Weekly Case Digests — Aug. 8–12, 2016

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7^th Circuit Digests

7^th Circuit court of Appeals

Case Name: United States of America v. John Gabriel

Case No.: 15-3427

Officials: POSNER, SYKES and HAMILTON, Circuit Judges.

Focus: Conditions of Supervised Released

A sentencing court is not required to separately justify the length of imprisonment and supervised release terms.

“The district judge justified sufficiently the life term of supervised release. The judge said that given Gabriel’s “sexual deviancy and ease with which crimes victimizing minors can be committed by means of a computer, the term of supervised release for the balance of defendant’s life is needed to ensure that even at an extremely advanced age the defendant will not be able to victimize any more minors.” That makes sense to us, and particularly in the absence of an objection, the judge did not need to say more. See Lewis, — F.3d at —, 2016 WL 3004435, at *5.”

Affirmed

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7^th Circuit court of Appeals

Case Name: Empress Casino Joliet Corp., et al v. Balmoral Racing Club, Inc. et al.

Case No.: 15-2526

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

Focus: RICO

Jury did not have legally sufficient evidence to support RICO verdict.

“Continuity is “centrally a temporal concept.” Id. at 242. The continuity requirement ensures that RICO targets “long‐ term criminal conduct,” one classic example being a protection racket, in which a criminal extracts monthly “insurance” payments from businesses. Id.; see also Gamboa v. Velez, 457 F.3d 703, 705 (7th Cir. 2006) (“RICO, nonetheless, does not cover all instances of wrongdoing. Rather, it is a unique cause of action that is concerned with eradicating organized, long‐ term, habitual criminal activity.”). Continuity limits RICO to schemes meant to exist over a period of time, not one‐off crimes.”

Affirmed in part

Reversed in part

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7^th Circuit court of Appeals

Case Name: United States of America v. Grover Coleman Ferguson

Case No.: 15-3753

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

Focus: Sentencing

Judge departs too far from advisory guidelines without substantial explanation.

“By statute a judge must impose “a sentence sufficient, but not greater than necessary,” to serve the purposes of sentencing. 18 U.S.C. § 3553(a). Here, the court did not explain why 50 years was “sufficient, but not greater than necessary.” The government requested an above‐guideline sentence of 20 years. That recommendation did not bind the court, of course, but we are unable to tell from the district court’s stated reasoning why 20 or 30 or 40 years would have been insufficient to serve the purposes of sentencing mandated in 18 U.S.C. § 3553(a). The district court’s explanation does not “allow for meaningful appellate review” of why the judge deemed 50 years appropriate, and not any shorter sentence. Gall, 552 U.S. at 50. We do not mean to overstate the district court’s duty of providing an explanation. Nor do we intend to imply that there is only one reasonable sentence in this or any other case, or that sentencing is an exact science. We have upheld other above‐guideline sentences that district courts did not justify in great detail, but those cases did not present circumstances as dramatic as this one.”

Vacated and Remanded

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7^th Circuit court of Appeals

Case Name: Kansas City Southern Railway Company, et al. v. SNY Island Levee Drainage District

Case No.: 15-2760

Officials: WOOD, Chief Judge, and BAUER and WILLIAMS, Circuit Judges.

Focus: Property Assessment

Assessment calculation formula used was proper by the district court.

“Last, the Railroads contend that the comparison class against which their assessment should be measured is all other properties in the District, instead of the narrower class of commercial and industrial properties used by the district court. They argue that Alabama Dep’t of Revenue v. CSX Transp., Inc., 135 S. Ct. 1136 (2015) (“CSX II”), is inconsistent with our 2012 decision in Koeller, which held that the appropriate comparison class for the Railroads was other RPU and commercial and industrial properties. In CSX II, the Court found that competitors with the plaintiff railroad were the appropriate comparison class for a (b)(4) claim because the comparison class should be “based on the theory of discrimination alleged in the claim.” Id. at 1138. It also stated that “all general and commercial taxpayers is an appropriate comparison class,” but “not the only one,” and that “all the world, or at least all the world within the taxing jurisdiction, is [a railroad’s] comparison-class oyster” under (b)(4). Id. at 1141. The Court clarified that the “similarly situated” requirement is not as narrow in the 4-R Act as for tax claims under the Equal Protection Clause. Id. at 1142. And the Court noted that railroads cannot easily “hand-pick” their comparison class based on CSX II, because “it is not easy to establish that the selected class is ‘similarly situated’ for purposes of discrimination in taxation.” Id. at 1143.”

