Weekly Case Digests – September 24 – September 28, 2018

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. Joel Rivera

Case No.: 18-1187

Officials: KANNE, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Sufficiency of Evidence

A jury convicted Joel Rivera of aiding and abetting a pair of Hobbs Act robberies and his friend’s use of a firearm during them. The same jury, however, acquitted him of, or deadlocked on, counts related to three other robberies. Rivera moved for a judgment of acquittal on the four counts of conviction, arguing that the evidence was insufficient to show that he knew in advance that his friend, Antonio Thomas, would commit the armed robberies or to show that he assisted Thomas during them. Alternatively, he asked for a new trial on the ground that the jury should have disregarded Thomas’s testimony—the key evidence at trial—because Thomas was an unbelievable witness and the remaining evidence was too weak to support the convictions. Because the evidence was sufficient and the district judge reasonably concluded that concerns about Thomas’s credibility did not warrant a new trial, we affirm the judgment.

Affirmed

7th Circuit Court of Appeals

Case Name: Jennifer Sloan v. American Brain Tumor Association

Case No.: 18-1103

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

Focus: FLSA Violation

Jennifer Sloan sued her former employer, the American Brain Tumor Association (“the Association”), for unlawful retaliation in violation of the Fair Labor Standards Act (“FLSA” or “the Act”), 29 U.S.C. §§ 201 et seq. The district judge dismissed the complaint and we affirm. Sloan’s allegations, even generously construed, do not remotely support a claim that the Association retaliated against her for asserting rights protected by the Act.

Affirmed

7th Circuit Court of Appeals

Case Name: United States of America v. Robert E. Stochel

Case No.: 17-3576

Officials: SYKES and BARRETT, Circuit Judges, and DURKIN, District Judge.

Focus: Sufficiency of Evidence

An Indiana judge appointed Robert Stochel as receiver for Tip Top Supermarkets, Inc., while its proprietors were embroiled in protracted litigation. Over several years Stochel stole more than $330,000 from the receivership. After draining its coffers, Stochel evaded detection by diverting funds from other sources to pay the receivership’s bills. But the scheme was unsustainable. As the litigation and receivership were winding down, the principals suspected that something was amiss and asked the state court to appoint an independent auditor. The judge granted the request and ordered Stochel to turn over the receivership’s files. To delay the day of reckoning, Stochel filed a motion to vacate the order, falsely stating that the receivership had sufficient funds to pay the auditor and claiming that he needed more time to assemble the records. This brought a brief reprieve, but the judge soon realized it was a con and removed Stochel as receiver. Not long after, the auditor uncovered the fraud.

A federal grand jury indicted Stochel for mail fraud. See 18 U.S.C. § 1341. The factual basis for the charge was Stochel’s motion, which he had mailed to the court; the indictment alleged that the motion perpetuated the fraudulent scheme by delaying the detection of Stochel’s embezzlement. A jury found him guilty, and the district judge imposed a sentence of 24 months in prison.

Stochel challenges the sufficiency of the evidence to support his conviction. He also contests three of the judge’s sentencing determinations: (1) the denial of credit for acceptance of responsibility, see U.S.S.G. § 3E1.1(a); (2) the loss amount calculation, see id. § 2B1.1(b)(1)(G); and (3) the application of a two-level enhancement for violating a judicial order, see id. § 2B1.1(b)(9)(C). We affirm across the board. There was plenty of evidence to convict Stochel of mail fraud, and the judge’s sentencing rulings were sound.

Affirmed

7th Circuit Court of Appeals

Case Name: Ronald Ward v. Soo Line Railroad Company, et al.

Case No.: 17-2150

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

Focus: Statutory Interpretation

Ronald Ward injured his shoulder and back when his seat collapsed in the train he was operating. Ward is a U.S. resident who is employed by a U.S. railroad. Normally, these facts could give rise to a lawsuit under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq. Because Ward’s seat collapsed across the border in Ontario, however, the FELA does not apply. Instead, Ward pursued his tort claims under state common law. Ruling on the defendants’ motions to dismiss and for judgment on the pleadings for failure to state a claim, the district court rejected Ward’s claims by holding that another federal law, the Locomotive Boiler Inspection Act (LIA), 49 U.S.C. § 20701 et seq., preempted all state tort law remedies for injuries caused by locomotive equipment.

