Weekly Case Digests — July 22-29, 2016

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7^th Circuit Court of Appeals Digests

7^th Circuit Court of Appeals

Case Name: Thomas Wilson et at v. Warren County, Illinois et al

Case No.: 15-1939

Officials: BAUER and WILLIAMS, Circuit Judges, and ADELMAN, District Judge

Focus: FHA

Appellant fails to state a claim upon which relief can be granted in FHA claim related to private defendants seizing personal property.

“Plaintiffs also argue that Algren violated substantive due process because under the state-created danger doctrine, he was obliged to protect Wilson from the private defendants’ seizure of his property. Due Process does not require a state to protect citizens from private acts unless the state itself creates the danger. King ex rel. King v. E. St. Louis Sch. Dist. 189, 496 F.3d 812, 817 (7th Cir. 2007) (citing DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189 (1989)). Under the state created danger doctrine, a plaintiff must prove that (1) the state created or increased a danger to him, (2) the state’s failure to protect plaintiff was a proximate cause of his injuries, and (3) the state’s failure to protect the individual shocks the conscience. Id. at 817–18. Plaintiffs allege that Algren created the danger by advising Wilson’s friend that the removal of property required a court order. Plaintiffs contend that this statement amounted to an assurance that Algren would protect Wilson from the private defendants and made Wilson feel sufficiently protected that he left the gate to his property unlocked. Plaintiffs also assert that Algren then failed to protect their property, citing Carithers’ phone call regarding the legality of the property removal. But this behavior falls short of shocking the conscience. Only “the most egregious official conduct” shocks the conscience, Jackson v. Indian Prairie Sch. Dist. 204, 653 F.3d 647, 654 (7th Cir. 2011) (internal quotations and citation omitted), and Algren’s act of informing Wilson of a general legal principle—that one needs a court order in order to legally take another’s property – does not fall into that category.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Cincinnati Insurance Company v. H.D. Smith, LLC

Case No.: 15-2825

Officials: BAUER and WILLIAMS, Circuit Judges, and ADELMAN, District Judge.

Focus: Duty to Defend

Plain language of insurance policy requires appellant to defend plaintiff in declaratory judgment action.

“The mother’s suit is covered even though she seeks her own damages (the money she spent to care for her son), not damages on behalf of her son (such as his pain and suffering or money he lost because he missed work). Legally, the re‐ sult is no different merely because the plaintiff is a state in‐ stead of a mother. Cincinnati’s lawyer acknowledged as much but argued this case is different in fact because West Virginia does not actually seek reimbursement for money it spent because of its citizens’ injuries. Cincinnati argues—and the district court held—that this suit is like Medmarc, where we held that no duty to defend arose. But Medmarc is readily distinguishable. In that case, the insured party sold baby bot‐ tles and similar consumer products. When buyers learned that the products contained a dangerous chemical, they re‐ fused to use them. The buyers filed suit, complaining about the money they wasted by buying unusable products. But importantly, “the plaintiffs never allege[d] that they or their children ever used the products or were actually exposed to the [harmful chemical].” 612 F.3d at 610. In other words, there was “no claim of bodily injury in any form.” Id. at 616.”

Reversed

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7^th Circuit Court of Appeals

Case Name: Lightspeed Media Corporation v. Anthony Smith, et al

Case No.: 15-2440; 15-2682

Officials: WOOD, Chief Judge, and KANNE and SYKES, Circuit Judges.

Focus: Contempt & Sanctions

District court acted within discretion in imposing discovery sanctions

“Steele complains that the amount of the discovery sanction is “grossly excessive.” He argues that the costs for work be‐ fore his January 30 communication to JPMorgan cannot be justified, as they were not tied to his obstructive conduct. The district court explained its conclusion to the contrary by noting that “[t]hese expenses were incurred as a direct result of Lightspeed’s counsel’s refusal to pay the original sanctions or‐ der and false assertions of insolvency related thereto. Steele and Duffy used a variety of measures to obstruct the January 2014 discovery efforts (and the March 2014 discovery efforts).” “

Dismissed in Part

Affirmed in Part

Vacated in Part

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7^th Circuit Court of Appeals

Case Name: Jenny Rubin v. Islamic Republic of Iran

Case No.: 14-1935

Officials: BAUER and SYKES, Circuit Judges, and REAGAN, Chief District Judge.*

Focus: Execution of Judgment

Plaintiffs fail to assert statutory basis to attach lien to foreign owned property on US soil to satisfy judgment.

