Weekly Case Digests – March 4, 2019 – March 8, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Artez Brewer

Case No.: 18-2035

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

Focus: 4^th Amendment Violation

Artez Brewer and his girlfriend, Robin Pawlak, traveled the country robbing banks, à la Bonnie and Clyde. Agents today, however, have investigative tools that their Great Depression predecessors lacked. With a warrant for real-time, Global-Positioning-System (GPS) vehicle monitoring, a task force tracked Brewer’s car to California where he and Pawlak committed another robbery. Brewer was arrested and essentially confessed to the crime spree. The government charged him with three counts of bank robbery, 18 U.S.C. § 2113(a), and a jury convicted him on each count.

Brewer appeals. He argues that the government violated the Fourth Amendment by tracking him to California when the warrant only permitted monitoring in Indiana. But the in-state limitation did not reflect a probable-cause finding or a particularity requirement, and the Fourth Amendment is unconcerned with state borders. Brewer also argues that the district court abused its discretion in admitting evidence of unindicted robberies. Yet that other-act evidence was directly probative of Brewer’s identity, modus operandi, and intent, and it therefore fell within the bounds of Federal Rule of Evidence 404(b)(2). We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Luis A. Fernandez

Case No.: 17-3421

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

Focus: Court Error – Evidentiary Ruling

A jury convicted Luis Fernandez of being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1). Fernandez appeals his conviction, contending that the district court committed three evidentiary errors that deprived him of a fair trial. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Josue Vargas

Case No.: 18-1250

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

Focus: Due Process Violation

Convicted of two cocaine offenses, 21 U.S.C. §841(a)(1), Josue Vargas has been sentenced to 72 months’ imprisonment. His principal appellate argument is that the district judge should have suppressed packages of that drug seized from his truck. None of Vargas’s other arguments requires discussion. We agree with him that the district judge should have been more even-handed (at least when the jury could overhear his admonitions to defense counsel), but neither on that subject nor any other did the judge violate the Due Process Clause, which in criminal cases deals with only egregious transgressions of trial rules and decorum. Donnelly v. DeChristoforo, 416 U.S. 637 (1974).

Affirmed

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7^th Circuit Court of Appeals

Case Name: Jeryme Morgan v. Minh Schott, et al.

Case No.: 16-2384

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

Focus: Due Process Violation

Illinois prison officials issued a disciplinary report charging inmate Jeryme Morgan with offenses stemming from a violent assault on fellow prisoners. Morgan disputed the charges and asked the authorities to call a witness to testify at his Adjustment Committee hearing. But the Committee never called Morgan’s witness. He was found guilty and the Committee imposed punishment of one year of segregation, various status and access restrictions, and revocation of three months of good-time credits. Morgan filed a grievance challenging his punishment on due-process grounds and appealed its subsequent denial to the Administrative Review Board (“the Board”). The Board adjusted the revocation of good-time credits to one month but affirmed the Committee’s due-process ruling, concluding that Morgan’s witness request did not comply with prison rules.

We affirm. Prisoners cannot make an end run around Heck by filing an affidavit waiving challenges to the portion of their punishment that revokes good-time credits. We recently addressed that very tactic and found it incompatible with the Heck line of cases. Haywood v. Hathaway, 842 F.3d 1026 (7th Cir. 2016). Morgan provides no reason to question Haywood, and we reaffirm its reasoning. Morgan’s attempt to analogize his case to Wilkinson v. Dotson, 544 U.S. 74 (2005), and Skinner v. Switzer, 562 U.S. 521 (2011), misunderstands those decisions. Judgment in Morgan’s favor would necessarily imply the invalidity of his prison discipline. Thus, no § 1983 claim has accrued. This suit is premature and must be dismissed without prejudice.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Jackson County Bank v. Mathew R. DuSablon

Case No.: 18-2809

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

Focus: Sanctions

Jackson County Bank sued its former employee, Mathew R. DuSablon, in Indiana state court, asserting various state law claims, including theft of property and breach of contract. Following his unsuccessful motion to dismiss, DuSablon removed the case to federal court. The district court remanded the case to state court for want of jurisdiction and untimely removal and further ordered DuSablon to pay the costs and fees for the wrongful removal. DuSablon now appeals the remand order and the district court’s imposition of sanctions. We dismiss the appeal of the district court’s remand order and affirm its award of costs and fees.

