Weekly Case Digests — May 14-May 18, 2018

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Rasul Freelain v. Village of Oak Park, et al.

Case No.: 16-4074

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

Focus: FMLA and ADA Violation

Plaintiff Rasul Freelain worked as a police officer in the Village of Oak Park, Illinois for five years before he claims another officer began harassing him. After an incident in 2012 prompted him  to report the misconduct, Freelain began experiencing migraine headaches and other medical conditions that he has attributed to stress related to the harassment. To deal with these medical issues, Freelain took significant periods of time off work.

As Freelain began taking time off, tensions rose between him and the police department. Freelain claims that as a result of his medical condition and use of leave time, the village retaliated against him in violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. The district court granted summary judgment in favor of the village on all claims. We affirm. The undisputed facts show that the acts that Freelain has identified as retaliation would not discourage a reasonable employee from exercising his or her rights under these statutes.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Katherine Evans v. Portfolio Recovery Associates, LLC., et al.

Case No.: 17-1773; 17-1860; 17-1866; 17-2622; 17-2756; 18-1374

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

Focus: FDCPA Violation

This appeal concerns four consolidated cases involving similar alleged violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692e(8). Plaintiffs defaulted on credit cards, and defendant Portfolio Recovery Associates (“PRA”), an Illinois debt collection agency, bought the accounts for collection. The Debtors Legal Clinic (the “Clinic”) sent separate letters on behalf of each plaintiff to PRA, stating “the amount reported is not accurate.” PRA later reported each debt to credit reporting agencies without noting that the debt was “disputed.” Plaintiffs each filed a suit against PRA for violations of the FDCPA, alleging that PRA communicated their debts to credit reporting agencies without indicating they had disputed the debt. The district courts granted summary judgment in favor of plaintiffs. We affirm.

Affirmed
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7^th Circuit Court of Appeals

Case Name: United States of America v. Alvin L. Edgeworth

Case No.: 17-2074

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

Focus: Motion to Suppress Evidence Denied

Defendant‐appellant Alvin Edge‐ worth was convicted of bank robbery and brandishing a firearm. Edgeworth seeks a new trial, asserting the district court erred by: (1) denying his motion to suppress and failing to grant an evidentiary hearing relating to his motion to suppress; (2) conducting a flawed jury selection process and declining to excuse a juror; and (3) applying a two‐level enhancement for taking a financial institution’s property. We affirm.

Affirmed
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7^th Circuit Court of Appeals

Case Name: United of States of America v. Brian Thurman

Case No.: 17-1598

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

Focus: Sentencing Guidelines

Law enforcement executed a search warrant at Brian Thurman’s residence after a cooperating in‐formant purchased heroin inside. They discovered drug paraphernalia, two handguns, and a large amount of money. Mr. Thurman was arrested and later charged in a three‐count superseding indictment with (1) maintaining a drug‐involved premises, in violation of 21 U.S.C. § 856(a)(1); (2) distributing 100 grams or more of heroin, in violation of 21 U.S.C. § 841(a)(1); and (3) possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).

Before trial, Mr. Thurman filed two motions to suppress: one to exclude self‐incriminating statements that he made following his arrest and another to exclude evidence obtained from a search of his cell phone. The district court denied both motions. A jury later convicted Mr. Thurman on the distribution charge, but acquitted him on the drug‐premise and fire‐arms charges. The court sentenced him to seventy‐two months’ imprisonment and four years’ supervised release.

Mr. Thurman now challenges the court’s denial of his motions to suppress and its findings supporting his sentence. He maintains that he did not waive voluntarily his Miranda rights or consent voluntarily to the search of his cell phone. He also challenges the court’s findings at sentencing that he was responsible for at least 700 grams of heroin and that he possessed a dangerous weapon. He notes that the jury convicted him of distributing a significantly smaller quantity of drugs and acquitted him of the firearms charge.