“The plaintiffs argue that “transfer directives” means a directive from Iran, and because Iran has never directed that these particular artifacts be transferred to it, the exception in section 4(b) doesn’t apply to the Persepolis Collection. This argument misreads the 2012 order, which refers to “transfer directives set forth in” President Carter’s 1981 Executive Order that all property meeting certain specified criteria be returned to Iran. That is, the directive is categorical rather than contingent on a particularized demand by Iran.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Vaughn Neita v. City of Chicago, et al

Case No.: 15-1404

Officials: EASTERBROOK, MANION, and SYKES, Circuit Judges.

Focus: Failure to State a Claim

Court dismissed appellant claim in error. Appellant provided sufficient allegations in complaint to allege false arrest and other 4^th amendment violations.

“Without deciding whether the officers’ search of Neita’s business violated the Fourth Amendment, the judge dismissed this claim on qualified-immunity grounds. He did so in light of section 10 of Illinois’s Humane Care for Animals Act, which permits law-enforcement officers who receive a complaint of suspected animal abuse or neglect to “enter during normal business hours upon any premises where the animal or animals described in the complaint are housed or kept, provided such entry shall not be made into any building which is a person’s residence, except by search warrant or court order.” 510 ILL. COMP. STAT. 70/10. The judge concluded that “by following Illinois law as it existed at the time of the search and as it still exists today, [Officers] Raddatz and Uldrych did not violate any clearly established statutory or constitutional rights of which a reasonable person would have known.””

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Karvis Carter

Case No.: 15-1335

Officials: POSNER, SYKES, and HAMILTON, Circuit Judges.

Focus: Sentencing

Judge did not err in applying upward adjustment to appellant total offense level given conduct of appellant.

“But the judge was permitted to adopt the probation officer’s findings from the presentence report, including the finding that the blow to the head sustained by Officer Lopez created a substantial risk of serious bodily injury. Although the judge’s remarks could have been clearer, we’re satisfied that she understood the legal standard for imposing the adjustment. After all, she read aloud from the text of the guideline, and when defense counsel reminded her that she must find that Carter’s actions created a substantial risk of serious bodily injury, she acknowledged counsel’s argument. She went on to conclude that the evidence in the record—including Officer Brown’s testimony about the blows to the head and the photographs of the officers’ injuries—supported the probation officer’s finding. See id. (“Even one blow to the head, and even by an unarmed person, can pose a substantial risk of serious injury within the meaning of the Guidelines.”). Nothing more was required.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Darwin Montana v. James N. Cross

Case No.: 14-3313

Officials: BAUER, RIPPLE, and ROVNER, Circuit Judges.

Because appellant was not precluded from arguing that he lacked knowledge of his confederate carrying a firearm in his direct appeal, he cannot proceed under §2241

“It was therefore open to Mr. Montana to argue, at the time of his appeal and at the time of his initial collateral attack un‐ der § 2255, that the statutory offense of aiding and abetting the carrying of a firearm during a crime of violence required that he have actual knowledge that his confederate was car‐ rying a firearm. Indeed, when we next revisited the elements of the offense in United States v. Taylor, 226 F.3d 593 (7th Cir. 2000), we made no mention of constructive knowledge being adequate to sustain such a conviction. The entire tenor of the court’s discussion makes it difficult to conclude that such con‐ structive knowledge would have sufficed. Rather, it is far more plausible to read Taylor as suggesting that constructive knowledge had no place in such an analysis because knowledge of the presence of a firearm was considered a nec‐ essary component of the defendant’s intent to foster the fire‐ arm’s use in the underlying crime. See id. at 597 (“If Wilson was physically distant or otherwise removed from Taylor’s vantage at the time Wilson brandished and used the firearm, we could not automatically presume Taylor’s observation and actual knowledge of weapon use.”). In any event, it certainly was not foreclosed to Mr. Montana to argue that the Govern‐ ment had to prove that he had actual knowledge of the pres‐ ence of the firearm to sustain his conviction. Mr. Montana was therefore entirely free to make his current argument that, by the time he had actual knowledge of the presence of the fire‐ arm, he was unable to cease the activity he had undertaken in support of his confederate.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Michael Chezan

Case No.: 16-1134

Officials: POSNER and SYKES, Circuit Judges, and YANDLE, District Judge. *

Focus: Ineffective Assistance of Counsel

Appellant failed to heed the advice of counsel, to his detriment. This did not amount to ineffective assistance of counsel.