We see the case differently on the merits of the preemption defense, but we ultimately affirm the judgment. The federal railroad-safety statutes left plaintiff one path that is viable and not preempted: He could assert state-law tort claims against the defendants that borrow the applicable standards of care from the federal LIA and its regulations governing the safety of locomotive equipment. This is a well-established path for fitting state and federal law together. See Delaware & Hudson Railway Co., Inc. v. Knoedler Manufacturers, Inc., 781 F.3d 656, 662 (3d Cir. 2015) (LIA does not preempt state common-law claims seeking to redress violations of federal standard of care mandated by LIA and its regulations). Plaintiff pursued this viable theory in the district court, but in pursuing his appeal, he has waived any claim based on this theory.

The district court dismissed Ward’s claims on the pleadings, so we review its decisions de novo, giving Ward the benefit of all well-pleaded factual allegations in his complaints and reasonable inferences from them. See, e.g., Matrix IV, Inc. v. American Nat’l Bank and Trust Co. of Chicago, 649 F.3d 539, 547 (7th Cir. 2011). To explain our decision, we examine in Part I the relevant federal statutes and the precedents governing their relationships with state tort law. In Part II, we turn to the merits of the district court’s judgment, explaining why the court erred in part on the scope of the preemption defense and why plaintiffs in Ward’s position should be allowed to pursue the one viable path open to them. Finally, in Part III, we turn to the procedural history of this lawsuit and address defendants’ arguments that Ward waived that one viable path.

Since plaintiff Ward waived on appeal the only viable theory for pursuing relief from these defendants, we cannot revive it for him. The judgment of the district court is affirmed.

Affirmed

7th Circuit Court of Appeals

Case Name: Jay R. Thompson v. Richard Brown

Case No.: 17-2085

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

Focus: Postconviction Motion Denied – Laches Doctrine

Jay Thompson’s efforts to obtain a writ of habeas corpus under 28 U.S.C. § 2254 foundered, as so many do, on procedural default—specifically, the decision of Indiana’s judiciary to reject his postconviction petition under that state’s laches doctrine. The state court relied on delays that took place after Thompson had filed his postconviction petition—delays for which Thompson was responsible, the state court ruled, for failing to “prosecute” his case.

But when the state court dismissed the petition there was not yet a firmly established and regularly followed rule in Indiana that laches applies to delays to an already-filed action. The relevant precedents dealt only with delays in filing a postconviction petition. We conclude that Thompson’s petition is not barred by an adequate and independent state ground, and so we vacate and remand the case for further proceedings.

Vacated and Remanded

7th Circuit Court of Appeals

Case Name: B.G., et al. v. Board of Education of the City of Chicago, et al.

Case No.: 17-1806

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

Focus: Deferential Standard of Review

B.G. and his mother, J.A.G., appeal from the district court’s denial of their motion to reverse the ruling of an Illinois State Board of Education Impartial Hearing Officer. J.A.G. had sought public funding for several Individual Educational Evaluations because she believed the Chicago Public Schools’ (the District) evaluations of B.G. were inadequate. The hearing officer found that the District proved by a preponderance of the evidence that its evaluations were appropriate. The district court denied B.G.’s motion to reverse the hearing officer’s decision, deferring appropriately to the hearing officer’s conclusions.

This case involves a voluminous administrative record dealing with subject matter beyond the expertise of federal judges. That is why we defer to the hearing officer’s factual findings and decline to substitute our own views on educational policy for the hearing officer’s. The hearing officer in this case conducted a five-day hearing, heard the relevant evidence, and concluded that the District’s experts evaluated B.G. appropriately. While B.G. presents many complaints about the District’s evaluators, the record shows that the District’s evaluators were competent, well-trained, and performed comprehensive evaluations. Particularly under the deferential standard of review applicable here, we have no cause to set aside the hearing officer’s well-reasoned decision.

Affirmed

7th Circuit Court of Appeals

Case Name: Marsha Wetzel v. Glen St. Andrew Living Community, LLC, et al.

Case No.: 17-1322

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

Focus: FHA Violation

Within months of her arrival at Glen St. Andrew Living Community (“St. Andrew”), Marsha Wetzel faced a torrent of physical and verbal abuse from other residents because she is openly lesbian. Time and again, she implored St. Andrew’s staff to help her. The staff’s response was to limit her use of facilities and build a case for her eviction.

