Weekly Case Digests — April 23-27, 2018

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Jill Otis v. Kayla J. Demarasse, et al.

Case No.: 16-1875

Officials:

Focus: Order Correcting Opinion

The opinion issued in this case on April 2, 2018, is amended as follows: On page 16, line 14, the word “AFFIRMED” is to be followed by the words “in part; VACATED and REMANDED in part.”

Affirmed in part. Vacated and Remanded in part.

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7^th Circuit Court of Appeals

Case Name: United States of America v. Kyle D. Williams

Case No.: 17-3220

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

Focus: Sentencing Guidelines

On June 27, 2014, Kyle Williams was charged with conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C. §§ 846 and 841(a)(1). In September 2014, Williams entered the Pretrial Alternatives Detention Initiative (PADI), a treatment-based trial diversion program. He graduated from the program on June 11, 2015, and was referred to the United States Probation Office for pretrial diversion. However, between June and September 2015, Williams submitted multiple urine samples that tested positive for marijuana use.

After a reprimand from the court, Williams and the government agreed to a 90-day pretrial diversion plan. After completing that plan, the parties agreed to another one-year diversion beginning on February 25, 2016. In June 2016, however, Williams faltered again, and the government terminated the diversion agreement based on Williams’ possession and use of cocaine.

On August 26, 2016, Williams pleaded guilty to the original charge. Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), Williams and the government agreed to a sentence of 90 days’ imprisonment and five years of supervised release. After considering Williams’ assistance to the government and his graduation from the PADI program, the district court sentenced Williams to time served and five years of supervised release.

On May 19, 2017, Williams was charged in Peoria County, Illinois, with driving under the influence of heroin, possessing heroin, and other traffic offenses. He admitted to committing those violations, and as a result, his probation officer filed a petition to revoke his supervised release. After reviewing the probation officer’s violation memorandum and hearing arguments from both parties, the district court sentenced Williams to three years’ imprisonment—the statutory maximum under 18 U.S.C. § 3583(e)(3)—and one year supervised release. Williams timely appealed and raises two claims. First, he argues that the district court procedurally erred during the revocation hearing by failing to consider the range recommended by the Sentencing Guidelines policy statements. Second, he contends that the court failed to consider one of his principal arguments in mitigation. For the reasons that follow, we affirm the district court’s sentence.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Kathy Haywood, et al. v. Massage Envy Franchising, LLC,

Case No.: 17-2402

Officials: BAUER, ROVNER, and SYKES, Circuit Judges

Focus: Failure to State Claim

Kathy Haywood and Lia Holt filed this putative class action alleging that Massage Envy Franchising, LLC (“Massage Envy”), committed unfair and deceptive business practices by advertising and selling one‐hour massages but providing massages that lasted only 50 minutes. They now appeal from the district court’s order granting Massage Envy’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Derrick D. Bell

Case No.: 17-2307

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

Focus: Sentencing Guidelines

During the execution of a search warrant on January 15, 2016, ATF agents found Derrick Bell in possession of a .40 caliber pistol. Bell was charged with being a felon in possession of a firearm on March 1, 2016, in violation of 18 U.S.C. § 922(g)(1), and on February 6, 2017, he pleaded guilty pursuant to a plea agreement.

In the Presentence Investigation Report (PSR), the Probation Officer calculated Bell’s total offense level as 23, with a criminal history category of VI, for a Sentencing Guideline range of 92 to 115 months. The PSR stated that “the [G]uideline range for a term of supervised release is 1 year to 3 years.” See U.S.S.G. § 5D1.2(a)(2). The Probation Officer also filed a separate sentencing recommendation, which provided a chart breaking down the statutory and Guideline ranges for supervised release. Finally, the government filed a “Notice of Agreement Regarding Supervised Release,” which stated that the government recommended a term of supervised release within the Guidelines range of one to three years.

The district court sentenced Bell to 98 months’ imprisonment, to be followed by three years of supervised release. On appeal, Bell raises three procedural challenges to his sentence. Since we conclude that the district court did not commit any errors, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Kelly Jean Linderman v. U.S. Bank National Association

Case No.: 17-1770

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

Focus: Statutory Interpretation – Real Estate Settlement Procedures Act

Kelly Jean Floyd bought a home in 2004 and lived there with her ex-husband, their four children, and her parents. In June 2013 her mother asked her to move out to reduce intra-family conflicts. Floyd left—and she also stopped paying the loan that is secured by a mortgage on the house. A few months later her mother departed (her father had died years earlier), leaving the house occupied by a single daughter, who moved away in May 2014.

The unoccupied structure was vandalized; thieves removed its copper pipe and wiring. U.S. Bank, which owns the note and mortgage, started foreclosure proceedings in March 2014; Floyd asserts that she was not notified. A default judgment was entered, then vacated in June 2015 at her request. (The parties have not told us what has happened in the foreclosure case since then.) In 2014 Floyd remarried and took the name Linderman, which we use from now on. She has divorced the new husband and has never reoccupied the home (or resumed paying off the loan)—though in August 2015, with the aid of an inheritance, she did buy another house nearby. She lives in that house today.

