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Weekly Case Digests – August 19, 2019 – August 23, 2019

By: WISCONSIN LAW JOURNAL STAFF//August 23, 2019//

Weekly Case Digests – August 19, 2019 – August 23, 2019

By: WISCONSIN LAW JOURNAL STAFF//August 23, 2019//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Juana Hernandez-Garcia, et al. v. William P. Barr

Case No.: 18-3297

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

Focus: Immigration – Removal Order

Juana Hernandez-Garcia is a citizen of Guatemala. She and two of her children, Brian and Yeniser Morales-Hernandez, entered the United States without proper documentation on August 29, 2015. They immediately received Notices to Appear for removal proceedings, but those Notices did not specify a date and time for their hearing. Later, when they nonetheless appeared before an immigration judge, they conceded removability but filed requests for asylum, withholding of removal, and protection under the Convention against Torture. As we detail below, first the immigration judge and then the Board of Immigration Appeals rejected those requests and ordered removal. Hernandez-Garcia, on behalf of both her children and herself, has petitioned this court for review. We conclude that the Board’s decision must be upheld, and so we deny their petitions for review.

Petition denied

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7th Circuit Court of Appeals

Case Name: Andrew L. Jackson v. Byran Bartow

Case No.: 19-1168

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

Focus: 6th Amendment Violation

A Wisconsin trial court denied Andrew L. Jackson’s request to represent himself at trial, and Jackson later pleaded guilty. He seeks a writ of habeas corpus under 28 U.S.C. § 2554, arguing that Wisconsin unreasonably applied Supreme Court precedent involving the Sixth Amendment right for competent defendants to represent themselves at trial. The district court agreed with Jackson that the Wisconsin trial court erred in ruling that he could not represent himself at trial, but it nonetheless denied his petition. It correctly concluded that under Gomez v. Berge, 434 F.3d 940 (7th Cir. 2006), Jackson waived his right to challenge that earlier ruling when he later entered an unconditional, knowing, and voluntary guilty plea. Therefore, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: James Graham, Jr., v. Arctic Zone Iceplex, LLC,

Case No.: 18-3508

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

Focus: ADA Violation

James Graham, Jr., sued Arctic Zone Iceplex, his former employer, for discrimination. According to Graham, Arctic Zone failed to accommodate his disability and ultimately fired him for it. The district court granted summary judgment to Arctic Zone. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Joseph A. Williams

Case No.: 18-2662

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

Focus: Sentencing Guidelines

Joseph Williams pleaded guilty to possessing a gun as a felon, 18 U.S.C. § 922(g)(1), and possessing cocaine with intent to distribute, 21 U.S.C. § 841(a)(1). He appeals only his sentence, arguing that the district court erred by sentencing him under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), based on three prior Indiana convictions: burglary, robbery, and dealing cocaine. He challenges the use of the cocaine conviction on two grounds. First, he says the record does not show just which statute he was convicted of violating. Second, he argues that Indiana’s statute on dealing cocaine, Ind. Code § 35-48-4-1 (2006), is broader than the ACCA definition of a “serious drug offense.” We disagree on both points and affirm the sentence under the ACCA.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Rod Hunt

Case No.: 18-1197; 18-1198

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

Focus: Sentencing – Supervised Release

While on supervised release for failing to register as a sex offender, Rod Hunt robbed a bank in Madison, Wisconsin. He pleaded guilty to bank robbery and brandishing a gun during a crime of violence. 18 U.S.C. §§ 2113(a), 924(c). The district judge revoked his term of supervised release and sentenced him to 172 months in prison followed by three years of supervised release for the new crimes. Hunt has appealed both the revocation (No. 18-1197) and the new sentence (No. 18-1198), and we have consolidated the appeals. His brief on appeal challenges only two conditions of his new term of supervised release. We affirm on those points in No. 18-1198 because in the district court Hunt waived those two challenges. His brief says nothing about the revocation of his earlier term of supervised release, and at oral argument counsel told us that Hunt has no quarrel with the revocation itself. We therefore dismiss No. 18-1197.

We AFFIRM the judgment in appeal No. 18-1198. We DISMISS appeal No. 18-1197.