Dismissed in part. Affirmed in part.

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7^th Circuit Court of Appeals

Case Name: United States of America v. Anastacia V. Maclin

Case No.: 18-2158

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

Focus: Jury Instructions and Sentencing Enhancement

After a jury found Anastacia Vann Maclin guilty of two counts of Medicaid theft she was sentenced to 15 months’ imprisonment. Maclin embezzled funds from Dr. Farzana Khan’s medical practice after being hired to handle its electronic billing. Maclin raises two issues on appeal. First, is whether a comment by a prospective juror (“Prospective Juror No. 11”) that Dr. Khan had a “home for autism” required voir dire to be restarted with a new jury panel. Second, is whether the district court properly applied a vulnerable victim sentence enhancement based on Dr. Khan’s computer illiteracy. For the following reasons, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Dandre Moody

Case No.: 18-1837

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

Focus: Sentencing Guidelines – Enhancement

Within two days of helping his codefendants steal more than 100 guns from a train car, Dandre Moody sold 13 of them to anonymous buyers who telephoned him after they “heard about it.” He pleaded guilty to possessing a firearm as a felon, 18 U.S.C. § 922(g)(1); possessing a stolen firearm, id. § 922(j); and cargo theft, id. § 659, for which he was sentenced to 93 months’ imprisonment.

Moody now appeals his sentence. He challenges, for the first time, a four-level guideline enhancement under U.S.S.G. § 2K2.1(b)(5) for trafficking firearms to people he knew (or had reason to know) were unlawful users or possessors.

We agree with Moody that the district court plainly erred by imposing this enhancement. Nothing in the record suggests that Moody had reason to believe that his buyers were unlawful gun users or possessors. By finding that Moody had such knowledge, the court plainly crossed the line that separates permissible commonsense inference from impermissible speculation. We therefore vacate the judgment and remand for further sentencing proceedings.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Travis S. Vaccaro

Case No.: 18-1753

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

Focus: Warrantless Search

Travis Vaccaro entered a conditional guilty plea to possessing a firearm as a felon, 18 U.S.C. § 922(g), preserving his right to appeal the denial of his motion to suppress the gun. Vaccaro contests both the pat‐down search that occurred seconds after police officers pulled over his car and the search of the car that yielded the gun. The pat‐ down was lawful under Terry v. Ohio, 392 U.S. 1 (1968). The sweep of the car, which the district court upheld under Michigan v. Long, 463 U.S. 1032 (1983), is a closer call, but we conclude that it too was permissible. Accordingly, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Diane Rhone v. Medical Business Bureau, LLC

Case No.: 17-3408

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

Focus: Statutory Interpretation

This case is about character— the character of a debt. A debt collector must not make any “false representation” about “the character, amount, or legal status of any debt”. 15 U.S.C. §1692e(2)(A). A district court concluded that a debt collector misrepresented a debt’s “character” by reporting to a credit bureau that the debtor had nine unpaid bills of $60 rather than one of $540. We hold, to the contrary, that arithmetic does not affect a debt’s “character.” The statutory word “amount” rather than the word “character” is what governs reporting the debt’s size.

Medical Business Bureau did not misstate the “character” of Rhone’s debt to the Illinois Bone and Joint Institute, so the judgment of the district court is reversed.

Reversed

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7^th Circuit Court of Appeals

Case Name: Ronnie L. Winsted, Jr. v. Nancy A. Berryhill, et al.