The 2014 vandalism produced insurance money that was sent to the Bank, to be held in escrow for use in making repairs or as additional security. Linderman hired a homerepair contractor, and early in 2015 the Bank disbursed $10,000 from the escrow toward the cost of repairs. The contractor abandoned the job in April 2015, however, telling Linderman that it was not confident that she could pay the full cost of its work. The house was vandalized twice more that spring, and a storm damaged the roof in June 2015.

The district judge assumed that the leger met the definition of a “qualified wrigen request”, 12 U.S.C. §2605(e)(1)(B), and further assumed that a “servicer” (another defined term) must ensure that its response is received. We do not decide whether either assumption is correct; the second is questionable given 12 C.F.R. §1024.11, which says that mailing a timely and properly addressed response satisfies the Act whether or not the response is received. (The statute is silent on this issue.) Even with the benefit of these two favorable assumptions, Linderman lost, because a remedy depends on proof of “actual damages”. 12 U.S.C. §2605(f)(1)(A). The district judge found that Linderman’s non-receipt of the information could not have caused or aggravated any of her injuries. 242 F. Supp. 3d 764 (S.D. Ind. 2017).

Still, Linderman asserts, the lack of a response from the Bank has aggravated her problems. She does not explain how. The lack of money disbursed from the escrow may be a cause of continuing loss, if she cannot afford to repair or secure the house. Similarly, the house’s condition could affect her mental well-being. Linderman asserts that she “began to feel more anxious and depressed as [she] watched [her] home continue [to] deteriorate”. Yet the Act does not require a servicer to pay money in response to a wrigen request.

A focus on federal rules can distract people (including lawyers) from the more mundane doctrines of state law that may offer greater prospect of success. The contract between Linderman and the Bank, not federal law, determines how insurance proceeds must be handled and when the Bank must disburse money from the escrow to make repairs. The Act does not require servicers to explain the details of contracts (or contract law) to customers or their lawyers. Contract law also governs the arrangement between Linderman and the repair firm that walked in April 2015; if the contract required the firm to finish the job, Indiana law would supply a remedy. Likewise Indiana law (rules of conversion, replevin, and trespass) could provide relief against the company that may have taken harmful steps in October 2014. Linderman may even have a claim against her mother, who did not pay the loan after Linderman moved out. (Linderman told the district judge that she believed that her mother would repay the loan, though she does not say that her mother promised to do so or that she took any step to add her mother to the account with the Bank.) Yet she does not pursue any of these theories. The sole claim in this suit is that the Bank injured her by not adequately responding to her leger. That claim fails for the reasons we have given.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Patrick Quinn, et al., v. State of Illinois, et al.,

Case No.: 17-1565

Officials: EASTERBROOK, KANNE, and SYKES, Circuit Judges

Focus: Equal Protection Claim

Illinois law provides that the Mayor of Chicago appoints the City’s Board of Education. 105 ILCS 5/34-3. Until 1995, when this law took effect, the Mayor needed the consent of the City Council; now the Mayor acts on his own. In this suit under §2 of the Voting Rights Act, 52 U.S.C. §10301, plaintiffs (registered voters, some of whom are parents or grandparents of school-age children) contend that this system deprives black and Latino citizens of their right to vote. School boards elsewhere in Illinois are elected; plaintiffs say that failure to elect the school board in Chicago has a disproportionate effect on minority voters. The district court dismissed the complaint. 234 F. Supp. 3d 922 (N.D. Ill. 2017).

This equal-protection theory is brought up short by Sailors v. Board of Education, 387 U.S. 105 (1967), which holds that appointing a school board is constitutionally permissible, and by Hearne v. Board of Education, 185 F.3d 770 (7th Cir. 1999), which holds that the 1995 Illinois statute is valid notwithstanding the line it draws between Chicago and every other city in Illinois. Accord, Quinn v. Board of Education, 2018 IL App (1st) 170834 (Mar. 29, 2018) (applying the Constitution of Illinois). Plaintiffs insist that Sailors and Hearne are outdated, but we must follow the Supreme Court no maper what arguments can be leveled against its decisions. And we are quite content to follow Hearne, whose reasoning is as strong now as it was when it was issued 19 years ago.

Hearne addresses and rejects the sort of racial-impact contention that plaintiffs pursue. 185 F.3d at 775–76. This approach is just a repackaged version of the contention that some citizens have been disfranchised. We have explained why that is wrong: all citizens of Chicago have equal influence, though it is exercised indirectly (by voting for Mayor) rather than directly (by voting for the Board’s members). There is neither disparate treatment nor disparate impact— and, as Hearne observed, disparate impact does not violate the Equal Protection Clause at all. See Personnel Administrator v. Feeney, 442 U.S. 256 (1979); Washington v. Davis, 426 U.S. 229 (1976).

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Thomas Cureton

Case No.: 15-3575; 15-3581

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

Focus: Sentencing Guidelines

In his third round of appeals, we affirmed defendant Cureton’s convictions and sentences for using a firearm during a crime of violence and related crimes. United States v. Cureton, 845 F.3d 323 (7th Cir. 2017). The Supreme Court remanded for reconsideration in light of Dean v. United States, 137 S. Ct. 1170 (2017), which disapproved our circuit precedents such as United States v. Roberson, 474 F.3d 432 (7th Cir. 2007), barring judges sentencing defendants under 18 U.S.C. § 924(c) and other crimes from considering the mandatory minimum sentence under § 924(c) when deciding the sentences for other crimes.