Wetzel sued St. Andrew, alleging that it failed to provide her with non‐discriminatory housing and that it retaliated against her because of her complaints, each in violation of the Fair Housing Act (FHA or Act), 42 U.S.C. §§ 3601–3619. St. Andrew insists that the Act affords Wetzel no recourse, because it imposes liability only on those who act with discriminatory animus, an allegation Wetzel had not expressly made of any defendant. The district court agreed and dismissed Wetzel’s suit. We read the FHA more broadly. Not only does it create liability when a landlord intentionally discriminates against a tenant based on a protected characteristic; it also creates liability against a landlord that has actual notice of ten‐ ant‐on‐tenant harassment based on a protected status, yet chooses not to take any reasonable steps within its control to stop that harassment. We therefore reverse the district court’s grant of St. Andrew’s motion to dismiss and remand for further proceedings.

Reversed and Remanded

7th Circuit Court of Appeals

Case Name: Gerson E. Alvarenga-Flores v. Jefferson B. Sessions III

Case No.: 17-2920

Officials: SYKES and BARRETT, Circuit Judges, and DURKIN, District Judge.

Focus: Immigration – Asylum

Alvarenga seeks asylum, withholding of removal, and relief under the Convention Against Torture because he fears torture and persecution from gang members if he returns to El Salvador. The immigration judge concluded that Alvarenga lacked credibility and denied him relief. Finding no clear error in the immigration judge’s decision, the Board of Immigration Appeals dismissed the appeal. Substantial evidence supports the decisions of the immigration judge and the Board, and the record does not compel a contrary conclusion. We therefore deny Alvarenga’s petition for review.

Petition Denied

7th Circuit Court of Appeals

Case Name: United States of America v. Sarah M. Nixon

Case No.: 17-2132

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

Focus: Exclusion of Evidence

During contentious child custody proceedings, Sarah Nixon accused her former husband G.G. of physically and sexually assaulting their daughter S. N.-G. (We respect the parties’ convention of using initials to refer to Nixon’s ex-spouse, because revealing his name would enable readers to infer the identity of a minor. From now on we refer to the daughter simply as S.) A state judge in Illinois limited G.G.’s parental rights (visitation required the presence of another adult) while these allegations were being investigated. As the evidence in the custody proceedings wrapped up, Nixon concluded that, at the next scheduled court date, the judge would terminate her parental rights and give G.G. full custody of the child. The evening before the judge’s decision was to be announced Nixon left for Canada with S. and remained there even after learning that the judge had given G.G. sole custody. This led to Nixon’s conviction for international parental kidnapping. 18 U.S.C. §1204. She has been sentenced to 26 months in prison.

It is an affirmative defense that “the defendant was fleeing an incidence or pattern of domestic violence”. 18 U.S.C. §1204(c)(2). Nixon presented evidence that G.G. physically and sexually abused S. The prosecutor sought to demonstrate that Nixon had fabricated this evidence and coached S. to accuse her father of misconduct. On the stand at trial S. professed love for her father and fear of being alone with her mother. She expressed regret at having allowed her mother to persuade her to accuse her father falsely. The jury evidently believed S. The evidence was sufficient to find that Nixon had not carried her burden on this defense.

Nixon submits, however, that the judge made a legal error by limiting her to showing physical (including sexual) misconduct toward her or her daughter. She wanted to argue that both she and S. suffered emotional, psychological, and financial abuse from G.G.—or at least that she reasonably believed that she had suffered these kinds of abuse, even if objectively she had not. She wanted to argue, for example, that G.G. injured her emotionally by selling the house in which they had resided during their marriage and that G.G. often belittled her.

Nixon presents a number of additional arguments about the district court’s exclusion of some evidence she wanted to introduce. Most of these contentions fail in light of the three legal decisions covered in this opinion. The others need not be discussed separately; the district court did not abuse its discretion.

Affirmed

7th Circuit Court of Appeals

Case Name: Rodolph Lanaghan v. Darryl Koch, Correctional Officer, et al.

