By: WISCONSIN LAW JOURNAL STAFF//September 9, 2016//
7th Circuit Court of Appeals
Case Name: Michael Wu v. United States of America
Case No.: 16-1660
Officials: MANION, ROVNER, and HAMILTON, Circuit Judges
Focus: IRS Assessment
Appellants not entitled to a refund for adjusting excess funds in retirement accounts
“As the government has since conceded, it misled the district court about Christine Wu’s claim. Section 6532(a)(1), although entitled “Periods of limitation on suits,” has been interpreted as jurisdictional by several circuits. See Kaffenberger v. United States, 314 F.3d 944, 950–51 (8th Cir. 2003); Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 324 (6th Cir. 1990); Dalton v. United States, 800 F.2d 1316, 1319 (4th Cir. 1986). But whether or not that characterization is correct, § 6532(a)(1) is irrelevant to the letter received by Christine Wu in July 2010. That communication was prompted by the Wus’ letter of March 2010, which sought “waiver” of a “penalty,” not a “refund” of taxes which had not even been assessed. See 26 C.F.R. § 301.6402–2(b)(1) (defining content of claim for refund); D’Amelio v. United States, 679 F.2d 313, 315 (3d Cir. 1982) (observing that estate had not made a claim for a refund by sending to IRS letters that sought information about tax liability but “did not advise the government that it believed it was entitled to a refund”). And though it is possible to construe a communication from the IRS as waiving the formal requirements for a claim to a refund and disallowing a refund, see Nick’s Cigarette City, Inc. v. United States, 531 F.3d 516, 521 (7th Cir. 2008), the March letter could not have triggered a decision by the IRS because no taxes had been paid or even assessed. So just like her husband, Christine Wu first claimed a refund of the 2009 taxes in February 2012 and then brought this action barely a year after the IRS Appeals Office finally disallowed that claim. Thus, for both Michael and Christine Wu, the question before us is whether their interpretation of § 408(d)(4) is correct.”
Affirmed
7th Circuit Court of Appeals
Case Name: United States of America v. William Thomas
Case No.: 15-2483
Officials: WOOD, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges.
Focus: Motion to Suppress
Warrant was supported by probable cause. Appellant improperly relies on Brady v. Maryland to contend that government violated due process rights by refusing to turn over information about confidential informant.
William Thomas pleaded guilty to all charges of a three‐count indictment: being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1); possession of heroin with intent to distribute, 21 U.S.C. § 841(a)(1); and possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c). He reserved the right, however, to appeal the district court’s refusal to suppress the gun andheroin that prompted his indictment. See FED. R. CRIM. P. 11(a)(2). He has now done so. He relies principally on Brady v. Maryland, 373 U.S. 83 (1963), contending that the government violated his due process rights by refusing to turn over information about the confidential informant whose testimony formed the basis for the search warrant on which the police relied. Even if Brady applies to pretrial motions to suppress, Thomas cannot prevail. The warrant was supported by probable cause, and thus the information he seeks is not material. We therefore affirm the district court’s judgment.
Affirmed
7th Circuit Court of Appeals
Case Name: Charles Walker v. Kathy Griffin
Case No.: 15-2147
Officials: WOOD, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges.
Focus: Ineffective Assistance of Counsel
Attorney failure to challenge habitual-offender conviction did rise to ineffective assistance
Charles Walker was convicted in an Indiana court of robbery, adjudicated a habitual offender pursuant to Indiana Code § 35-50-2-8, and sentenced to 40 years in prison. Twenty of those years were attributable to his habitual-offender status. The version of the habitual-offender statute Indiana had in place at the time applied if a defendant had been convicted of two prior unrelated felonies, in a specific sequence: the second felony had to have been committed after the commission of and sentencing for the first, and the present crime had to have been committed after the commission and sentencing of the second earlier offense. At Walker’s trial, the state provided evidence of three prior felonies, but it failed to offer evidence of the date when one of the crimes was committed. The only claim Walker presses before us is ineffective assistance of appellate counsel. He contends that his lawyer on direct appeal should have challenged the sufficiency of the evidence for the habitual-offender conviction, given the missing date. Even assuming that counsel’s performance fell below the constitutional minimum, we conclude that Walker’s petition for a writ of habeas corpus was properly dismissed. The state appellate court’s conclusion that Walker’s Sixth Amendment right to counsel was not infringed meets the generous standards that apply under 28 U.S.C. § 2254, and so we affirm.
