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Weekly Case Digests — July 31 to August 4, 2017

By: WISCONSIN LAW JOURNAL STAFF//August 4, 2017//

Weekly Case Digests — July 31 to August 4, 2017

By: WISCONSIN LAW JOURNAL STAFF//August 4, 2017//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Jimmy T. Davis v. James Cross, Jr.

Case No.: 15-3681

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

Focus: Court Error – Habeas Corpus Relief

In 1997, a jury in the District of Kansas found Jimmy Davis guilty of robbing a bank, 18 U.S.C. § 2113(a), possessing a firearm as a felon, id. § 922(g)(1), and aiding and abetting his confederate’s use of a firearm during the robbery, id. § 924(c). Years later, he filed a habeas corpus petition under 28 U.S.C. § 2241, contending that he is innocent of the § 924(c) offense because he lacked advance knowledge that his confederate would use a firearm, as required for aiding and abetting liability, see Rosemond v. United States, 134 S. Ct. 1240 (2014). The district court disagreed, concluding that the evidence presented at trial established that Davis was not entitled to relief under Rosemond. Because we conclude that a properly instructed jury could not reasonably have doubted his guilt, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Charles Murphy v. Robert Smith, et al.

Case No.: 15-3384

Officials: BAUER, MANION, and HAMILTON, Circuit Judges.

Focus: Court Error – Damages Awarded

This appeal is before us once more, this time not on the merits but on plaintiff Charles Murphy’s petition for an award of attorney fees on appeal as a prevailing party pursuant to 42 U.S.C. § 1988(b). We deny the petition. Plaintiff prevailed on only one issue on appeal, an issue of only state law that could not have affected the judgment in his favor on federal-law claims that allowed a fee award. He lost on the federal matters at issue on appeal. While he remains a prevailing party in the lawsuit as a whole, a fee award on this appeal is not justified.

Murphy argues that he actually prevailed on appeal on his federal claims because the defendants’ sovereign immunity argument threatened all of the damages he had won in the district court, including those awarded under federal law. See Ustrak, 851 F.2d at 990 (prevailing federal plaintiff-appellee is entitled to fees incurred on appeal to defend his federal victory in district court). We acknowledge that the scope of the defendants’ attack may not have been apparent in the early stages of the appeal. It was sufficiently clear from defendants’ opening brief on appeal, though, that defendants were challenging only damages awarded under state law. Only those damages could be affected by the state-law sovereign immunity arguments the defendants made. Those arguments did not threaten damages awarded on an independent federal-law basis that was not challenged on appeal. Accordingly, Murphy’s only success on appeal came on a purely state-law issue affecting damages awarded only under state law. We conclude that a § 1988(b) award is not appropriate for that work. Plaintiff has already won—in the district court—both damages and a fee award for all of his attorney’s successful efforts thus far under federal law.

Denied

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7th Circuit Court of Appeals

Case Name: United States of America v. Crane Marks

Case No.: 15-2862

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

Focus: Sentencing Guidelines          

This appeal illustrates why, when an arcane and arbitrary issue arises under the Sentencing Guidelines, the sentencing judge should ask, “Why should I care?” That question was not asked here, so we must remand for resentencing.

Defendant‐appellant Crane Marks pled guilty to conspiring to distribute heroin. He was sentenced to nine years in prison (108 months). That sentence is either well above or well below the advisory range under the Sentencing Guidelines, depending on one issue in calculating Marks’ criminal history. The district court decided the issue against Marks, and he has appealed his sentence.

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: Ronald Oliva v. Blatt, Hasenmiller, Leibsker & Moore LLC

Case No.: 15-2516

Officials: WOOD, Chief Judge, and BAUER, POSNER, FLAUM, EASTERBROOK, MANION, KANNE, ROVNER, WILLIAMS, SYKES, and HAMILTON, Circuit Judges.

Focus: Fair Debt Collection Practices Act Collector Liability

The issue in this appeal is whether a collector of consumer debts that violated the venue provision of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692i(a)(2) (“the FDCPA” or “the Act”), can avoid liability on the ground that it was relying on Newsom as controlling circuit precedent interpreting the statute when it committed the violation. The answer is no.