Case No.: 17-1399

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

Focus: 8th Amendment Violation

On August 3, 2015, Rodolph Lanaghan filed a suit under 42 U.S.C. § 1983 alleging that the defendants violated his rights under the Eighth Amendment and asserting a negligence claim under state law. Specifically, he asserted that when he was an inmate at the Oshkosh Correctional Institution (“Oshkosh”), the defendants were deliberately indifferent to his serious medical needs and were negligent in the response to his severe muscle disease, Dermatomyositis with Polymyositis. The district court conducted a Pavey hearing to determine whether Lanaghan had failed to exhaust administrative remedies prior to filing the federal civil action as required under the Prison Litigation Re‐ form Act (PLRA), including whether prison officials rendered the complaint process unavailable to Lanaghan by not lending assistance to him in preparing the complaint and isolating him from inmates that could have assisted him in filing the complaint. See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008) (requiring district court to hold an evidentiary hearing where exhaustion or lack thereof is not apparent). Following the Pavey hearing, the district court held that Lanaghan had failed to exhaust available administrative remedies and dismissed the Eighth Amendment claim and declined to exercise supplemental jurisdiction over the state law claim. Lanaghan now appeals that determination to this court.

The PLRA requires a prisoner to exhaust all administrative remedies available prior to filing a federal lawsuit. Under Wisconsin law, an inmate is required to file a grievance/com‐ plaint within 14 days of the occurrence giving rise to the com‐ plaint. Wisc. Admin. Code § DOC 310.09. No one disputes that Lanaghan failed to file his complaint within that time frame. The only question is whether those administrative remedies were actually available to him given his severe medical limitations and the constrictions of prison policies and their implementation here.

Vacated and Remanded

7th Circuit Court of Appeals

Case Name: John Heiman, et al. v. Bimbo Food Bakeries Distribution Co.,

Case No.: 17-3366

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

Focus: Tortious Interference – Breach of Contract

From 2000 to 2011, John Heiman, first individually and later through his company, JTE, Inc., distributed products for Bimbo Foods Bakeries Distribution Company throughout suburban Chicago. Bimbo Foods (pronounced “Beembo”) sells baked goods under a number of familiar brand names, such as Brownberry. The distribution agreement between JTE and Bimbo Foods had no fixed duration, but it could be terminated in the event of a non-curable or untimely cured breach by one of the parties. The agreement specified that New York law would govern all claims and disputes. Although the partnership between Bimbo and JTE proceeded swimmingly for a number of years, it met a calamitous end.

According to JTE’s complaint, which we must accept as true for purposes of this appeal, Bimbo Foods began fabricating curable breaches in the spring of 2008 as part of a scheme to force JTE out as its distributor. Bimbo Foods employees filed false reports of poor customer service and out-of-stock products at stores in JTE’s distribution area. Even more egregiously, Bimbo employees would sometimes remove JTE delivered products from grocery store shelves, photograph the empty shelves as “proof” of a breach, and then return the products to their initial location. On one occasion, in 2008, a distributor caught a Bimbo Foods manager in the act of fabricating a photograph and reported him. Bimbo assured JTE that this misconduct would never happen again. Nevertheless, unbeknownst to JTE, Bimbo Foods continued these scurrilous tactics. Its goal was to force JTE to forfeit its distribution rights so that Bimbo Foods could install a new distributor that would take a smaller slice of the proceeds: 18 percent as compared to JTE’s 22 percent. When JTE refused to sell its distribution rights in January 2011, Bimbo Foods breached the distribution agreement and unilaterally terminated JTE’s agreement, citing the fabricated breaches as cause. Several months later, in September and October 2011, Bimbo Foods forced JTE to sell its rights to new distributors.

Despite the long run-up to its loss of the contract, JTE tells us that it did not learn about Bimbo Foods’s scheme to fabricate breaches until late 2013 or early 2014. When Heiman and JTE finally did sue Bimbo Foods in the Northern District of Illinois on May 30, 2017, they alleged two claims: breach of contract and tortious interference. The district court never reached the substance of those claims, however, because Heiman and JTE ran into two procedural problems. First, in a decision that Heiman does not contest on appeal, the district court ruled that Heiman could not sue Bimbo Foods individually because he was not party to the distribution agreement and thus was not a “real party in interest,” as required by Federal Rule of Civil Procedure 17. Only JTE, the court said, could advance breach-of-contract and tortious-interference claims based on the distribution agreement. We refer from this point onward only to JTE, in keeping with this ruling. Second, the district court found that both claims were stale under the applicable statutes of limitations and consequently dismissed JTE’s suit under Federal Rule of Civil Procedure 12(b)(6). On appeal, JTE contends that the district court applied the wrong statute of limitations for the breach-of-contract claim and failed to give it the benefit of the discovery rule for the tortious-interference claim.