We cannot accept these contentions. Mr. Thurman’s suppression arguments require us to re‐evaluate the district court’s credibility determinations. The court did not clearly err in crediting the officers’ testimony that Mr. Thurman consented to their questioning and to the search of his phone. Furthermore, the court made proper findings of fact when applying the Sentencing Guidelines. Sentencing courts can consider conduct underlying an acquitted charge so long as that conduct is proven by a preponderance of the evidence. Accordingly, we affirm the judgment of the district court.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Francisco Javier Perez v. Jefferson B. Sessions III

Case No.: 17-1369

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

Focus: Immigration – Asylum Claim

Francisco Javier Perez, a Honduran citizen, petitions for review of the denial of his application for deferral of removal under Article 3 of the Convention Against Torture. The Board of Immigration Appeals dismissed his appeal from an immigration judge’s decision denying his application and ordering his removal to Honduras. In the Board’s view, the IJ correctly decided that Perez had not shown that, if removed to Honduras, he was more likely than not to be tortured with the acquiescence of a public official by a street gang. In this court, Perez argues that the immigration service erred by failing to make factual findings about whether he would have been tortured had he not narrowly escaped the gang’s violent recruitment efforts years earlier and that the Board improperly did not consider whether, if removed to Honduras, he could live safely and openly there as an unwilling recruit of this gang. We conclude that the Board erred by truncating the crucial factual inquiry about Perez’s risk of torture if he is returned to Honduras and by asking the wrong question with respect to internal relocation. We therefore grant the petition for review and remand to the Board for further proceedings.

Petition for Review Granted and Remanded
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7^th Circuit Court of Appeals

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

Case No.: 16-3979

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

Focus: Sentencing Guidelines

When Grover Ferguson was 17 years old he shot a woman three times during a carjacking, causing significant permanent injury. Ferguson pleaded guilty to vehicular robbery by force and discharging a gun. The sentencing guidelines range was 198 to 217 months’ imprisonment (16.5 to 18 years), but the district judge sentenced Ferguson to 600 months in prison (50 years). He appealed, and in United States v. Ferguson, 831 F.3d 850 (7th Cir. 2016), we vacated his sentence and remanded the case to a new judge, who imposed a 35‐year sentence. Now Ferguson argues that the district court failed to adequately consider his youth as a mitigating factor and to properly explain the above‐guidelines sentence. We affirm the judgment.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Thomas James v. Lorenzo Eli, et al.

Case No.: 15-3034

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

Focus: Due Process Violation

Plaintiff-appellant Thomas James, an inmate with the Arizona Department of Corrections, filed a pro se complaint against defendants-appellees, Dr. Lorenzo Eli and Dr. Nicolas Villanustre, for alleged deliberate indifference towards his medical care while he was incarcerated in Indiana. Plaintiff now appeals the summary judgment entered in favor of defendants, arguing that the district court abused its discretion by failing to recruit counsel to assist him. For the reasons stated below, we vacate the judgment and remand for further proceedings.

Affirmed
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7^th Circuit Court of Appeals

Case Name: United States of America v. Juan Manuel Sanchez-Jara

Case No.: 17-2593

Officials: Eastbrook, Ripple, and Hamilton, Circuit Judges.
Focus: Disclosure of Electronic Investigative Techniques

This appeal concerns the use of a cell-site simulator to locate someone. And like Patrick it does not require us to determine when, if ever, the use of this device must be authorized by a warrant supported by probable cause, for in this case such a warrant was obtained

Affirmed
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7^th Circuit Court of Appeals

Case Name: Christopher Roberts, et al. v. Federal Housing Finance Agency, et al.