We decided this question in Suesz when we overruled the circuit precedent in question and declined the defendant debt collector’s request to make that ruling effective only prospectively. 757 F.3d at 649–50. That result is also required by the Supreme Court’s decision in Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 576 (2010), which held that the FDCPA’s statutory safe harbor for bona fide mistakes does not apply to mistakes of law. Under Suesz and Jerman, the defendant cannot avoid liability for a violation based on its reliance on circuit precedent or any other bona fide mistake of law. We vacate the judgment of the district court and remand for proceedings consistent with this opinion.

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: Jose Orellana-Arias      

Case No.: 16-1874

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

Focus: Immigration – Perscution

Jose Orellana‐Arias is a native and citizen of El Salvador. Immigration officials detained him and took him into custody as he entered the United States near McAllen, Texas in April 2013. This was not his first time entering the United States without being admitted or paroled. We conclude that Orellana‐Arias did not meet his burden of demonstrating a nexus between the alleged persecution and his proposed social groups of wealthy deportees or gang resisters. But even were this not so, Orellana‐Arias’s petition was properly denied for failing to demonstrate either past persecution or a well‐founded fear of future persecution.

Orellana‐Arias presented country condition reports speaking to the violence in the country and the government’s inability to control it, including its acquiescence that results from corruption. R. 130– 31, 134, 138. Nevertheless, none of this constituted evidence that Orellana‐Arias specifically would be targeted for torture by the government or due to its acquiescence. “Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” Lozano–Zuniga, 832 F.3d at 831 (citing 8 C.F.R. § 1208.18(a)(7)). We are not compelled to overrule the Board’s finding that Orellana‐Arias did not demonstrate that any torture would be at the acquiescence (or willful blindness, for that matter, see footnote 3, supra) of the government.

The Board’s determination (along with that of the immigration judge where the Board had not spoken) is supported by reasonable, substantial, and probative evidence on the record considered as a whole and therefore the petition for review is DENIED.

Denied

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7th Circuit Court of Appeals

Case Name: United States of America v. Kelton Snyder

Case No.: 16-3779

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

Focus: Abuse of Discretion

On appeal Snyder argues there is insufficient evidence to show a “reasonable likelihood” that Mars would have communicated with a federal officer if she had not been murdered. We review the sufficiency of the evidence by asking whether, “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Resnick, 823 F.3d at 893, citing Jackson, 443 U.S. at 319 (emphasis omitted).

Taken together, the evidence does not support a reasonable likelihood that Mars would have communicated with a federal officer if she had not been murdered. Without the murder, it is unlikely the Circle K robbery would have been prosecuted in federal court. And although federal officers may have assisted with a state prosecution, there is insufficient evidence to find a reasonable likelihood that any federal officer would have assisted in a capacity where he would have communicated with eyewitnesses.

The judge considered the § 3553(a) factors at length during Snyder’s sentencing hearing. He discussed the nature and circumstances of Snyder’s crimes, as well as Snyder’s history and characteristics. See § 3553(a)(1). The judge also considered Snyder’s ability to rehabilitate but concluded that it was un‐ likely given Snyder’s recurring violent behavior.

To be clear, in many cases it would be substantively unreasonable to give a life sentence under § 924(c) for brandishing a firearm in the course of a crime of violence. But it is not un‐ reasonable here, where the statutory maximums for the other two counts of conviction (twenty years for the Hobbs Act robbery and ten years for being a felon in possession) would not have allowed the court to take sufficient account of Snyder’s role in the murder of Paige Mars. Congress authorized life sentences under § 924(c)(1)(A)(ii). This is an unusual case where the sentencing judge was justified in using the full statutory range. The court did not abuse its discretion.

Reversed and Vacated in part. Affirmed in part

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7th Circuit Court of Appeals

Case Name: United States of America v. Jeffrey Parkhurst

Case No.: 16-3102

Officials: FLAUM, EASTERBROOK, and SYKES, Circuit Judges

Focus: Sentencing

Jeffrey Parkhurst was convicted at trial of attempting to entice a minor to engage in sexual activity and was sentenced to one hundred thirty-two months’ imprisonment. On appeal, Parkhurst challenges his conviction and sentence. We affirm both.