We then remanded to the district court for the limited purpose of giving that court an opportunity to determine whether it would have imposed the same sentence on Cureton, now knowing that in light of Dean, it may consider the mandatory sentence under § 924(c) when deciding the sentences for other crimes. United States v. Cureton, 882 F.3d 714 (7th Cir. 2018). The district court solicited and reviewed briefs from the parties and acted promptly.

On March 21, 2018, the district judge issued an order explaining that he saw no basis for reducing Cureton’s sentence. Judge Herndon quoted his own comments in resentencing Cureton and Judge Murphy’s comments at Cureton’s original sentencing. Both judges focused on the extraordinary viciousness of Cureton’s crimes, including the kidnapping and torture of the woman who was his victim. The order on limited remand referred to Cureton’s “extreme” capacity for “violence and depravity” and said that any lower sentence would not be sufficient to serve the purposes of 18 U.S.C. § 3553(a).

The district court has complied with the terms of our limited remand. We see no need for further proceedings in this case on the subject of Dean. The judgments of the district court, including the 444-month total term of imprisonment, are affirmed.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Heather Dieffenbach, et al. v. Barnes & Noble, Inc.,

Case No.: 17-2408

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

Focus: Compensable Damages – Class Action Fairness Act

In 2012 Barnes & Noble discovered that scoundrels had compromised some of the machines, called PIN pads, that it used to verify payment information. They acquired details such as customers’ names, card numbers and expiration dates, and PINs. Some customers temporarily lost the use of their funds while waiting for banks to reverse unauthorized charges to their accounts.

Some spent money on credit-monitoring services to protect their financial interests. Some lost the value of their time devoted to acquiring new account numbers and notifying businesses of these changes. Many people use credit or debit cards to pay bills automatically; every time the account number changes, these people must devote some of their time and mental energy to notifying merchants that the old numbers are invalid and new ones must be used. In this suit under state law, plaintiffs seek to collect damages not from the data thieves but from Barnes & Noble. Jurisdiction rests on the Class Action Fairness Act, 28 U.S.C. §1332(d), because the proposed class contains at least 100 members, the amount in controversy exceeds $5 million, and minimal diversity of citizenship exists.

Dieffenbach invokes two statutes: California’s Customer Records Act and its Unfair Competition Law. The Records Act provides that a “customer injured by a violation of [this Act] may … recover damages.” Cal. Civ. Code §1798.84. The statute does not define injury, nor does any state decision we could find. The district judge took this absence of a definition as equivalent to conditioning recovery on satisfaction of the Unfair Competition Law, which provides that “lost money or property” supports recovery. Cal. Bus. & Prof. Code §17204. That’s a problematic move; the statutes are distinct, after all, as is their language. But this does not maoer, because the first three losses that Dieffenbach identifies fit within the phrase “lost money or property.”

Now for Illinois. Susan Winstead, the second representative plaintiff, alleges that (1) her bank contacted her about a potentially fraudulent charge on her credit card statement and deactivated her card for several days; and (2) the security breach at Barnes & Noble “was a decisive factor” when she renewed a credit-monitoring service for $16.99 per month. Her claim rests on the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2, and the proposed class relies on materially identical laws in other states. A person “who suffers actual damage as a result of a violation of this Act” may recover. 815 ILCS 505/10a(a). A monthly $17 out of pocket is a form of “actual damage”. It is real and measurable; Illinois does not require more. See Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 195–99 (2005). And, if the plaintiff has suffered an economic loss, noneconomic injuries are compensable. See, e.g., Morris v. Harvey Cycle & Camper, Inc., 392 Ill. App. 3d 399, 402–03 (2009).

An Illinois appellate court has held that a person who purchases credit-monitoring services after a merchant discloses personal information has not suffered actual damages. Cooney v. Chicago Public Schools, 407 Ill. App. 3d 358, 365–66 (2010). We think it unlikely that the Supreme Court of Illinois would agree with the “actual damages” portion of this decision, given the breadth of the statutory language. Money out of pocket is a standard understanding of actual damages in contract law, antitrust law (Reiter v. Sonotone Corp., 442 U.S. 330 (1979)), the law of fraud, and elsewhere. To get damages plaintiffs must show that a culpable data breach caused the monthly payments, but the complaint cannot be dismissed before giving the class an opportunity to do so.

Everything we have said about California and Illinois law concerns injury. We have not considered whether Barnes & Noble violated any of these three state laws by failing to prevent villains from stealing plaintiffs’ names and account data. Barnes & Noble was itself a victim. Its reputation took a hit, it had to replace the compromised equipment plus other terminals that had been shown to be vulnerable, and it lost business. None of the state laws expressly makes merchants liable for failure to crime-proof their point-of-sale systems. Plaintiffs may have a difficult task showing an entitlement to collect damages from a fellow victim of the data thieves. It is also far from clear that this suit should be certified as a class action; both the state laws and the potential damages are disparate. These and other questions need consideration on remand. That the case has been pending for 5½ years without a decision by the district court whether the proposed class can be certified is problematic under Fed. R. Civ. P. 23(c)(1)(A), which requires the decision to be made “[a]t an early practicable time after a person sues … as a class representative”. All we hold today is that the complaint cannot be dismissed on the ground that the plaintiffs do not adequately allege compensable damages. The judgment is vacated, and the case is remanded for proceedings consistent with this opinion.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Community Bank of Trenton, et al. v. Schnuck Markets, Inc.,

Case No.: 17-2146

Officials: WOOD, Chief Judge, HAMILTON, Circuit Judge, and BUCKLO, District Judge.

