should not have been criticized—let alone thrown out of court under inapplicable Rule 41(b)—for challenging it.”

Vacated and Remanded

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Civil

7^th Circuit Court of Appeals

Officials: BAUER, MANION, and ROVNER, Circuit Judges

Writ of Habeas Corpus – Special Parole No.14-2205

George H. Edwards, Jr. v. James N. Cross

Parole Commission re-imposition of special parole not allowed. Holding of Evans v. U.S. Parole Commission, 78 F.3d 262 (1996) upheld.

“There is yet another textual reason that the unconventional interpretation of “revoke” in § 3583(e) does not translate to the use of the same word in § 841(c). Section 841(c) refers to revoking a special parole term “imposed under this section”—that is to say, imposed by a judge at sentencing, not created by regulation when the “original” special parole term is revoked. As we explained in Evans, “[t]he Parole Commission cannot ‘impose’ a term of special parole any more than it can ‘sentence’ a defendant to prison.” Id. at 265. Because supervised release is imposed by the district court and the revocation and reimposition of “the term of supervised release” under § 3583(e) is also overseen by the court, the impossibility noted above regarding the Parole Commission’s authority does not arise with the unconventional interpretation of “revoke” the Court applied to § 3583(e) in Johnson—it is the district court that imposes an additional term of supervised release, not, as is the case under § 841(c), the Parole Commission. In sum, although the rationale in the now defunct McGee was persuasive to our interpretation of the same word appearing in § 841(c), there are independent textual reasons unique to § 841(c) that provide continued support for the conventional reading of “revoke” that we adopted in Evans.”

Vacated and Remanded

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7^th Circuit Court of Appeals – Criminal

Criminal

7^th Circuit Court of Appeals

Officials: EASTERBROOK, SYKES, and HAMILTON, Circuit Judges

Motion to Suppress

No. 14-1530 United States of America v. Erick Charles

Judge deferred ruling on tardy motion to suppress was harmless error, ample evidence of probable cause exists.

“Although the court erred, Charles hasn’t demonstrated any prejudice. He does not claim that he would have testified at a separate suppression hearing. And in any case, probable cause to search the car was conclusively established by the details of the dispatch and Sergeant Baranowski’s observations at the scene. Charles contends that he “waived his Sixth Amendment right to a jury trial without a full understanding of the evidence against him.” But he requested a bench trial before the first hearing at which the parties addressed the motion to suppress—and the timing of its consideration—so we don’t see how anything would have changed if he had known the result of his suppression motion earlier. It’s no surprise that having made his request for a bench trial when he did, Charles now emphasizes that he isn’t challenging the validity of his jury waiver.”

Affirmed

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WI Court of Appeals – Civil

Civil

WI Court of Appeals – District III

Officials: Stark, P.J., Hruz, J., and Thomas Cane, Reserve Judge

Settlement Enforcement

2014AP1985 Gerald G. Van Dyn Hoven v. Community First Credit Union

Gerald Van Dyn Hoven appeals from an order enforcing a settlement. Van Dyn Hoven argues the circuit court improperly bound him to a settlement inconsistent with the agreement made in court and placed on the record. We reject Van Dyn Hoven’s argument and affirm.

Decision

Affirmed. Per Curiam.

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Civil

WI Court of Appeals – District II

Officials: Reilly, P.J., Gundrum, and Stark, JJ.

Property Tax

2014AP2947 Regency West Apartments LLC v. City of Racine

Regency West Apartments LLC (“Regency West”) appeals a judgment dismissing its complaint against the City of Racine. Regency West had sought to recover allegedly excessive property taxes paid to the City for the years 2012 and 2013. The circuit court concluded that the assessments were not excessive and that the presumption of correctness had not been overcome. We affirm

Decision

Affirmed

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Civil

WI Court of Appeals – District IV

Officials: Kloppenburg, P.J., Higginbotham and Sherman, JJ.

Court Error

2014AP106 David Larsen v. Michael Thurmer

David Larsen appeals a circuit court order that affirmed a prison disciplinary decision on certiorari review. Larsen alleges that numerous procedural errors occurred during both the administrative and circuit court proceedings. For the reasons explained below, we conclude that the circuit court properly affirmed the disciplinary decision.

Decision

Affirmed

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WI Court of Appeals – Criminal

Criminal

WI Court of Appeals – District I

Officials: Curley, P.J., Brennan and Bradley, JJ.

Court Error – Admission of Evidence

2014AP2151-CR State of Wisconsin v. Shironski A. Hunter

Shironski A. Hunter appeals the judgment of conviction entered after a jury found him guilty of: being a felon in possession of a firearm; possession of a short-barreled shotgun (domestic abuse); intentionally pointing a firearm at a person (domestic abuse); battery with use of a dangerous weapon (domestic abuse); and disorderly conduct with use of a dangerous weapon (domestic abuse)—all as a repeater. Hunter argues that: (1) the trial court erred in admitting certain statements from 911 calls made by the victim and her sister, as well as the initial statements the victim made to the responding officer, because Hunter believes the statements are inadmissible hearsay and admitting them violates the Confrontation Clause; (2) the evidence presented at trial was insufficient to support the firearm convictions; and (3) the trial court erred in admitting testimony from three witnesses who were not previously disclosed to the defense pursuant to WIS. STAT. § 971.23(1)(d) (2013-14). For the reasons which follow, we affirm.