Affirmed
7th Circuit Court of Appeals
Case Name: United States of America v. Tony A. Hurlburt; United States of America v. Joshua Gillespie
Case No.: 14-3611; 15-1686
Officials: WOOD, Chief Judge, and POSNER, FLAUM, EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, and HAMILTON, Circuit Judges.
Focus: Residual Clause
United States v. Tichenor is overruled; the residual clause in §4b1.2(a)(2) is unconstitutionally vague.
Tony Hurlburt and Joshua Gillespie pleaded guilty in separate cases to unlawfully possessing a firearm as a felon. See 18 U.S.C. § 922(g)(1). Their appeals raise the same legal issue, so we’ve consolidated them for decision. To calculate the Sentencing Guidelines range in each case, the district court began with U.S.S.G. § 2K2.1(a), which assigns progressively higher offense levels if the defendant has one or more prior convictions for a “crime of violence.” The term “crime of violence” is defined in the career-offender guideline and includes “any offense … that … is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 4B1.2(a)(2) (2014) (emphasis added). The highlighted text is known as the “residual clause.” The residual clause in § 4B1.2(a)(2) mirrors the residual clause in the Armed Career Criminal Act (“ACCA”), which steeply increases the minimum and maximum penalties for § 922(g) violations. 18 U.S.C. § 924(e)(2)(B). One year ago the Supreme Court invalidated the ACCA’s residual clause as unconstitutionally vague. Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). The question here is whether Johnson’s holding applies to the parallel residual clause in the career offender guideline. An emerging consensus of the circuits holds that it does. See infra pp. 17–18. In this circuit, however, vagueness challenges to the Sentencing Guidelines are categorically foreclosed. Circuit precedent—namely, United States v. Tichenor 683 F.3d 358, 364–65 (7th Cir. 2012)—holds that the Guidelines are not susceptible to challenge on vagueness grounds. But Tichenor was decided before Johnson and Peugh v. United States, 133 S. Ct. 2072 (2013), which have fatally undermined its reasoning. Accordingly, we now overrule Tichenor. Applying Johnson, we join the increasing majority of our sister circuits in holding that the residual clause in § 4B1.2(a)(2) is unconstitutionally vague.
Vacated and remanded
7th Circuit Court of Appeals
Case Name: United States of America v. Darryl Rollins
Case No.: 13-1731
Officials: WOOD, Chief Judge, and POSNER, FLAUM, EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, and HAMILTON, Circuit Judges
Focus: Residual Clause is invalid
Darryl Rollins pleaded guilty to selling crack cocaine and was sentenced to 84 months in prison. This is our second time hearing his appeal. He challenges the calculation of his Sentencing Guidelines range—specifically, the district court’s application of the career-offender guideline, which assigns a higher offense level if the defendant has two prior convictions for a “crime of violence.” See U.S.S.G. § 4B1.1(a). The term “crime of violence” includes “any offense … that … is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 4B1.2(a)(2) (2014) (emphasis added). The highlighted text is known as the residual clause.
. . . But the residual clause in § 4B1.2(a)(2) is invalid, so Raupp’s premise no longer holds. The panel circulated a new opinion to the full court proposing to overrule Raupp. See 4 No. 13-1731 7TH CIR. R. 40(e). An en banc vote followed, and the court approved, making this the opinion of the full court. See Buchmeier v. United States, 581 F.3d 561 (7th Cir. 2009) (using the same procedure). Accordingly, we now vacate Rollins’s sentence and remand for resentencing.
Vacated and remanded
7th Circuit Court of Appeals
Case Name: Dawain Bell et al v. City of Chicago
Case No.: 15-2833
Officials: RIPPLE, KANNE, and WILLIAMS, Circuit Judges.