Focus: Economic Loss – Data Breach – Remedies  

In late 2012, hackers infiltrated the computer networks at Schnuck Markets, a large Midwestern grocery store chain based in Missouri and known as “Schnucks.” The hackers stole the data of about 2.4 million credit and debit cards. By the time the intrusion was detected and the data breach was announced in March 2013, the financial losses from unauthorized purchases and cash withdrawals had reached into the millions. Litigation ensued.

The principal issues in this case present fairly new variations on the economic loss rule in tort law. The central issue is whether Illinois or Missouri tort law offers a remedy to card-holders’ banks against a retail merchant who suffered a data breach, above and beyond the remedies provided by the network of contracts that link merchants, card-processors, banks, and card brands to enable electronic card payments. The plaintiff banks assert claims under the common law as well as Illinois consumer protection statutes. Our role as a federal court applying state law is to predict how the states’ supreme courts would likely resolve these issues. We predict that both states would reject the plaintiff banks’ search for a remedy beyond those established under the applicable networks of contracts. Accordingly, we affirm the district court’s dismissal of the banks’ complaint.

Affirmed

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7^th Circuit Court of Appeals

Case Name: James P. Teufel v. The Northern Trust Company, et al.,

Case No.: 17-1676; 17-1677

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

Focus: ERISA – Pensions 

In 2012 Northern Trust changed its pension plan. Until then it had a defined-benefit plan under which retirement income depended on years worked, times an average of each employee’s five highest-earning consecutive years, times a constant. Example: 30 years worked, times an average high-five salary of $50,000, times 0.018, produces a pension of $27,000. (We ignore several wrinkles, including an offset for Social Security benefits, a limit on the number of credited years, and a limit on the maximum credited earnings.) The parties call this the Traditional formula. As amended, however, the plan multiplies the years worked and the high average compensation not by a constant but by a formula that depends on the number of years worked after 2012. The parties call this arrangement the new PEP formula, and they agree that it reduces the pension-accrual rate. (There is also an old PEP formula, in place between 2002 and 2012, for employees hired after 2001; we ignore that wrinkle too.) Recognizing that shifting everyone to the new PEP formula would unsegle the expectations of workers who had relied on the Traditional formula, Northern Trust provided people hired before 2002 a transitional benefit, treating them as if they were still under the Traditional formula except that it would deem their salaries as increasing at 1.5% per year, without regard to the actual rate of change in their compensation.

James Teufel contends in this suit that the 2012 amendment, even with the transitional benefit, violates the anticutback rule in ERISA, the Employee Retirement Income Security Act. 29 U.S.C. §§ 1001–1461. He also contends that the change harms older workers relative to younger ones, violating the ADEA, the Age Discrimination in Employment Act. 29 U.S.C. §§ 621–34. The district court dismissed the suit on the pleadings, 2017 U.S. Dist. LEXIS 31674 (N.D. Ill. Mar. 6, 2017), and Teufel appeals. The Northern Trust pension plan, both before and after the 2012 amendment, complies with §623(i). Benefits depend on the number of years of credited service and the employee’s salary, not on age. Because salary generally rises with age, and an extra year of credited service goes with an extra year of age, the plan’s criteria are correlated with age—but both Kentucky Retirement Systems and Hazen Paper hold that these pension criteria differ from age discrimination. An employer would fall outside the §623(i) safe harbor if, for example, the amount of pension credit per year were a function of age rather than the years of credited service, or if pension accruals stopped or were reduced at a firm’s normal retirement age. See 29 U.S.C. §623(i)(1). Stopping pension accruals at age 65 used to be a common feature of definedbenefit plans. Under §623(i)(1)(A) that is no longer lawful. The Northern Trust plan, however, allows accruals past the normal retirement date, and accruals do not otherwise depend on age. Because the plan complies with §623(i), it satisfies the ADEA.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Alejandro Moreno v. Nancy Berryhill

Case No.: 17-1954

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

Focus: Newly Discovered Evidence

Alejandro Moreno appeals the order of the district court upholding the Social Security Administration’s denial of his applications for Supplemental Security Income and Disability Insurance Benefits. Mr. Moreno contends that, among other shortcomings in the Administrative Law Judge’s (“ALJ”) determination, he improperly relied on an outdated mental‐health assessment and failed to incorporate all of Mr. Moreno’s limitations when posing the hypothetical to the vocational expert.  We agree that the record contains new and significant evidence that could have affected Mr. Moreno’s mental‐health assessment.  We also agree that the ALJ’s hypothetical to the vocational expert failed to include Mr. Moreno’s limitations with respect to concentration, persistence, and pace.  Accordingly, we remand the matter to the agency for further proceeding.