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7th Circuit Court of Appeals

Case Name: United States of America v. Richard Walker

Case No.: 18-3529

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

Focus: Sex Offender Registration

Richard Walker was convicted for failing to register as a sex offender between 2016 and 2017, as required by the Sex Offender Registration and Notification Act. He argues that his conviction must be vacated because he did not have to register at that time. We agree. Because his obligation to register—triggered by a 1998 Colorado conviction—expired after fifteen years, we reverse the district court and vacate Walker’s conviction and sentence.

Reversed and vacated

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7th Circuit Court of Appeals

Case Name: Joseph Krell v. Andrew M. Saul

Case No.: 18-1100

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

Focus: ALJ Error – Abuse of Discretion

We focus here on an issue involving a well‐known figure in Social Security cases: the vocational expert. Specifically, we address whether an administrative law judge (ALJ) can decline to issue a subpoena requiring a vocational expert to produce his underlying data sources. Given recent Supreme Court precedent, we conclude that, here, the ALJ did not abuse his discretion by denying a request to issue such a subpoena. See Biestek v. Berryhill, 139 S. Ct. 1148 (2019).

Denied

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7th Circuit Court of Appeals

Case Name: United States of America v. Delrico J. Nelson

Case No.: 18-2811

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

Focus: Sentencing – Supervised Release

Delrico Nelson appeals the revocation of his supervised release and ensuing 60‐month prison sentence. At his revocation proceeding, he waived his right to a contested hearing and stipulated that the government would be able to provide evidence to show that he violated his terms of release. Nelson now argues that his waiver was not knowing and voluntary. Because the totality of the circumstances demonstrates otherwise, we affirm the district court’s judgment.

Affirmed

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7th Circuit Court of Appeals

Case Name: Tyjuan Anderson, et al. v. City of Rockford, et al.

Case No.: 18-2211; 18-2232

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

Focus: Due Process Violation

Nowhere does the Constitution’s promise of due process mean more than in a criminal trial. This promise translates into an obligation when police and prosecutors find themselves in possession of information that exculpates a criminal defendant. That is the cornerstone of the Supreme Court’s 1963 decision in Brady v. Maryland, and this case presents serious and unresolved questions whether certain detectives in Rockford, Illinois, failed to adhere to their Brady obligations when prosecuting three men for the murder of eight-year-old Demarcus Hanson on April 14, 2002. One of those detectives has since admitted—under oath no less—to engaging in serious misconduct during the investigation.

In 2013 an Illinois court found a Brady violation as part of vacating the murder convictions of Tyjuan Anderson, Lumont Johnson, and Anthony Ross after each man served more than a decade in prison. The case entered federal court when Anderson, Johnson, and Ross then brought claims for money damages under 42 U.S.C. § 1983 and state law against the City of Rockford and a score of individual defendants. The district court granted summary judgment on all claims in favor of all defendants. We reverse. While the case entails many complexities, Anderson, Johnson, and Ross have brought forth sufficient evidence to move forward against particular defendants on particular aspects of their alleged due process violations.

Affirmed in part. Reversed and remanded in part.

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7th Circuit Court of Appeals

Case Name: United States of America v. Eleazar Corral Valenzuela

Case No.: 18-2789

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

Focus: Immigration – Naturalization Denied

Seventeen years after Eleazar Corral Valenzuela (Corral) was convicted of aggravated criminal sexual abuse of a minor family member in Illinois state court, the United States filed a civil complaint to revoke his naturalized citizenship and cancel his certificate of naturalization. 8 U.S.C. § 1451(a). The district court granted the government judgment on the pleadings, see Fed. R. Civ. P. 12(c), after dismissing Corral’s affirmative defenses. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Refugio Ruiz-Cortez v City of Chicago, et al.

Case No.: 18-1078

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

Focus: Sufficiency of Evidence

Glenn Lewellen, a dirty cop with the Chicago Police Department (CPD), arrested Refugio RuizCortez for possessing cocaine. Lewellen served as the key witness at the trial, where Ruiz-Cortez was convicted. RuizCortez then spent a decade in prison before the federal government discovered Lewellen’s crimes, which included drug conspiracy, racketeering, and, according to the government, perjury at Ruiz-Cortez’s trial. The government prosecuted Lewellen and moved to vacate Ruiz-Cortez’s conviction, recognizing that without Lewellen’s testimony there was no evidence to prosecute Ruiz-Cortez.