Focus: Waiver
Plaintiffs waive due process argument
Despite the availability of this challenge, Plaintiffs have made the conscious decision not to pursue a substantive or procedural due process challenge. Indeed, Plaintiffs have asserted that “[t]o suggest that these Plaintiffs should have at‐ tacked this Fourth Amendment defect on due process grounds is absurd.” (Appellant Br. 13.) Color us absurd then, but such a clear statement amounts to a waiver of any due process argument on appeal. Hojnacki v. Klein‐Acosta, 285 F.3d 544, 549 (7th Cir. 2002) (“A party waives any argument that it does not raise before the district court or, if raised in the district court, it fails to develop on appeal.”).
Affirmed
7th Circuit Court of Appeals
Case Name: Rebirth Christian Academy Daycare, Inc. v. Melanie Brizzi et al
Case No.: 15-2220
Officials: WOOD, Chief Judge, and KANNE and ROVNER, Circuit Judges
Focus: Qualified Immunity
Respondents clearly violated established law by denying appellant the opportunity to be heard before revoking registration.
Rebirth Christian Academy Daycare, an Indiana non‐profit corporation, ran a child care ministry—a “child care operated by a church or religious ministry that is a religious organization exempt from federal income taxation.” IND. CODE § 12‐7‐2‐28.8. A state agency revoked Rebirth’s registration after an inspector concluded that the organization had violated several statutory and regulatory provisions governing registered child care ministries. Rebirth sued state officials for damages and injunctive relief under 42 U.S.C. § 1983, claiming that they had violated the due‐process clause of the Fourteenth Amendment by revoking its registration without providing it with an opportunity to be heard. The district court dismissed Rebirth’s individual‐capacity claims, concluding that qualified immunity protected the defendants from liability for civil damages because they had not violated clearly established law. After the parties developed an evidentiary record on the official‐capacity claims, Rebirth ultimately prevailed on its claims for injunctive relief. It now challenges the district court’s dismissal of its claims for damages against the defendants sued in their individual capacities. We conclude that, based on the allegations in the complaint, the defendants were not entitled to qualified immunity because they violated clearly established law: the complaint adequately alleges that they deprived Rebirth of a property interest without first providing an opportunity for some type of hearing. Accordingly, we reinstate Rebirth’s individual‐capacity claims and remand for further proceedings.
Vacated and Remanded
7th Circuit Court of Appeals
Case Name: United States of America v. Patrick S. McGuire
Case No.: 15-2071
Officials: ROVNER, SYKES, and HAMILTON, Circuit Judges
Focus: Residual Clause
Court erred included residual clause in the career-offender guideline
The district judge counted two of McGuire’s prior convictions as crimes of violence, one of which—a conviction for fleeing the police—qualified only under the residual clause. With the career-offender enhancement in the mix, McGuire’s Guidelines range increased from 63–78 months to 151–188 months. Citing McGuire’s extensive criminal history, the judge imposed a 188-month sentence. In doing so she noted her surprise that the government hadn’t asked for the statutory maximum sentence of 20 years. McGuire appeals, arguing that in light of Johnson v. United States, 135 S. Ct. 2551 (2015), the residual clause in the career-offender guideline is unconstitutionally vague. The government agrees and confesses error. In a recent decision circulated to the full court under Circuit Rule 40(e), we also agreed and invalidated § 4B1.2(a)(2)’s residual clause as unconstitutionally vague. United States v. Hurlburt, No. 14-3611 (7th Cir. Aug. 29, 2016) (en banc). Applying Hurlburt here, McGuire was wrongly classified as a career offender. As in most cases involving miscalculation of a defendant’s Guidelines range, that error warrants full resentencing.
Vacated and Remanded
7th Circuit Court of Appeals
Case Name: United States of America v. Joshua A. Waldman
Case No.: 15-1756
Officials: POSNER, WILLIAMS, and HAMILTON, Circuit Judges.
Focus: 8th Amendment – Self Defense
Imminent threat of death or seriously bodily harm not required to justifiably use force in self defense. However, appellant had legal alternative to force via compliance.
Inmate Joshua Waldman was convicted of forcibly assaulting a correctional officer after head‐ butting him during an argument about a pat‐down search. He advanced a self‐defense argument at trial, but was unsuccessful. On appeal, he argues that the district court erred in holding that there needed to be an imminent threat of death or serious bodily harm before he could justifiably use force in self defense. We agree. Requiring that an inmate fear serious bodily harm or death before using force to protect himself is inconsistent with both the Eighth Amendment and common law principles justifying the use of self‐defense. But we find no clear error in the district court’s finding that Waldman had a legal alternative to force in complying with the pat‐down. So we affirm Waldman’s conviction because he failed to prove at least one of the required components of his defense.