Case No.: 17-1880

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

Focus: Failure to State Claim

At the height of the 2008 financial crisis, Congress created the Federal Housing Finance Agency (the Agency) and authorized it to place into conservatorship two critical government‐sponsored enterprises—the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation, commonly known as Fannie Mae and Freddie Mac. 12 U.S.C. § 4617(a). To stabilize Fannie and Freddie, along with the broader financial markets, Congress empowered the U.S. Treasury to purchase their “obligations and other securities” through the end of 2009. 12 U.S.C. §§ 1455(l)(1)(A), 1719(g)(1)(A). The Agency and Treasury acted quickly. In exchange for a cash infusion and fixed fund‐ ing commitment for each enterprise, Treasury received senior preferred shares. Its shares gave it extraordinary governance and economic rights, including the right to receive dividends tied to the amount of Treasury’s payments. But the stabilization effort proved to be more difficult than was initially expected. As Fannie and Freddie’s capital needs mounted, Treasury agreed three times to modify the original stock purchase agreements. The First and Second Amendments primarily increased Treasury’s funding commitment. The third modification—which, unlike the first two, was made after Treasury’s purchasing authority had expired—introduced a variable dividend under which Treasury’s dividend rights were set equal to the companies’ outstanding net worth.

That net‐worth dividend, sometimes called the Net Worth Sweep, is at the heart of this litigation. The plaintiffs are private shareholders of Fannie and Freddie. They sued Treasury and the Agency, claiming that the Agency violated its duties in two ways: by agreeing to the net‐worth dividend and by unlawfully succumbing to the direction of Treasury. They fault Treasury both for exceeding its statutory authority and failing to follow proper procedures. The district court dismissed the complaint for failure to state a claim. See 12 U.S.C. § 4617(f). We affirm.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Jesus Arreola-Castillo v. United States of America

Case No.: 17-1439

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

Focus: Statutory Interpretation – Time-barred

Petitioner Jesus Arreola-Castillo was convicted of a federal drug crime. Because he had at least two prior felony drug convictions in New Mexico, he was subject to the recidivism provisions of 21 U.S.C. § 841. Pursuant to that statute, he received a mandatory minimum sentence of life in prison. He subsequently challenged the underlying felony drug convictions in New Mexico state court, which the state court ultimately vacated. Now, he moves to reopen his federal sentence under 28 U.S.C. § 2255, arguing that he is no longer subject to the recidivism enhancement because the prior state convictions have been vacated. The district court denied his § 2255 petition on the ground that it was time-barred. It relied on 21 U.S.C. § 851(e), which prohibits an individual from challenging the validity of a prior conviction that is more than five years old at the time the government seeks the recidivism enhancement. Because Arreola-Castillo is not challenging the validity of his prior convictions, but rather their very existence, we reverse.

Reversed and Remanded
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7^th Circuit Court of Appeals

Case Name: Dudi A. Yahya v. Jefferson B. Sessions III

Case No.: 17-1416

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

Focus: Removal Proceedings

Dudi Yahya petitions for review of the denial of his motion to reopen removal proceedings that concluded more than fourteen years ago. The Board of Immigration Appeals (“Board”) upheld the Immigration Judge’s (“IJ”) decision to deny his motion to reopen. The Board held that Mr. Yahya did not qualify for one of the exceptions to the ninety-day limitation for the filing of a motion to reopen. Mr. Yahya now submits that the Board abused its discretion by rejecting his evidence of changed conditions in Indonesia. Because the Board permissibly concluded that Mr. Yahya did not meet his evidentiary burden, we deny the petition.

Petition Denied
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7^th Circuit Court of Appeals

Case Name: United States of America v. Ladonta Gill

Case No.: 17-1186

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

Focus: Sentencing Guidelines

This is Gill’s third time appealing his sentence after he pled guilty in 2011 to one count of conspiracy to possess heroin with intent to distribute. Twice before, we have remanded his case for resentencing. In this appeal, Gill argues he is entitled to yet another resentencing for two reasons. First, he contends that the district court should have reduced his sentencing guidelines offense level because he accepted responsibility. But the district court did not clearly err when it denied Gill the reduction. Second, Gill insists that the district court created unwarranted sentence disparities between himself and his codefendants. But the district court sufficiently addressed the sentence disparities and explained why Gill was receiving a higher sentence than most of his codefendants. Accordingly, we affirm.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Jermel Pope v. Janet Perdue

