Weekly Case Digests – December 31, 2018 – January 4, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Vickie L. Sanders

Case No.: 18-2165

Officials: FLAUM, MANION, and ST. EVE, Circuit Judges

Focus: Sentencing Guidelines – Enhancement

Vickie Sanders pleaded guilty to a federal drug offense. About twenty years earlier, she was convicted of a felony drug offense in California, and therefore, the government sought to impose a ten-year mandatory minimum term of imprisonment pursuant to a recidivist enhancement provision, 21 U.S.C. § 841(b)(1)(B). After her guilty plea, but before sentencing, a California state court reclassified Sanders’s state drug offense as a misdemeanor pursuant to Proposition 47, Cal. Penal Code § 1170.18. Nevertheless, the district court still imposed the ten-year mandatory minimum. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: NewSpin Sports, LLC, v. Arrow Electronics, Inc.

Case No.: 18-1666

Officials: FLAUM, MANION, and ST. EVE, Circuit Judges.

Focus: Reconsideration Motion Denied

On January 17, 2017, plaintiff-appellant NewSpin Sports, LLC (“NewSpin”) filed a complaint against defendant-appellee Arrow Electronics, Inc. (“Arrow”). In this complaint, NewSpin brought several contract and tort-based claims against Arrow relating to allegedly defective goods Arrow manufactured and shipped pursuant to a contract between the parties. The district court dismissed the original complaint in its entirety as untimely and entered judgment against NewSpin on the same day. The district court also denied NewSpin’s motion for reconsideration and for leave to file an amended complaint. For the reasons below, we affirm in part and reverse in part the district court’s dismissal of NewSpin’s complaint. We also reverse the district court’s denial of NewSpin’s request to amend its complaint in its reconsideration motion, and we remand for further proceedings.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Robert D. Taylor

Case No.: 18-1545

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

Focus: Sentencing Guidelines – Enhancement

Robert Taylor pleaded guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). His plea agreement contemplated an offense level of 31, which reflected a two-level reduction because Mr. Taylor had not sought to distribute child pornography. When the probation officer prepared the presentence report, she concluded that this two-level reduction was not available under the Guidelines. At the sentencing hearing, the parties stated that they had no objection to the presentence report; the district court then accepted the probation officer’s offense level calculation of 33 and sentenced Mr. Taylor to 135 months’ imprisonment, the low end of the guidelines range for a level 33 offense.

Mr. Taylor now contends that the Government was bound to advocate for a sentence within the lower range contemplated by the plea agreement. He submits that the Government’s advocacy for a within-Guidelines sentence based on the corrected calculation constitutes a breach of the plea agreement. He also contends that two enhancements contained within the plea agreement are erroneous. He asks that we remand the case for resentencing without the application of the enhancements and permit him the option to withdraw from the plea in its entirety.

We affirm. Under the plea agreement, the Government was bound to advocate for a within-Guidelines sentence; it fulfilled that obligation. The agreement has not been breached. Further, Mr. Taylor’s stipulations in the agreement waived his right to appeal the enhancements he now challenges. Even were we to disregard that waiver, we would conclude that the district court was on solid ground in imposing sentence.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Lawrence S. Brodsky, et al. v. HumanaDental Insurance Co., et al.

Case No.: 17-3067; 17-3506

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

Focus: Abuse of Discretion – TCPA Violation – Class Certification

These appeals, which we have consolidated for purposes of disposition, both concern the Federal Communication Commission’s “Solicited Fax Rule.” Despite the decline and fall of the fax machine, litigation continues between fax advertisers and unwilling recipients of their messages. Behind all this is the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, as amended by the Junk Fax Prevention Act of 2005, Pub. L. No. 109‐21, 119 Stat. 359, and as implemented through FCC regulations. The lead plaintiffs in our cases—Lawrence Brodsky and Alpha Tech Pet, Inc.— received faxed advertisements that did not comply (so they said) with the TCPA and the FCC’s Solicited Fax Rule. Each plaintiff wanted to pursue litigation not just individually, but as the head of a class. And in each case, the district court refused to certify the proposed class, largely on the authority of the D.C. Circuit’s decision in Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C. Cir. 2017) (Kavanaugh, J.). Our review of decisions on class certification, pro or con, is deferential. Puffer v. Allstate Ins. Co., 675 F.3d 709, 716 (7th Cir. 2012). We see no abuse of discretion here, and so we affirm the orders of the district courts declining to certify the proposed classes.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Craig Stand v. Curtis Minchuk