Affirmed
7th Circuit Court of Appeals
Case Name: Charmaine Hamer v. Neighborhood Housing Services of Chicago et al
Case No.: 15-3764
Officials: POSNER and SYKES, Circuit Judges and YANDLE, District Judge
Focus: Extension of Appeal
Court dismisses appeal for lack of jurisdiction due to untimely appeal
Finally, Hamer’s argument that the Appellees waived the issue of the timeliness of her appeal also fails. When a filing error is one of “jurisdictional magnitude”, forfeiture or waiver cannot excuse the lack of compliance with the statute’s time limitation.” See Bowles at 213. Had the Appellees never challenged the timeliness of Hamer’s Notice, they could not waive what this Court is bound by statute to uphold. Accordingly, because we have no jurisdiction to consider Hamer’s appeal on the merits, it is dismissed.
Appeal Dismissed
7th Circuit Court of Appeals
Case Name: Ivan Mendoza Cadavedo v. Loretta E. Lynch
Case No.: 15-1914
Officials: ROVNER, SYKES, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge.
Focus: Immigration
Appellant had ample and sufficient process available to him to challenge marriage fraud.
“In any case, Cadavedo had sufficient process available to him to challenge the fraud bar. As the Attorney General points out, Cadavedo could have moved for reconsideration of USCIS’s denial of his petition for adjustment of status and challenged the bar that way. 8 C.F.R. § 103.5(a)(1)(i). Presumably, if Cadavedo could have demonstrated ineffective assistance of counsel in his original petition for adjustment of status, that could provide good reason for USCIS to reconsider its decision. If Cadavedo had taken steps to obtain an approved I-130 petition during his administrative proceedings, he could have asked immigration authorities to reconsider their denial of a continuance on the basis of that new information. 8 C.F.R. § 1003.2 (motion to reopen before Board); 8 C.F.R. § 1003.23 (motion to reopen before immigration judge); Matter of Coelho, 20 I. & N. Dec. 464, 471–72 (BIA 1992) (describing motion to remand to immigration judge). The immigration laws and regulations accorded Cadavedo sufficient process.”
Petition for review denied
7th Circuit Court of Appeals
Case Name: Francisco Carrion v. Kim Butler
Case No.: 14-3241
Officials: RIPPLE, KANNE, and WILLIAMS, Circuit Judges.
Focus: Due Process Violation
Evidence presented was more than sufficient for conviction and admittance of appellant statements, although translated, were valid.
Francisco Carrion was convicted of residential burglary and of first‐degree murder following a bench trial in the Circuit Court of Cook County, Illinois. The state courts affirmed his conviction on direct appeal and on state postconviction review. Mr. Carrion then filed a habeas petition in federal court under 28 U.S.C. § 2254, in which he raised multiple claims for relief. The district court denied his petition, concluding that although the petition probably was timely filed, most of the claims were procedurally defaulted and the remaining claims were meritless; the court further declined to grant a certificate of appealability (“COA”). Mr. Carrion then appealed to this court, and we granted a COA instructing the parties to address three questions: whether there was sufficient evidence to support his convictions, whether Mr. Carrion’s confession was voluntary, and whether appellate counsel had been ineffective in failing to challenge the voluntariness of his confession. After briefing and oral argument, we conclude that, whether we apply the deferential review of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d), or de novo review, Mr. Carrion is not entitled to relief on any of these claims. There is no question that the State of Illinois met its burden of proving each of the charges be‐ yond a reasonable doubt. We further perceive no due process violation in the reception into evidence of Mr. Carrion’s statement, even though it was translated by an investigating officer. Any ambiguities in the statement were examined thoroughly at trial and the state trial court was entitled to admit and rely upon the statement. Accordingly, for the reasons set out more fully in this opinion, we affirm the district court’s denial of Mr. Carrion’s habeas petition.
