Weekly Case Digests — April 24-28, 2017

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Ennis Lee Brown v. Wisconsin State Public Defender’s Office, et al

Case No.: 16-3182

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

Focus: Frivolous Appeal

Ennis Brown, a Wisconsin state prisoner, appeals the dismissal of a suit in which he charged the Wisconsin State Public Defender’s Office, and others, with violating what he claims to be his constitutional right to represent himself on appeal. 42 U.S.C. § 198

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Rod Blagojevich

Case No.: 16-3254

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

Focus: Sentencing

Rod Blagojevich was convicted of 18 crimes committed while he was Governor of Illinois. The district court sentenced him to 168 months’ imprisonment. Our initial opinion vacated five of the convictions but affirmed the others and remanded for a potential retrial on the five vacated charges and for resentencing. 794 F.3d 729 (7th Cir. 2015). Blagojevich asked the Supreme Court to review that decision, and while the petition for certiorari was pending the district court put proceedings in abeyance. After the Supreme Court denied the petition, 136 S. Ct. 1491 (2016), rehearing denied, 136 S. Ct. 2386 (2016), the prosecutor announced that the five vacated charges would not be retried, and the district judge resentenced Blagojevich on the remaining 13 convictions. The sentence was again 168 months. As before, the judge determined that the Sentencing Guidelines recommend a term within the range of 360 months to life, then made some reductions that produced a final range of 151 to 188 months. (Our first opinion rejected a challenge to that range. See 794 F.3d at 743.) The judge recognized that 168 months is a stiff sentence for non-violent crimes by someone with no criminal record and unlikely to commit the same kinds of crimes again, because his impeachment and removal from office by the state legislature makes him ineligible for election to a new state office. Ill. Const. Art. IV §14. But the judge concluded that the sentence is justified by the gravity of Blagojevich’s offenses and the need to deter other public officials from acting as Blagojevich did.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Nicole C. Eason

Case No.: 16-2756

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

Focus: Court Error – Jury Instructions

Nicole Eason and her husband Calvin Eason were indicted on two counts of kidnapping (one for each child kidnapped), in violation of a federal statute that so far as relates to this case punishes “(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when—(1) the person is willfully transported in interstate or foreign commerce.” 18 U.S.C. § 1201. The Easons were indicted in a third count of violating another federal statute, 18 U.S.C. § 2423(a), by transporting one of the children across state lines intending that the child “engage in … sexual activity” forbidden by Illinois law. Calvin Eason pleaded guilty to all three counts; Nicole went to trial and the jury convicted her of all counts as well. The judge sentenced each defendant to 20 years in prison on each of the kidnapping counts and 40 years on the transportation-for-sexual-activity count, the sentences to run concurrently, making the total sentence for each defendant 40 years. There is no challenge to the sentences, and only Nicole has appealed the conviction.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Robin Willie Turner v. Hirschbach Motor Lines

Case No.: 15-3263

Officials: POSNER, SYKES, and HAMILTON, Circuit Judges

Focus: Race Discrimination

Plaintiff Robin Turner sued defendant Hirschbach Motor Lines for failing to hire him as a truck driver after his routine drug test was positive for marijuana use. Turner alleges the decision was racially discriminatory, but the district court granted summary judgment against him. Turner argues that the district court erred in requiring him to offer evidence both (a) that racial animus of a Hirsch bach employee who was not a decision-maker caused the decision not to hire him, and (b) that Hirschbach and a medical doctor came to an agreement to cancel Turner’s request for a second drug test. We affirm. The district court correctly concluded that Turner lacked evidence supporting his federal claim for race discrimination and his state-law claim for civil conspiracy.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Dennis Lavern LaCrosse, Jr.

Case No.: 2015AP2082

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

Focus: Court Error

Tina LaFave, pro se, appeals a post-paternity order awarding her over $14,000 in arrearages and interest, and denying her request for medical expense reimbursement from Dennis LaCrosse, Jr. LaFave argues that the amount awarded is inadequate. LaFave also claims the circuit court erred by concluding it had no authority to order reimbursement of medical expenses. We reject LaFave’s arguments and affirm the order.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Leroy K. Zittlow

Case No.: 2015AP2244

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

Focus: Court Error – Ineffective Assistance of Counsel

Leroy Zittlow appeals an order denying his WIS. STAT. § 974.06 (2015-16) motion for postconviction relief. Zittlow argues the circuit court erroneously exercised its sentencing discretion by relying on improper or inaccurate information and his trial counsel was ineffective by failing to object. Because Zittlow has failed to preserve his challenge to the circuit court’s sentencing discretion and his derivative ineffective assistance claim, we will not address them. Zittlow alternatively appears to seek resentencing based on the ineffective assistance of his trial counsel, as alleged in his postconviction motion. We reject Zittlow’s preserved arguments and affirm the order.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Daniel P. Marquardt

Case No.: 2015AP2499-CR

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

Focus:  Court Error – Credibility – Admission of Evidence

Daniel Marquardt appeals from a judgment of conviction for sexual assault of a child under sixteen years of age and sexual exploitation of a child, and an order denying postconviction relief. Marquardt argues: (1) the circuit court erred in admitting hearsay testimony at the

preliminary hearing; (2) the court denied his right of confrontation by limiting his cross-examination of the victim at trial; (3) the court erred in admitting into evidence a nude photo of the victim; (4) the state impermissibly vouched for the credibility of the victim in closing argument; and (5) he is entitled to a new trial in the interests of justice. We reject these arguments and affirm.