Affirmed

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7th Circuit Court of Appeals

Case Name: Aaron Carson, et al. v. Lake County, Indiana

Case No.: 16-3665

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

Focus: Age Discrimination

A group of rehired retirees who were fired in October 2013 filed this suit alleging that the County had discriminated against them on the basis of their age in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C §§ 621 et seq., and the Fourteenth Amendment’s Equal Protection Clause. The district court granted summary judgment to the County.

Although plaintiffs’ claims arise under the ADEA and the Equal Protection Clause, those claims (and the County’s actions that precipitated the claims) cannot be analyzed properly without understanding some basics of health insurance law. Federal law requires group health insurance plans such as those sponsored by employers to comply with a host of terms governing portability, coverage, rating, renewability, and non-discrimination. Many of these requirements were put in place as part of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010). Others were imposed earlier under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936, or prior legislation.

We affirm. We see no evidence that the County engaged in unlawful age discrimination. Age was a necessary but insufficient factor in the County’s decision-making process. The key criterion that distinguished the terminated employees from all other County employees was not their age but rather their participation in the Aetna plan. The equal protection claim fails because the undisputed facts show that the County’s action was rationally related to a legitimate state interest: preserving supplemental insurance coverage for its retirees while avoiding further financial hardship.

Affirmed

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7th Circuit Court of Appeals

Case Name: Lawrence B. Lennon, et al. v. City of Carmel, Indiana, et al.

Case No.: 16-3836

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

Focus: Jurisdictional Rule

Although people raise an astonishing variety of claims in the federal courts of this country, the fact remains that there are limits on the subject-matter jurisdiction of those courts. This case implicates one of those limits: the federal district courts are not authorized to sit in review of state-court decisions, unless Congress has passed appropriate legislation. This is so even if one or all parties would like an answer from the federal court. As the district court here recognized, nearly all of the case now before us runs afoul of this jurisdictional rule. We affirm its dismissal of the action, with some minor modifications.

Affirmed

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7th Circuit Court of Appeals

Case Name: Estate of Ryan L. Clark v. Bruce Walker, et al.

Case No.: 16-3560; 16-3644

Officials: FLAUM, KANNE, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge.

Focus: Jurisdiction – Denial of Qualified Immunity

Because this is an appeal from a denial of summary judgment, our jurisdiction is quite limited. We have jurisdiction to review only the denial of qualified immunity and only to the extent the denial turned on questions of law. This narrows our consideration to two issues: whether Nurse Kuehn was entitled to qualified immunity as a private medical contractor, and whether it was clearly established that Clark had a right to be free from deliberate indifference to his serious risk of suicide. We agree with the district court on both points, so we affirm its denial of summary judgment for these two defendants.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Eugene Wearing

Case No.: 16-3312

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

Focus: Sufficiency of Evidence

Hoping to earn some money as a pimp, Eugene Wearing recruited a 15‐year‐old acquaintance, KV #1, to earn money as a prostitute. He posted a Craigslist ad with her photo and twice tried to arrange a rendezvous with a client. But both assignations fell through, and soon afterward KV #1 had second thoughts and alerted her mother, who called the authorities. At a bench trial Wearing was convicted of violating 18 U.S.C. § 1591, which makes sex trafficking of children a federal crime if done “in or affecting interstate or foreign commerce.” In this appeal Wearing challenges only the sufficiency of the evidence. He argues that the government was required to, but did not, prove two critical points: (1) that KV #1 had engaged in a “commercial sex act,” and (2) that his recruitment of the victim (as opposed to the scheme as a whole) affected commerce. We find no merit in either argument, and so we affirm the conviction.

Affirmed

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7th Circuit Court of Appeals

Case Name: Dorette Brownlee v. Hospira, Inc.

Case No.: 16-2005

Officials: POSNER, KANNE, and SYKES, Circuit Judges

Focus: Settlement Agreement

The plaintiff sued the defendant, her former employer, charging that discharging her had violated Title VII of the Civil Rights Act of 1964. The parties agreed in writing to settle the litigation rather than litigate to judgment, but their agreement provided that there would be “[n]o binding agreement until the typed settlement agreement is signed”—which it never was. The plaintiff’s lawyer did negotiate a proposed settlement agreement with the defendant’s lawyer, but the written terms made clear that this was not the “binding agreement” to which the parties had referred. Nevertheless the district judge treated it as such, ruling that the litigation had been ended by a settlement and by so ruling precipitating this appeal by the plaintiff.