Ruiz-Cortez sued the City of Chicago and Lewellen for violating his constitutional rights. See 42 U.S.C. § 1983. He complained that the City and Lewellen withheld material impeachment evidence—namely, evidence of Lewellen’s drug and racketeering crimes. See Giglio v. United States, 405 U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83 (1963). The district court dismissed the claim against the City at summary judgment, concluding that there was no evidence of municipal liability. See Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978). A jury later found for Lewellen, despite his refusal to testify based on the Fifth Amendment right against self-incrimination.

We affirm the dismissal of the City. Ruiz-Cortez failed to marshal the evidence needed to meet Monell’s high standard. But we vacate the judgment for Lewellen and remand for a new trial against him. The district court allowed Lewellen to offer innocent explanations for his Fifth Amendment invocation, ones that fly in the face of Fifth Amendment law, and it then failed to instruct the jury about when a Fifth Amendment invocation is proper. Those errors, taken together, made for a fundamentally unfair trial.

Affirmed in part. Vacated and remanded.

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Gregory C. Mallett v. Labor and Industry Review Commission, et al.

Case No.: 2017AP1601

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

Focus: LIRC Review – Issue Preclusion

Gregory C. Mallett, pro se, appeals from an order of the circuit court that reviewed a decision of the Labor and Industry Review Commission (LIRC). LIRC had concluded that Mallett’s latest worker’s compensation claim was procedurally barred or, alternatively, lacking supporting evidence. The circuit court affirmed LIRC’s decision in part, reversed it in part, and remanded the matter to LIRC for further fact-finding. The circuit court determined that a part of Mallett’s claim was not procedurally barred, and that there was at least some evidence of record supporting the non-barred portion. Mallett contends that issue preclusion should not apply; LIRC failed to consider the entire record, which prejudiced him and warrants reversal; and his entire medical history dating back to 1981 should be considered because he claims an occupational disease. We conclude the circuit court’s treatment of LIRC’s decision was appropriate; therefore, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Adam Blaine Anderson

Case No.: 2018AP718-CR

Officials: HRUZ, J.

Focus: Suppression of Evidence

Adam Anderson appeals both a judgment convicting him of resisting an officer and an order denying his motion for postconviction relief. Anderson contends the circuit court erred in denying his motion to suppress evidence because his arrest was the result of an unlawful search by law enforcement. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jovan T. Mull

Case No.: 2018AP1349-CR

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

Focus: Ineffective Assistance of Counsel

Jovan Mull was convicted of first-degree reckless homicide after a jury trial. Mull argues that the circuit court erroneously denied without a hearing his postconviction motion alleging multiple instances of ineffective assistance of trial counsel. We conclude that Mull’s postconviction motion alleges facts that entitle him to a Machner hearing on only two of his ineffective assistance of trial counsel allegations: (1) failing to seek admission of a third-party perpetrator defense and to present evidence of possible third-party perpetrators; and (2) failing to move to strike or for a mistrial following hearsay testimony elicited on cross-examination of one of the State’s witnesses. Accordingly, we reverse and remand to the circuit court for a Machner hearing on those allegations only.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Larry Reed, Jr.,

Case No.: 2018AP1597-CR

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

Focus: Ineffective Assistance of Counsel

Larry Reed, Jr., appeals from a judgment, entered upon a jury’s verdicts, convicting him on one count of arson and one count of first-degree recklessly endangering safety. Reed also appeals from an order denying his postconviction motion without a hearing. Reed contends that trial counsel was ineffective in three ways. We conclude Reed has failed to sufficiently demonstrate ineffective assistance, so we affirm the order. We note two minor scrivener’s errors in the judgment, however, so we order those corrected, but, upon that modification, the judgment is also affirmed.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jerry Slack, Jr.