Case No.: 18-1514

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

Focus: Qualified Immunity

We consider whether the district court erred at summary judgment in denying qualified immunity to a police officer who, in the context of an argument and fist fight over parking tickets, shot a semi-truck driver. The officer fired the shot after the driver stopped fighting, stepped back from the officer, and—with his hands in the air—twice said “I surrender.” The district court concluded that a material question of fact existed as to whether the driver continued to pose a threat at the exact moment the officer fired the shot.

We affirm. We cannot read the facts in the light most favorable to the plaintiff and, on the record as it presently stands, conclude as a matter of law that the officer is entitled to qualified immunity. Doing so would mark a stark departure from clearly established law regarding an officer’s use of deadly force. A trial is necessary to determine the precise timeline and circumstances leading to and surrounding the officer’s deployment of such force.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Theresa Riffey, et al. v. Bruce V. Rauner

Case No.: 16-3487

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

Focus: Abuse of Discretion – Collective Bargaining Agreement

When this case was last before our court, we upheld the district court’s decision declining to certify a class of home health care assistants (“the Assistants”) who were seeking a refund of the fair-share fees they had paid to a union for collective-bargaining representation. We agreed with the putative class that no one could be compelled to pay fair-share fees, pursuant to the Supreme Court’s decision in Harris v. Quinn, 134 S. Ct. 2618 (2014), and that any such objector would be entitled to have his or her payments refunded. The only question on the table was whether, with that common issue resolved, the district court abused its discretion when it determined that for purposes of Federal Rule of Civil Procedure 23(b)(3), issues common to the class would not predominate over individual issues and a class action would not be a superior vehicle for resolving the claims. Any person who wished to pursue an individual claim for a refund remained free to do so.

Seeking review of our decision, the putative class representatives filed a petition for a writ of certiorari in the Supreme Court. On June 28, 2018, the Court granted that petition and remanded the case to this court for further consideration in light of Janus v. State, County, and Municipal Employees, 138 S. Ct. 2448 (2018). See 138 S. Ct. 2708 (2018) (remand order). In accordance with Circuit Rule 54, we invited and have received statements from the Assistants and from one of the appellees, SEIU Healthcare Illinois & Indiana, discussing the proper course for us now to take. Governor Rauner elected not to file a statement.

We conclude that Janus does not require a different result on the narrow question presented in our appeal, namely, whether the class-action device is the proper one for the Assistants to use in seeking refunds of fair-share fees. We therefore once again affirm the decision of the district court declining to certify the requested class.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Vesuvius USA Corporation v. American Commercial Lines, LLC,

Case No.: 18-1881

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

Focus: Breach of Contract

This breach of contract action comes to us in admiralty jurisdiction. Vesuvius USA Corporation contracted with American Commercial Lines LLC (now known as American Commercial Barge Line LLC, or “ACBL”) to transport olivine sand by river barge from Louisiana to Kentucky. But when one of those shipments arrived with apparent water damage, a dispute arose between the parties about who was to blame. After some back-and-forth, they seemed to drop the matter. Two years later, however, Vesuvius brought this suit. Because the contract contains a clear limitations provision requiring the parties to bring disputes within four months of an incident, we affirm the district court’s dismissal of the case.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Torrie King, et al.

Case No.: 16-1275; 16-2260; 16-3084; 16-4212

Officials: FLAUM, RIPPLE, and BARRETT, Circuit Judges.

Focus: Brady Violation

Nathaniel Hoskins, Julian Martin, and Torrie King were members of the Imperial Insane Vice Lords, a gang in Chicago. Following a multi‐year investigation into the gang’s activities, they were prosecuted together in a bench trial and convicted on several counts. After trial and before sentencing, the government disclosed evidence that it had obtained from a confidential informant.