The parties had agreed in writing however that there would be no binding agreement until the typed settlement agreement was signed, and it never was by either the plaintiff or her lawyer. There was therefore no agreement that bound the plaintiff, whose appeal asks us to vacate the district court’s decision on the ground that there was no settlement terminating the litigation. We therefore vacate the decision of the district court and remand for further proceedings in that court; since we have determined that there has been no settlement, the case remains open in the district court

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: Saskatchewan Mutual Insurance Co., v. CE Design, LTD.

Case No.: 15-3332

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

Focus: Jurisdiction

Saskatchewan Mutual Insurance (SMI) is trying to enforce a Canadian judgment against CE Design in federal court. That judgment resulted from CE Design’s un‐ successful effort to enforce an earlier Illinois judgment against SMI in Saskatchewan. The question before us is whether the federal courts—the third set of tribunals that have played host to this decade‐long legal battle—have jurisdiction over the latest round. We conclude that the answer is no—an outcome that is especially appropriate given the comity concerns that pervade this litigation.

Neither CAFA nor conventional diversity jurisdiction empowers us to hear this matter, and so we AFFIRM the judgment of the district court dismissing this case for lack of subject‐ matter jurisdiction.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Justin Williams

Case No.: 16-3373

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

Focus: Sentencing Guidelines

A person may commit the federal crime of bank robbery “by force and violence, or by intimidation.” 18 U.S.C. § 2113(a). The issue in this appeal is whether the federal offense of bank robbery under 18 U.S.C. § 2113(a) qualifies as a “crime of violence” under 18 U.S.C. § 924(c). We hold that it does. We have held that the so‐called “residual clause” in the § 924(c) definition of a crime of violence is unconstitutionally vague, United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016), but even bank robbery fits easily into the “elements clause” of the definition of a crime of violence because even when committed “by intimidation,” it has “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” See 18 U.S.C. § 924(c)(3)(A).1

We agree with the district court that bank robbery by intimidation defined in § 2113(a) is a crime of violence under the elements clause of § 924(c)(3)(A). Defendant Williams’ convictions and sentence are AFFIRMED.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Marcus D. Thompson

Case No.: 16-3741

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

Focus: Court Error – Sufficiency of Plea

On September 8, 2015, a grand jury returned a two-count indictment charging him with sex trafficking of a child by force, fraud, or coercion and conspiracy to do the same in violation of 18 U.S.C. § 1591(a)(1)–(2), (b)(1)–(2) and § 1594(c). He pled guilty to these crimes without a plea deal. On October 12, 2016, the district court held a sentencing hearing. Throughout the hearing, the court referenced Thompson’s presentence report, which recites the facts re- counted above. Thompson admitted that he read the report with his attorney and certified that everything in it is true, correct, and accurate. The court then accepted the report and adopted its factual findings.

Thompson appealed, raising several issues—none of which have merit. The issue is whether Thompson made a knowing and voluntary guilty plea. To address this issue, we consider “(1) the complexity of the charge; (2) the defendant’s level of intelligence, age, and education; (3) whether the defendant was represented by counsel; (4) the judge’s inquiry during the plea hearing and the defendant’s statements; and (5) the evidence proffered by the government.” United States v. Woodard, 744 F.3d 488, 495 (7th Cir. 2014) (quoting United States v. Blalock, 321 F.3d 686, 688–89 (7th Cir. 2003)). The law also requires a district court to ensure that the defendant understands his rights. Fed. R. Crim. P. 11(b).  We agree that Thompson was competent to plead guilty. Although he was a high school dropout, he was intelligent enough to operate a sophisticated online prostitution scheme with fixed and variable prices, all while evading detection from authorities. These facts show that he knowingly and voluntarily pled guilty. Thus, the court committed no error in accepting his plea.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. David L. Simpson

Case No.: 16-3286

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

Focus: Ineffective Assistance of Counsel

A jury convicted David Simpson of possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). He moved for a new trial under Federal Rule of Criminal Procedure 33(a), alleging that his trial counsel had been ineffective by failing to investigate and call three witnesses who had potentially exculpatory evidence. The district court declined to conduct an evidentiary hearing and denied the motion because it found “no reasonable possibility” that the proposed testimony of these wit- nesses would have changed the trial’s outcome. On appeal, Mr. Simpson argues that the district court abused its discretion by denying his motion without an evidentiary hearing. Because we believe that Mr. Simpson alleged sufficient facts to support an ineffective-assistance-of-counsel claim, we vacate the denial of his motion and remand for an evidentiary hearing.