Affirmed

7th Circuit Court of Appeals

Case Name: Geometry L. Milton v. Gary A. Boughton

Case No.: 17-1910

Officials: KANNE, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Ineffective Assistance of Counsel

Geometry Milton was convicted by a Wisconsin jury of first‐degree reckless homicide as a party to a crime. He challenges the district court’s denial of his habeas corpus petition under 28 U.S.C. § 2254, arguing that trial counsel was ineffective for not moving to suppress identification evidence from an uncounseled post‐indictment lineup. But the Wisconsin Court of Appeals determined that even if counsel had successfully challenged the lineup, there was no reasonable probability that the outcome of the trial would differ.

Affirmed

7th Circuit Court of Appeals

Case Name: Cornell D. Reynolds v. Randall Hepp

Case No.: 16-3430

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

Focus: Ineffective Assistance of Counsel

Petitioner‐appellant Cornell Reynolds seeks a writ of habeas corpus under 28 U.S.C. § 2254. In 2002, a Wisconsin jury convicted Reynolds in a fatal carjacking. He seeks habeas relief based on two alleged violations of his Sixth and Fourteenth Amendment right to counsel. First, he argues that Wisconsin violated his right to counsel when it stopped paying his state‐appointed lawyer during his direct appeal. In the alternative, he argues that he received ineffective assistance from his counsel during his direct appeal and trial. The district court denied relief. We affirm.

Affirmed

7th Circuit Court of Appeals

Case Name: United States of America v. Napoleon Foster

Case No.: 17-3236

Officials: WOOD, Chief Judge, and SCUDDER and ST. EVE, Circuit Judges.

Focus: Sentencing Guidelines

For his part in the armed robbery of a credit union, Napoleon Foster was convicted of robbing a financial institution, using a firearm during the robbery, and possessing a firearm as a felon. The district court sentenced Foster as an armed career criminal but later vacated the sentence because one of his prior convictions no longer qualified as a predicate offense. On appeal from resentencing, Foster argues that the district court erred in its determination of the advisory guidelines range applicable to the robbery offense by imposing an enhancement under U.S.S.G. § 2B3.1(b)(2)(F) for his coconspirator’s threat to detonate a bomb during the robbery. Relying on the language used by the Sentencing Commission in Application Note 4 to U.S.S.G. § 2K2.4, he contends that the sentence he received under 18 U.S.C. § 924(c) accounts for the bomb threat and thus the threat cannot also enhance the advisory range for the robbery conviction. We agree and therefore vacate Foster’s sentence and remand for resentencing.

Vacated and Remanded

7th Circuit Court of Appeals

Case Name: Estate of Derek Williams Jr., et al. v. Jeffrey Cline, et al.

Case No.: 17-2603

Officials: FLAUM, and RIPPLE, Circuit Judges, and GETTLEMAN, District Judge.

Focus: Qualified Immunity

The facts of this case are disturbing, and many are hotly contested. It is undisputed, however, that Derek Williams died on July 6, 2011, while in the custody of the City of Milwaukee Police Department (“MPD”). Williams left three surviving children who, along with his estate, sued the City of Milwaukee and several MPD officers (collectively, defendants) under 42 U.S.C. § 1983. Defendants filed a motion for summary judgment invoking qualified immunity. The district court denied that motion, finding that contested facts existed with respect to the liability of all eleven defendant officers. See Williams v. City of Milwaukee, 274 F. Supp. 3d 860 (E.D. Wis. 2017) (hereafter, “Williams”). Defendants appealed. We remand the case to the district court to perform an individual analysis of each defendant officer’s claim of qualified immunity.

Vacated and Remanded

WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Theresa L. Payton-Myrick v. Labor and Industry Review Commission, et al.

Case No.: 2016AP2463

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

Focus: Abuse of Discretion – Forfeiture Doctrine

The Labor and Industry Review Commission appeals from an order of the circuit court that set aside the Commission’s decision—that Theresa L. Payton-Myrick was not entitled to further worker’s compensation and disability payments—and remanded the matter to the Commission for further fact-finding. The Commission argues that the circuit court erred in considering Payton-Myrick’s argument that her claim was governed by WIS. STAT. § 102.42(1m) (2015-16) because Payton-Myrick had forfeited that argument when she failed to raise it before the Commission and only raised it in the circuit court in a reply brief. The Commission also argues that Flug v. LIRC, 2017 WI 72, 376 Wis. 2d 571, 898 N.W.2d 91, governs Myrick’s § 102.42(1m) claim and requires reversal of the circuit court.