Affirmed

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7^th Circuit court of Appeals

Case Name: United States of America v. George E. Robey

Case No.: 15-2172

Officials: EASTERBROOK, KANNE, and SYKES, Circuit Judges

Focus: Sentencing

Courts relevant conduct determination was adequately based on findings of a common scheme or plan.

“Robey’s main argument against a “common scheme or plan,” focuses on the temporal “gap” between the charged and uncharged vehicles. Robey’s assertion is belied by the record—there was only a four‐month “gap” between the latest uncharged vehicle stolen on December 16, 2010 and the earliest charged vehicle on April 17, 2011. (PSR ¶ 21.) Further‐ more, the multiple commonalities discussed above “more than suffice” to overcome any alleged temporal “gap” and support the court’s relevant conduct determination. Baines, 777 F.3d at 963–64 (rejecting defendant’s temporal gap argument as “hollow” because the offenses were connected by “multiple common factors”)”

Affirmed

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7^th Circuit court of Appeals

Case Name: Srinivasa Musunuru v. Loretta E. Lynch, et al

Case No.: 15-1577

Officials: FLAUM, MANION, and ROVNER, Circuit Judges.

Focus: Immigration

USCIS failed to provide appellant employer with proper notice and opportunity to respond to allegations of fraudulent visa petitions.

“Furthermore, the regulations are clear that a beneficiary is not given an opportunity to challenge the revocation of an I- 140 petition through a motion to reconsider, though a petitioner is. The regulation governing motions to reconsider an action or reopen a proceeding, § 103.5, describes motions to reconsider as “filed by an applicant or petitioner” and allows an official to reconsider a prior decision only for an “affected party.” 8 C.F.R. § 103.5(a)(1)(i). Section 103.3 explicitly defines “affected party” to not include a visa petition beneficiary: “For purposes of this section and §§ 103.4 and 103.5 of this part, affected party (in addition to the Service) means the person or entity with legal standing in a proceeding. It does not include the beneficiary of a visa petition.” 8 C.F.R. § 103.3(a)(1)(iii)(B) (emphasis added).

Reversed and Remanded

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7^th Circuit court of Appeals

Case Name: United States of America v. Oscar F. Orona-Ibarra

Case No.: 15-1176

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

Focus: Immigration – Re-Entry – Venue

Illinois was not permissible venue because appellant did not commit any crime there.

“This is enough, in our view, to hold ICE jointly responsible for Orona‐Ibarra’s move to Illinois, and to evaluate his venue claim on that basis. The dissent argues that because an ICE detainer does not compel local law enforcement to hold any‐ one in custody, see Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014), we must consider Orona‐Ibarra’s move from Texas to Illinois as if it were freely made. But our decision does not rest on the belief that it was ICE that had Orona‐Ibarra in custody from the time when he was “found” in Texas, or that ICE has the power to force either Texas or Illinois to hold him. The statutory term is “found,” not “held.” It is thus enough that Orona‐Ibarra was actually “found” by ICE in Texas, and that he has been in custody (whether by ICE, or the Marshals, or by state authorities) since that time with ICE’s full knowledge—in other words, that he was never “lost” by ICE such that he could be “found” again. Thus we have no disagreement with Galarza.”