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name:  United States of America v. Deshaun Brown aka Squeak, et al.

Case No.: 15-2933; 16-1496; 16-3149

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

Focus: Sufficiency of Evidence and Sentencing Guidelines

Brown appeals his conviction, arguing that there was insufficient evidence to sustain the verdict on the conspiracy charge. He also argues that the district court erred in denying two of his requested jury instructions. Hawthorne appeals the district court’s denial of his motion for a new trial based on the government’s failure to timely disclose information regarding its witness, Charles Vaughn. Pagan appeals his sentence, arguing that the court miscalculated his criminal history level. We address each argument in turn.

Hawthorne’s only argument on appeal is that the district court erred in denying his motion. Although the prosecutors assigned to this trial did not know of the interview before trial, the government concedes that the evidence was suppressed because it was in the government’s collective knowledge. The district court did not decide whether the evidence was favorable to Hawthorne and instead focused its analysis on materiality. Because we agree with the district court’s conclusion on that issue, we can assume, without deciding, that evidence of a government witness’s involvement in a prior murder would have been favorable to Hawthorne for impeachment purposes.

Pagan’s only argument on appeal is that the district court miscalculated his criminal history score and, therefore, applied the wrong Guidelines range. We conclude that the district court erred in assessing Pagan five criminal history points based on the incorrect information in the PSR. We have consistently held that “[a] district court’s adoption of erroneous information in a PSR that results in an incorrect Guidelines range, however correct such information appears, constitutes plain error on review.” United States v. Jenkins, 772 F.3d 1092, 1098 (7th Cir. 2014) (collecting cases). Accordingly, we find that the court committed plain error here.

Affirmed in part.  Vacated and Remanded in part

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7th Circuit Court of Appeals

Case Name: United States of America v. Deandre Enoch

Case No.: 16-1546

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

Focus: Sentencing Guidelines

The government charged Deandre Enoch with robbing a person having custody of property belonging to the United States, under 18 U.S.C.  § 2114(a) and brandishing a firearm in relation to a crime of violence, under 18 U.S.C.  § 924(c)(1)(A)(ii)1.  He pleaded guilty to both counts but reserved his right to file an appeal disputing the district court’s ruling that the former offense qualified as a crime of violence, thus rendering his brandishing a gun in connection with that offense a separate crime punishable under 18 U.S.C.  §924(c).  Moreover, § 924(c)(1)(D)(ii) of that same statute requires that a court impose a consecutive sentence upon a defendant who carries a firearm in relation to a crime of violence.  Consequently, Enoch’s sentence increased significantly because the court considered the conviction under § 2114(a) to be a crime of violence which mandated the imposition of the consecutive sentence.  Enoch now disputes that this underlying crime was a crime of violence. The district court concluded that it was, and sentenced Enoch to 24 months on Count 1 and a consecutive 84 months on Count 2. Enoch appeals, and we affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Steven R. Schmidt, et al. v. Goran Dragisic, et al.

Case No.: 2016AP272

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

Focus: Frivolous Appeal – Failure to Prosecute

Steven R. Schmidt, pro se, appeals an order that dismissed his personal injury suit for failure to prosecute. Additionally, respondent Badger Mutual Insurance Company moves the court to declare Schmidt’s appeal frivolous. We affirm the order but deny the motion.

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WI Court of Appeals – District I

Case Name: Laxmi Ma, LLC dba Dunkin’ Donuts v. City of Milwaukee

Case No.: 2016AP640

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

Focus: Abuse of Discretion

LAXMI MA, LLC (Laxmi) appeals from an order of the circuit court that affirmed the decision of the City of Milwaukee denying Laxmi’s application for the renewal of its extended hours license. Laxmi argues (1) that the Common Council failed to follow procedural requirements set forth in the Milwaukee Code of Ordinances in reaching its decision; and (2) that the Council’s decision was not supported by the evidence and was arbitrary and unreasonable, representing its will and not its judgment.