Decision

Affirmed

Criminal

WI Court of Appeals – District III

Officials: Stark, P.J., Hruz, J., and Thomas Cane, Reserve Judge.

Forfeiture of Right to Counsel – Competency

2014AP2699-CR State of Wisconsin v. Paul Golden

Paul Golden appeals a judgment convicting him of two counts of battery by a prisoner. He represented himself at a jury trial after the circuit court allowed his fourth attorney to withdraw and concluded Golden forfeited his right to counsel by his conduct. Golden argues the circuit court erred by concluding he forfeited his right to counsel and, furthermore, that he was not competent to represent himself. We reject these arguments and affirm the judgment.

Decision

Affirmed. Per Curiam.

Criminal

WI Court of Appeals – District III

Officials: Stark, P.J., Hruz and Seidl, JJ.

Domestic Abuse Repeater – Court Error

2014AP2888-CR State of Wisconsin v. Lonel L. Johnson, Jr.

Johnson challenges the application of the domestic abuse repeater enhancer to his sentence. He contends that, because the domestic abuse repeater enhancer increased the maximum penalty for the charged offense, the jury was required to find beyond a reasonable doubt that his underlying conduct qualified as an act of domestic abuse. The State concedes a jury determination of whether Johnson’s conduct constituted domestic abuse was required, pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000). Nevertheless, the State argues the circuit court’s failure to submit the domestic abuse issue to the jury was harmless error. In the alternative, the State argues Johnson forfeited his Apprendi argument by failing to object during the jury instruction and verdict conference. We agree with Johnson and the State that a jury determination of whether Johnson’s conduct constituted domestic abuse was required under Apprendi. We further conclude the error in failing to submit that issue to the jury was not harmless. Finally, we conclude Johnson did not forfeit his Apprendi argument by failing to object during the jury instruction and verdict conference, and, even if he did, we nevertheless exercise our discretion to address the error. We therefore reverse the judgment of conviction and the order denying postconviction relief, and we remand for resentencing without consideration of the domestic abuse repeater enhancer.

Decision

Reversed and Remanded

Criminal

WI Court of Appeals – District IV

Officials: Kloppenburg, P.J., Lundsten and Blanchard, JJ.

Ineffective Assistance of Counsel

2014AP2302-CR State of Wisconsin v. Carlos Aguirre Rivera

Carlos Aguirre Rivera appeals judgments convicting him of four counts of violating a domestic abuse injunction and four counts of bail jumping. Rivera also appeals an order denying his postconviction motion. Rivera contends that he was denied the effective assistance of counsel at trial when his attorney failed to obtain a stipulation to prevent the jury from hearing that the bail jumping charges arose from conduct that occurred while Rivera was on bond in cases charging strangulation and felony intimidation of a victim. We agree that Rivera was denied the effective assistance of counsel. We reverse.

Decision

Reversed and Remanded

WI Supreme Court

Supreme Court of Wisconsin

Attorney Misconduct – License Suspension

2012AP2322-D Office of Lawyer Regulation v. Charles A. Boyle

Attorney attempts to begin action while license suspended. In light of attorney experience and years of practice without incident, attorney is Issued public remand.

“In addition, it is worth noting that this is the first time in the approximately three decades since his admission to the practice of law in Wisconsin that Attorney Boyle has been the subject of professional discipline in this state. While the OLR may contend that as an experienced attorney Attorney Boyle should have known better, the length of his admission to practice in this state without prior discipline also means that he has not created a reason thus far to believe that the public must be protected from the risk of his misconduct. On the other hand, Attorney Boyle should understand that his experience as a lawyer should not be used as an excuse to ignore the particularities of the ethical rules and the local court rules that govern his conduct or to stretch the truth in an effort to pursue what he believes is a just outcome.”

Per Curiam.

BRADLEY, ABRAHAMSON, J.J., dissent. (Opinion Filed.)

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Supreme Court of Wisconsin

Reinstatement Proceeding.

2009AP941-D Office of Lawyer Regulation v. P. Nicholas Hurtgen

Attorney who consents to revocation of license after implication in connection with federal investigation has license reinstated

“The referee noted that letters supporting Attorney Hurtgen’s petition were filed by numerous persons, including former Wisconsin Governor James E. Doyle, that each writer spoke very highly of Attorney Hurtgen, and that several mentioned their belief that Attorney Hurtgen never acted inappropriately. The referee noted that Attorney Hurtgen currently serves as a managing partner of a private investment company and as an operating director of a Chicago-based investment and merchant bank. At this time, he does not intend to use his law license, if reinstated, to practice as an attorney but instead will use the license in his own business affairs.”

Per Curiam

PROSSER, J., did not participate.

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