Case No.: 18-2228

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

Focus: ALJ Error – Disability Benefits

Ronnie Winsted applied for disability insurance benefits and supplemental security income claiming disability based on numerous conditions, including degenerative disc disease, osteoarthritis, and anxiety. An administrative law judge denied benefits, finding that Winsted could work with certain limitations. After the district court upheld this denial, Winsted appealed, arguing the ALJ did not consider his difficulties with concentration, persistence, and pace. We agree—the ALJ did not adequately explain how the limitations he placed on Winsted’s residual functional capacity accounted for the claimant’s mental difficulties, so we remand to the agency.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Hiram Omar Graham

Case No.: 18-2156

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

Focus: Sentencing Guidelines

Hiram Graham pleaded guilty to Hobbs Act robbery and using a firearm during a crime of violence. At sentencing, he argued that his financial hardships, his extraordinary family situation, and his lack of a criminal record should mitigate his sentence. He now contends that the district court failed to address these arguments or adequately explain his 144-month, below-guidelines prison sentence. But the district court did not commit these procedural errors, so we affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Vipul B. Patel, et al. v. Zillow, Inc., et al.

Case No.: 18-2130

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

Focus: Trade Practices Act Violation

A Zestimate is an estimated value for real estate, available on the Zillow web site for about 100 million parcels. Zillow generates Zestimates by applying a proprietary algorithm to public data, such as a building’s location, tax assessment, number of rooms, and the recent selling prices for nearby parcels. But because Zillow does not inspect the building, it cannot adjust for the fact that any given parcel may be more attractive and better maintained, raising its likely selling price, or the reverse. Zillow states that its median error (comparing a Zestimate with a later transaction price) is less than 6%, though the Zestimate is off by more than 20% in about 15% of all sales. Zillow informs users that none of the parcels has been inspected and that Zestimates may be inaccurate, though Zillow touts them as useful starting points.

In addition to the trade practices act, plaintiffs invoke the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 to 505/12. The district court’s second opinion shows that this claim fails for essentially the same reasons as the trade practices act claim fails, and for the further reason that plaintiffs are not buyers of real estate. 2018 U.S. Dist. LEXIS 76245 at *20–26. The subject does not require additional discussion.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Ruben Delhorno

Case No.: 18-1707

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

Focus: Writ of Coram Nobis

Defendant-appellant Ruben Delhorno filed a petition for a writ of coram nobis, a rare form of collateral attack on a criminal judgment. This ancient common-law remedy is available to correct errors of fact and law in criminal cases, but only when: “(1) the error alleged is ‘of the most fundamental character’ as to render the criminal conviction ‘invalid’; (2) there are ‘sound reasons’ for the defendant’s ‘failure to seek earlier relief’; and (3) ‘the defendant continues to suffer from his conviction even though he is out of custody.’” United States v. Wilkozek, 822 F.3d 364, 368 (7th Cir. 2016), citing United States v. Sloan, 505 F.3d 685, 697 (7th Cir. 2007), and United States v. Keane, 852 F.2d 199, 203 (7th Cir. 1988). Delhorno fails the second requirement. He cannot offer “sound reasons” for failing to seek earlier relief through a direct appeal or habeas corpus petition. We therefore affirm the district court’s decision denying Delhorno’s writ of coram nobis.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Joseph Miller v. Michael Downey, et al.

Case No.: 17-1507

Officials: FLAUM, ROVNER, and SCUDDER, Circuit Judges.

Focus: 1^st Amendment Violation

Between 2012 and 2013, the Jerome Combs Detention Center in Kankakee, Illinois, prohibited inmates from receiving any newspapers. While awaiting trial on bank robbery charges, Joseph Miller’s family bought him a $279 subscription to the Chicago Daily Law Bulletin to help him with his case. Deeming the Law Bulletin a newspaper, jail officials precluded Miller from receiving it. Miller responded with a lawsuit challenging the jail’s prohibition and confiscation of the publication and seeking to recover the subscription fee. The district court construed the lawsuit as requiring it to answer, not the narrow question of whether Miller had a right to receive a legal publication like the Law Bulletin, but instead the broader question of whether the jail’s ban on all newspapers offended the First Amendment. In the end, the district court upheld the newspaper ban and awarded summary judgment to the defendant jail officials. Because the district court erred in reaching and resolving such a broad constitutional question—and the record was not fully developed as it pertains to the jail’s restriction on legal publications—we vacate the district court’s judgment and remand for further proceedings.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Linda Reed v. Columbia St. Mary’s Hospital

Case No.: 17-1469

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

Focus: Abuse of Discretion – ADA Violation

Plaintiff‐appellant Linda Reed alleges that she suffered discrimination on the basis of her disabilities while she was a patient at defendant‐appellee Columbia St. Mary’s Hospital in March 2012. Among other things, she contends that the hospital failed to accommodate her disabilities by deliberately withholding from her a device she used to speak and discriminated against her by putting her in a “seclusion” room to punish her. She brought claims under Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181, which governs public accommodations offered by private entities, including hospitals, as well as Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and the Wisconsin Mental Health Act, Wis. Stat. § 51.61.