The district court held that the late disclosure did not violate Brady v. Maryland, 373 U.S. 83 (1963), because the suppressed evidence was neither exculpatory nor material. All three defendants appeal that ruling. In addition to the joint Brady claim, Martin raises two issues that are unique to him: he argues that the district court violated the Confrontation Clause when it admitted a statement made by a non‐testifying codefendant and that the district court made several errors when it imposed his sentence. Neither the defendants’ joint claim nor either of Martin’s individual claims warrants reversing the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Lorenzo D. Roundtree v. Jeffrey E. Krueger

Case No.: 14-3696

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

Focus: Sentencing Guidelines

Lorenzo Roundtree was sentenced to life in prison for selling heroin that led to a user’s death. 21 U.S.C. §841(b)(1)(C). Seven years later the Supreme Court held that a judge must tell a jury that the death resulting condition is satisfied only if the drug was a but-for cause of the fatality; a contributing cause is not enough. Burrage v. United States, 571 U.S. 204 (2014). The charge to the jury at Roundtree’s trial did not satisfy Burrage, and he filed collateral attack on his sentence in both the Northern District of Iowa (where his trial occurred) and the Southern District of Indiana (where he is confined). The collateral attack in Iowa rests on 28 U.S.C. §2255 and the one in Indiana on 28 U.S.C. §2241. Both district judges rejected his contentions. We put this appeal on hold while the Eighth Circuit considered Roundtree’s appeal in the §2255 proceeding.

Roundtree does not contend that the law has changed in the slightest after the Eighth Circuit rejected his contentions. He seeks relief under a decision the Supreme Court made in 2014, not under any development postdating the Eighth Circuit’s decision. Roundtree recognizes that this circuit already has stated that Burrage cannot be used to litigate under §2241 if §2255 could have been (or was) used to raise the issue. See Prevatte v. Merlak, 865 F.3d 894, 897 (7th Cir. 2017). Roundtree asks us to reconsider, contending that life in prison is such a harsh punishment that procedural bars should be swept away. Yet we lack authority to create exceptions to statutes. Section 2255(e) prevents resort to §2241 unless §2255 is “inadequate or ineffective” to test the validity of a conviction or sentence. The Eighth Circuit’s decision shows that §2255 afforded a means to address Roundtree’s arguments. His problem lies not in §2255 but in his own failure to object at trial, plus the Eighth Circuit’s conclusion that an instruction comporting with Burrage would not have affected the outcome.

Roundtree litigated and lost in the Eighth Circuit. The Supreme Court of the United States, not another court of appeals, is the right forum for his argument that the Eighth Circuit erred. Cf. Christianson v. Colt Industries Operating Corp., 486 U.S. 800 (1988).

Affirmed

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7^th Circuit Court of Appeals

Case Name: Neighbors Rehabilitation Center, LLC. v. United States Department of Health and Human Services, et al.

Case No.: 18-2147

Officials: BAUER, ROVNER, and ST. EVE, Circuit Judges.

Focus: ALJ Error – Citation and Penalty

Neighbors Rehabilitation Center is a skilled nursing facility participating in Medicare and Medicaid. The Centers for Medicare and Medicaid Services (“CMS”) assessed a civil monetary penalty against Neighbors after concluding that Neighbors inadequately addressed sexual interactions between three cognitively impaired residents.

CMS determined that Neighbors’ failure to act put the residents in “immediate jeopardy,” and, as a result, issued Neighbors a citation and an $83,800 penalty. After a hearing, an administrative law judge affirmed the citation and penalty, and the Department of Health and Human Services Departmental Appeals Board upheld the ALJ’s decision. Neighbors seeks review of the citation, the immediate jeopardy categorization, and the amount of the penalty. We conclude that substantial evidence supports the Agency’s determinations and we therefore affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Edward Bishop

Case No.: 18-2019

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

Focus: 4^th Amendment Violation

A drug deal went wrong. After receiving a dose of pepper spray from his customer, Edward Bishop shot her in the arm. A jury convicted him of discharging a firearm during a drug transaction, 18 U.S.C. §924(c), and the judge sentenced him to 120 months’ imprisonment. He presents one contention on appeal: that the warrant authorizing a search of his cell phone—a search that turned up incriminating evidence—violated the Fourth Amendment’s requirement that every warrant “particularly describe the place to be searched, and the persons or things to be seized.”