We conclude that the circuit court properly exercised its discretion when it declined to apply the forfeiture doctrine against Payton-Myrick, so we affirm that portion of the circuit court’s order. However, we agree with the Commission that Flug controls, so we reverse the remainder of the circuit court’s order.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jevon Dion Jackson

Case No.: 2017AP712

Officials: Brennan, Brash and Dugan, JJ.

Focus: 8th Amendment Violation – Sentencing

Jevon Dion Jackson appeals the trial court’s denial of his postconviction motion seeking resentencing. Jackson was a juvenile when he committed the crimes for which he seeks resentencing, which include first-degree intentional homicide. He argues that his sentence—life imprisonment with eligibility for parole when he is 101 years old—violates the Eighth Amendment of the United States Constitution as well as article I, section 6 of the Wisconsin Constitution, citing recent decisions of the United States Supreme Court regarding life sentences for juveniles.

The trial court rejected Jackson’s argument. It agreed with the State that there are Wisconsin cases that have previously addressed this issue and are binding on the court. We agree and affirm.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Johnnie Lee Tucker

Case No.: 2017AP840-CR

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

Focus: Abuse of Discretion – Expert Testimony

Johnnie Lee Tucker appeals a judgment of conviction for one count of first-degree intentional homicide and one count of possession of a firearm by a felon. A jury convicted Tucker of both counts arising from a fatal shooting outside of a Milwaukee tavern. The victim, Colin Alexander, had lived with Tucker’s ex-girlfriend and Tucker’s son for about nine years. Four days before Alexander’s death, Tucker had filed a petition for a restraining order against Alexander in order to keep Alexander away from his son.

At trial, the evidence included video from several of the tavern’s interior and exterior security cameras. When the videos were shown to the jury, a detective testified about how the night vision cameras inside of the dark tavern distorted colors and how the multiple camera angles made it hard to piece together the video footage to track the movement of various people who were seen inside and outside of the crowded tavern at the time of the shooting. After explaining that he had reviewed the footage “many times[,]” the detective testified that the person who was seen on camera outside of the tavern scuffling with the victim and then shooting him was the same person who a few moments before could be seen walking into and then exiting from the tavern.

Tucker argues on appeal that the trial court erred in allowing the detective’s testimony as lay opinion testimony pursuant to WIS. STAT. § 907.01 (2015-16).  Tucker states that “the detective identified Mr. Tucker, seen in the video the detective was viewing as just entering the tavern, as ‘the shooter outside’” (emphasis added). He argues that the detective “had insufficient personal knowledge to enable him to identify Mr. Tucker,” and that “when the officer, who knew Mr. Tucker only from the video he was viewing, identified Mr. Tucker as ‘the shooter outside,’ he ‘usurped the jury’s function’” (emphasis added).

Tucker mischaracterizes the testimony in question. There is absolutely no support in the record for the assertion that the detective identified Tucker as the shooter. The detective testified that the person seen inside of the tavern was the “suspect” or the “subject” who walked outside of the tavern and shot the victim. The testimony, which was followed by a cautionary instruction by the trial court, merely concerned the movements of the shooter inside and outside of the tavern but never identified the shooter as Tucker. Because Tucker’s legal arguments are premised on a misstatement of the facts—that a law enforcement officer’s testimony identified the accused as the guilty person to the jury—they are unpersuasive. We conclude that the trial court properly admitted the detective’s testimony under WIS. STAT. § 907.01. We therefore affirm.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Darryl P. Benson

Case No.: 2017AP1353-CR

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

Focus: Sentence Modification

Darryl P. Benson, pro se, appeals from an order of the circuit court that denied his “motion to modify sentence and presentence investigation report based upon ‘new factors’” and his request for a hearing to correct the presentence investigation report (PSI). The circuit court concluded the motion was procedurally barred under State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), and that, alternatively, there was no basis for relief. We affirm, using slightly different grounds than the circuit court.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. R.D.S., et al.

Case No.: 2017AP1770

Officials: BRASH, J.