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WI Court of Appeals – District III

Case Name: Brown County v. A.M.Q.

Case No.: 2015AP2614

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

Focus: Guardianship

A.M.Q. appeals an order appointing her daughter, Margaret, as the permanent guardian of A.M.Q.’s estate. A.M.Q. argues: (1) the circuit court failed to provide an adequate explanation for its decision to appoint a guardian of the estate; (2) the court erred by granting the guardian full authority; (3) the court improperly appointed Margaret as guardian; and (4) the court erred by voiding an amendment to a trust created by A.M.Q. and her late husband. We conclude the circuit court properly exercised its discretion by appointing a guardian of A.M.Q.’s estate and granting that guardian full authority. We therefore affirm in part. However, we conclude the court erred by appointing Margaret as guardian, and we therefore reverse the relevant portion of the court’s order and remand for the court to follow the procedure set forth in WIS. STAT. § 54.44(6) (2015-16)1 in appointing a guardian of A.M.Q.’s estate. We also reverse that portion of the order voiding the amendment to the trust.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kenneth William Jaworski

Case No.: 2016AP5

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

Focus: Commitment

Kenneth William Jaworski appeals a judgment committing him as a sexually violent person. He also appeals from an order of the circuit court denying his postcommitment motion.1 Jaworski argues that the court erred in denying his motion because the Department of Corrections (DOC) deliberately miscalculated his release date and the State’s commitment petition was untimely. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Joel Maurice McNeal

Case No.: 2016AP633-CR

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

Focus: Sentencing Enhancer – Domestic Abuse Enhancer

Joel Maurice McNeal appeals the judgment convicting him of (1) second-degree sexual assault with use of force, (2) strangulation and suffocation, and (3) false imprisonment, with each crime being subject to the domestic abuse enhancer. He also appeals the order denying his motion for postconviction relief.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Thomas G. St. Peter

Case No.: 2016AP683-CR

Officials: Brash, J.

Focus: Sentencing

Thomas G. St. Peter appeals from the judgment of conviction and order denying his motion for sentence modification, following his conviction of a misdemeanor charge of obstructing an officer, contrary to WIS. STAT. § 946.41(1). St. Peter argues that the trial court violated his due process rights because his sentence was based on the court’s misunderstanding of the facts. He further argues that the trial court erroneously exercised its discretion at the time of sentencing by not addressing relevant factors for sentencing as established in McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971), and confirmed in State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197. We affirm the judgment, but reverse the order and remand the case for resentencing

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WI Court of Appeals – District III

Case Name: Marathon County v. P.X.

Case No.: 2016AP1490

Officials: Stark, P.J.

Focus: Ch. 51 Commitment

P.X. appeals an order extending his commitment under WIS. STAT. ch. 51. He argues Marathon County failed to show he was a proper subject for treatment under WIS. STAT. § 51.20(1)(a)1. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Vincent Martinez

Case No.: 2015AP2002-CR; 2015AP2003-CR

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

Focus: Motion to Withdraw

In these consolidated cases, Vincent Martinez appeals from a nonfinal order granting his attorney’s motion to withdraw as counsel. He argues that by granting the motion and knowing that another attorney would not be appointed, the circuit court denied him his right to counsel. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsinv. C.G.B.

Case No.: 2016AP668

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

Focus: Delinquency

This appeal presents the question of whether a juvenile court has the authority to order a consent decree over the objection of the district attorney. We conclude that a juvenile court does not have the statutory authority to do so and reverse.

Recommended for publication

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WI Court of Appeals – District II

Case Name: The Stimac Family Trust v. Wisconsin Power and Light Company, et al

Case No.: 2016AP748

Officials: Reilly, P.J.

Focus: Insurance Coverage – Duty to Defend

In this appeal, we address the procedure utilized when an insurer denies coverage. We summarize the procedure as follows: If an insurer alleges that it has no duty to defend its insured and does not provide its insured with a defense, then the four-corners rule applies and the only documents utilized by the court are the insurance policy and the complaint. No extrinsic evidence may be considered. In contrast, if an insurer alleges that its policy does not provide coverage but provides a defense to its insured and bifurcates the matter while coverage is contested, then the court considers the complaint, the policy, and any extrinsic evidence to determine whether coverage exists.

West Bend Mutual Insurance Company (West Bend) insured Aquire Contracting and Restoration, Inc. (Aquire). Aquire was hired to perform restoration work on a residence owned by The Stimac Family Trust (Stimac) and, for purposes of this appeal, failed to do the work in a good and workmanlike manner. Stimac sued Aquire for damages. West Bend alleged that its policy did not cover the claim but provided counsel for Acquire and bifurcated the coverage question. West Bend then moved for summary judgment on the ground that its policy did not provide coverage to Aquire due to policy exclusions. The circuit court concluded that it could not consider extrinsic evidence offered by Aquire because of the four-corners rule and granted summary judgment to West Bend. As the court should have considered the extrinsic evidence, we reverse.