Andresen and its successors show that specificity is a relative maher. A warrant may be thought “too general” only if some more-specific alternative would have done better at protecting privacy while still permitting legitimate investigation. See United States v. Vitek Supply Corp., 144 F.3d 476, 482 (7th Cir. 1998); United States v. Bentley, 825 F.2d 1104, 1110 (7th Cir. 1987). So if the police had known that Andresen kept all of his files about the real-estate deal in a particular cabinet, failure to identify that cabinet in the warrant would have violated the constitutional particularity requirement. But a warrant need not be more specific than knowledge allows. In Andresen the police did not know how the target organized his files, so the best they could do was the broad language the warrant used. Likewise here: the police did not know where on his phone Bishop kept his drug ledgers and gun videos—and, if he had told them, they would have been fools to believe him, for criminals often try to throw investigators off the trail. This warrant was as specific as circumstances allowed. The Constitution does not require more.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Kleen Products LLC, et al. v. Georgia-Pacific LLC, et al.

Case No.: 17-2808

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

Focus: Antitrust Violation

Oligopolies have always posed problems for conventional antitrust law: without something that can be called an agreement, they elude scrutiny under section 1 of the Sherman Act, 15 U.S.C. § 1, and yet no individual firm has enough market power to be subject to Sherman Act section 2, 15 U.S.C. § 2. Tacit collusion is easy in those markets, see In re Text Messaging Antitrust Litigation, 782 F.3d 867 (7^th Cir. 2015), and firms have little incentive to compete on the basis of price, “preferring to share the profits [rather] than to fight with each other.” Joe Sanfelippo Cabs, Inc. v. City of Milwaukee, 839 F.3d 613, 615 (7th Cir. 2016).

This appeal concerns the fine line between agreement and tacit collusion, or, put another way, conscious parallelism. Direct purchasers of containerboard (“the Purchasers”) charged multiple manufacturers with conspiring to increase prices and reduce output between 2004 and 2010. We affirmed the district court’s decision to certify a nationwide class of buyers. Kleen Prods. LLC v. Int’l Paper Co., 831 F.3d 919 (7th Cir. 2016). Before and after that ruling, most of the defendants settled with the Purchasers. But two companies—Georgia‐Pacific LLC and WestRock CP, LLC—decided to fight. They persuaded the district court that there was not enough evidence of a conspiracy to proceed to trial. We agree with that assessment and affirm the judgment dismissing the case.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Anne O’Boyle v. Real Time Resolutions, Inc.

Case No.: 18-1936

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

Focus: FDCPA Violation

Anne O’Boyle claimed a debt collection letter sent by Real Time Resolutions, Inc. (“RTR”) violated the Fair Debt Collection Practices Act. The letter stated that important information was on the back of its first page, but the required validation notice was on the front of its second page. The district court dismissed for failure to state a claim and denied leave to amend the complaint. O’Boyle appeals. We affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Steven L, Buckingham

Case No.: 2017AP1852-CR

Officials: DUGAN, J.

Focus: Ineffective Assistance of Counsel

Steven L. Buckingham appeals from the judgment of conviction, following a jury trial, convicting him of one count of first-degree reckless injury with use of a dangerous weapon, and two counts of felony bail jumping. He also appeals the order denying his postconviction motion.

On appeal, Buckingham argues that trial counsel was ineffective because trial counsel: (1) failed to object to testimony about two handguns that were unrelated to the charges; (2) failed to obtain the testimony of a police officer who would have testified that the victim initially said he did not know who shot him; (3) failed to object to an in-court identification by a witness who failed to identify Buckingham in a photo array; (4) failed to object to a detective’s nonresponsive hearsay testimony that a person whose DNA was found on a T-shirt said he knew Buckingham; and (5) failed to alert the jury to the lack of corroborative evidence regarding the alleged motive for the shooting, a feud on Facebook. Buckingham maintains that he was prejudiced by each of these deficiencies and by their cumulative effect. He also contends that he is entitled to postconviction discovery.