Case No.: 2018AP1644-CR

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

Focus: Plea Withdrawal

Jerry Slack, Jr., appeals from a judgment convicting him of armed robbery and an order denying his postconviction motion. See WIS. STAT. § 943.32(2) (2015-16). He contends that he is entitled to plea withdrawal. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: Pranke Holding LLC, v. State of Wisconsin Department of Transportation

Case No.: 2018AP1646

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

Focus: Rental Losses – Court Error

Pranke Holding, LLC (Pranke Holding) appeals an order of the trial court dismissing its claim against the State of Wisconsin Department of Transportation (DOT). Pranke Holding owns commercial property which was leased to Bravo Restaurants, Inc. (Bravo). The DOT acquired a portion of those leased premises in 2012 through its eminent domain powers. Bravo subsequently terminated its lease with Pranke Holding in March 2014, more than two years before the expiration date of the lease term.

Pranke Holding filed the lawsuit underlying this appeal in October 2015 against the DOT seeking rental losses. After a court trial held in May 2018, the trial court determined that Pranke Holding had failed to meet its burden of proof for its claimed rental losses, noting that some of Pranke Holding’s claimed losses were not compensable, and dismissed the case. Additionally, prior to the trial the court had granted partial summary judgment in favor of the DOT with regard to an amended claim for rental losses filed by Pranke Holding, finding that it was not timely filed. The court also rejected Pranke Holding’s motion for reconsideration on that ruling.

Pranke Holding contends that the trial court erred in all of those determinations. We conclude that the trial court did not err in holding that Pranke Holding failed to meet its burden of proof regarding its claim, and therefore we need not reach Pranke Holding’s other arguments. Accordingly, we affirm.

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WI Court of Appeals – District III

Case Name: Jay Link, et al. v. John Link, et al.

Case No.: 2018AP1715

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

Focus: Fair Value and Corporate Misappropriation Claims

This appeal is the latest installment in a longstanding intrafamilial dispute between Jay Link; Jay’s brother, Troy Link; and their father, John (Jack) Link. The three Links owned various companies that produced and distributed meat products. In a prior lawsuit (hereinafter, the 2005 litigation), a jury found that Jack had breached his fiduciary duties to Jay, and Jay had breached his fiduciary duties to Link Snacks, Inc. (Link Snacks). The circuit court subsequently granted Link Snacks’ claim for specific performance of a Buy-Sell Agreement, which permitted Link Snacks to redeem Jay’s shares of the corporation at fair market value. After the court entered judgment in the 2005 litigation, the parties stipulated to the dissolution of certain other jointly owned companies, including Link Snacks Global, Inc. (Link Global), in which Jay and Troy each held a 50% ownership interest.

Jay subsequently filed the instant lawsuit, asserting that Jack, Troy, and John Hermeier had each breached their fiduciary duties to him in various ways. As damages, Jay sought the difference between the fair value and the fair market value of his Link Snacks shares (hereinafter, the fair value claim). Jay later amended his complaint to assert additional claims against Jack, Troy, and Hermeier—both on his own behalf and on behalf of Link Global—alleging that they had acted to devalue Link Global’s most profitable subsidiary, Jack Link’s Canada Company (Link Canada), in order to decrease the value of Jay’s 50% share of Link Global (hereinafter, the corporate misappropriation claims).

Applying the doctrine of claim preclusion, the circuit court concluded Jay’s fair value claim was barred by the final judgment in the 2005 litigation. The court further concluded that Jay lacked standing to bring the corporate misappropriation claims on his own behalf, and that any derivative claim should have been brought on behalf of Link Canada, rather than Link Global. Jay now appeals, arguing the court erred by dismissing his fair value and corporate misappropriation claims. We agree with Jay that the court erred by dismissing his fair value claim because the exception to claim preclusion found in § 20(2) of the Restatement (Second) of Judgments is applicable here, and Jay’s fair value claim is not barred by the applicable statute of limitations as argued by Jack, Troy, and Hermeier. We do conclude, however, that the court properly dismissed Jay’s corporate misappropriation claims. We therefore affirm in part, reverse in part, and remand for further proceedings on Jay’s fair value claim.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kenneth K. Gordan

Case No.: 2018AP1869-CR; 2018AP1870-CR

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

Focus: Sufficiency of Evidence

Kenneth K. Gordon appeals his judgments of conviction for endangering safety by using a dangerous weapon and felony intimidation of a witness. Gordon asserts that the trial court erred in denying his motion to suppress the gun that was seized from his residence during the execution of a search warrant issued subsequent to Gordon’s arrest, after a protective sweep of the home had been performed. Gordon argues that the protective sweep was unconstitutional, and that this alleged “flagrant police misconduct” warrants suppression of the evidence obtained in the subsequent search pursuant to the warrant.