The City contends that it acted according to law in making its decision, and further, that the decision was based on credible evidence and was not unreasonable or arbitrary. We affirm.

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WI Court of Appeals – District III

Case Name: Michael J. Sheffield v. Darwin National Assurance Company, et al.

Case No.: 2016AP846

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

Focus: Insurance – Malpractice Claim

Michael Sheffield appeals a judgment declaring no coverage for a legal malpractice claim not reported within the policy period. We affirm.

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WI Court of Appeals – District III

Case Name: Jane Marie Bodart f/k/a Jane Marie Balthazor v. Leslie James Balthazor

Case No.: 2016AP900

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

Focus: Court Error – Factual Determinations

Leslie Balthazor appeals a judgment of divorce, in which the circuit court made factual determinations regarding the value of Leslie’s individual retirement account (IRA) and how much of the funds withdrawn from that account had been spent on marital obligations. We conclude the circuit court’s factual determinations in these regards were not clearly erroneous, and we affirm them.

However, we reverse the judgment insofar as it includes a mathematical error, and the circuit court failed to properly exercise its discretion on the record regarding its decision not to include a business debt of Leslie’s on the marital balance sheet. We also conclude the circuit court failed to adequately explain its decision to award Jane Bodart attorney fees for certain of Leslie’s discovery violations, and how it determined the amount of those fees. We therefore remand to the circuit court to address these matters and to modify the property division and make other orders as it deems necessary.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. K.H.

Case No.: 2016AP1180

Officials: BRASH, J.

Focus: Termination of Parental Rights

K.H. appeals the order that terminated her parental rights to M.E.H.G. and denied her postdispositional motion after this matter was remanded to the trial court for an evidentiary hearing. She argues that this court should vacate her no-contest plea because it was not knowingly, intelligently, and voluntarily made. She further argues that her due process rights were violated because the factual basis for the plea was established after the plea colloquy rather than before, and the trial court then relied on those facts despite K.H.’s dispute of some of those facts. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Janaya L. Moss

Case No.: 2016AP1856-CR

Officials: SEIDL, J.

Focus: Court Error – Denial of Motion to Suppress Evidence

Janaya Moss appeals a judgment of conviction for misdemeanor possession of cocaine. Moss challenges the circuit court’s order denying her motion to suppress evidence, arguing that evidence obtained during a warrantless search of her wallet was constitutionally unreasonable. We conclude Moss’s suppression motion was properly denied because the law enforcement officer conducted a valid identification search of Moss’s wallet. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Travail L. Lewis

Case No.: 2017AP234-CR

Officials: KESSLER, J

Focus: Court Error – Denial of Motion to Suppress Evidence

On appeal, Lewis argues that the circuit court erred in denying his suppression motion because “officers violated [his] Fourth Amendment rights when they seized him at gunpoint without any objectively reasonable basis to believe he was engaged in any criminal activity.” (Some capitalization omitted.) Relying on State v. Gordon, 2014 WI App 44, 353 Wis. 2d 468, 846 N.W.2d 483, the State concedes that officers lacked reasonable suspicion to stop Lewis. We agree with both parties and reverse the circuit court.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Tracy Dean Martin

Case No.: 2017AP296-CR

Officials: BRASH, J.

Focus: Illegal Search and Seizure

Tracy Dean Martin appeals from a judgment of conviction, entered by the trial court upon accepting Martin’s plea to operating while intoxicated (OWI) as a fourth offense. Specifically, Martin appeals the trial court’s denial of his motion to suppress all of the evidence gathered against him as a result of his arrest, which he had filed prior to entering his plea. His argument in the motion, which he reiterates on appeal, is that neither the anonymous tip of an intoxicated driver nor the officers’ independent observations of Martin was sufficient to ascertain reasonable suspicion. Therefore, he contends that his arrest was an unreasonable search and seizure in violation of the Fourth Amendment.

