Weekly Case Digests – September 23, 2019 – September 27, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Travis Delaney Williams v. Simeon Ortiz, et al.

Case No.: 18-1404

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

Focus: 8^th Amendment Violation – Failure to Exhaust Administrative Remedies

Travis Williams appeals the district court’s grant of summary judgment in favor of several correctional employees. Williams appeals the district court’s grant of summary judgment in favor of all defendants. First, he argues that the district court erred when it determined that he failed to exhaust his administrative remedies for his claims against Officers Hernandez and Isferding. Second, Williams argues that the district court erred by granting summary judgment for Dr. Ortiz, Lieutenant Friend, Nurse Olstinske, and Nurse Coe on his deliberate indifference claims. Because he failed to exhaust his administrative remedies and because the defendants did not provide him with objectively unreasonable medical care, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Michael S. Barber

Case No.: 18-2803

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

Focus: Sentencing Guidelines

On the evening of February 9, 2017, Michael Barber and his friend Anthony Chipps used a crowbar to break into Dutchman Hunting Supplies in Shipshewana, Indiana, and steal 15 handguns. The authorities had little trouble nabbing them: they set off the alarm during the robbery, and they were easily identified by shop employees, because they had scouted out Dutchman earlier that same day. On top of that, Barber was foolish enough to discuss the robbery on Facebook Messenger.

In due course, Barber was indicted on charges of stealing firearms from a federally licensed firearms dealer, possessing firearms as a felon, and possessing stolen firearms. See 18 U.S.C. §§ 922(u), (g)(1), and (j). Chipps decided to cooperate with the government and testified at trial against Barber. In addition, the government introduced both the Facebook messages and cell‐location data for Barber’s phone. The latter evidence put him near Dutchman at the time of the robbery. The jury convicted him on all charges, and the court then sentenced him to 210 months’ imprisonment. That sentence reflected a two‐level enhancement in his offense level for obstruction of justice.

Barber appeals both his conviction and sentence. He argues that the district court should not have admitted the Facebook records, cell‐location data, and a certificate indicating that Dutchman had a firearms license. He also contends that his advisory sentencing guidelines should not have included the obstruction enhancement. Finding no reversible error, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Common Cause Indiana, et al. v. Connie Lawson, et al.

Case No.: 18-2491; 18-2492

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

Focus: Preliminary Injunction – Abuse of Discretion

Voting is at once an intensely personal act and a choice to participate in the collective process of representative democracy. It cannot take place, however, without an elaborate administrative infrastructure. This case concerns that machinery—in particular, the process that Indiana wants to use to cleanse its voter rolls of people it suspects no longer qualify to vote there. Senate Enrolled Act 442 (“Act 442”), which was passed in 2017 and codified at Indiana Code § 3-7- 38.2-5(d)–(e), adopted an aggressive new strategy for this purpose, allowing Indiana immediately to remove a voter based on information received from a third-party database rather than in response to direct contact with the voter. Several organizations promptly challenged Act 442 in court, asserting in two separate actions that it violates the National Voter Registration Act. They sought a preliminary injunction against the implementation of the new law while both cases proceeded. Finding that the plaintiffs were likely to succeed on the merits and that they would suffer irreparable injury if the law were to take effect immediately, the district court issued preliminary injunctions “prohibiting the Defendants from taking any actions to implement [Act 442]” until the cases are concluded.

The state appealed the injunctions to this court, see 28 U.S.C. § 1292(a)(1), and we consolidated the two cases for decision. We conclude that the plaintiff organizations in each case adequately demonstrated their standing to bring these actions and that the district court did not abuse its discretion by granting preliminary relief. We therefore affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Planned Parenthood of Indiana and Kentucky, Inc., v. Jerome M. Adams, et al.

Case No.: 17-2428

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

Focus: Preliminary Injunction – Judicial Bypass Procedure

Consistent with Bellotti v. Baird, 443 U.S. 622 (1979), Indiana statutes have long provided a fast and confidential judicial bypass procedure that is supposed to allow a small fraction of pregnant, unemancipated minors seeking abortions to obtain them without the consent of or notice to their parents, guardians, or custodians. In 2017, Indiana added a parental notification requirement to the judicial bypass statute. Before the law took effect, plaintiff Planned Parenthood of Indiana and Kentucky, Inc. sued to enjoin its enforcement. In a careful opinion, the district court issued a preliminary injunction against enforcement of the new law’s notice requirements. Planned Parenthood of Indiana & Kentucky, Inc. v. Commissioner, 258 F. Supp. 3d 929, 956 (S.D. Ind. 2017). The defendant state officials have appealed a portion of the preliminary injunction. In light of the lopsided factual record, the deferential standard of review, and the preliminary status of the findings of fact and conclusions of law, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Martin Chaidez, et al. v. Ford Motor Company, et al.