We assume, without deciding, that the alleged failures constituted deficient performance. However, we conclude that based on the strong identification evidence Buckingham has not established that he was prejudiced by them. We also conclude that Buckingham has not established that he is entitled to postconviction discovery. Therefore, we affirm the judgment and order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Charles L. Neill, IV

Case No.: 2018AP75-CR

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

Focus: Sentencing Guidelines

Charles L. Neill, IV, appeals from his judgment of conviction and an order denying his motion for postconviction relief relating to his conviction for operating a motor vehicle while under the influence of an intoxicant (OWI) as a third offense. Two penalty enhancers applied to Neill’s offense: (1) committing this crime while driving with a minor under the age of sixteen in the vehicle, pursuant to WIS. STAT. § 346.65(2)(f)2. (2015-16); and (2) committing this crime with a blood alcohol concentration of 0.25 or above, pursuant to WIS. STAT. § 346.65(2)(g)3.

Neill argues that at sentencing, the trial court incorrectly interpreted that statute and thus erred in calculating the minimum fine after taking the penalty enhancers into consideration. Therefore, he requests a sentence modification reducing the fine that was imposed by the trial court. The State argues that although the statute is ambiguous regarding how to calculate the minimum fine when both penalty enhancers apply, the trial court properly interpreted the statute and assessed the correct minimum fine.

We reject Neill’s interpretation of the statute and calculation of the minimum fine that may be imposed. We also reject the State’s contention that the relevant subdivisions of WIS. STAT. § 346.65(2) are ambiguous. Rather, we conclude that a plain reading of the statute supports the calculation of the trial court. We therefore affirm.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Travis D. Jones

Case No.: 2018AP129-CR

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

Focus: Ineffective Assistance of Counsel

Travis D. Jones appeals from a judgment of conviction for one count of kidnapping and two counts of second-degree sexual assault with use of force. See WIS. STAT. §§ 940.31(1)(a) and 940.225(2)(a) (2013-14). He also appeals from the denial of his postconviction motion. Jones argues that his trial counsel provided ineffective assistance by failing to assert that the sexual assault charges were multiplicitous and by failing to object to what Jones terms “the trial court’s reliance upon impermissible factors at the sentencing hearing.” (Capitalization omitted.) We reject his arguments and affirm.

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WI Court of Appeals – District I

Case Name: Milwaukee County v. T.L.R.

Case No.: 2018AP1131

Officials: KESSLER, P.J.

Focus: Due Process Violation

T.L.R. appeals from an order of commitment to inpatient treatment at a Milwaukee County behavioral health facility. He argues that the circuit court’s commitment violated his rights to procedural and substantive due process. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. J.A.

Case No.: 2018AP1257

Officials: DUGAN, J.

Focus: Termination of Parental Rights

J.A. appeals from the order terminating his parental rights to H.V.A., and the order denying his postdisposition motion. He contends that (1) WIS. STAT. § 809.107(6)(am) requires that the trial court hold an evidentiary hearing upon remand by this court; (2) the CHIPS (child in need of protection or services) order created a substantial parental relationship that precluded the State from alleging failure to assume parental responsibility as a ground for the termination of his parental rights; (3) the failure to assume responsibility ground was unconstitutional as applied to him because the order placing H.V.A. outside the home made it impossible for him to assume parental responsibility; and (4) trial counsel was ineffective for not raising the second and third issues stated above, for failing to request severance, and for failing to inform J.A. that there were defenses to the petition. We reject J.A.’s contentions and affirm.

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WI Court of Appeals – District I

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

Case No.: 2018AP1827

Officials: BRENNAN, J.

Focus: Termination of Parental Rights

R.H. appeals from an order terminating her parental rights to E.M. on the grounds that the evidence is not sufficient to support the trial court’s finding of unfitness at the grounds phase based on R.H.’s failure to assume parental responsibility. The evidence, viewed in the light most favorable to the court’s finding, supports the trial court’s finding that R.H. had failed to assume parental responsibility for E.M. because she had not “accept[ed] and exercise[d] … significant responsibility for the daily supervision, education, protection and care of the child.” WIS. STAT. § 48.415(6)(b). We therefore affirm.