Petition Denied
7th Circuit Court of Appeals
Case Name: Pine Top Receivables of Illinois, LLC v. Transfercom, Ltd
Case No.: 16-1073
Officials: EASTERBROOK and WILLIAMS, Circuit Judges and YANDLE, District Judge.∗
Focus: Contractual Interpretation
“Service of suit” clause in contract unambiguously allows to select forum for litigating.
“Read as a whole, the reinsurance agreement requires Transfercom to submit to the jurisdiction of any court of competent jurisdiction chosen by PTRIL, whether it be to determine the arbitrable nature of the dispute, to confirm an arbitration award, to compel arbitration, or to resolve on the merits, a claim not subject to arbitration—including PTRIL’s breach of contract claim. See e.g., Travelers Ins. Co. v. Keeling, 996 F.2d 1485, 1490 (2d Cir. 1993); Century Indem. Co. v. Certain Underwriters at Lloyd’s, London, subscribing to Retrocessional Agreement Nos. 950548, 950549, 950646, 584 F.3d 513, 554 (3d Cir. 2009) (service of suit clauses compliment rather than negate accompanying arbitration clauses).”
Affirmed
7th Circuit Court of Appeals
Case Name: Eric Alvarado v. Carolyn W. Colvin
Case No.: 15-2925
Officials: POSNER, EASTERBROOK, and WILLIAMS, Circuit Judges.
Focus: Disability Benefits
Substantial evidence supported ALJ’s finding that appellant could still engage in simple work.
In 1993, Eric Alvarado was granted disability benefits due to his impairments, which included a severe learning disorder. In 2004, the Social Security Administration stopped paying those benefits after determining that, despite his severe learning disorder, Alvarado could do certain relatively simple jobs. Because that determination was supported by substantial evidence, we affirm.
Affirmed
7th Circuit Court of Appeals
Case Name: Rose Presser v. Acacia Mental Health Clinic, LLC
Case No.: 14-2804
Officials: FLAUM, RIPPLE, and HAMILTON, Circuit Judges
Focus: Qui Tam Claim – Medical Billing
Appellants fail to properly put forth allegations of fraud, however provide sufficient allegations for use of improper medical billing codes.
Relator and plaintiff Rose Presser filed a qui tam action under the False Claims Act, 31 U.S.C.
Affirmed in part
Reversed and remanded in part
7th Circuit Court of Appeals
Case Name: Patrick J. Werner v. Edward F. Wall, et al.
Case No.: 14-1746
Officials: FLAUM, RIPPLE, and HAMILTON, Circuit Judges.
Focus: Qualified Immunity
Appellant claims for violations of 8th and 14th amendment barred by qualified immunity
Mr. Werner brought this action pro se in the district court under 42 U.S.C. § 1983. He claimed that his continued detention beyond his mandatory release date was unlawful and named as defendants various DOC officials and several of his probation agents. In an initial screening order, the district court permitted Mr. Werner to proceed on the individual‐capacity claims under the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. It also permitted him to maintain an official‐capacity claim for injunctive relief on the ground that AD 02‐10 violated the Due Process and Ex Post Facto Clauses. The district court ultimately granted summary judgment in favor of the defendants on all of Mr. Werner’s claims. It concluded that his Eighth and Fourteenth Amendment claims were barred by qualified immunity and that his official capacity challenge to the directive as a policy was moot. Mr. Werner timely appealed the district court’s decision with respect to his individual‐capacity claims. In due course, we recruited counsel and requested additional briefing. After the benefit of briefing and oral argument, we agree with the district court that the defendants in this case are entitled to qualified immunity. We therefore affirm the district court’s judgment with respect to each of Mr. Werner’s claims.
Affirmed
WI Court of Appeals – District III
Case Name: Warren Slocum v. Star Prairie Township
Case No.: 2014AP1702
Officials: Stark, P.J., Hruz and Seidl, JJ
Focus: Tax Assessment
This is another in a pattern of pro se litigation centered around the same basic contention: Warren Slocum’s property tax assessments are too high. The present appeal involves Slocum’s challenge to his 2012 tax assessments. We affirm
WI Court of Appeals – District I
Case Name: State of Wisconsin v. Jacquis Lamont Leichman
Case No.: 2015AP356-CR
Officials: Curley, P.J., Kessler and Brash, JJ.