Case No.: 16-4217

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

Focus: Sentencing Guidelines

Various statutes vest the Federal Bureau of Prisons (“BOP”) with the authority to make decisions that affect aspects of a federal inmate’s sentence. In Jermel Pope’s case, the BOP used its authority to prolong his federal sentence. Pope argues that the BOP erroneously wielded that authority and asks that we reconsider the BOP decisions that extended his sentence. Pope has completed his term of imprisonment and is now serving a period of federal supervised release, so we must also consider whether Pope’s habeas corpus petition is now moot because he is no longer housed in a federal corrections facility.

Because overincarceration carries great weight in a motion to modify supervised release under 18 U.S.C. § 3538(e), Jermel Pope’s case remains live. It has merit as well. The BOP miscalculated the date Pope’s sentence commenced. But for this error, it would have released Pope from prison months before it eventually did. The BOP also abused its discretion when it denied Pope’s request for retroactive designation. Its decision to deny Pope time‐served credit, however, was within its discretion. Accordingly, we DENY the Government’s motion to dismiss Pope’s case as moot, and VACATE and REMAND the district court’s denial of Pope’s habeas corpus petition. On remand, the district court shall transfer Pope’s case to the sentencing court for further proceedings. IT IS FURTHER ORDERED that the BOP shall revise the date of the commencement of Pope’s federal sentence to August 31, 2009, and reconsider Pope’s request for retroactive designation in line with the Supreme Court’s decision in Setser.

Vacated and Remanded
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7^th Circuit Court of Appeals

Case Name: Claude C. Britt v. Nancy A. Berryhill

Case No.: 17-2896

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

Focus: ALJ Error – Disability

Claude Britt, now 55, applied for Disability Insurance Benefits and Supplemental Security Income after a construction crane toppled over and smashed his big toe. An administrative law judge (“ALJ”) granted Britt benefits for the period beginning in March 2013, but denied him benefits for the four-year period immediately preceding that time because he could perform sedentary work. On appeal Britt argues that the ALJ disregarded his testimony about his need to elevate his foot, as well as an orthopedic surgeon’s report about the same, and gave too little weight to an agency doctor’s opinion that he could work for only 3.5 hours in a day. Substantial evidence supports the ALJ’s decision, so we affirm the judgment.

Affirmed
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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Timothy John v. Karri Fritz-Klaus

Case No.: 2016AP1892

Officials: Brash, Dugan and Stark, JJ.

Focus: Divorce – Maintenance and Debts and Assets

Karri Fritz-Klaus, pro se, appeals the judgment divorcing her from Timothy John. She contends that the circuit court erred when it: (1) granted the parties a divorce; (2) denied her maintenance; and (3) divided the debts and assets. She further alleges “multiple errors in the [circuit] court’s management of the case,” warranting reversal in the interest of justice. We reject her arguments and affirm.

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WI Court of Appeals – District III

Case Name: Bryan C. Ellerbrock, et al. v. Justin M. Veeser, et al.

Case No.: 2016AP2182

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

Focus: Property Dispute

The parties dispute whether Justin and Janel Veeser are entitled to use certain platted roads in Door County for access to a portion of their property located outside the plat. We agree with the circuit court’s conclusion that neither a decades-old court judgment resolving a property dispute involving the Veesers’ predecessors in interest nor relevant plat documents establish the Veesers’ right to use the platted roads to access their parcel. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Chaz L. Wilson

Case No.: 2017AP136-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Statutory Interpretation – New Trial