“The defendant quotes from Padilla v. Kentucky, supra, 559 U.S. at 368–69, that “Padilla’s counsel provided him false as‐ surance that his conviction would not result in his removal from this country. This is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his depor‐ tation was presumptively mandatory, and his counsel’s ad‐ vice was incorrect.” In contrast, Burton did not advise his client that “his conviction would not result in his removal from this country.” He advised him correctly that there was only a slight chance of that. The advice left the defendant free to gamble, if he wanted, by pleading guilty, which he did—and lost the gamble when our court decided Gourche v. Holder. But this was not Burton’s fault; he had warned the defendant of the risks to his immigration status of pleading guilty. We agree with the district court that Burton did not render the defendant ineffective assistance of counsel.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Elizabeth G. Taylor v. Carolyn W. Colvin

Case No.: 15-3529

Officials: POSNER, SYKES, and HAMILTON, Circuit Judges.

Focus: Disability Benefits     

ALJ improperly denial of benefits for appellant were unsupported as appellant was clearly impaired.

“As is customary in disability hearings a vocational expert employed by the Social Security Administration was asked what full‐time jobs if any the applicant could perform, assuming the applicant wasn’t totally disabled from gainful employment. The vocational expert testified that “if” (a huge “if”) Taylor could do routine or unskilled work involving only infrequent interpersonal contact and no exposure to hazards, she could work as a cleaner, assembler, hand packer, or machine feeder. The vocational expert failed, however, to explain the source or accuracy of her data concerning the number of such jobs that exist in the economy, an oversight we criticized in Alaura v. Colvin, 797 F.3d 503, 507–08 (7th Cir. 2015), and Voigt v. Colvin, supra, 781 F.3d at 879.”

Reversed

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7^th Circuit Court of Appeals

Case Name: Carol Chesemore, et al v. David B. Fenkell et al

Case No.: 14-3181; 14-3215; 15-3740

Officials: KANNE and SYKES, Circuit Judges, and ELLIS, District Judge

Focus: Indemnification – Remedial Order

Appellant challenge to remedial order is without merit, order to indemnify cofiduciaries is upheld.

“Fenkell hasn’t given us any argument that wasn’t already addressed in Free and resolved against his position. And overruling circuit precedent simply to move from one side of a circuit split to the other is disfavored. Buchmeier v. United States, 581 F.3d 561, 566 (7th Cir. 2009). Moreover, we’re not convinced that Free was wrongly decided. If we are to interpret ERISA according to the background principles of trust law—as the Supreme Court has repeatedly instructed us to do—then indemnification and contribution are available equitable remedies under the statute.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Edward Dorsey, Sr.

Case No.: 15-3341

Officials: WOOD, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges.

Focus: Sentencing

Court did not err in considering his revocation case sentence, the district court stated the influential factors affecting his final sentence.

“Here, at resentencing, the district court stated which factors influenced the final sentence, including an extensive discussion of its reasons for increasing Dorsey’s sentence by 51 months based on the concurrent nature of Dorsey’s revocation case sentence. (Sent. Tr. 34–35, Oct. 16, 2015.) The district court explained that at Dorsey’s first sentencing, it had wanted to impose a 327‐month sentence, but Dorsey had persuaded the court to impose a 276‐month sentence be‐ cause he expected to receive a 51‐month consecutive sentence in his revocation case. (Id.) Dorsey, however, received a 51‐ month concurrent sentence in his revocation case. As a result, at resentencing, the district court increased Dorsey’s sentence to “correct … a misunderstanding on my part that the 51 months was definitely going to be consecutive.” (Id. at 35.) The district court’s reasoning more than adequately justifies Dorsey’s final sentence. Therefore, there was no procedural error.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Phoenix Entertainment Partners, LLC et al v. Dannette Rumsey et al

Case No.: 15-2844

Officials: WOOD, Chief Judge, ROVNER, Circuit Judge, and BLAKEY, District Judge

Focus: Trademark Infringement

Appellant fails to allege that the conduct of the respondent resulted in consumer confusion, case is properly dismissed as a result.