Additionally, Gordon argues that there was insufficient evidence to support his convictions. Furthermore, with regard to his conviction for witness intimidation, he asserts that his Sixth Amendment right to confrontation was violated. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Millard Reno Bandy, Sr.,

Case No.: 2018AP2101-CR

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

Focus: Ineffective Assistance of Counsel

Millard Reno Bandy, Sr., appeals the circuit court judgment convicting him of three counts of knowingly violating a domestic abuse injunction and one count of battery to an injunction petitioner. He also appeals the court order denying his motion for postconviction relief. Bandy was found guilty at a jury trial. He argues that his trial counsel was ineffective by failing to impeach the victim, R.T., with evidence of R.T.’s prior criminal convictions. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: City of Milwaukee v. David B. Munzinger

Case No.: 2018AP2186

Officials: BRASH, P.J.

Focus: OWI – Notice of Appeal

David B. Munzinger appeals an order of the circuit court dismissing his appeal of a judgment rendered by the Milwaukee Municipal Court which found him guilty of operating while under the influence of an intoxicant (OWI). The appeal was dismissed on the grounds that Munzinger failed to provide written notice of the appeal to the City of Milwaukee, pursuant to statutory requirements. Munzinger asserts that he provided sufficient written notice as well as actual notice of the appeal to the City. We agree with Munzinger that the written notice he provided to the City was sufficient, and therefore reverse and remand this matter to the circuit court to reinstate the appeal.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Johnalee A. Kawalec

Case No.: 2017AP798-CR

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

Focus: Ineffective Assistance of Counsel

Johnalee A. Kawalec was a power of attorney for a former family member with whom she later held a joint bank account. The relationship soured, and Kawalec was accused of taking funds for her personal use, leading to her conviction for theft by bailee under WIS. STAT. § 943.20(1)(b) (2017-18). On appeal, Kawalec asserts that she received constitutionally deficient legal assistance due to her trial counsel’s lack of knowledge of the applicable legal standard for her prosecution. Kawalec raises a novel legal theory. She argues that her counsel’s failure to defend the case based on this theory constituted ineffective assistance of counsel. While Kawalec was entitled to defend herself by offering new facts and elements to the crime charged, her theory is far from clear or settled law. As such, her ineffective assistance of counsel claim fails. We affirm.

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WI Court of Appeals – District I

Case Name: Convenience Store Leasing and Management, et al. v. Annapurna Marketing, et al.

Case No.: 2017AP1505

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

Focus: Damages

This case concerns whether frustration of purpose relieved a party of duties under a contract (as the circuit court held), and whether stipulated damages in that contract were an unreasonable and unenforceable penalty. We reverse.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: Mohns Inc., v. BMO Harris Bank National Association

Case No.: 2018AP71

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

Focus: Damages

BMO Harris Bank National Association (BMO) appeals from an order awarding compensatory damages ($239,249), punitive damages ($478,498), and attorney’s fees ($113,940) to Mohns Inc. arising out of BMO’s conduct in relation to a construction loan for a condominium project for which Mohns served as the general contractor. BMO raises numerous challenges to the proceedings in the circuit court. We are not persuaded by BMO’s challenges, and we affirm.

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WI Court of Appeals – District II

Case Name: Eco-Site, LLC, et al. v. Town of Cedarburg

Case No.: 2018AP580

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

Focus: Court Error – Conditional Use Permit

This case involves the siting of a cell tower in the middle of a rural area in the Town of Cedarburg. Those proposing the tower— Eco-Site, LLC f/k/a Eco-Site, Inc., Scott R. and Patricia A. Akerlund—appeal from a judgment of the circuit court upholding the Town’s denial of the application for a conditional use permit (CUP) for the tower. Because the Town proceeded on a correct theory of law when it determined that the tower was incompatible with the uses, values, and enjoyment of the other property in the area under its ordinance, and this decision was supported by substantial evidence, we affirm.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: Garfield Baptist Church v. City of Pewaukee