Case No.: 18-2753

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

Focus: EEOC Claim – Failure to Exhaust Administrative Remedies

The plaintiffs, on behalf of themselves and those similarly situated, allege a racially discriminatory hiring scheme that has resulted in a lack of Hispanic and Latino line workers at Ford Motor Company’s Chicago assembly plant. The district court dismissed the suit for failure to exhaust administrative remedies, holding the plaintiffs’ claims were not “like or reasonably related to” the claims asserted in their EEOC charges. Because we conclude that the claims included in Count II of the plaintiffs’ complaint were properly exhausted before the EEOC, we vacate the district court’s dismissal of Count II and remand for further proceedings. We also modify the district court’s dismissal of Count I to be without prejudice.

Affirmed and modified in part. Vacated and remanded in part.

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7^th Circuit Court of Appeals

Case Name: Jeremy Lockett v. Tanya Bonson, et al.

Case No.: 19-1012

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

Focus: Summary Judgment – Exhaustion of Administrative Remedies

Jeremy Lockett, an inmate at the Wisconsin Secure Program Facility (“WSPF”), brought this action under 42 U.S.C. § 1983 to recover for alleged violations of his constitutional rights under the Eighth Amendment to the Constitution of the United States, rights made applicable to the states through the Fourteenth Amendment. He alleged that these rights were violated when he received inadequate medical care while incarcerated at WSPF. Mr. Lockett, who has sickle cell disease, claimed that two prison medical staff members, Tanya Bonson, a nurse practitioner (“NP”), and Beth Edge, a nurse, were deliberately indifferent to his serious medical needs. The defendants moved for summary judgment; the district court granted the motion. Mr. Lockett filed a timely appeal.

We conclude that the record will not support a jury determination that NP Bonson was deliberately indifferent to Mr. Lockett’s needs in prescribing medication. Mr. Lockett did not exhaust his administrative remedies on his claim against Nurse Edge. Accordingly, the judgment of the district court is affirmed.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Dallas Green v. Cory Junious, et al.

Case No.: 17-1784

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

Focus: Jury Instructions

In November 2010 Dallas Green was walking through a Citgo parking lot late at night when an unmarked Chicago police vehicle turned into the lot. He began to run as the vehicle approached, arousing the suspicion of the four officers inside. One officer chased him on foot and saw him drop and pick up a handgun. Green fled into a residential neighborhood, where another officer picked up the chase and caught up with him in the backyard of a home. In the officer’s version of the story, Green began to raise a gun in his direction, and the officer fired five shots in response, wounding Green in the hand and chest. Green denied that he had a gun at any time on the night in question.

At the time of these events, Green was on probation for a felony drug conviction. A Cook County circuit judge revoked his probation, finding that Green possessed a gun during this encounter. Green thereafter sued the officers and the City of Chicago for damages under 42 U.S.C. § 1983 alleging a multitude of federal constitutional and state‐law violations. The claims against the officers proceeded to trial, but only one—a Fourth Amendment excessive‐force claim against the officer who shot him—was ultimately submitted to the jury. The jurors returned a verdict for the officer. Green moved for a new trial, arguing primarily that the district judge improperly instructed the jury that the state court’s gun‐possession finding was conclusive on that factual point. The judge denied the motion.

We affirm. The contested jury instruction was sound. Green’s excessive‐force claim was premised on his contention that he was unarmed during this encounter. But the state judge found that he had a gun, and that finding has preclusive effect here. Green raises other claims of error but none has merit.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Matthew D. Wilson, et al. v. Cook County, et al.

Case No.: 18-2686

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

Focus: 2^nd Amendment Violation

Two Cook County residents appeal the dismissal of their complaint, which raises a Second Amendment challenge to Cook County’s ban on assault rifles and large-capacity magazines. Less than five years ago, we upheld a materially indistinguishable ordinance against a Second Amendment challenge. See Friedman v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015). The district court dismissed the plaintiffs’ complaint on the basis of Friedman. We agree with the district court that Friedman is controlling. Because the plaintiffs have not come forward with a compelling reason to revisit our previous decision, we affirm the judgment of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Malcolm Cobb, Jr., v. Aramark Correctional Services, LLC,

Case No.: 18-1909

Officials: KANNE, ROVNER, and HAMILTON, Circuit Judges

Focus: Prisoner – Mailbox Rule

Malcolm Cobb, Jr., an Indiana prisoner, brought a state-court negligence action against Aramark Correctional Services, LLC (“Aramark”) for failing to clean up a spill in the kitchen at the Pendleton Correctional Facility, causing him to slip and fracture his ankle. Aramark removed the case to federal court, then asserted that Cobb had filed too late; the district court agreed. Cobb appeals, maintaining that his complaint should be deemed “filed” under the prison mailbox rule on the date he handed it to his counselor for mailing. Because the district court misinterpreted Indiana’s prison mailbox rule, we reverse and remand for further proceedings.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Stacy M. Haynes v. United States of America

Case No.: 17-3657

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

Focus: Sentencing Guidelines and Jury Instructions

Petitioner-appellant Stacy Haynes challenges three of his convictions under 18 U.S.C. § 924(c), which imposes steep penalties on a defendant who uses a firearm during a “crime of violence.” Those convictions are based on Haynes’ three convictions under 18 U.S.C. § 1952(a)(2), which required proof, among other things, that he committed or attempted to commit a “crime of violence.” The crimes of violence that form the basis of Haynes’ § 1952(a)(2) convictions were three armed robberies in violation of the Hobbs Act, 18 U.S.C. § 1951, which is a crime of violence for purposes of § 924(c). United States v. Fox, 878 F.3d 574, 579 (7th Cir. 2017).