Remanded

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WI Court of Appeals Digests

WI Court of Appeals – District IV

Case Name: Dane County Department of Human Services v. C.B.,

Case No.: 2018AP38; 2018AP39

Officials: FITZPATRICK, J.

Focus: Termination of Parental Rights

The Dane County Department of Human Services appeals an order of the circuit court denying the Department’s petition to terminate C.B.’s parental rights. The Department argues that the circuit court erred in various ways in considering the requisite statutory factors enumerated in WIS. STAT. § 48.426(3). Additionally, the Department contends that the circuit court violated the Department’s procedural due process rights. I reject the Department’s arguments and affirm the order of the circuit court.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Gary A. Amaya

Case No.: 2015AP384-CR

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

Focus: Ineffective Assistance of Counsel

Gary A. Amaya, pro se, appeals from a judgment, entered upon a jury’s verdict, convicting him on one count of aggravated battery and one count of mayhem. Amaya also appeals from an order denying his motion for postconviction relief. Amaya complains that a transcript is inaccurate and raises multiple claims of trial court error and ineffective assistance of trial counsel. We conclude the trial court did not err, Amaya has not shown trial counsel to have been ineffective, and the circuit court properly denied the postconviction motion. We therefore affirm the judgment and order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Devin T. White

Case No.: 2016AP119-CR

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

Focus: Postconviction Motion Denied

Devin T. White appeals an order of the trial court denying his postconviction motion for a new trial. White was convicted by a jury of first-degree reckless homicide with use of a dangerous weapon, WIS. STAT. § 940.02 (2015-16). White essentially argues that (1) the trial court’s instructions misapplied the law of self-defense as it pertains to first-degree reckless homicide and (2) trial counsel was ineffective for failing to object to the substance of the § 940.02 jury instruction on the grounds that it misstated the law by not properly instructing the jury that the State had the burden of proving beyond a reasonable doubt that White did not act lawfully in self-defense.

In denying White’s postconviction motion for a new trial, the trial court found that “the instructions accurately stated the law as a whole” and that it had specifically included instructions that the State had the burden of proving beyond a reasonable doubt that White did not act in self-defense. It also found “that if the court did not organize the instructions in the proper order, the error was harmless.” The trial court then found based on those conclusions “that trial counsel was not ineffective for failing to object to the jury instructions as given.” This court agrees with the trial court. Therefore, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Nelson Garcia, Jr.,

Case No.: 2016AP1276-CR

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

Focus: 6^th Amendment Violation

Nelson Garcia, Jr., appeals a judgment of conviction for bank robbery. Garcia seeks a new trial on three grounds. He argues that his constitutional right to counsel attached at the point when a court commissioner made a probable cause finding and set bail as the police investigation continued and he therefore had a Sixth Amendment right to counsel during a subsequent lineup. He argues that the lineup, in which a witness identified him, was unduly suggestive and violated his due process rights, and that the trial court therefore erred when it denied his motion to suppress the lineup identification. Finally, he argues that the trial court’s denial of his motion to represent himself—and its failure to give him the opportunity to “reclaim” the right with better courtroom conduct—violated his Sixth Amendment right to represent himself. We reject his arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Deon M. Harris

Case No.: 2016AP2097-CR

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

Focus: Court Error – Abuse of Discretion

Deon M. Harris appeals from a judgment, entered upon his guilty plea, convicting him on one count of armed robbery with the use of force as a party to a crime. Harris complains that the circuit court erroneously exercised its discretion when it sentenced him because it relied on “incredible information” that Harris “played a major role in the offense.” We reject Harris’s challenge to his sentence and affirm the judgment.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Kevin W. Chavez

Case No.: 2017AP115-CR

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

Focus: Sufficiency of Evidence

Kevin Chavez appeals a judgment convicting him of attempted first-degree intentional homicide with use of a dangerous weapon as a repeater. Chavez also appeals an order denying his postconviction motion in which he challenged the sufficiency of the evidence and alleged his trial counsel provided ineffective assistance. He argues: (1) the State presented insufficient evidence of his intent to kill; and (2) his trial counsel was ineffective for failing to object to the prosecutor’s closing arguments in which she allegedly invited the jury to convict Chavez on less than sufficient proof. We reject these arguments, and we affirm the judgment and order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Allen D. Bland

Case No.: 2017AP607-CR

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

Focus: Ineffective Assistance of Counsel

Allen D. Bland appeals from a judgment of conviction, entered on a jury verdict, for first-degree sexual assault of a child under age twelve. The charge was based on Bland’s sexual assault of his elevenyear-old daughter, T., at his house when she was there for a weekend visit in June 2014. The jury acquitted Bland on a second charge of three or more sexual assaults of the same child. He also appeals the circuit court’s order denying his postconviction motion.

Bland seeks a new trial on the grounds that his constitutional and statutory rights were violated. In the alternative, he seeks an evidentiary hearing on his claims (1) that trial counsel failed to question Juror 14 about his attentiveness during testimony and (2) that trial counsel failed to assert Bland’s constitutional and statutory right to be present during the individual questioning of Juror 1 and Juror 3 by the court and trial counsel. He argues his absence during the court’s questioning of Jurors 1 and 3, and the failure to question Juror 14 at all denied him a fair trial. He further argues that trial counsel rendered constitutionally ineffective assistance for failing to move for a mistrial, and for failing in closing argument to attack the victim’s testimony about a specific assault as “wholly incredible.” We reject Bland’s arguments and affirm.