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WI Court of Appeals – District II

Case Name: Jennifer Korth, et al. James R. Hoffman, Jr., et al.

Case No.: 2017AP2293

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

Focus: Breach of Contract – Negligence

This real estate case involves a property spouses Jennifer Korth and David Osterndorf (the Buyers) bought from James Hoffman. The Buyers brought claims for breach of contract, WIS. STAT. § 100.18 (2015-16) violations, negligence, fraudulent misrepresentation under WIS. STAT. §§ 895.446 and 943.20(1)(d), strict responsibility and negligent misrepresentation, and a violation of WIS. STAT. § 452.133 against the Hoffmans and/or their real estate broker, Tory Bruce Armitage, and brokerage firm, Shorewest Realtors, Inc. The Buyers appeal the order granting summary judgment in favor of the collective defendants. We affirm the order except to the extent that we conclude the breach-of-contract claim raises questions best left to the trier of fact. We thus reverse on that issue and remand to the circuit court for further proceedings consistent with this opinion.

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WI Court of Appeals – District II

Case Name: W.A.B., et al.  v. W.G.B., et al.

Case No.: 2017AP2468; 2017AP2469

Officials: REILLY, P.J.

Focus: CHIPS – Claim Preclusion

In this consolidated appeal, Fond du Lac County Department of Social Services (DSS) appeals from orders dismissing petitions alleging that W.A.B. and Y.B. are children in need of protection or services (CHIPS). DSS argues that the circuit court erred in dismissing the petitions with prejudice on the basis of issue and claim preclusion. We agree the court erred, and we reverse and remand for further proceedings consistent with this opinion.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Autumn Marie Love Lopez, et al.

Case No.: 2017AP913-CR; 2017AP914-CR

Officials: Sherman, Kloppenburg and Fitzpatrick, JJ.

Focus: Multiple Alleged Acts – Duplicitous Complaint

In these consolidated appeals, the State appeals judgments of the circuit court dismissing the State’s criminal complaints against Autumn Marie Love Lopez and Amy Rodriguez. Lopez and Rodriguez were each charged with a single count of retail theft of items valued at more than $500 but less then $5,000, as parties to a crime. See WIS. STAT. §§ 943.50(1m)(c) and (4)(bf), and 939.05 (2015-16). On Lopez’s and Rodriguez’s motions, the circuit court dismissed the complaints on the ground they are improperly duplicitous. The State argues that the complaints are not improperly duplicitous because it has authority under WIS. STAT. § 971.36(3)(a) to charge as one continuous offense the multiple alleged acts of retail theft that underlie the single charge. Alternatively, the State argues that it can do so pursuant to its general prosecutorial charging discretion. For the reasons discussed below, we conclude that the State may charge the multiple alleged acts of retail theft as one continuous offense pursuant to § 971.36(3)(a). Therefore, we reverse the judgments dismissing the complaints and remand for further proceedings.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Norman F. Gibson

Case No.: 2018AP30-CR

Officials: Sherman, Blanchard and Fitzpatrick, JJ.

Focus: Sentencing Guidelines

Norman Gibson appeals a judgment of conviction for repeated sexual assault of a child. Gibson also appeals the denial of his postconviction motion for resentencing. Gibson argues that the circuit court relied on improper factors when it sentenced him. Gibson also argues that his sentence is cruel and unusual due to his serious health conditions. We reject Gibson’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Stuart W. Topping

Case No.: 2018AP318

Officials: KLOPPENBURG, J.

Focus: Refusal of Breath Test – OWI

Stuart Topping appeals a judgment revoking his driver’s license for two years. He challenges the circuit court’s factual finding that he refused to submit to a breath test after his arrest for operating a motor vehicle while intoxicated. Because I conclude that Topping fails to show that the court’s finding is clearly erroneous, I affirm.

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WI Court of Appeals – District IV

Case Name: David J. Mashak v. Morgan Leis

Case No.: 2018AP686

Officials: LUNDSTEN, P.J.