Chaz L. Wilson appeals the judgment, entered on a jury’s verdict, convicting him of one count of armed robbery as a party to a crime. See WIS. STAT. §§ 943.32, 939.05 (2011-12). He also appeals the order denying his postconviction motion. The sole issue on appeal is whether Wilson is entitled to a new trial in the interest of justice pursuant to WIS. STAT. § 752.35. We reject Wilson’s argument and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Rubin E. Ards

Case No.: 2017AP817-CR; 2017AP818-CR

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

Focus: Court Error – Consolidated Jury Trial

Rubin E. Ards appeals judgments of conviction entered following a consolidated jury trial in Milwaukee County case Nos. 2014CF2303 and 2014CF4351. On appeal, Ards contends that the circuit court erroneously joined the two cases for trial and that he was prejudiced as a result. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. L.J.,

Case No.: 2017AP1225; 2017AP1226; 2017AP1227

Officials: BRENNAN, P.J.

Focus: Termination of Parental Rights

L.J. appeals orders terminating her parental rights to three children. First, she seeks to withdraw her no-contest plea to the grounds phase, arguing that her plea was not knowing, intelligent, and voluntary because she was not informed of the burden of proof that would apply at the dispositional hearing. Second, she argues that the statute under which grounds were found for the termination—failure to assume parental responsibility—is unconstitutional as applied to her; she contends the statute creates “an impossible hurdle” because the CHIPS court took away from her the daily supervision of her children and without daily supervision of her children she had no way to establish that she was a fit parent. And third, she argues that the termination order was based on improper evidence—testimony at the disposition phase from foster parents concerning ongoing future contact between the three children and the parents and older siblings—and that trial counsel’s failure to object to it therefore constituted ineffective assistance. We reject her arguments and affirm the orders.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. C.W.

Case No.: 2017AP1228; 2017AP1229; 2017AP1230

Officials: BRENNAN, P.J.

Focus: Termination of Parental Rights

C.W. appeals the orders terminating his parental rights to three children, and he seeks to withdraw his no-contest plea to the grounds phase. He argues first that his plea was not voluntary and that he has a statutory right to an evidentiary hearing on that claim; second, that there was no factual basis for his plea; and third, that the statute under which grounds were found for the termination—failure to assume parental responsibility—is unconstitutional as applied to him. The constitutional challenge is based on his argument that because the CHIPS court took away from C.W. the daily supervision of his children, the State impermissibly made the conditions for establishing a substantial parental relationship impossible. Finally, he argues that notwithstanding clear language in State v. Margaret H. to the contrary (“the court may afford due weight to an adoptive parent’s stated intent to continue visitation with family members”), it is improper to permit testimony concerning ongoing future contact—and that trial counsel’s failure to object to it therefore constituted ineffective assistance. We reject his arguments and affirm the orders.

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WI Court of Appeals – District III

Case Name: Chippewa County v. M.M.

Case No.: 2017AP1325

Officials: STARK, P.J.

Focus: Sufficiency of Evidence

M.M. appeals an order, entered on a jury verdict, for involuntary commitment pursuant to WIS. STAT. ch. 51. He contends that Chippewa County failed to present sufficient evidence to prove he was dangerous to himself pursuant to WIS. STAT. § 51.20(1)(a)2.c. We agree and reverse the order.

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WI Court of Appeals – District III

Case Name: James Klatt, et al. v. Penske Truck Leasing Co., LP, et al.

Case No.: 2017AP2064

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

Focus: Insurance Claim – Coverage and Duty to Defend

This insurance coverage dispute is before us for the second time. In a previous appeal, we concluded Great West Casualty Company had a duty to defend Penske Truck Leasing Company against a lawsuit filed by James and Carol Klatt. We further concluded factual disputes precluded summary judgment on the issue of whether Great West had a duty to indemnify Penske. We therefore reversed the circuit court’s grant of summary judgment to Great West.