“We have considered Slep-Tone’s concern that if the data contained on one of its products is compressed excessively during the duplication process, the quality of an unauthorized copy may be poor and, when played, may lead viewers to think Slep-Tone products are of inferior quality. (Although the same danger may be present when a Slep-Tone customer makes an authorized copy, we shall assume that the auditing process referred to in the complaint takes care of this.) Quality is always a concern in passing-off cases: Not only is the trademark holder deprived of sales, but the counterfeit goods sold under its trademark place the holder’s goodwill at risk to the extent the goods are of inferior quality. See, e.g., Coca-Cola Co. v. Stewart, 621 F.2d 287, 291 (8th Cir. 1980). But the problem for Slep-Tone, apart from the fact that it does not affirmatively allege that the defendants’ copies are noticeably inferior to their patrons, see n.3, supra, is that the defendants are not passing off a tangible good sold in the marketplace as a SlepTone good. As we have discussed, the defendants are not selling compact discs with karaoke tracks and billing them as genuine Slep-Tone tracks, in the way that a street vendor might hawk knock-off Yves Saint Laurent bags or Rolex watches to passers-by. Whatever wrong the defendants may have committed by making (or causing to be made) unauthorized copies of Slep-Tone’s tracks, they are not alleged to have held out a tangible good sold in the marketplace as a Slep-Tone product. Consequently, the defendants’ alleged conduct is not actionable as trademark infringement”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Leroy S. Poullard v. Robert A. McDonald

Case No.: 15-1962

Officials: WOOD, Chief Judge, and MANION and HAMILTON, Circuit Judges.

Focus: Employment Discrimination

Appellant did not suffer any adverse employment actions or allege facts sufficient to support claims for unlawful discrimination retaliation or harassment.

“Only three incidents Poullard described have even a tenuously arguable connection to race: (1) the meeting in October 2008, when Cardinali threw a toy monkey at Poullard and said that management intended to “get the monkeys off the backs of management”; (2) the incident in October 2008 when Mailand referred to Poullard as a “sugar daddy”; and (3) Mai‐ land’s comment in November 2009 that Poullard was a “better person” than before, apparently with reference to an older photograph in which Poullard had an afro hairstyle. On the spectrum of offensive conduct, these statements fall at best on the less severe end. Cf. Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 1047 (7th Cir. 2002) (“an unambiguously racial epithet falls on the ‘more severe’ end of the spectrum”), citing Rodgers v. Western‐Southern Life Insurance Co., 12 F.3d 668, 675 (7th Cir. 1993). The first remark in particular, which could be very troubling out of context, actually referred to a well‐known Harvard Business Review article about the value of delegation, entitled “Management Time: Who’s Got the Monkey?” See William Oncken, Jr. & Donald L. Wass, Management Time: Who’s Got the Monkey?, Harvard Business Review, Nov.–Dec. 1999, available at https://hbr.org/1999/11/management‐time‐ whos‐got‐the‐monkey (describing article as “one of the publication’s two best‐selling reprints ever”). The other two re‐ marks were at worst mild and ambiguous. They do not sup‐ port a reasonable inference of discriminatory animus, nor are they overtly hostile in any objective sense.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Vonzell White v. City of Chicago, et al

Case No.: 15-1280

Officials: KANNE, ROVNER, and HAMILTON, Circuit Judges.

Focus: 4^th Amendment violation

Sworn testimony of officer sufficient evidence to establish probable cause and officer provided sufficient evidence to obtain warrant.

“White alleged in his amended complaint: “In accordance with a widespread practice of the police department of the City of Chicago: O’Donnellrequested the judge to issue a war‐ rant on the basis of O’Donnell’s conclusory allegation that other law enforcement officers claimed or believed plaintiff had committed an offense, and O’Donnell did not present the judge with an affidavit setting out any affirmative allegation of facts that would indicate that plaintiff had committed an offense.” Together with the individual claim against O’Donnell and the standard printed form that does not require specific factual support for an application for an arrest warrant, this allegation was enough to satisfy the “short and plain statement of the claim” requirement of Rule 8(a)(2). White was not required to identify every other or even one other individual who had been arrested pursuant to a warrant obtained through the complained‐of process. See, e.g., Jackson v. Marion County, 66 F.3d 151, 152–53 (7th Cir. 1995).”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Donna Flournoy v. City of Chicago, et al

Case No.: 14-3776

Officials: KANNE and MANION, Circuit Judges, and PEPPER, District Judge.*

Focus: Excessive Force – New Trial

Jury verdict was reasonable, and court did not err or abuse its discretion on evidentiary matters. Appellant was afforded a fair trial, negating the need for a new one.

“More to the point, though, the jury’s statement does not undermine the verdict because the statement is a gratuitous observation that is immaterial to the verdict’s validity. Indeed, “[f]ederal courts have long held that additional jury notations that are not directly responsive to the jury charge and verdict form are surplusage, and are to be ignored.” Great Pines Water Co. v. Liqui-Box Corp., 203 F.3d 920, 924, 924 n.10 (5th Cir. 2000) (collecting cases); see also Freeman v. Franzen, 695 F.2d 485, 490 (7th Cir. 1982) (citations omitted) (“Ordinarily a recommendation from the jury is disregarded, and does not impeach the validity of the verdict.”). Accordingly, the jury’s note is not evidence of impropriety and does not warrant a new trial.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Christopher Pyles v. Samuel Nwoabasi, et al

Case No.: 14-3289

Officials: WOOD, Chief Judge, and BAUER and HAMILTON, Circuit Judges

Focus: Administrative Remedies

Appellant has proven good cause for failing to make timely filing of grievance and defendants did not meet their burden of proving that Appellant failed to exhaust administration remedies first. Court err in granting summary judgment in favor of defendants.