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WI Court of Appeals – District III

Case Name: David Olson, et al., v. Olson’s Woodville Meats, Inc. et al.

Case No.: 2017AP733

Officials: HRUZ, J.

Focus: Release From Remedial Contempt Order

Adrian Dykstra, Dykstra Management Services, LLC, and Dykstra Leasing Services Company, LLC, (collectively, “Dykstra”) appeal an order holding Dykstra in remedial contempt of court. David Olson and Olson’s Woodville Meats, Inc., (Woodville) have not filed a response brief. We conclude Woodville has conceded Dykstra is entitled to relief from the remedial contempt order by it not responding to—and thereby failing to refute—one of Dykstra’s arguments that the remedial sanctions have been satisfied. By virtue of this concession, we conclude that this appeal is moot and that there is no need to address Dykstra’s additional arguments. Accordingly, we dismiss this appeal, but we remand the matter with directions that the circuit court order that the remedial sanctions have been satisfied in full and, as a result, that Dykstra is released from the remedial contempt order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Terone L. Buress

Case No.: 2017AP737-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Motion to Suppress Evidence Denied

Terone L. Buress appeals a judgment of conviction entered upon his guilty plea to possessing a firearm as a felon and to possessing tetrahydrocannibols as a second or subsequent offense. The sole issue is whether the circuit court erroneously denied his motion to suppress evidence found in his home following a warrantless entry. We affirm.

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WI Court of Appeals – District I

Case Name: Miguel Saravi, et al. v. District 6220 Rye Program, Inc., et al.

Case No.: 2017AP795

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

Focus: Negligence

Dylan Chart appeals a circuit court order granting summary judgment in favor of two defendants in this personal injury action: the District 6220 Rye Program, Inc., and Lakeland Minoqua Rotary Club (collectively, “Rotary Defendants”). Chart argues that the Rotary Defendants are vicariously or directly liable for his injuries, and, therefore, it was improper to grant summary judgment against him. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: Jason Schaefer v. Randy W. Orth

Case No.: 2017AP893

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

Focus: Breach of Contract

Jason Schaefer appeals a judgment dismissing his claims against his former business partner, Randy Orth, following a jury trial. Schaefer contends the circuit court erred by directing a verdict in favor of Orth on Schaefer’s breach of contract claim. Schaefer also argues the court erred by denying his request for attorney fees. We reject these arguments and affirm.

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WI Court of Appeals – District III

Case Name: Alan W. Pinter v. Village of Stetsonville

Case No.: 2017AP1593

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

Focus: Negligence – Governmental Immunity

Alan Pinter sued the Village of Stetsonville, alleging the Village’s negligence caused wastewater to back up into the basement of his home on September 10, 2014. The circuit court granted the Village summary judgment, concluding it was immune from suit under WIS. STAT. § 893.80(4). Pinter argues the circuit court erred because the “ministerial duty” and “known and compelling danger” exceptions to governmental immunity apply. We conclude, based upon the undisputed facts, that neither of these exceptions is applicable.

Pinter also argues the Village is not entitled to immunity because its actions constituted a “failure to abate a nuisance.” We agree that, to the extent Pinter claims the Village failed to abate a nuisance by failing to properly repair or maintain its wastewater disposal system, the Village is not entitled to immunity. Nonetheless, we conclude the circuit court properly granted the Village summary judgment because Pinter failed to raise a genuine issue of material fact as to whether the allegedly negligent maintenance caused the backup in question. We therefore affirm the circuit court’s grant of summary judgment to the Village.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. T.G., Sr.,

Case No.: 2017AP1715

Officials: BRASH, J.

Focus: Termination of Parental Rights

T.G. Sr. appeals an order terminating his parental rights of T.G. Jr., as well as the denial of his postdispositional motion to withdraw his no contest plea. In that motion, and in this appeal, T.G. Sr. argues that he should be permitted to withdraw his no contest plea because he has mental health issues that adversely affected his ability to understand the termination proceedings, and because his trial counsel was ineffective for failing to fully explain that he was waiving his right to a jury trial. He further argues that the trial court erred in denying his motion without an evidentiary hearing. We reject his claims and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jose M. Dancel

Case No.: 2016AP1932-CR

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

Focus: Ineffective Assistance of Counsel

Jose M. Dancel appeals from a judgment of conviction entered after a jury found him guilty of two counts of first-degree sexual assault of a child and two counts of incest, and from an order denying his motion for postconviction relief. Dancel maintains that he is entitled to a new trial based on trial counsel’s ineffective assistance. Because we conclude that trial counsel did not perform deficiently, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Natalie J. Bosin

Case No.: 2016AP2057-CR

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

Focus: Sufficiency of Evidence

Natalie Bosin appeals from a circuit court order denying her petition for conditional release. Bosin entered a plea agreement that included a determination that she was not guilty of three counts of battery by a prisoner due to mental disease or defect. As a result, Bosin was committed pursuant to WIS. STAT. § 971.17 (2012-13) to the Department of Health Services for nine years, and she was placed at Winnebago Mental Health Institute (WMHI). In March 2016, Bosin petitioned the circuit court for conditional release under § 971.17(4) (2015-16). The circuit court denied Bosin’s petition because she did not meet the statutory standards for conditional release. We affirm.