Reversed and Remanded

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7^th Circuit court of Appeals

Case Name: Joseph J. Jordan v. Randall R. Hepp

Case No.: 14-3613

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

Focus: Ineffective Assistance of Counsel

Appointed counsel fails to raise objection to prosecution’s inappropriate witness credibility comments.

“We recognize that the trial court instructed the jury that “the words of the attorneys are not the evidence in this case and their arguments and conclusions that they’re entitled to express at this stage are not evidence and must not be considered by you as evidence.” But this instruction did not identify the prosecutor’s remarks as improper statements that should be disregarded, for the obvious reason that those remarks had not yet been made. Nor was this or any other instruction given contemporaneously with, or immediately after, the prosecutor’s inappropriate comments. We cannot assume that a prompt objection, followed by a curative instruction, would have been ineffective; indeed, a prompt objection would have cut off a good part of the vouching. When the

whole case turns on witness credibility, standing silent while the state vouches for its witnesses cannot be justified by reliance on a generic, non‐contemporaneous instruction. See Donnelly v. DeChristoforo, 416 U.S. 637, 644 (1974) (“some occurrences at trial may be too clearly prejudicial for such a curative instruction to mitigate their effect”); see also Goodman v. Bertrand, 467 F.3d 1022, 1030–31 (7th Cir. 2006); Earls v. McCaughty, 379 F.3d 489, 495–96 (7th Cir. 2004); Cossel v. Miller, 229 F.3d 649, 655–56 (7th Cir. 2000); Hodge v. Hurley, 426 F.3d 368, 385 (6th Cir. 2005). The state trial court’s finding (adopted by the Court of Appeals) that counsel’s failure to object was not prejudicial is an unreasonable finding in the con‐ text of this case.”

Affirmed in part

Reversed and remanded in part

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7^th Circuit court of Appeals

Case Name: Glenn Patrick Bradford v. Richard Brown

Case No.: 15-3706

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

Focus: Habeas Corpus

Appellant writ of habeas corpus properly denied as appellant given right to a fair trial.

“Bradford further argues that the evidence that he could have reached Lohr’s house and set the fire within 65 seconds (between 6:34:04 when he was photographed by the bank camera and 6:35:09 when he called emergency services) did not account for the time required for the murderer-arsonist to carry the gas can from the back porch to Lohr’s room, turn off the electrical breakers, and stab the poodle. Not so. Although Lohr normally kept her gas can on the back porch, there is no evidence that it was there when the arsonist arrived that morning. Had Bradford brought it inside during his visit to Lohr between 11 p.m. and midnight, he could have used it at 6:34 a.m. without having to fetch it from the porch. And he would have needed to turn off the electrical breaker in the morning only if Lohr’s neighbor was correct that he saw her light on at 12:30 a.m. That neighbor acknowledged, however, that he was estimating the time and had not been looking at a clock, so Bradford may have turned off the breaker earlier. Nor would it take long to stab a small poodle twice. The jury thus could reasonably find that 65 seconds was enough time for Bradford to arrive at Lohr’s house and complete all the tasks that the evidence indicated had been completed by the murderer-arsonist”

Affirmed

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7^th Circuit court of Appeals

Case Name: Kleen Products, LLC, et al v. International Paper Company, et al

Case No.: 15-2385; 152386

Officials: WOOD, Chief Judge, and BAUER and WILLIAMS, Circuit Judges.

Focus: Class Certification

“Some class members settled claims in an earlier lawsuit against the same companies, dealing with the same industry. Defendants represent that there are 39 relevant settlement agreements implicating almost 10,000 of the individual claims at issue. The Purchasers respond that these numbers are wrong, because they involve double-counting and give an exaggerated impression of the real number of affected class members, since most people who signed releases did so with multiple defendants. More importantly, Purchasers also note that the Defendants’ numbers imply that most people who signed releases did so after the events giving rise to the present case, whereas in reality the releases are heavily distributed toward the beginning of the class period or earlier. Purchasers suggest the simple expedient of limiting the recovery period for any class member who signed a release to purchases made after that release was signed. That strikes us as an easy and effective way to handle this problem. Moreover, as the district court observed, the fact that some plaintiffs released the defendants from further liability for their actions in the mid-1990s is not a life-time inoculation against antitrust liability in the same industry.”