“Federal law takes the same approach. Interpreting the “good cause” provision of Rule 4 of the Federal Rules of Appellate Procedure, federal courts have found it “in practice … the same standard as ‘due diligence’ before the rule” existed. Del Raine v. Carlson, 826 F.2d 698, 704 (7th Cir. 1987). It “applies in situations where there is no fault—excusable or otherwise.” Sherman v. Quinn, 668 F.3d 421, 425 (7th Cir. 2012). Usually, “good cause” is “occasioned by something that is not within the control of the movant.” Bishop v. Corsentino, 371 F.3d 1203, 1207 (10th Cir. 2004) (quoting FED. R. APP. P. 4(a)(5) cmt. note (2002)); see also United States v. Hirsch, 207 F.3d 928, 929–30 (7th Cir. 2000) (suggesting that a clerk’s “failure to perform a ministerial act whose omission could have serious adverse consequences for a criminal defendant” would qualify as “good cause” for untimely appeal). Similarly, this court has found that a U.S. Marshal’s failure properly to serve a prisoner’s notice of appeal “is automatically ‘good cause.’” Sellers v. United States, 902 F.2d 598, 602 (7th Cir. 1990).”

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Janet A. Riley v. Elkhart Community Schools

Case No.: 15-3166

Officials: BAUERandWILLIAMS,Circuit Judges, and ADELMAN, * District Judge.

Focus: Title VII

Appellant fails to provide sufficient evidence that failure of respondent to promote appellant amounted to discrimination.

“First, Riley cannot prove a prima facie case for the § 1981 claim regarding the assistant principal position for which she applied in 2009. Section 1981 causes of action are limited to discrimination claims based on race. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 285–86 (1976); Humphries v. CBOCS West, Inc., 474 F.3d 387, 402–03 (7th Cir. 2007) (section

1981 establishes causes of action for racial discrimination as well as retaliation for opposing racial discrimination). ECS hired Krista Hennings, an African‐American, for the assistant principal position at Memorial available in 2009. Therefore, Riley cannot show that ECS promoted someone outside of her protected class for the position she sought. SeeJaburek, 813 F.3d at 631. She cannot establish a prima facie case for this § 1981 claim as a matter of law.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Christopher Eberts

Case No.: 15-2596

Officials: BAUER, MANION, and KANNE, Circuit Judges

Focus: Sentencing

Court did not ignore sentencing factors, the basis of court’s decision based on sound facts and ample evidence was present to support the imposed sentence

“Eberts next argues that the district court failed to consider his arguments in mitigation. First, he faults the court for not acknowledging that he faces removal to Canada upon his re‐ lease from prison. But the judge was not required to specifically address Eberts’s undeveloped contention that he had pleaded guilty in spite of his likely removal; while a district court may consider a defendant’s immigration status, it need not explicitly discuss a stock argument like the painful consequences of removal. See United States v. Mendoza, 576 F.3d 711, 721–22 (7th Cir. 2009). Second, Eberts faults the court for failing to recognize that the $400,000 he paid Elliott in restitution before pleading guilty represented an “extraordinary acceptance of responsibility.” But, as explained by the district court, Eberts’s payment was not even voluntary, let alone extraordinary—he waited to settle the civil suit with Elliott until just days before he pleaded guilty, three years after he had been ordered to pay over $1 million. See United States v. Grasser, 312 F.3d 336, 340 (7th Cir. 2002) (concluding that defendant who, on day of sentencing, pledged 42% of amount owed to plaintiff in civil suit did nothing extraordinary). And the judge did take this payment into consideration by ordering Eberts to pay restitution of only $178,500, the sum left over after $400,000 was subtracted from the total loss amount.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Billy J. Robinson, Jr.

Case No.: 15-2019

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

Focus: Sentencing

Court erred in its failure to adequately explain the sentence provided to appellants.