On remand, Penske moved for summary judgment, arguing Great West had breached its duty under its insurance policy to defend Penske by failing to provide a defense for Penske during a period when no stay of the underlying proceedings on liability was in place. As damages for the breach, Penske asked the circuit court to award Penske its defense costs and the amount of a settlement it had paid the Klatts while the prior appeal was pending. Great West, in turn, moved for a bench trial on the issue of its duty to indemnify Penske. The circuit court denied Penske’s summary judgment motion and held a bench trial on Great West’s duty to indemnify. The court ultimately concluded Great West had no duty to indemnify Penske and entered judgment in favor of Great West.

In the present appeal, Penske argues the circuit court erred because Great West breached its duty to defend Penske, and Penske is therefore entitled to recover from Great West both its defense costs and the amount of the settlement it paid the Klatts. In response, Great West argues it did not breach its duty to defend Penske because the circuit court never lifted the stay of the underlying proceedings on liability. In the alternative, Great West argues Penske forfeited its right to argue that Great West breached its duty to defend by failing to raise that argument prior to or during Penske’s previous appeal.

We agree with Penske that the stay of the underlying proceedings on liability was implicitly lifted on June 10, 2014, when the circuit court entered a scheduling order setting deadlines for the completion of discovery on the Klatts’ claims. We further assume, without deciding, that Penske did not forfeit its argument regarding Great West’s breach of the duty to defend, and that Great West breached that duty. Nevertheless, we conclude Penske cannot prevail because it has not met its burden to show what, if any, damages it sustained as a result of Great West’s alleged breach. We therefore affirm the circuit court’s judgment in favor of Great West.

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WI Court of Appeals – District III

Case Name: Langlade County v. D.J.W.

Case No.: 2018AP145-FT

Officials: SEIDL, J.

Focus: Sufficiency of Evidence

D.J.W. appeals circuit court orders extending his WIS. STAT. ch. 51 involuntary recommitment for twelve months and reimposing involuntary medication and treatment on an inpatient basis. See WIS. STAT. §§ 51.20(13)(g)1., 51.61(1)(g)4. D.J.W. argues the court erred in concluding Langlade County presented sufficient evidence of his dangerousness under § 51.20(1)(am). We reject D.J.W.’s argument and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Andy J. Parisi

Case No.: 2016AP1945-CR

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

Focus: Sufficiency of Evidence

Andrew J. Parisi appeals a judgment entered after a jury found him guilty of ten drug-related offenses occurring on two separate occasions and an order denying his postconviction motion for a new trial. Parisi maintains that he is entitled to a new trial on the seven convictions predicated on his delivery of heroin to other inmates while in jail because the circuit court erred in declining to admit evidence that another inmate delivered heroin in the jail prior to Parisi’s arrival. Because we conclude that the circuit court properly exercised its discretion in excluding the proffered evidence, we affirm.

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WI Court of Appeals – District II

Case Name: Thaddeus Martin Lietz v. Daniel Frost

Case No.: 2016AP2030

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

Focus: Defamation Claim

Thaddeus Lietz filed a complaint alleging that Daniel Frost—a next door neighbor of Lietz’s parents—made defamatory remarks against him to his parents and within earshot of others. Among the more sensational of these statements was an accusation by Frost that Lietz had been peeking in Frost’s window and masturbating. The circuit court granted summary judgment to Frost. Although we agree that the court properly dismissed three of Lietz’s defamation claims, we conclude that one of Lietz’s claims was actionable per se, meaning Lietz was not required to prove special damages (the failure of which served as one of the circuit court’s grounds for dismissing this claim). Therefore, we reverse the circuit court’s order dismissing that claim and remand for further proceedings consistent with this opinion.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Maurice D. Johnson

Case No.: 2016AP2275-CR

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

Focus: Ineffective Assistance of Counsel

Maurice D. Johnson appeals a judgment convicting him of first-degree sexual assault of a child, strangulation and suffocation, and two counts of child abuse, and an order denying his postconviction motion claiming that trial counsel provided ineffective assistance. Johnson argues that the circuit court erred in determining that Johnson could not present evidence of a claimed prior untruthful sexual assault allegation made by one of the victims, and in concluding that trial counsel’s failure to object to alleged hearsay offered by the State was ineffective. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: Waukesha County v. S.L.L.