On appeal, Bosin argues that the evidence was not sufficient to support the circuit court’s order denying her petition for conditional release. We apply the sufficiency of the evidence standard, and we will affirm the circuit court’s findings if the findings are supported by credible evidence. State v. Randall, 2011 WI App 102, ¶¶13, 17, 336 Wis. 2d 399, 802 N.W.2d 194. We defer to the circuit court’s credibility determinations and any reasonable inference the court drew from the evidence. Id., ¶14. The circuit court was free to accept some aspects of the testimony and reject others and determine the weight and credibility of the testimony and other evidence. State v. Kienitz, 227 Wis. 2d 423, 435, 438-39, 597 N.W.2d 712 (1999); Randall, 336 Wis. 2d 399, ¶40.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Darshawn E. Frison

Case No.: 2016AP2222-CR

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

Focus: Postconviction Motion Denied

Darshawn Frison appeals from a judgment convicting him of two counts of first-degree intentional homicide as party to the crime and with dangerous weapon enhancements and from a circuit court order denying his postconviction motion challenging his sentence. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Christopher A. Kline

Case No.: 2017AP15-CR

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

Focus: Court Error – Abuse of Discretion

Christopher Kline appeals from a judgment convicting him of causing mental harm to a child and from a postconviction order denying his motion to amend the judgment of conviction to vacate the requirement that he register as a sex offender. We agree that the circuit court properly exercised its discretion when it required Kline to register. Therefore, we affirm.

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WI Court of Appeals – District II

Case Name: Robert Conway, et al., v. Lake Park Preserve, LLC, et al.

Case No.: 2017AP84

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

Focus: Breach of Contract

Robert and Jill Conway appeal from a circuit court order granting summary judgment as to two claims and dismissing one of their claims. We affirm the circuit court in all respects. On appeal, the Conways pursue two claims the circuit court rejected on summary judgment: (1) the authority of the declarant and the Lake Park Condominium Association, Inc. (hereafter the Association) to require that unit owners rent a boat slip annually and (2) the authority of the Association to enter into an agreement with a neighbor of the Conways to construct a patio and outdoor entertainment area on a common element grassy area near the Conways’ unit. In addition to the claims rejected on summary judgment, the Conways pursue their breach of contract claim relating to the declarant’s auditing practices. The circuit court dismissed this claim because the Conways complaint failed to state a claim.

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WI Court of Appeals – District II

Case Name: Security Finance v. Brian Kirsch

Case No.: 2017AP1408

Officials: REILLY, P.J.

Focus: Failure to State Claim

Brian Kirsch appeals from an order dismissing counterclaims and amended counterclaims pursuant to the Wisconsin Consumer Act (WCA). Security Finance Corporation of Wisconsin (Security Finance) filed an action seeking a money judgment against Kirsch in small claims court under a consumer loan agreement. The circuit court concluded that Kirsch’s counterclaims failed to state a claim on which relief can be granted. We agree and affirm the decision of the circuit court.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Angela C. Nellen

Case No.: 2017AP257-CR

Officials: BLANCHARD, J.

Focus: Sufficiency of Evidence – Restitution

Angela Nellen appeals two elements of the circuit court’s order of restitution following Nellen’s conviction on two counts of theft of movable property. First, Nellen argues that the court erroneously exercised its discretion in ordering $90,000 in restitution to the owners of a coin collection that Nellen stole, because there was insufficient evidence presented at the restitution hearing to support a finding that the coin collection had this value. Second, Nellen argues that the circuit court lacked statutory authority to order restitution for a third change of locks to the victims’ house, because the State failed to establish a causal nexus between the thefts by Nellen and the cost to replace the victims’ locks for a third time. I reject both of Nellen’s arguments and accordingly affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Zachary S. Friedlander

Case No.: 2017AP1337-CR

Officials: Sherman, Blanchard and Kloppenburg, JJ.

Focus: Sentence Credit

Zachary Friedlander appeals the order of the circuit court denying him sixty-five days of sentence credit for time that he should have been in custody of the Jefferson County Jail, but was not, after prison officials released him from Oshkosh Correctional Institution and failed to transfer him to the jail or otherwise order him to report to the jail, and he met repeatedly with his probation agent who did not tell him to report to jail. Friedlander argues that, under State v. Riske, 152 Wis. 2d 260, 448 N.W.2d 260 (Ct. App. 1989), and State v. Dentici, 2002 WI App 77, 251 Wis. 2d 436, 643 N.W.2d 180, he earned sixty-five days’ credit because he was absent from jail through no fault of his own. We agree. We reverse the order denying Friedlander’s request for sentence credit and remand the cause with directions to amend the judgment of conviction to reflect an additional sixty-five days of credit, to be applied in the event that his probation is revoked and sentence is imposed.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Joshua H. Quisling

Case No.: 2017AP1658-CR

Officials: BLANCHARD, J.