“While “sentencing is an individual, and at times idiosyncratic, process,” this “does not excuse the court from its duty to ensure a fair process.” Figueroa, 622 F.3d at 743–44. Because the district court did not “adequately explain its chosen sentence” with reference to the relevant criteria laid out in 18 U.S.C. § 3553(a), Robinson’s sentence does not “allow for meaningful appellate review [or] promote the perception of fair sentencing.” Gall, 552 U.S. at 50. The government argues that if we look at the sentence as a whole, and ignore the inappropriate comments, the district court provided enough of an explanation of its sentence for us to affirm. See Wilson, 383 F. App’x at 556–57 (finding no reversible error where district court made some inappropriate comments, but ultimately justified sentence based on Section 3553(a) factors). We cannot do so here. Because the district court’s improper extraneous comments were interwoven with its consideration of the Section 3553(a) factors, “[w]e have no way of knowing how, if at all, these extraneous considerations influenced [Robinson’s] sentence.” Figueroa, 622 F.3d at 74”

Vacated and Remanded

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. J.T.M.

Case No.: 2015AP1585

Officials: SEIDL, J.

Focus: Suppression – Miranda Violation

James appeals an adjudication for first-degree sexual assault of a child. He argues his statement during a police interrogation should have been suppressed either for a Miranda violation or because the statement was involuntary. We conclude James’s statement was obtained in violation of Miranda, and we reverse.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. V.A.

Case No.: 2015AP1614

Officials: BRASH, J.

Focus: Termination of Parental Rights

V.A. appeals from an order terminating her parental rights to her son, M.R.H. She also appeals the order denying her postdispositional motion.2 V.A. makes the following arguments on appeal: (1) trial counsel was ineffective; (2) it is unconstitutional to terminate her parental rights when she was incompetent at the time she entered her plea to the underlying CHIPS petition; (3) WIS. STAT. § 48.415(6) is unconstitutional as applied; (4) the circuit court erred in admitting foster parent testimony, creating a comparison of parenting abilities; and (5) the evidence adduced at trial was insufficient. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin et al v. Buffalo County Board of Adjustment

Case No.: 2015AP1762

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

Focus: Application for Permit

Gerald and Cheryl Earney, the Mississippi Land Connection and Timber Company, LLC, and Wisconsin Bluff Sands, LLC (f/k/a Badger Bluff Sands, LLC) (collectively “Earney”), appeal an order affirming, on certiorari review, the Buffalo County Board of Adjustment’s (“the Board”) decision to deny Earney’s application for a Conditional Use Permit (“CUP”) to operate a frac sand mine in the town of Waumandee. We affirm.

Recommended for publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Ernesto E. Lazo Villamil

Case No.: 2015AP791-CR

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Sentencing

Ernesto Lazo Villamil appeals (1) his judgment of conviction for felony causing a death while knowingly operating a motor vehicle after his driver’s license was revoked (OAR) and (2) the denial of his motion for postconviction relief. He argues that the statutory provisions underlying his conviction and sentence, WIS. STAT. § 343.44(1)(b) (2009-10)2 and WIS. STAT. § 343.44(2)(ar)4. (eff. Mar. 1, 2012), are ambiguous as to whether he should be convicted of and sentenced for a misdemeanor or a felony, and therefore, under the rule of lenity, he should be convicted of and sentenced on a misdemeanor, rather than the felony under which he is now convicted and sentenced. Relatedly, he further contends the statutory scheme is unconstitutional on due process and equal protection grounds because it does not provide fair notice of the conduct that is prohibited or adequate standards for when a defendant should be prosecuted and adjudicated for a misdemeanor or a felony. Lastly, he asserts he is entitled to resentencing because the court failed to consider specific factors enumerated in § 343.44(2)(b) when it sentenced him.

We conclude the rule of lenity is not applicable here and the statutory scheme under which Lazo Villamil was convicted and sentenced is constitutional. We do, however, return this matter to the circuit court for resentencing of Lazo Villamil because the record indicates the court failed to consider factors required by WIS. STAT. § 343.44(2)(b). Thus, we affirm in part, reverse in part, and remand for further proceedings.

Recommended for publication

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WI Court of Appeals – District II

Case Name: Mark Reinders et al v. City of Delafield et al

Case No.: 2015AP896

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Writ of Certiorari

The City of Delafield and the Delafield Common Council (hereafter Delafield) appeal from a circuit court order granting a petition for a writ of certiorari and requiring Delafield to approve a certified survey map (CSM) submitted by Mark Reinders and Sheridan Ryan (hereafter Reinders) to subdivide their residential lakefront lot into two lots. We agree with the circuit court that in declining to approve Reinders’s CSM, Delafield proceeded on an incorrect legal theory and made an arbitrary and unreasonable decision that was not supported by the evidence. We affirm the circuit court’s decision directing Delafield to undertake further proceedings necessary to approve the CSM.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Conrelius A. Green

Case No.: 2015AP1383-CR

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

Focus: Ineffective Assistance of Counsel

Cornelius Green appeals pro se from a judgment convicting him of second-degree reckless homicide as party to the crime and from an order denying his postconviction motion alleging ineffective assistance of counsel. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Michael R. Hess

Case No.: 2015AP2423

Officials: Gundrum, J.