Case No.: 2017AP1468

Officials: NEUBAUER, C.J.

Focus: Sufficiency of Evidence

S.L.L. appeals from orders that extended her involuntary commitment for one year and that continued involuntary medication and treatment. She argues the circuit court lacked personal jurisdiction to hold a hearing and lacked authority to enter a default order in a commitment proceeding, and the orders were based upon reports of doctors who never met her nor testified at the recommitment hearing, rendering the supporting evidence insufficient. Because the action has been dismissed and S.L.L. is no longer subject to those orders, the appeal is moot. The appeal is therefore dismissed.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Joshua J. Luther

Case No.: 2016AP1879-CR

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

Focus: Admissibility of Evidence

Joshua Luther was charged under WIS. STAT. § 940.25(1)(am) with causing injury by operating a vehicle with a detectable amount of a restricted controlled substance in his blood. At issue here is the admissibility of evidence that Luther asserts supports an affirmative defense found in § 940.25(2)(a). In general terms, the defense requires a defendant to prove that the injury would have happened “even if” the defendant had exercised “due care” and there was no controlled substance in the defendant’s blood. Id. We refer to this defense throughout as the “even-if defense.”

Luther planned to rely on the even-if defense and, in support, present expert testimony indicating that the low level of the controlled substance in his blood would not have caused impairment. The circuit court granted the State’s pretrial motion to exclude this evidence. We granted Luther’s request for leave to appeal the resulting order. See WIS. STAT. RULE 809.50(3). As explained below, given the information in the record at the time the circuit court ruled, the pretrial ruling was proper, and we affirm.

However, at the same time we caution that the circuit court may need to revisit the topic depending on further developments. The circuit court’s ruling, in keeping with arguments made by the State before that court, appears to be based on the court’s conclusion that evidence of lack of impairment is never admissible to support the even-if defense. We question this conclusion. Accordingly, we affirm the circuit court’s pretrial ruling with the caveat that there may, or may not, be cause to revisit that ruling as this case proceeds.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Ivan Boyd

Case No.: 2017AP565-CR

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

Focus: Ineffective Assistance of Counsel

Ivan Boyd appeals a judgment of conviction for armed robbery as a party to a crime, and an order denying his motion for postconviction relief. Boyd contends that he is entitled to a new trial based on newly discovered evidence and ineffective assistance of counsel. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Eugene E. Volk

Case No.: 2017AP1022-CR

Officials: Lundsten, P.J., Sherman and Fitzpatrick, JJ.

Focus: Motion to Suppress Evidence Denied

Eugene Volk appeals a judgment convicting him, after a jury trial, of operating a vehicle with a prohibited alcohol concentration, as a tenth offense. Volk raises a single issue on appeal. He argues that the circuit court erred in denying his pretrial suppression motion because the police officer who stopped his vehicle lacked reasonable suspicion to do so. We reject Volk’s argument and affirm the judgment of the circuit court.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Anthony H. Garbacz, Jr.

Case No.: 2017AP1419-CR

Officials: SHERMAN, J.

Focus: Motion to Suppress Evidence Denied

Anthony Garbacz, Jr., appeals from a judgment of conviction for second offense operating a motor vehicle while under the influence of an intoxicant. See WIS. STAT. § 346.63(1)(a). Garbacz contends the circuit court erred in denying his motion to suppress evidence obtained after his arrest.  Garbacz argues that because Iowa’s version of the Uniform Law on Close Pursuit, see IOWA CODE ch. 806 (2018), was violated, the exclusionary rule requires suppression of that evidence. For the reasons discussed below, I disagree with Garbacz and affirm the circuit court.

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WI Court of Appeals – District IV

Case Name: Sauk County v. R.M.C.