Focus: Breach of Lease Agreement – Damages 

David Mashak appeals a judgment against his former tenant, Morgan Leis. Mashak brought a small claims suit against Leis for unpaid rent, clean up, and repairs. The circuit court awarded damages to Mashak, although the amount was significantly less than what Mashak sought. On appeal, Mashak contends that the circuit court erroneously failed to award him damages for certain categories of damage that Mashak claimed Leis caused to the property. I reject Mashak’s arguments, and affirm the circuit court.

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WI Court of Appeals – District IV

Case Name: J.C. Property Management, LLC, v. Thair Kutkut

Case No.: 2018AP690

Officials: KLOPPENBURG, J.

Focus: Breach of Contract

Thair Kutkut signed a contract with J.C. Property Management, LLC for eviction move-out services. J.C. Property brought this small claims action alleging that Kutkut had failed to make the contractually agreed payments for the move-out services it provided. Following a trial to the circuit court, the court determined that Kutkut had breached the contract and entered judgment against Kutkut in the amount of the remaining balance on J.C. Property’s invoice, plus costs. Kutkut appeals, arguing that: (1) the contract is ambiguous; (2) the contract is unconscionable; and (3) the contract was formed under economic duress. As explained below, I reject each of Kutkut’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: Grant County v. Kenneth Jay Raney, Sr.

Case No.: 2018AP700

Officials: BLANCHARD, J.

Focus: OWI – Motion to Suppress Evidence Denied

Kenneth Raney, pro se, appeals a conviction for operating while intoxicated as a first offense, in violation of WIS. STAT. § 346.63(1)(a), following a jury trial, and apparently intends to challenge an order denying his motion to suppress evidence. I affirm the forfeiture conviction and the order denying suppression.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Faith N. Reed

Case No.: 2018 WI 109

Focus: Motion to Suppress Evidence Denied – Warrantless Search

This is a review of an unpublished decision of the court of appeals affirming a judgment of conviction of the Circuit Court for Monroe County, David Rice, Judge. The case was decided by one judge, Judge Brian Blanchard, pursuant to Wis. Stat. § 752.31(2)(f) (2015-16). Faith Reed, the defendant, was convicted of possession of a controlled substance in violation of Wis. Stat. § 961.41(3g)(b) and bail jumping in violation of Wis. Stat. § 946.49(1)(a), both misdemeanors.

In the circuit court, Reed claimed that the officer’s warrantless entry into her apartment, sometimes referred to here as Unit 206, violated her rights under the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution. Reed argued that the warrantless entry into her apartment was not justified under any of the well-recognized exceptions to the Fourth Amendment’s warrant requirement. Specifically, Reed contended that the officer did not have consent to enter her apartment and that exigent circumstances did not exist justifying entrance to her apartment. Consequently, she argued that the evidence obtained during the searches of her apartment and her person should be suppressed.

We conclude as follows: (1) the law enforcement officer did not have consent to enter Reed’s apartment; (2) even if the officer had initially been given consent to enter the apartment, which he was not, consent would have been unequivocally revoked before the officer’s entry into the apartment; and (3) exigent circumstances did not justify the officer’s opening Reed’s apartment door.

The following principles of law apply in the instant case. A warrantless search does not violate the Fourth Amendment of the United States Constitution or Article I, Section 11 of the Wisconsin Constitution if the search is conducted with consent or is justified by exigent circumstances.

We conclude that no exigent circumstances justified the officer’s pushing open Reed’s apartment door. Under the circumstances known to the officer at the time he pushed the door open, there were no facts upon which to base a reasonable belief that the delay in procuring a search warrant would gravely endanger life or greatly enhance the likelihood of the suspect’s escape.

Accordingly, we conclude that the searches at issue violated the United States and Wisconsin constitutions. We therefore reverse the decision of the court of appeals and remand the cause to the circuit court with instructions to suppress the challenged evidence and vacate Reed’s convictions.

Reversed and Remanded

Concur: ZIEGLER, J., concurs.

Dissent: ROGGENSACK, C.J., dissents.

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