Focus: Revocation – Error

Michael Hess appeals pro se from a circuit court order denying his amended motion to vacate a revocation order related to an alleged refusal under WIS. STAT. § 343.305. He asserts the revocation order is void because he was never served with the notice of intent to revoke as required by § 343.305 and, therefore, the circuit court never had jurisdiction to enter the order. For the following reasons, we reverse the court’s order and remand for further proceedings consistent with this opinion

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Patrick H. Dalton

Case No.: 2016AP6-CR

Officials: GUNDRUM, J.

Focus: Plea Withdrawal – Ineffective Assistance of Counsel

Patrick Dalton appeals from his judgment of conviction and the circuit court’s order denying his postconviction motion. He seeks to withdraw his plea, contending that his trial counsel provided him ineffective assistance by failing to file a motion to suppress evidence arguing “that police lacked the exigent circumstances necessary to forcibly draw his blood without a warrant,” and that the circuit court erred in denying his postconviction motion related to this failure without affording him a Machner3 evidentiary hearing. He alternatively asserts the court erroneously exercised its discretion at sentencing by “increas[ing] [his] punishment” because of his refusal to allow the blood draw and erred in denying his postconviction motion seeking resentencing. We agree the circuit court erred in denying without a Machner hearing Dalton’s postconviction motion as related to his ineffective assistance of counsel claim. We remand for a Machner hearing. Upon remand, we also direct the circuit court to address Dalton’s claim related to sentencing in light of the United States Supreme Court’s very recent decision in Birchfield v. North Dakota, 579 U.S. ___ (2016). We therefore reverse the court’s postconviction order and remand for further proceedings.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jermaine D. Greer, Sr.

Case No.: 2015AP692

Officials: HIGGINBOTHAM, J.

Focus: Court Error – Plea Withdrawal

Jermaine D. Greer, Sr., pro se, appeals the decision of the circuit court denying his fourth motion for postconviction relief in which Greer sought to withdraw his guilty plea. Greer argues that the court erred by denying his motion and renews arguments he made to the circuit court supporting his plea withdrawal: (1) that he received ineffective assistance of counsel and (2) prosecutorial misconduct. For the reasons that follow, we conclude that the court properly denied Greer’s motion and affirm

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WI Court of Appeals – District IV

Case Name: Jose A. Santiago v. Labor and Industry Review Commission, et al

Case No.: 2015AP1314

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

Focus: Discrimination

Jose Santiago appeals a circuit court order that affirmed the Labor and Industry Review Commission’s (LIRC) dismissal of Santiago’s claim of employment discrimination based upon national origin. For the reasons discussed below, we affirm the dismissal of Santiago’s discrimination complaint.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Marcus C. Robinson

Case No.: 2015AP1453-CR

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

Focus: Ineffective Assistance of Counsel

Marcus Robinson appeals a judgment convicting him, after a jury trial, of second-degree sexual assault of an unconscious victim, as well as an order denying his postconviction motion. On appeal, Robinson argues that his trial counsel rendered ineffective assistance of counsel and that the real controversy was not fully tried. For the reasons set forth below, we affirm the judgment and order of the circuit court.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Mark G. McCaskill

Case No.: 2015AP1487-CR

Officials: SHERMAN, J.

Focus: OWI – Court Error – Motion to Suppress

Mark McCaskill appeals a judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration (PAC), fourth offense, in violation of WIS. STAT. § 346.63(1)(b). McCaskill contends that: (1) the circuit court erred in denying his motion to suppress evidence obtained following his arrest; (2) the evidence at trial was insufficient to support his conviction; (3) the circuit court erred in denying his motion collaterally attacking a prior third offense conviction for operating a motor vehicle while under the influence (OWI); and (4) that he should be granted a new trial in the interest of justice because the real controversy was not tried. For the following reasons, I affirm.

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WI Court of Appeals – District III

Case Name: Timothy Girard v. American Family Mutual Insurance, et al.