Affirmed

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7^th Circuit court of Appeals

Case Name: Ana Veronica Jimenez Ferreira v. Loretta E. Lynch

Case No.: 15-2603

Officials: BAUER, MANION, and KANNE, Circuit Judges

Focus: Immigration – Asylum

ALJ ignored documentary evidence corroborating testimony of Appellant.

“We agree with Jimenez that the Board erred by rejecting her challenge to the adverse credibility determination without analysis and that this error warrants remand. In Moab, we concluded that the agency’s credibility determination was not supported by substantial evidence because the record of the preliminary interview was “not a verbatim transcript,” it was “unclear what, if any, follow‐up questions were posed,” and it was reasonable that the applicant “would not have wanted to mention his sexual orientation [during the interview] for fear that revealing this information could cause further persecution as it had in his home country.” 500 F.3d at 661. The indicators that the notes of Jimenez’s credible‐fear interview are unreliable are almost identical to the signs of unreliability that were the basis for remand in Moab. Yet the Board made no mention of Moab or the criteria of reliability it set forth, in‐ stead concluding summarily that “there are no indications that the notes from [the credible‐fear interview] are unreliable.” This mistaken legal conclusion, combined with the Board’s lack of any explanation about how it was reached, necessitates remand: “Remand is proper for additional analysis if the BIA ‘has not adequately explained its result and it seems possible to us that the agency might be compelled to reach the opposite conclusion depending how it evaluates the record after remand.’” Kone v. Holder, 620 F.3d 760, 764 (7th Cir. 2010) (quoting Gomes v. Gonzales, 473 F.3d 746, 752 (7th Cir. 2007)); see Gonzales v. Thomas, 547 U.S. 183, 186–87 (2006).”

Petition for Review Granted and remanded

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7^th Circuit court of Appeals

Case Name: Teledyne Technologies Incorporated v. Raj Shekar

Case No.: 15-2349

Officials: BAUER, POSNER, and WILLIAMS, Circuit Judges.

Focus: Contempt

Appellant files belated appeal of preliminary injunction, which is not under the jurisdiction of the appellate court and is therefore dismissed.

“In this case, Shekar argues that the district court erred in denying his motion to vacate the preliminary injunction because it did not apply the correct “criteria governing preliminary injunctive relief” and because “there is no basis in the evidentiary record for finding that preliminary injunctive relief was appropriate.” Shekar’s claim that the district court did not apply the correct criteria for issuing a preliminary injunction is wrong; the district court did apply the correct criteria when it originally issued the preliminary injunction on March 10, 2015. Furthermore, Shekar’s latter argument is essentially that the preliminary injunction should not have been entered in the first place; which is analogous to the appellant’s failed argument in Suter.”

Appeal Dismissed

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7^th Circuit court of Appeals

Case Name: United States of America v. Joel Rivas

Case No.: 13-3526

Officials: POSNER, EASTERBROOK, and WILLIAMS, Circuit Judges.

Focus: 6^th Amendment – confrontation

Appellant given ample opportunity to cross examine finger print examiner on fingerprint identification method, therefore 6^th amendment right to confrontation was not infringed.

“Here, the limitation on cross‐examination did not prevent the jury from fully evaluating Rottman’s testimony. “The Confrontation Clause guarantees an opportunity for effective cross‐examination, not cross‐examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985). The judge’s ruling in this case only limited the defense’s ability to add additional detail about the potential fallibility of the ACE‐V method, and the Mayfield case was of at best marginal relevance. See United States v. Nelson, 39 F.3d 705, 708 (7th Cir. 1994) (finding no Sixth Amendment violation, stating “limitations on cross‐examination did not deny the defendants the opportunity to establish that the witnesses may have had a motive to lie; rather, the limitations denied them the opportunity to add extra detail to that motive”). Rivas’s defense counsel used the testimony she elicited from Rottman during her cross‐examination to argue in closing argument that two partial fingerprints from two different people could incorrectly result in a match using the ACE‐V method, and the specific details of the Mayfield case were not needed to make that point.”