Case No.: 2018AP673

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

Focus: Statutory Interpretation

This case involves a challenge by Garfield Baptist Church to the City of Pewaukee’s charges for use of its storm water management system. The Church alleged that the charges constituted political subdivision fees that did not “bear a reasonable relationship to the service for which the fee is imposed” under WIS. STAT. § 66.0628(2) (2017-18), and that the charges violated WIS. STAT. § 66.0821, which allows challenges to sewerage and storm water charges. At a bench trial, the circuit court placed the burden on the City to prove that its charges bore the required “reasonable relationship” under § 66.0628(2). The circuit court found that the City did not meet this burden, ruling for the Church. The circuit court also declared the charges “inequitable” under § 66.0821(4)(c). We reverse.

WISCONSIN STAT. § 66.0821(4)(c) is not an acceptable vehicle for challenging sewerage and storm water charges. Challenges of that kind may be raised pursuant to subsec. (5) of that statute; however, our cases have made clear that the public service commission has exclusive jurisdiction to make an initial determination that charges are unreasonable or unjustly discriminatory, and its determination is subject to review in our courts via WIS. STAT. ch. 227. Therefore, the circuit court’s determination on this ground was in error.

The circuit court’s separate determination that the charges did not bear a “reasonable relationship” to the services provided under WIS. STAT. § 66.0628(2) also must be overturned because the circuit court erroneously placed the burden of proof at trial on the City rather than the Church. And because this error affected the substantial rights of the City, we reverse the judgment and remand.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Medford B. Matthews, III

Case No.: 2018AP845-CR

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

Focus: Sentencing Guidelines

The State appeals from an order dismissing six felony counts against Medford B. Matthews, III, leaving one misdemeanor count of sexual intercourse with a child. Four of the six felony counts were for exposing intimate parts and two for child enticement. Because some of these felony counts involved acts related to those for the misdemeanor intercourse count, the circuit court considered that the decision to charge all of them, which would expose Matthews to over seventy years in prison, was absurd and not what the legislature could have intended. We cannot conclude that the additional charges clearly defeat the intent of the legislature. We therefore reverse and remand for further proceedings.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Gilbear H. Valdez, Jr.,

Case No.: 2018AP860-CR

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

Focus: Ineffective Assistance of Counsel

Gilbear H. Valdez, Jr., appeals from a judgment of conviction and an order denying his postconviction motion. He contends that he is entitled to an in camera review of the victim’s counseling records. After sentencing, Valdez filed a postconviction motion asking the circuit court to revisit its ruling on the victim’s counseling records. Valdez asserted that additional information, which was available to trial counsel at the time he filed his pretrial motion, supported an in camera review. Valdez accused trial counsel of ineffective assistance for failing to include this additional information in his pretrial motion.

Following a hearing on the matter, the postconviction court denied Valdez’s motion. The court explained that “just the fact that [the victim is] in counseling, that you know who the counselor is and know where the counselor’s at, and that it’s for this offense is not enough of a showing ….” Because the additional information would not have made a difference in the pretrial ruling, the court declined to find trial counsel ineffective. Valdez now appeals. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: Angela Jean La Bri v. Jeffrey Alan La Bri

Case No.: 2017AP1006; 2017AP2214

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

Focus: Divorce – Property Division

Angela Strunsee (formerly Angela La Bri) and Jeffrey La Bri were divorced in the Washington County Circuit Court. Jeffrey appeals rulings of the circuit court regarding the division of the property of the parties and the court’s award of family support. Angela cross-appeals rulings of the circuit court regarding the division of the property of the parties. We affirm all the rulings of the circuit court.

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WI Court of Appeals – District IV

Case Name: Jeffrey A. Riggert v. John H. Reed

Case No.: 2017AP2369

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

Focus: Court Error – Damages

This case returns to us following remand and arises from claims brought by Jeffrey Riggert under the Employee Retirement Income Security Act (ERISA) against John Reed. The dispute stems from Riggert’s employment at Innovologie, LLC, a company solely owned and managed by Reed. Prior to our first opinion in this case, the circuit court allowed Riggert to amend his first amended complaint to include a claim for denial of benefits under ERISA, granted summary judgment in favor of Riggert on the denial of benefits claim, and determined that Reed was individually liable for $84,494.83 in damages as well as $57,626.11 in attorney fees and expenses. Reed appealed, challenging the court’s decision to allow the amendment and the court’s grant of summary judgment against him on the denial of benefits claim. Riggert cross-appealed, arguing that the court erred by selecting an incorrect method of calculating damages and by failing to award Riggert the full amount of his request for attorney fees.