Focus: Denial of Motion
Jacquis Lamont Leichman, pro se, appeals from a judgment of conviction, entered upon a jury’s verdict, on one count of first-degree intentional homicide as a party to a crime. Leichman also appeals from an order denying his postconviction motion without a hearing. We conclude the trial court properly denied the motion and affirm.
WI Court of Appeals – District III
Case Name: James Kroeger et al v. Robert Brautigam, et al
Case No.: 2015AP466
Officials: Stark, P.J., Hruz and Seidl, JJ
Focus: Sufficiency of Allegations – Civil Conspiracy
James and Beth Kroeger appeal an order dismissing their claims against Sue Brautigam, Tim and Ann Clark, and Jim and Carole Kroeger (collectively with Robert Brautigam, the “Respondents”). James and Beth alleged the Respondents had engaged in a conspiracy to intentionally inflict emotional distress and had achieved their goal to Beth’s detriment. The circuit court denied the Respondents’ motion to dismiss for failure to state a claim, but later, on its own motion, required Beth to file an affidavit setting forth all conduct she believed to be “extreme and outrageous.” Upon receiving this affidavit, the court deemed the averments sufficient to support a cause of action against Robert Brautigam, but it dismissed the remaining Respondents. We agree with the circuit court that James and Beth’s allegations and averments are, as a matter of law, insufficient to support a direct cause of action for intentional infliction of emotional distress against the dismissed Respondents. However, the circuit court improperly concluded the allegations were insufficient to support a cause of action for civil conspiracy to commit intentional infliction of emotional distress against the dismissed Respondents, where a direct cause of action remains viable against Robert Brautigam. Accordingly, we reverse and remand for further proceedings against the dismissed Respondents on Beth’s civil conspiracy claim and James’s loss of consortium claim
WI Court of Appeals – District III
Case Name: State of Wisconsin v. Anton R. Dorsey
Case No.: 2015AP648-CR
Officials: Stark, P.J., Hruz and Seidl, JJ.
Focus: Admission of Evidence – Other Acts
Anton Dorsey appeals a judgment of conviction for one count of misdemeanor battery, one count of disorderly conduct, and one count of aggravated battery, with the latter two counts having been charged as acts of domestic abuse, pursuant to WIS. STAT. §§ 973.055(1). The jury acquitted Dorsey of a charge of strangulation and suffocation. Dorsey’s sole challenge on appeal is the circuit court’s admission of certain other-acts evidence. This issue requires us to address recent legislative changes to the greater latitude rule provided for in WIS. STAT. § 904.04(2)(b)1. Because we hold the circuit court properly admitted the other-acts evidence, we affirm the judgment of conviction.
Recommended for publication
WI Court of Appeals – District III
Case Name: Dennis J. Mitchell et al v. American Family Mutual Insurance Co., et al
Case No.: 2015AP824
Officials: Stark, P.J., Hruz and Seidl, JJ.
Focus: Settlement Proceeds – Enforcement
Dennis Mitchell, pro se, appeals an order distributing settlement proceeds and dismissing Mitchell’s personal injury action against Sarah Dempsey and her insurer, American Family Mutual Insurance Company. Mitchell argues the circuit court erred by enforcing the settlement agreement. We reject Mitchell’s arguments and affirm the order.
WI Court of Appeals – District III
Case Name: State of Wisconsin v. Paul R. Vanderlinden
Case No.: 2015AP901-CR
Officials: Stark, P.J.
Focus: Reasonable Suspicion – OWI
Paul Vanderlinden appeals a judgment of conviction for second-offense operating a motor vehicle while intoxicated (OWI). He argues the arresting officer did not have reasonable suspicion to conduct a traffic stop, and, as a result, the circuit court should have granted his motion to suppress evidence. We agree and reverse the judgment.
WI Court of Appeals – District III
Case Name: First National Bank of America v. David L. Hanson, et al
Case No.: 2015AP925
Officials: Stark, P.J., Hruz and Seidl, JJ.
Focus: Court Error – Reopened Case
David and Diana Hanson appeal a default judgment of foreclosure. The Hansons argue the circuit court erroneously permitted First National Bank of America (FNBA) to reopen the case, which FNBA had voluntarily dismissed without prejudice. We reject the Hansons’ argument and affirm.