We reverse. The hospital raised its religious exemption affirmative defense to the ADA claims for the first time after discovery, in its motion for summary judgment. We explain below why we conclude it was an abuse of discretion to excuse the hospital’s failure to raise this affirmative defense earlier. We also reverse the dismissal of Reed’s Rehabilitation Act claims on the merits because they depend on disputed facts.

Reversed and Remanded

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Z Fish Shanty, LLC, v. Chad J. Koch, et al.

Case No.: 2017AP2388

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

Focus: Breach of Contract

Z Fish Shanty, LLC, appeals an order dismissing its suit for breach of contract, specific performance, and deceptive advertising and granting judgment to Chad Koch and Elizabeth Armstrong (collectively “Koch”) on their counterclaim for breach of contract. Z Fish argues the circuit court erred by denying its summary judgment motion seeking specific performance of the real estate contract. Z Fish also challenges the circuit court’s findings of fact and conclusions of law related to the condition of the property. We reject these arguments and affirm the order. Further, because we conclude that the appeal is frivolous, we grant Koch’s motion for costs and reasonable attorney fees and remand this matter to the circuit court to determine the proper amount. See Lessor v. Wangelin, 221 Wis. 2d 659, 669, 586 N.W.2d 1 (Ct. App. 1998).

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WI Court of Appeals – District III

Case Name: Jordan Nutt, et al. v. Union Pacific Railroad Company, et al.

Case No.: 2018AP695

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

Focus: Motion to Compel Discovery Denied

Jordan Nutt was severely injured when a car he was driving was struck by a locomotive operated by Union Pacific Railroad Company. Nutt and his parents, William Nutt and Rhonda Birk, (collectively, “Nutt”) filed this lawsuit, asserting negligence claims against Union Pacific and two of its employees, Michael Searle and Angelo Aguirre (collectively, “Union Pacific”). The circuit court granted summary judgment in favor of Union Pacific, concluding: (1) federal law preempted Nutt’s claims regarding inadequate warning devices and an improper stop sign at the crossing where the collision occurred; (2) there was no evidence that either the vegetation or the condition of the roadbed at the crossing was a proximate cause of the collision; and (3) the undisputed facts established, as a matter of law, that Nutt’s negligence exceeded any negligence by Union Pacific. Nutt now appeals, arguing the court erred by granting Union Pacific summary judgment and by denying Nutt’s motion to compel discovery. We reject Nutt’s arguments and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Daniel L. Shilts, Jr.

Case No.: 17AP1665-CR

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

Focus: Abuse of Discretion – Sentencing

Daniel L. Shilts, Jr., appeals from a judgment convicting him of ten counts relating to the possession of improvised explosives or their materials and from an order denying his postconviction motion for sentencing relief. Shilts argues that the circuit court erred in denying his suppression motion, erroneously exercised its sentencing discretion, and imposed an unduly harsh and excessive sentence. For the reasons that follow, we affirm.

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WI Court of Appeals – District II

Case Name: Chris Hinrichs, et al. v. The DOW Chemical Company

Case No.: 2017AP2361

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

Focus: Court Error –  Fraudulent Representation

Chris Hinrichs and Autovation Limited appeal from a judgment dismissing their complaint against the DOW Chemical Company d/b/a Dow Automotive. The complaint alleged claims of negligent misrepresentation, intentional misrepresentation, strict responsibility misrepresentation, and violation of WIS. STAT. § 100.18 (2015-16). We affirm the dismissal of the misrepresentation claims. However, we conclude that the § 100.18 claim should not have been dismissed. Therefore, we affirm in part, reverse in part, and remand for further proceedings on the § 100.18 claim.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Tracy E. McCarthy

Case No.: 2018AP484

Officials: GUNDRUM, J.