In our first opinion, we addressed only the first issue raised by Reed, which was whether the circuit court erred by allowing Riggert to amend the first amended complaint to include a claim for denial of benefits. Riggert v. Reed (Riggert I), No. 2017AP2369, unpublished slip op., ¶3 (Ct. App. Nov. 8, 2018). We concluded that the court applied the incorrect legal standard, and we remanded for the court to exercise its discretion under the standard that applies to motions to amend that are filed after summary judgment has been granted. Id. That standard is set out in Mach v. Allison, 2003 WI App 11, 259 Wis. 2d 686, 656 N.W.2d 766 (2002). We did not, at that time, reach the other issues raised by the parties, but we retained jurisdiction over the appeal and cross-appeal. Riggert I, No. 2017AP2369, ¶3.

On remand, the circuit court ruled that the amendment was properly permitted under the Mach standard. The parties have now filed supplemental appellate briefs addressing whether the court’s amendment ruling was correct. In this opinion we address the following issues raised by Reed’s appeal and Riggert’s cross-appeal: (1) whether the circuit court on remand erred by permitting Riggert to amend the first amended complaint to include a claim for denial of benefits; (2) whether the court erred by granting summary judgment against Reed on the denial of benefits claim; (3) whether the court selected an incorrect method of calculating damages; and (4) whether the court erred by failing to award Riggert the full amount of his request for attorney fees.

As we explain in the sections that follow, we conclude that the circuit court did not err as to any of these issues. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. James A. Culver

Case No.: 2018AP799-CR

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

Focus: Sentencing Guidelines – Enhancement

In 2016, James Culver was on extended supervision that had been imposed in 2008 when he was sentenced for OWI, as a fifth offense, and with minors in his vehicle, pursuant to WIS. STAT. § 346.65(2)(f). For reasons not specified in the record, in November 2016 Culver’s extended supervision was revoked and he was reconfined.

For purposes of calculating the maximum term of extended supervision, it matters whether OWI-with-a-minor-passenger, WIS. STAT. § 346.65(2)(f), is an unclassified crime, or a penalty enhancer layered on top of an underlying classified crime. Under WIS. STAT. § 973.01(2), maximum terms of extended supervision are determined differently for unclassified and classified felonies. Thus, this appeal hinges on whether the sentencing court was applying § 973.01(2) to a classified or an unclassified crime.

As we explain below, whether WIS. STAT. § 346.65(2)(f) is a penalty enhancer added to an underlying classified crime, or instead defines an unclassified crime, is not an open question. Our supreme court’s decision in State v. Jackson, 2004 WI 29, 270 Wis. 2d 113, 676 N.W.2d 872, tells us that § 346.65(2)(f) defines an unclassified crime. Accordingly, we affirm the circuit court’s decision to deny Culver’s motion.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin ex rel. Armond Hill v. Brian Hayes

Case No.: 2018AP822

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

Focus: Certiorari Review – Probation

Armond Hill appeals an order on certiorari affirming the respondent’s decision to revoke his probation. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Lonnie P. Ayotte, Jr.,

Case No.: 2018AP839-CR

Officials: LUNDSTEN, P.J.

Focus: OWI – Motion to Suppress to Denied

Lonnie Ayotte appeals a judgment of the circuit court entered on a jury verdict finding him guilty of operating a motor vehicle with a prohibited alcohol concentration, as a fourth offense, contrary to WIS. STAT. § 346.63(1)(b) (2015-16). Ayotte argues that the circuit court improperly denied his motion to suppress the results of blood alcohol testing of his blood.

The suppression issue here is the same issue just resolved by our supreme court in State v. Randall, 2019 WI 80, __ Wis. 2d __, __ N.W.2d __. The Randall decision controls here, and requires that we affirm the circuit court.

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