WI Court of Appeals – District III
Case Name: State of Wisconsin v. Ronald Marshall Jewett
Case No.: 2015AP1014-CR
Officials: Hruz, J.
Focus: OWI – Sufficiency of Evidence
The State appeals a judgment convicting Ronald Jewett of first-offense operating a motor vehicle while intoxicated (OWI). While the State successfully prosecuted the underlying OWI offense to a finding of guilt, the circuit court declined to convict and sentence Jewett for a third-offense OWI, as charged. Instead, the circuit court concluded Jewett had submitted sufficient “exculpatory” evidence regarding his two prior OWI convictions, both of which occurred in Minnesota in 1992 and for which the State of Minnesota no longer retains documents. The State argues the court erred in refusing to consider an unrebutted, certified driving record from the Wisconsin Department of Transportation (DOT) as sufficient proof of Jewett’s two prior OWI convictions. We agree with the State, reverse Jewett’s conviction for first-offense OWI, and remand for the circuit court to enter a judgment of conviction for third-offense OWI and to conduct a new sentencing hearing as well as any other necessary proceedings.
WI Court of Appeals – District
Case Name: Daniel Wall v. Marion Pahl, et al
Case No.: 2015AP1230
Officials: Stark, P.J., Hruz and Seidl, JJ.
Focus: Patient Health Records – Failure to State a Claim
Daniel Wall appeals orders dismissing his claims against Marion Pahl, Jacquelyn Schimke, and Gundersen Lutheran Health System, Inc. Wall contends Pahl and Schimke violated WIS. STAT. § 146.82, which prohibits the release of patient health care records except in specific circumstances enumerated in the statute. Wall also asserts Gundersen violated WIS. STAT. § 146.83(4)(b) by improperly concealing or withholding patient health care records. The circuit court concluded Wall’s complaint failed to state a claim on which relief could be granted. We agree and affirm.
Recommended for publication
WI Court of Appeals – District I
Case Name: State of Wisconsin v. Joe Bonds Turney
Case No.: 2015AP1651-CR; 2015AP1652-CR
Officials: Curley, P.J., Brennan and Brash, JJ
Focus: Ineffective Assistance of Counsel
Joe Bonds Turney appeals from two judgments of conviction and an order denying his postconviction motion. Turney seeks new trials, claiming that the trial court erred when it permitted joinder of two cases for trial and when it denied his motion for substitution of judge following his arraignment. In the alternative, he argues that he is entitled to a remand for an evidentiary hearing on his ineffective assistance of counsel claim. He bases that claim on trial counsel’s failure to object when a witness for the State testified on direct examination regarding Turney’s silence during a custodial investigation after his arrest. We affirm because we conclude that neither the joinder nor the substitution denial was error. First, because the crimes share “common … factors of substantial factual importance,” and because of the strong policy favoring joinder to further the goals of trial economy and convenience, we conclude that the joinder is proper and not substantially prejudicial. See WIS. STAT. § 971.12 (2013- 14) and Francis v. State, 86 Wis. 2d 554, 560, 273 N.W.2d 310 (1979). Second, the statutory right to substitution in WIS. STAT. § 971.20(4) is extinguished after arraignment, and in this case the arraignment occurred before the substitution request during a hearing on December 13, 2015. The timing of the request is dispositive. We require strict adherence to the statute in order to avoid “substantial problems” in administering the right of substitution. See State v. Austin, 171 Wis. 2d 251, 257, 490 N.W.2d 780 (Ct. App. 1992). Third, we conclude that Turney’s postconviction motion does not allege sufficient material facts that, if proven, would demonstrate that counsel’s failure to object to the testimony in question was deficient performance or that it “deprive[d] the defendant of a fair trial, a trial whose result is reliable.” See State v. Balliette, 2011 WI 79, ¶2, 336 Wis. 2d 358, 805 N.W.2d 334 (stating standard for motion); see also Strickland v. Washington, 466 U.S. 668, 687 (1984) (stating test for prejudice). Therefore we conclude that Turney is not entitled to an evidentiary hearing. We discuss each issue in turn below.