Focus: Court Error – Abuse of Discretion

Tracy McCarthy appeals pro se from the order convicting him of disorderly conduct. McCarthy raises numerous “issues” on appeal: (1) the trial court “erred in proceeding, when McCarthy’s witnesses were properly served and did not show up for trial”; (2) the trial court abused its discretion “by allowing multiple continuances, thus denying McCarthy’s right to a speedy trial”; (3) the trial court abused its discretion “by allowing testimony from the impeached arresting officer, Kurt Kezeske to influence the jury”; (4) the trial court abused its discretion “by allowing multiple discovery violations”; (5) the trial court “abused its discretion by not allowing the t.v.6now video of Kurt Kezeske into the record”; and (6) the trial court erred “by allowing a conflict of interest to occur whereas the judge’s clerk had a direct interest in the outcome of [the] trial.”  We affirm.

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WI Court of Appeals – District II

Case Name: Village of Menomonee Falls v. Kristina L. Smithers

Case No.: 2018AP993

Officials: GUNDRUM, J.

Focus: OWI – 1^st Offense

Kristina Smithers appeals from an order convicting her of operating a motor vehicle while intoxicated, first offense. We affirm.

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WI Court of Appeals – District IV

Case Name: Roger S. Manthe v. State of Wisconsin Department of Transportation

Case No.: 2017AP1598

Officials: Sherman, Blanchard and Fitzpatrick, JJ.

Focus: Equal Protection Violation

Roger S. Manthe appeals from an order of the circuit court dismissing Manthe’s appeal of damage awards issued by the Wisconsin Department of Transportation following the condemnation of property belonging to Manthe. Manthe contends that the circuit court erred in determining that he is not entitled to a writ of mandamus compelling DOT to issue an order designating United States Highway 51 as a freeway. Manthe also contends that WIS. STAT. § 84.295(3) (2017-18) violates his right to equal protection and that he has incurred non-access related damages for which he should have been compensated. We reject Manthe’s arguments and affirm the circuit court.

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WI Court of Appeals – District IV

Case Name: Jody Ann Anderson v. Kayser Ford, Inc.

Case No.: 2017AP2018

Officials: Sherman, Blanchard, and Fitzpatrick, JJ.

Focus: Insurance Claim – Duty to Defend

Jody Ann Anderson initiated this lawsuit against Kayser Ford, Inc. Kayser’s insurer, Regent Insurance Company, intervened, in part to try to establish that Regent has no duty to defend Kayser. Kayser appeals an order of the circuit court dismissing Regent from the suit and declaring that Regent has no duty to defend Kayser at this time. We reverse the order because we conclude that Regent has a continuing duty to defend Kayser. The duty continues because Regent cannot establish as a matter of law that no theory of liability in Anderson’s complaint may yet obligate Regent to indemnify Kayser, and the circuit court did not determine that Regent has no arguable indemnification liability on any claim in the complaint.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: Amy Holzman v Estate of Phyllis G. Holzman, et al.

Case No.: 2018AP115

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

Focus: Estate – Promissory Estoppel

This appeal involves three promissory estoppel claims made by Amy Holzman against the Estate of Phyllis G. Holzman. Amy challenges orders granting summary judgment to the Estate as to these claims. We reject Amy’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Zacharie Bauer

Case No.: 2018AP169-CR

Officials: Blanchard, Kloppenburg and Fitzpatrick, JJ.

Focus: Ineffective Assistance of Counsel

Zacharie Bauer appeals a judgment of conviction for repeated sexual assault of a child, as a habitual criminal. Bauer also appeals a circuit court order denying his motion for postconviction relief. Bauer argues that he received ineffective assistance of counsel because his defense attorney should have used expert testimony to cast doubt on his victim’s allegations. Alternatively, Bauer argues that he should be granted a new trial based on newly discovered evidence in the form of an expert report from a psychologist. We reject both arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Lamondre Moore

Case No.: 2018AP253-CR; 2018AP254-CR

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

Focus: Ineffective Assistance of Counsel

Lamondre Moore appeals judgments convicting him of first-degree sexual assault of a child, domestic abuse battery, and witness intimidation. Moore also appeals an order denying his postconviction motion seeking a new trial based on ineffective assistance of counsel. Moore argues that the circuit court erred in denying his motion. We disagree and affirm.