Focus: Termination of Parental Rights

B.D.S. appeals an order of the trial court terminating his parental rights of J.S., as well as an order denying his postdispositional motion to withdraw his no contest plea. In that motion and in this appeal, B.D.S. argues that he should be permitted to withdraw his no contest plea because he did not understand the consequences of the plea, and thus it was not knowing, intelligent, and voluntary. He further argues that the trial court erred in denying his motion without an evidentiary hearing. We affirm.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Felix Deonte Willis

Case No.: 2017AP2250-CR

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

Focus: Plea Withdrawal

Felix Deonte Willis appeals from an order denying his postconviction motion to withdraw his guilty plea to one of two crimes of which he was convicted. He argues that he should be allowed to withdraw his guilty plea to that crime because his plea was not knowingly, intelligently, and voluntarily entered. We reject his arguments and affirm.

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Norris W. Culver, Sr.

Case No.: 2016AP2160-CR

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

Focus: Statutory Interpretation – Post or Publish

Norris W. Culver, Sr., appeals from a judgment convicting him of violating the “post or publish” of a private depiction statute and the felon-in-possession of a firearm statute and from an order rejecting his postconviction claims that those statutes are unconstitutional. Culver argued the “post or publish” statute is overbroad, vague, and violates the Commerce Clause. He also argued the felon-in-possession statute violates his constitutional right to bear arms because the felony he committed was nonviolent. We reject his challenges and affirm.

Recommended for Publication

WI Court of Appeals – District II

Case Name: Raymond Jones, SR. v. Brian Pizon, et al.

Case No.: 2017AP2024

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

Focus: Sufficiency of Evidence

A jury concluded that Raymond Jones, Sr., was incompetent when he entered into two contracts to sell real estate to Brian Pizon. Pizon appeals from a judgment invalidating the transfers on several grounds. Most notably, he argues that incompetency to enter a contract must be proven by clear and convincing evidence, not by the greater weight of the credible evidence as the jury was instructed. Pizon also takes issue with the court’s decision to allow certain testimony regarding Jones’ competence and the court’s denial of a motion for mistrial. We find no error in the proceedings and affirm.

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jodi J. Lux

Case No.: 2018AP338-CR

Officials: NEUBAUER, C.J.

Focus: OWI – Ineffective Assistance of Counsel

Jodi J. Lux appeals from a judgment convicting her of operating a motor vehicle while intoxicated (OWI) (third offense) and an order denying her postconviction motion in which she asserted her trial counsel was ineffective for having failed to challenge the police officer’s warrantless search of her residence. Because we conclude the search was conducted as part of the officer’s community caretaker function, it was lawful and therefore her ineffective assistance of counsel claim fails. We affirm.

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Zachary James Marek

Case No.: 2017AP292-CR

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

Focus: Suppression of Evidence

Zachary Marek appeals a judgment entered following his guilty plea, convicting him of second-degree sexual assault, and an order denying his postconviction motion. Marek contends the results of a DNA test should have been suppressed because he was illegally arrested without probable cause, and his illegal arrest tainted his subsequent consent to submit a DNA sample. We conclude that, even assuming Marek was arrested without probable cause, his consent to submit a DNA sample was sufficiently attenuated from the arrest so as to purge the taint of any illegality. We therefore affirm.

WI Court of Appeals – District III

Case Name: Jody P. Vande Corput, et al. v. Pekin Insurance Company

Case No.: 2017AP357

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

Focus: Abuse of Discretion – Attorney’s Fees

Jody and Sherry Vande Corput appeal an order in which the circuit court: (1) determined the amount of attorney fees to be awarded as reasonable costs of collection in a third-party liability action under WIS. STAT. § 102.29 (2015-16); (2) equally divided those fees between the Vande Corputs’ attorneys and the attorneys for Continental Western Insurance Company (Continental); and (3) approved the parties’ settlement agreement. The Vande Corputs argue the court erroneously exercised its discretion in determining the amount and division of the attorney fees. They further argue the court erred by approving the settlement agreement despite the presence of an unsatisfied contingency.

We agree that the circuit court erroneously exercised its discretion in determining the amount of attorney fees awarded as reasonable costs of collection. We therefore reverse and remand for the court to recalculate the reasonable costs of collection, using the correct legal framework, and to divide that amount between the parties’ respective attorneys. However, we reject the Vande Corputs’ argument that the court erred by approving the parties’ settlement agreement.