The trial court found that the officers had established reasonable suspicion for Martin’s arrest, and thus the search and seizure of Martin was justified. We agree and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Anthony Alvardo

Case No.: 2016AP142-CR

Officials:  Neubauer, C.J., Gundrum and Hagedorn, JJ.

Focus: Abuse of Discretion

Anthony Alvarado was charged with second degree sexual assault. The case went to trial, and the jury was instructed to consider both second-degree sexual assault and the lesser included offense of third-degree sexual assault. After several hours of deliberation and multiple notes to the court, the jury sent a final note stating that all jurors “agree on not guilty for the second degree,” but “are hung on the third degree.” The court concluded the jury was deadlocked and ordered a mistrial.

The State then sought to retry Alvarado, and he moved to dismiss the second-degree charge based on the double jeopardy provisions of the United States and Wisconsin constitutions. The circuit court denied his motion, and he sought leave to appeal the order. We grant Alvarado’s petition for leave to appeal and conclude that retrial on the second-degree sexual assault charge does not offend double jeopardy.

Alvarado does not argue that the circuit court erroneously exercised its discretion in ordering a mistrial or that the court should have instructed the jury on a partial verdict. Rather, Alvarado insists that the jurors’ professed agreement on the second-degree sexual assault charge constituted a final verdict. We hold that it did not. Because the jury here was free to reconsider its stance on the second-degree sexual assault charge, the note was not a verdict of acquittal, and retrying Alvarado on the second-degree charge does not violate double jeopardy.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Dale M. Patterson

Case No.: 2016AP701-CR

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

Focus: Court Error – Postconviction Motion without Hearing

Dale M. Patterson appeals from a judgment of conviction and an order denying his motion for postconviction relief. He contends that the circuit court erred in limiting his cross-examination of two state witnesses at trial. He further contends that the court erred in denying his postconviction motion without a hearing. We reject Patterson’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Joyce M. Ziehli

Case No.: 2016AP1161-CR

Officials: Lundsten, Sherman and Blanchard, JJ

Focus: Denial of Motion to Compel Discovery

Joyce Ziehli challenges the circuit court’s order denying her postconviction motion to compel discovery. Because Ziehli fails to persuade us that she is now entitled to the discovery she seeks, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Lisimba L. Love

Case No.: 2016AP1463

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

Focus: Denial of Motion for Newly Discovered Evidence

Lisimba Love appeals a circuit court order denying his postconviction motion. Love was convicted of armed robbery and is seeking a new trial on the ground that he has newly discovered evidence that someone else committed the robbery. The circuit court denied his motion, and we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Andrew W. Hendrickson

Case No.: 2016AP1724-CR

Officials: Lundsten, Sherman and Blanchard, JJ.

Focus: Sentencing Guidelines

Andrew Hendrickson appeals a judgment of conviction for repeated sexual assault of the same child. He also appeals an order denying his motion for postconviction relief. Hendrickson argues that, when sentencing him, the circuit court improperly considered how old the victim will be when Hendrickson is released from confinement. We reject his arguments and affirm.

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WI Court of Appeals – District IV

Case Name: Lamonte Hayes, a minor, by David P. Lowe, his Guardian Ad Litem v. Rebecca A. Thousand, M.D., et al.

Case No.: 2016AP1761

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

Focus: Court Error – Testimony

Lamonte Haynes appeals the judgment and order of the circuit court denying him a new trial in this labor and delivery medical malpractice case. Haynes argues that during the course of trial, the circuit court erred in four respects: (1) overruling Haynes’s objection to remarks defense counsel made during closing argument that allegedly misstated the law and confused the jury; (2) overruling Haynes’s objections to alleged new opinion testimony by the defendant, Dr. Rebecca Thousand, and limiting Haynes’s cross examination of Thousand; (3) overruling Haynes’s objections to alleged new opinion testimony from defense experts Dr. Sean Blackwell and Dr. Terrie Inder; and (4) overruling Haynes’s objection to alleged hearsay testimony by defense expert Dr. Robert Zimmerman. Haynes argues that these alleged errors were prejudicial to his case and that this court should grant him a new trial. We conclude that the circuit court did not err as to defense counsel’s closing argument remarks, Thousand’s testimony, or Blackwell’s and Inder’s testimony, and that any error as to Zimmerman’s testimony was harmless. Therefore, we affirm.

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