WI Court of Appeals – District I
Case Name: State of Wisconsin v. Anthony Darnell Davis
Case No.: 2015AP2030-CR
Officials: Curley, P.J., Kessler and Brash, JJ.
Focus: Ineffective Assistance of Counsel
“We agree with the postconviction court’s analysis. Even if trial counsel had impeached Bowie with the fact of her prior convictions, the jury still would have heard from the multiple witnesses who testified as to L.D.’s injuries, L.D.’s health history, Bowie’s care for her child, and Davis’s changing stories as to the possible causes of L.D.’s injuries. Counsel’s failure to impeach Bowie does not undermine our confidence in the outcome. Evidence of Bowie’s prior convictions would not have sufficiently undermined her credibility so as to alter the outcome of the trial. Accordingly, we conclude that Davis has not shown Strickland prejudice.
Recommended for publication
WI Court of Appeals – District I
Case Name: State of Wisconsin v. D.B.
Case No.: 2016AP440; 2016AP441
Officials: Kessler, J.
Focus: Termination of Parental Rights
D.B. appeals from orders terminating his parental rights to two of his children, M.T.S. and E.C.B. We affirm
WI Court of Appeals – District II
Case Name: Village of Slinger v. Polk Properties et al
Case No.: 2015AP1473
Officials: Neubauer, C.J., Reilly, P.J., and Hagedorn, J
Focus: Expert Witness – Legal Malpractice
This appeal addresses whether a witness is qualified to give an expert opinion. Polk Properties, LLC and Donald J. Thoma (collectively “Polk”) sued their former law firm, Schloemer Law Firm, S.C. (Schloemer), for legal malpractice, alleging that Schloemer negligently drafted/negotiated their developer’s agreement. 1 Polk named Attorney Richard Jacobson as its expert witness on Schloemer’s legal malpractice. Schloemer moved to strike Jacobson as not being qualified to offer an expert opinion as to the drafting/negotiating of a developer’s agreement. The circuit court determined that Jacobson lacked the expertise required to offer such an opinion, struck Jacobson as a witness, and granted summary judgment to Schloemer as Polk had no proof that Schloemer committed legal malpractice. We affirm.
WI Court of Appeals – District II
Case Name: State of Wisconsin v. Troy M. Paulson
Case No.: 2016AP456-CR
Officials: Neubauer, C.J.
Focus: Suppression of Evidence
Troy M. Paulson appeals from a judgment convicting him, upon his plea of no contest, of possession of tetrahydrocannabinols (THC) and drug paraphernalia. Paulson contends that the evidence the police found in his vehicle should have been suppressed because the police unreasonably prolonged the traffic stop while investigating the identity of the seventeen-year-old female passenger in Paulson’s vehicle and trying to contact her parents until, twenty-five minutes after the initial stop, a police dog arrived on the scene and alerted the police to the presence of drugs in the vehicle. We disagree and affirm.
WI Court of Appeals – District IV
Case Name: Delores Fischer v. City of Prairie Du Chen
Case No.: 2015AP2116
Officials: Kloppenburg, P.J., Lundsten, and Blanchard, JJ.
Focus: False Premise – Replacement Property
The City of Prairie du Chien displaced Delores Fischer from her house and lot in connection with a public project. Fischer purchased a replacement property. There is no dispute that the following two determinations made by the City were reasonable: (1) Fischer was entitled to receive $108,000 from the City as the fair market value for her house and lot, and (2) the cost of a comparable replacement dwelling available on the private market was $95,000. However, despite the fact that the $108,000 payment to Fischer exceeded the $95,000 cost for replacement housing, Fischer filed a claim with the City for an additional $35,600 as a “replacement housing payment” under a theory that we describe below. The City denied Fischer’s claim. Pursuant to WIS. STAT. § 32.20, Fischer filed this action seeking an order requiring the City to pay Fischer $35,600. The circuit court dismissed the action, and Fischer appeals. We reject the only argument that Fischer advances on appeal because we conclude, as did the circuit court, that her argument rests on a false premise. The false premise is that the $108,000 market valuation of the property was based on a higher and better use than residential use, namely, on commercial use of the property. In fact, the market valuation was entirely based on residential use, and was not based in whole or in part on some higher and better commercial use. Accordingly, we affirm the circuit court.