Affirmed

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WI Court of Appeals Digest

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Paul L. Linde

Case No.: 2014AP2445-CR

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

Focus: Motion to Suppress

Paul Linde appeals a judgment of conviction for manufacture of THC and felony bail jumping. Linde argues the circuit court erroneously denied his motion to suppress evidence, wherein he argued a search warrant was not supported by probable cause. We agree with Linde that the facts

were clearly insufficient to support a finding of probable cause. Further, we reject the State’s argument that the good-faith exception to the exclusionary rule should apply in this case. Accordingly, we reverse the judgment and remand for the circuit court to grant Linde’s suppression motion

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WI Court of Appeals – District III

Case Name: Kathy L. Okroley v. Doro, Inc. et al

Case No.: 2015AP806

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

Focus: Duty to Defend

Kathy Okroley appeals a summary judgment determining 1st Auto & Casualty Insurance Company had no duty to indemnify or defend Terry Burchell under a business auto policy for Okroley’s slip-and-fall claim. We conclude a completed operations exclusion in the policy unambiguously precluded coverage for Okroley’s personal injuries and affirm the judgment

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WI Court of Appeals – District I

Case Name: Yeimidy Lagunas, et al v. Wisconsin O’Connor Corporation

Case No.: 2015AP1349

Officials: BRASH, J.

Focus: Attorney Fees

The Wisconsin O’Connor Corporation appeals a judgment in favor of plaintiffs Yeimidy Lagunas, Kevin Radmer, and Eric Wunderlich, and an order awarding plaintiffs attorney fees. The Wisconsin O’Connor Corporation argues that the notice of termination contained in a contractual lease entered into between the Wisconsin O’Connor Corporation and the plaintiffs is clear and unambiguous and, therefore, the roommates did not give adequate notice to terminate their lease. The Wisconsin O’Connor Corporation also argues that it sufficiently mitigated its damages and that the circuit court’s award of attorney fees was unreasonable. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Thomas M. Ort

Case No.: 2015AP1571-CR; 2015AP1572-CR

Officials: SEIDL, J.

Focus: OWI – Reasonable Suspicion

In these consolidated appeals, Thomas Ort appeals judgments of conviction for third-offense operating while intoxicated (OWI) and for resisting or obstructing an officer. Ort argues the arresting officer did not have reasonable suspicion to conduct the traffic stop of his vehicle, from which both convictions arise, and, as a result, the circuit court erred by denying his motion to suppress evidence in both cases. We disagree and affirm the judgments.

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WI Court of Appeals – District I

Case Name: Robert G. Montgomery v. Milwaukee County

Case No.: 2015AP1664

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

Focus: Declaratory Judgment

Robert G. Montgomery appeals the two orders dismissing his declaratory judgment claim and his WIS. STAT. § 109.03 (2013-14) wage claim. Montgomery argues that the trial court’s dismissal of his declaratory judgment claim, finding it to be improper because he was not seeking anticipatory or preventative relief, is contrary to the Declaratory Judgment Act and case law. He also submits that the trial court’s determination that he failed to file his wage claim within the two-year statute of limitations was error, as he contends he had to exhaust his administrative remedies with the Milwaukee County Personnel Review Board’s grievance procedure before filing a § 109.03 suit. Consequently, he argues that when he filed his wage claim suit, he was within the two-year statute of limitation found in WIS. STAT. § 109.09(2)(b)3. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Ollar Berry