Case No.: 2015AP1509

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

Focus: Uninsured Motorist Insurance Coverage

This dispute concerns the priority of uninsured motorist coverage provided by two insurance companies, Wadena Insurance Company and American Family Insurance Company. This case arose from an auto accident during which Timothy Girard, an insured of Wadena’s, was driving a vehicle owned by Jonathan Cattau and insured by American Family. An uninsured motorist caused a collision with the vehicle driven by Girard. Cattau was not in the vehicle at the time of the collision. Both insurance policies provide uninsured motorist coverage and include “other insurance” provisions that limit the circumstances under which coverage will be provided. Applying the pertinent terms in the respective “other insurance” provisions to the facts of this case, the circuit court ruled that Wadena and American Family are required to provide pro rata uninsured motorist coverage for Girard’s injuries and other damages caused by the uninsured motorist. Wadena appeals.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Zachery J. Pagenkoff

Case No.: 2015AP1855-CR

Officials: BLANCHARD, J.

Focus: Restitution – De Novo Review

Zachery Pagenkopf appeals the circuit court’s restitution order entered following his convictions for misdemeanor battery, disorderly conduct, and resisting a police officer. More specifically, Pagenkopf challenges the court’s denial of his motion requesting de novo review by the court of a restitution hearing conducted by a circuit court commissioner, and also challenges the amount of restitution ordered by the court. I conclude that Pagenkopf was not entitled to de novo review by the court because the commissioner acted under a referral from the court under WIS. STAT. § 973.20(13)(c)4., pursuant to which the commissioner had authority only to prepare “proposed findings of fact and conclusions of law” for consideration by the court, and the commissioner lacked authority to make a “decision,” as that term is used in WIS. STAT. § 757.69(8). The court, and not the commissioner, made the restitution decision set forth in the court’s order. I also conclude that the court rationally interpreted the pertinent facts and applied the correct legal standards, and therefore the court did not erroneously exercise its discretion in ordering restitution in the amount that it did. Accordingly, I affirm.

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WI Court of Appeals – District IV

Case Name: Catherine Leaverton v. Department of Workforce Devleopment, et al

Case No.: 2015AP2080

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

Focus: Retaliation Termination

Catherine Leaverton appeals the circuit court order affirming a decision by the Equal Rights Division of the Department of Workforce Development. The Division concluded that the Department of Veterans Affairs did not retaliate against Leaverton in violation of WIS. STAT. § 230.83 (2013-14), a provision of Wisconsin’s whistleblower law, when the Department of Veterans Affairs laid Leaverton off. Leaverton argues that the Division erroneously concluded that she was not entitled to the presumption of retaliation under WIS. STAT. § 230.85(6) and asks this court, for that reason, to reverse and remand the matter to the Division “to enter a finding that [the Department of Veterans Affairs] unlawfully terminated her employment.” We conclude that, regardless of whether Leaverton was entitled to the statutory presumption of retaliation, Leaverton must show that the Division’s finding—that the Department of Veterans Affairs did not retaliate against Leaverton when it laid her off—is not supported by substantial evidence and Leaverton utterly fails in this regard. More specifically, Leaverton fails to show that the Division’s finding that the elimination of her position was solely the result of a reorganization not related to any action of Leaverton, is not supported by substantial evidence. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Peter Bernegger v. Cara Thompson, et al

Case No.: 2015AP2168

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

Focus: Personal Jurisdiction

Peter Bernegger appeals an order of the circuit court dismissing his lawsuit against the State of Mississippi Department of Revenue, Cara Thompson (an employee of the Mississippi Department of Revenue), and Jacob Collection Group, LLC. Bernegger contends that the court erred in concluding that it did not have personal jurisdiction over the out-of-state defendants and that, even if it had jurisdiction, Bernegger’s complaint failed to state a claim upon which relief may be granted. We affirm based on the personal jurisdiction issue. The out-of-state defendants’ attempts to collect taxes allegedly owed in Mississippi by Bernegger’s Mississippi-based limited liability company by periodically sending tax statements or letters and making phone calls to Bernegger at his Wisconsin residence do not meet the due process requirement of minimum contacts necessary to confer personal jurisdiction over the out-of-state defendants in Wisconsin.

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WI Court of Appeals – District IV

Case Name: Estate of Michael T. Hinze and Steven Blaha v. Tammy J. Hinze et al

Case No.: 2015AP2522

Officials: Lundsten, Sherman and Blanchard, JJ.

Focus: Trusts & Estate – Probate

Steven Blaha and the Estate of Michael Hinze appeal the circuit court’s judgment dismissing their claims against Michael Hinze’s surviving spouse, Tammy Hinze. Blaha and the Estate argue that the court erred in its application of marital property law. We affirm the circuit court.

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