Recommended for Publication

WI Court of Appeals – District III

Case Name: Carrie M. Baehman, et al. Robert E. Burke

Case No.: 2017AP371

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

Focus: Sufficiency of Evidence

Robert Burke appeals from an order affirming a family court commissioner decision to impute approximately $13,400 in monthly income to him for the purpose of modifying his child support obligation. Robert, although represented on appeal, presents a litany of assertions that are oftentimes difficult to decipher. We perceive his arguments to be that the circuit court erred in two ways related to the child support order: (1) by imputing income to him without sufficient evidence; and (2) by frustrating Robert’s efforts to present “evidence” regarding his income and the income of his former spouse, Carrie Baehman. Robert also argues the court erred by failing to address Carrie’s purported “theft” of one of their children’s college funds. We conclude Robert’s arguments do not reflect what actually occurred at the relevant hearing or are otherwise meritless. Accordingly, we affirm the order.

WI Court of Appeals – District III

Case Name: Estate of Daniel F. Derousseau v. Dunn County, et al.

Case No.: 2017AP892

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

Focus: Jury Instructions

Estate of Daniel Derousseau appeals from a judgment dismissing all claims against Dunn County, Greg Lambert, and Wisconsin County Mutual Insurance Company (collectively “the County”), following a jury trial. Derousseau argues the circuit court erred by failing to change the jury’s answer on the special verdict regarding negligence, and by improperly instructing the jury in several respects. We reject Derousseau’s arguments and affirm.

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Adam R. Demerath

Case No.: 2017AP1431-CR

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

Focus: Plea Colloquy and Ineffective Assistance of Counsel

Adam Demerath appeals a judgment of conviction, entered upon his no-contest pleas, for first-degree sexual assault and attempted burglary. He also appeals an order denying his motion for postconviction relief. Demerath argues his pleas were not knowingly, intelligently and voluntarily entered because the circuit court’s plea colloquy was deficient and because he did not actually know the elements of the offenses to which he was pleading. Specifically, he alleges the court failed to apprise him of the definition of “sexual contact” within Wisconsin’s sexual assault statute. Demerath also argues he was denied the effective assistance of counsel when he entered his pleas because his attorney failed to provide him with the definition of that phrase.

We reject both of Demerath’s arguments because he has failed to demonstrate a manifest injustice warranting plea withdrawal. Following a postconviction hearing at which both Demerath and his attorney testified, the circuit court found that Demerath had been told essentially what “sexual contact” meant—i.e., that the touching was done for the purpose of Demerath’s sexual gratification or to humiliate the victim. The court rejected the notion that Demerath was not aware of the definition of “sexual contact,” and it also found “highly incredible” Demerath’s testimony that he had not touched the victim for his own gratification or to humiliate her.

Demerath does not directly challenge these factual findings on appeal. Accordingly, even assuming the plea colloquy was defective, we agree with the circuit court’s conclusion that the State met its burden of showing that Demerath’s pleas were nonetheless knowingly, intelligently and voluntarily entered. For the same reason, we reject Demerath’s assertion that he was prejudiced by his attorney’s alleged failure to provide him with the definition of “sexual contact,” as well as Demerath’s assertion that he would not have pled no contest had he received that information. We affirm.

WI Court of Appeals – District III

Case Name: Gary W. Bakley v. Bruce Edgerton

Case No.: 2017AP2030

Officials: SEIDL, J.

Focus: Court Error – Judgment Awards

Bruce Edgerton appeals from a small claims money and replevin judgment entered in favor of Gary Bakley after a bench trial. First, Edgerton contends the circuit court erred in awarding the money judgment and dismissing his counterclaim alleging that Bakley failed to reimburse Edgerton for Edgerton’s payment of certain “broker fuel advances.” Second, Edgerton argues the circuit court erred in failing to order Bakley to refund Edgerton’s past payment on an “auxiliary power unit” (the “Unit”) when it granted Bakley replevin of the Unit. Bakley cross-appeals, arguing that the circuit court erred by declining to sanction Edgerton for a postjudgment motion that Bakley contends was frivolous.

We affirm the money judgment, the dismissal of Edgerton’s counterclaim, and the denial of Bakley’s motion for sanctions. We reverse the court’s determination regarding the refund of the payment on the Unit. On remand, we direct the circuit court to modify the replevin judgment and order Bakley to refund Edgerton for the payment as a condition of Bakley’s replevin of the Unit.