Case No.: 2015AP1668

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

Focus: Ch. 980 Commitment – Discharge

Ollar Berry appeals from an order of the circuit court that denied his petition for discharge from a WIS. STAT. ch. 980 commitment without a trial. Berry argues his petition sufficiently alleged new information to warrant a discharge trial. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Adam M. Blackman

Case No.: 2015AP450-CR

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

Focus: Motion to Suppress- Blood Test

The State appeals from an order of the circuit court granting Adam M. Blackman’s motion to suppress blood test evidence obtained under Wisconsin’s implied consent law. WISCONSIN STAT. § 343.305(3)(ar)2. (2013-14) authorizes law enforcement to request a blood, breath, or urine sample from a driver involved in an accident that causes death or great bodily harm if the officer has reason to believe the driver violated a traffic law. Blackman was involved in an accident when he turned left in front of an oncoming bicyclist and was asked for a sample of his blood per the implied consent law. Blackman was correctly informed that if he withdrew his consent, his license would be statutorily revoked. Blackman consented and provided a sample which revealed a BAC of .10 percent. Blackman moved to suppress his blood test. The circuit court granted the motion, finding that Blackman’s consent to the blood sample was coerced. We reverse. Blackman was not coerced to provide a sample as Blackman was never compelled to give a blood sample, rather he was given a choice: submit a sample (actual consent) or refuse to provide a sample (withdraw his consent under the implied consent law) and suffer the consequences for doing so. As the choice was Blackman’s alone, there was no coercion.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Markus S. Holcomb

Case No.: 2015AP996-CR

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

Focus: Sentencing

This case requires us to interpret WIS. STAT. § 939.617 (2013-14),  which prescribes minimum sentences for certain child sex offenses. Specifically, the main question before us is whether and when a circuit court may impose less than three years’ initial confinement for possession of child pornography. We hold that § 939.617(2) authorizes a circuit court to depart from the minimum and impose either probation or initial confinement of less than three years only if the defendant is not more than forty-eight months older than the child-victim.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Marquis T. Williams

Case No.: 2015AP1429-CR

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

Focus: Sentence Modification

Marquis T. Williams appeals from a judgment of conviction entered upon his guilty plea to first-degree reckless homicide and from an order denying his postconviction motion for sentencing relief. Because we conclude that Williams failed to establish either a new factor justifying sentence modification or an erroneous exercise of the sentencing court’s discretion, we affirm.

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WI Court of Appeals – District II

Case Name: K.S.C. v. R.C.

Case No.: 2015AP1508

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

Focus: Paternity – Sufficiency of Evidence

The circuit court adjudicated K.S.C. the father of eight-year-old L.C. and gave him exclusive placement of her upon the default of the mother, R.C., who failed to produce L.C. for genetic testing and fled the jurisdiction. R.C. claims this was error because her husband, R.S., whom she married a month before this litigation was commenced, should have been presumed the father pursuant to WIS. STAT. § 891.41(1)(b) (2013-14). 2 R.C. also contends there was insufficient evidence upon which to adjudicate K.S.C. the father because R.C. engaged in sexual intercourse with two men—one supposedly being R.S.—during the conceptive period. We disagree.

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WI Court of Appeals – District II

Case Name: Robert B. Townsend, et al. v. Neenah Joint School District, et al

Case No.: 2015AP2240

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

Focus: Governmental Immunity

Plaintiffs, a group of teachers employed by Defendant Neenah Joint School District (Neenah), appeal from two orders of the circuit court granting summary judgment to Neenah. Plaintiffs filed this action for promissory estoppel, unjust enrichment, negligent misrepresentation, and strict responsibility misrepresentation after Neenah voted to amend the retirement benefits plan provided for in the district’s collective bargaining agreement (CBA) after the enactment of 2011 Wis. Act 10. The circuit court granted Neenah’s motion for summary judgment on the theory of governmental immunity pursuant to WIS. STAT. § 893.80(4) (2013-14),  thereby dismissing Plaintiffs’ claims. We affirm the circuit court, based not on a theory of governmental immunity, but on the ground that having repeatedly bargained for two-year agreements, which set forth all material terms of the bargain, Plaintiffs may not now replace their contract claim with tort, quasi contract or unjust enrichment claims