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WI Court of Appeals – District IV

Case Name: County of Green v. Joey Jay Barnes

Case No.: 2018AP1382

Officials: FITZPATRICK, J.

Focus: OWI – Suppression of Evidence

The County of Green appeals an order of the Green County Circuit Court granting Joey Barnes’s request to dismiss both a citation for operating while under the influence of an intoxicant as a first offense, in violation of WIS. STAT. § 346.63(1)(a) (which I will sometimes refer to as the “OWI citation”); and a citation for operating with a prohibited alcohol concentration as a first offense, in violation of § 346.63(1)(b) (which I will sometimes refer to as the “BAC citation”). The circuit court concluded that certain, but not all, evidence against Barnes gathered by the responding deputies must be suppressed. The circuit court then dismissed both citations over the County’s objection. Without deciding whether suppression of that evidence was warranted, I conclude that the circuit court erred in dismissing the OWI citation. Accordingly, I reverse and remand so that the County may proceed to trial on the OWI citation without the suppressed evidence.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Gary Lee Wayerski

Case No.: 2019 WI 11

Focus: Brady Violation

Gary Wayerski seeks review of the court of appeals’ decision affirming the circuit court’s denial of his postconviction motion.

Wayerski was charged with and convicted of 16 felonies based upon allegations that over several months he had repeated sexual contact with two juveniles, J.H. and J.P., and exposed them to pornography. Wayerski was found guilty by a jury of the following crimes: (1) two counts of child enticement in violation of Wis. Stat. § 948.07(3)(2015-16);3 (2) two counts of exposing genitals or pubic area in violation of Wis. Stat. § 948.10(1); (3) two counts of exposing a child to harmful material in violation of Wis. Stat. § 948.11(2)(a); (4) two counts of causing a child over the age of 13 to view/listen to sexual activity in violation of Wis. Stat. § 948.055(2)(b); and (5) eight counts of sexual assault of a child by a person who works or volunteers with children in violation of Wis. Stat. § 948.095(3).

Wayerski filed a postconviction motion, asserting claims of ineffective assistance of trial counsel, circuit court errors, and a claim that the State violated its Brady obligations. Brady v. Maryland, 373 U.S. 83 (1963). The circuit court denied Wayerski’s postconviction motion. The court of appeals affirmed the circuit court’s denial of Wayerski’s postconviction motion. Wayerski now seeks review of the denial of his ineffective assistance of counsel claim and the denial of his Brady claim.

Wayerski claims that his trial counsel was ineffective for failing to question him about a purported confession that he gave to John Clark, a government witness who testified on rebuttal. We assume without deciding that trial counsel’s performance was deficient, in accordance with the first prong of the ineffective assistance of counsel analysis. However, even if trial counsel’s performance was deficient, we conclude that there was no prejudice to Wayerski under the second prong of the analysis. Thus, we conclude there was no ineffective assistance of counsel.  Wayerski also alleges that the State violated his due process rights under Brady when it failed to disclose impeachment evidence about Clark’s pending charges in Chippewa County.

We conclude that there was no Brady violation. While evidence of Clark’s pending charges was favorable to Wayerski as impeachment of Clark’s testimony and the State suppressed the evidence, Wayerski failed to show that the evidence was material. In analyzing whether the State suppressed evidence under the second component of the Brady analysis, we return to the principles of Brady and ask only whether the evidence was suppressed by the State, rather than the revisionary version of Brady that our court has adopted in the past. Therefore, we modify and, as modified, affirm the decision of the court of appeals.

Modified and affirmed.

Concur: ZIEGLER, J. concurs and dissents, joined by ROGGENSACK, C.J. (opinion filed). KELLY, J. concurs and dissents, (opinion filed).

Dissent: KELLY, J. concurs and dissents, (opinion filed).

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