Focus: Statutory Interpretation

Joshua Quisling was convicted of operating with a prohibited blood alcohol concentration, third offense, based on a maximum blood alcohol concentration level of 0.02. The State contended that he was appropriately assigned a maximum 0.02 level because, pursuant to WIS. STAT. § 340.01(46m)(c), at the time of the alleged offense, he was “subject to” a court order to install an ignition interlock device that had been entered pursuant to WIS. STAT. § 343.301.

In this appeal, Quisling argues that the circuit court misinterpreted a set of interrelated statutes in denying a motion to dismiss the complaint. More specifically, he argues that, at the time of the alleged offense, he was not “subject to” a device installation order entered pursuant to WIS. STAT. § 343.301, as addressed in § 340.01(46m)(c). According to Quisling’s argument, the order requiring him to install a device was contingent on the Wisconsin Department of Transportation issuing him a Wisconsin driver’s license, which had not occurred, and therefore his prohibited alcohol concentration remained at the default 0.08 level.  I conclude that Quisling was “subject to an order” entered pursuant to § 343.301, as provided in § 340.01(46m)(c), commencing upon entry of the order requiring him to install the device, regardless of the license-issue contingency that triggered the timing of required device installation. Accordingly I affirm.

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WI Court of Appeals – District IV

Case Name: Backwoods Construction, LLC, v. David Everson, et al.

Case No.: 2017AP2366

Officials: KLOPPENBURG, J

Focus: Sufficiency of Evidence

David and Patricia Everson appeal the judgment awarding $5,350.23 to Backwoods Construction, LLC. I understand the Eversons to challenge the following: (1) the circuit court’s denial of their motion for summary judgment based on lack of standing; (2) the circuit court’s denial of their motion for default judgment against Kyle R. Tews, the owner of Backwoods, and dismissal of their claims against Tews, individually; and (3) the sufficiency of the evidence supporting the jury verdict. Respondents Backwoods Construction, LLC and Kyle R. Tews failed to file a response brief in this appeal. This court sent a notice of delinquency, warning Backwoods and Tews that failure to file a brief within five days may result in summary reversal under WIS. STAT. RULE 809.83(2). By order of March 9, 2018, this appeal was submitted to me “to determine whether the case may be decided based solely upon the appellant[s’] brief and the record.” I determine that this case may be decided solely upon the appellants’ brief and the record, and I affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Gerrod R. Bell

Case No.: 2018 WI 28

Focus: Due Process Violation

Gerrod Bell says he is entitled to a new trial because the first one, which resulted in convictions for the sexual assault of two victims, was unfair——a violation of his due process rights. He believes it was unfair because the State told the jurors they could not find him not guilty unless they thought the victims lied about the sexual assaults, and that they should not disbelieve the victims because there was no motive for them to lie. This, he says, shifted the burden of proof and distorted the jury’s credibility determinations. He also claims the jury based its verdict, at least in part, on inadmissible evidence contained in two exhibits sent to the jury room during deliberations. We conclude that Mr. Bell is not entitled to a new trial and affirm the decision of the court of appeals.

Affirmed

Concur: ZIEGLER, J. concurs (opinion filed).

Dissent: A.W. BRADLEY, J. dissents (opinion filed).
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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Karene S. Marchan

Case No.: 2018 WI 30

Focus: Attorney Disciplinary Proceedings

We review a report and recommendation of Referee James J. Winiarski approving a stipulation filed by the Office of Lawyer Regulation (OLR) and Attorney Karene S. Marchan. In the stipulation, Attorney Marchan stipulated to the facts underlying the eight counts of misconduct alleged in the OLR’s complaint and joined the OLR in jointly recommending a six-month suspension of her Wisconsin law license. The referee agreed that a six-month suspension was appropriate.

Upon careful review of the matter, we uphold the referee’s findings of fact and conclusions of law and agree that a six-month suspension is an appropriate sanction for Attorney Marchan’s misconduct. We also find it appropriate to impose the full costs of this proceeding, which are $6,953.07 as of January 19, 2018, on Attorney Marchan. Since Attorney Marchan has already made restitution to her client, the OLR does not seek restitution and we do not impose it.

Affirmed

Concur:

Dissent:
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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Richard W. Steffes

Case No.: 2018 WI 31

Focus: Attorney Disciplinary Proceedings

Attorney Richard W. Steffes has filed a petition for consensual license revocation pursuant to SCR 22.19.1 The Office of Lawyer Regulation (OLR) has filed a complaint against Attorney Steffes, alleging that he committed professional misconduct. He is also the subject of a pending OLR grievance that has not yet been fully investigated. Attorney Steffes states in his petition that he cannot successfully defend against the allegations of professional misconduct. Consistent with the terms of the petition, we order Attorney Steffes to pay restitution to the guardian estate of R.S. c/o G&L Advocacy, in the amount of $11,384.88. Because this matter is being resolved via a petition for consensual revocation without the need to appoint a referee or hold an extensive hearing, we will not impose costs on Attorney Steffes. IT IS FURTHER ORDERED that, to the extent he has not already done so, Richard W. Steffes shall comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been revoked.

Affirmed

Concur:

Dissent: ABRAHAMSON, J. dissents, joined by A.W. BRADLEY J. (opinion filed).
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