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Rodell Thompson

Case No.: 2015AP1764-CR

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

Focus: Ineffective Assistance of Counsel

Rodell Thompson was convicted, following a jury trial, of second-degree sexual assault, false imprisonment, and misdemeanor battery. Thompson argues that the circuit court erroneously admitted other acts evidence. He also argues that his trial counsel provided ineffective assistance

when trial counsel failed to impeach the alleged victim, S.S., about her assertion relating to being forced to urinate on a basement floor and when trial counsel made an inadequate argument in support of a request for an in camera review of S.S.’s mental health records. We reject all of Thompson’s arguments, and affirm.

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WI Court of Appeals – District IV

Case Name: NTM, Inc. v. Gary Fong, Inc. et al

Case No.: 2015AP2149

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

Focus: Court Error – Credibility of Evidence

NTM, Inc. sued Gary Fong, Inc. and Gary Fong for payment on a contract. Fong and Gary Fong filed a third-party complaint against NTM’s CEO Larry Ormson, alleging that Ormson engaged in a kickback conspiracy with a Fong employee that constituted civil theft. Fong alone appeals the circuit court’s order dismissing the third-party complaint. Fong argues that the circuit court erroneously found that the evidence presented at trial did not establish that Ormson engaged in the alleged kickback conspiracy with the Fong employee. In light of the circuit court’s findings based on its assessment of the weight and credibility of the evidence, we conclude that Fong fails to show that the circuit court’s determination is clearly erroneous. Accordingly, we reject Fong’s argument and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jeffrey Jacob Udelhofen

Case No.: 2016AP385-CR

Officials: SHERMAN, J.

Focus: PAC – Motion to Suppress

Jeffrey Udelhofen appeals a judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration (PAC), third offense. Udelhofen challenges the denial of his suppression motion, arguing the arresting officer did not have reasonable suspicion to stop his vehicle. For the reasons discussed below, I affirm.

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WI Court of Appeals – District IV

Case Name: Dean McConley v. T.C. Visions, Inc. et al

Case No.: 2016AP671

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

Dean McConley appeals from an order granting summary judgment and dismissing his complaint against T.C. Visions, Inc. and Thomas G. Reichenberger (collectively T.C. Visions). After entry of the dismissal order, T.C. Visions moved for an assessment of attorney fees based on the contracts between the parties allowing the prevailing party in any litigation relating to the contracts to recover reasonable attorney fees against the nonprevailing party. Because of the pending claim for attorney fees, we questioned whether the appeal is taken from a final order that is appealable as of right under WIS. STAT. § 808.03(1) (2013-14),1 and the parties were required to file jurisdiction memoranda. The parties agree that the contractual entitlement to attorney fees is simply a taxation of cost under WIS. STAT. § 806.06(1)(c) and (4), and that the pending claim for attorney fees does not preclude the dismissal order from being a final order appealable as of right. We agree and confirm appellate jurisdiction.

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WI Court of Appeals – District I

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

Case No.: 2015AP858; 2015AP859; 2015AP860; 2015AP861

Officials: CURLEY, P.J.

Focus: Termination of Parental Rights

1. L. appeals from orders terminating her parental rights to four of her children—S. R. L. (“Sean”), S. M. L. (“Sarah”), S. R. L. (“Simone”), and S. C. L. (“Stacy”)—as well as the order denying her motion for postdisposition relief. 2 A. L. first argues that her no contest pleas during the grounds phase of the termination of parental rights (TPR) proceedings were not knowing, voluntary, and intelligent and that the postdisposition court erred when it denied her request to withdraw her pleas. She next argues that she was denied her statutory right to TPR counsel when she testified at J. S.’s trial without her attorney being present. For the reasons that follow, we affirm.

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