Case No.: 2017AP1860

Officials: KLOPPENBURG, J.

Focus: Ineffective Assistance of Counsel

After a one-day jury trial, the circuit court entered orders for guardianship and protective placement for R.M.C. R.M.C. appeals, arguing that he is entitled to a new trial for any of the following reasons: (1) the circuit court erred in providing the jury an inaccurate and incomplete jury instruction as to incompetency because the jury instruction failed to include the statutory definition of a phrase in one of the elements of incompetency; (2) R.M.C.’s trial counsel rendered ineffective assistance by failing to object to the jury instruction; or (3) we should exercise our discretionary reversal authority under WIS. STAT. § 752.35 (2015-16) because a new trial is warranted in the interest of justice. We take R.M.C. to concede Sauk County’s argument that R.M.C. forfeited his direct challenge to the accuracy and completeness of the jury instruction based on his attorney’s failure to object, because R.M.C. does not refute that argument in his reply brief. Accordingly, we address only the second two issues. As to ineffective assistance of counsel, we conclude that R.M.C. fails to show that his trial counsel’s alleged deficient performance as to the jury instructions prejudiced his defense, because he fails to point to any evidence that including the statutory definition of the phrase at issue here would have undermined our confidence in the outcome of the trial. We also conclude that R.M.C. fails to show that he is entitled to a new trial in the interest of justice. Accordingly, we affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Anthony Jones

Case No.: 2018 WI 44

Focus: Abuse of Discretion – Expert Testimony

This is a review of an unpublished, unauthored summary affirmance of the court of appeals, State v. Jones, No. 2015AP2665, unpublished order (Wis. Ct. App. Apr. 10, 2017), affirming the Dane County circuit court’s judgment finding Anthony Jones (“Jones”) to be a “sexually violent person” under Wis. Stat. § 980.02(1)(a) (2015-16).

On November 29, 1993, Jones was convicted of three counts of second-degree sexual assault, use of force, under Wis. Stat. § 940.225(2)(a), and was scheduled to be released from custody on August 15, 2013. On August 9, 2013, the State filed a petition to commit Jones as a sexually violent person, pursuant to Wis. Stat. ch. 980. Prior to the commitment trial, Jones filed a motion in limine to exclude testimony pertaining to the Minnesota Sex Offender Screening Tool-Revised (“MnSOST-R”) and the Rapid Risk Assessment for Sexual Offense Recidivism (“RRASOR”),3 which are actuarial instruments designed to measure an offender’s risk of reoffending. He argued that testimony as to the results produced by these instruments was not admissible under Wis. Stat. § 907.02 because it was not based on sufficient facts or data, was not the product of reliable principles and methods, and was not reliably applied to the facts of his case. The circuit court denied the motion, finding that such testimony was admissible. After a four-day trial, the jury found that Jones was “a sexually violent person, as alleged in the petition.” Jones appealed.

The court of appeals affirmed. It held that the circuit court had not erroneously exercised its discretion in admitting the testimony because the circuit court applied the proper standard and found that the instruments were the product of sufficient facts or data, that the instruments were the product of reliable principles and methods, and that the instruments had been the subject of extensive review. The court of appeals further noted that Jones’ arguments went to weight, not admissibility, and that, therefore, he had had the opportunity to discredit the testimony through cross-examination. Jones petitioned for review.

We consider one issue on review: whether the circuit court erroneously exercised its discretion under Wis. Stat. § 907.02(1) when it admitted expert testimony based on the results of the MnSOST-R and the RRASOR tests. We conclude that the circuit court did not erroneously exercise its discretion because it evaluated the relevant facts under the proper standard and articulated a reasonable basis for its decision. Thus, we affirm the decision of the court of appeals.

Affirmed

Concur: R.G. BRADLEY, J., concurs, joined by ABRAHAMSON, J., and KELLY, J. (opinion filed).

Dissent:
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