Recommended for publication

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WI Court of Appeals – District Iv

Case Name: State of Wisconsin v. Brandon Arthur Millard

Case No.: 2016AP1474-CR

Officials: Sherman, J.

Focus: Ineffective Assistance of Counsel

Brandon Millard appeals a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant and operating a motor vehicle with a prohibited alcohol concentration (PAC), both as third offenses, and an order of the circuit court denying his motion for postconviction relief on the ground of ineffective assistance of counsel. Miller contends that his trial counsel was ineffective because counsel failed to challenge the arresting officer’s testimony regarding Millard’s performance on the horizontal gaze nystagmus (HGN) field sobriety test. For the reasons discussed below, I affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Steven T. Delap

Case No.: 2016AP2196-CR

Officials: Kloppenburg, P.J.

Focus: 4^th Amendment

Steven Delap appeals the judgment of conviction for obstructing an officer and possession of drug paraphernalia, both as a repeat offender. Delap argues that law enforcement officers unlawfully attempted to stop him and pursued him into his residence without a warrant; therefore, his subsequent arrest and search violated “the Fourth Amendment requirement of reasonableness.” I reject Delap’s arguments and conclude that the officers lawfully attempted to stop, pursued, and arrested Delap.  Therefore, I affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Donna Brenner v. Amerisure Mutual Insurance Company, et al

Case No.: 2017WI38

Focus: Negligence

Mr. Brenner and his wife sued MWF, Garland Brothers, and Charter (as well as their insurers) alleging negligence and violation of Wisconsin’s safe-place statutes. As particularly relevant here, the Brenners said Charter was negligent because it concealed or failed to disclose to MWF the holes in the metal grate flooring under the plywood boxes. Charter and Garland Brothers moved for summary judgment, relying primarily on the doctrine of caveat emptor as described in the Restatement (Second) of Torts § 352 (Am. Law Inst. 1965) (hereinafter “§ 352”). The circuit court dismissed both parties, concluding that the caveat emptor principle precluded judgment against them. The Brenners subsequently settled with Charter and Garland Brothers, which they documented with a settlement agreement that included a Pierringer release. MWF appealed Charter’s dismissal.4 MWF’s interest in this question is in ensuring it is exposed to no more than the correct quantum of liability. Notwithstanding Charter’s dismissal from the case, if the matter proceeds to trial, a jury would need to apportion liability amongst all eligible defendants——even those who have been dismissed through settlements. If the law of negligence makes Charter eligible for liability, MWF’s exposure potentially decreases, resulting in a smaller judgment against it. If Charter is not eligible for liability, the potential judgment against MWF could increase. On appeal, MWF argued that Charter was not a “vendor” under § 352, and even if it was, it would still be liable pursuant to the exception from exemption described in Restatement (Second) of Torts § 353 (Am. Law. Inst. 1965) (hereinafter “§ 353”). In a published decision, the court of appeals affirmed the circuit court’s summary judgment in favor of Charter.5 The court of appeals based its opinion on the caveat emptor doctrine as described in § 352, concluding that Charter was a “vendor” within the meaning of the Restatement test. It further found that, because MWF had reason to know of the danger posed by the wooden boxes that covered the holes,

• 353 did not negate the immunity supplied by the caveat emptor doctrine. We granted MWF’s timely petition for review and now affirm the court of appeals.

Affirmed

Concur:

Dissent:

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WI Supreme Court

Case Name: State of Wisconsin v. Gary F. Lemberger

Case No.: 2017 WI 39

Focus: Ineffective Assistance of Counsel

In 2014 Lemberger was convicted of the crime of operating a motor vehicle while intoxicated——4th offense following a jury trial during which the prosecutor repeatedly referenced the fact that Lemberger had refused to submit to a breathalyzer test following his arrest for drunk driving. Postconviction, Lemberger requested a new trial, arguing that his constitutional right to the effective assistance of counsel had been violated. Lemberger claimed his trial attorney should have objected to the prosecutor’s comments because Lemberger possessed a constitutional right to refuse to take a warrantless breathalyzer test such that the prosecutor was not permitted to seek an inference of guilt from the refusal. The circuit court rejected this argument and the court of appeals affirmed. We conclude that Lemberger did not receive ineffective assistance of counsel. The law was settled at the time of Lemberger’s trial that, upon his lawful arrest for drunk driving, Lemberger had no constitutional or statutory right to refuse to take the breathalyzer test, and that the State could comment at trial on Lemberger’s improper refusal to take the test. Lemberger’s attorney did not render ineffective assistance of counsel in failing to argue contrary to controlling precedent. Consequently, the circuit court did not erroneously exercise its discretion in denying Lemberger’s postconviction motion without a hearing. We affirm the decision of the court of appeals.

Concur: Abrahamson, Bradley, Kelly

Dissent:

Affirmed

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