The issue in this appeal is whether the different crimes in this nested set of charges—§ 1951 nested inside § 1952(a)(2) nested inside § 924(c)—can support the § 924(c) convictions. The district court upheld Haynes’ § 924(c) convictions because the indictment and jury instructions, taken together, required jurors to find each element of the Hobbs Act robberies—crimes of violence—at the center of the nested charging scheme. Haynes v. United States, 237 F. Supp. 3d 816 (C.D. Ill. 2017). Haynes appeals, arguing both that § 1952(a)(2) is not “divisible” and that the jury did not necessarily find him guilty of the underlying Hobbs Act robberies. We agree with the district court and affirm its judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Lloyd N. Johnson v. Karen Rimmer, et al.

Case No.: 18-1321

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

Focus: Summary Judgment – Jurisdiction

Lloyd Johnson brought this action under 42 U.S.C. § 1983 against various employees and officials of the Milwaukee County Medical Health Complex (“MHC”), MHC itself, Milwaukee County, and the County’s Department of Health and Human Services. His claims center on an incident of substantial self-mutilation that occurred while he was in the care of MHC. Mr. Johnson alleged that the defendants violated his Fourteenth Amendment rights by providing constitutionally inadequate medical care, which led to his self-mutilation. Mr. Johnson also brought claims under Monell v. Department of Social Services, 436 U.S. 658 (1978), in which he alleged that the institutional defendants maintained unconstitutional policies, procedures, and customs that caused his injuries. He further maintained that defendants engaged in a conspiracy to cover up the constitutionally inadequate care. In addition to these federal claims, Mr. Johnson brought associated state-law claims.

The defendants moved for summary judgment, and the district court granted the motion in favor of all defendants on all of Mr. Johnson’s federal claims. It declined to retain jurisdiction over the state-law claims. Mr. Johnson now brings this appeal, challenging only the district court’s decision in favor of two individual defendants: Dr. David Macherey and Nurse Ade George. We affirm the judgment of the district court.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: David W. Paynter, et al. v. ProAssurance Wisconsin Insurance Company, et al.

Case No.: 2017AP739

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

Focus: Insurance Claim – Coverage

This case is before us for the second time, on remand from the Wisconsin Supreme Court. The supreme court determined that under Wisconsin’s borrowing statute, Wisconsin’s statute of limitations applied to and did not bar David and Kathryn Paynter’s claim that Dr. James Hamp negligently failed to diagnose David’s cancer. The only remaining issue on appeal is whether an insurance policy that ProAssurance Wisconsin Insurance Company issued to Hamp provides coverage for the Paynters’ medical negligence claim. The circuit court granted ProAssurance summary judgment based on a policy endorsement stating that ProAssurance would not pay damages for “any liability arising from, relating to, or in any way connected with the rendering of or failure to render professional services by [Hamp] … in the State of Michigan and/or outside the State of Wisconsin.” (Formatting altered.) We conclude the undisputed evidence establishes that Hamp’s alleged liability in this case is “connected with” professional services that Hamp performed in Michigan. We therefore affirm the circuit court’s determination that ProAssurance’s policy does not provide coverage for the Paynters’ medical negligence claim.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. John Doe

Case No.: 2017AP2163-CR

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

Focus: Sentence Modification

John Doe appeals a judgment convicting him of second-degree sexual assault. He also appeals the circuit court’s order partially denying his motion for sentence modification. Doe argues that: (1) there are new factors that warrant sentence modification; (2) the circuit court misused its discretion when it reduced his sentence by one year; and (3) he received ineffective assistance of counsel. We reject these arguments. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jose Anthony Guzman

Case No.: 2018AP615-CR

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

Focus: Ineffective Assistance of Counsel

Jose Anthony Guzman appeals from a judgment, entered upon a jury’s verdict, convicting him on one count of first-degree sexual assault of a child less than sixteen years old. Guzman also appeals from an order denying his postconviction motion without a hearing. Guzman contends that trial counsel was ineffective for failing to call two witnesses, for failing to elicit additional testimony from the crime lab analyst, and for failing to object to a portion of the State’s closing argument. We disagree with Guzman’s arguments, and we affirm the judgment and order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin ex rel. Ronald L. Collison v. City of Milwaukee Board of Review

Case No.: 2018AP669

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

Focus: Property Assessment

Ronald L. Collison, pro se, appeals the circuit court’s order affirming the Board of Review’s decision. The Board upheld the City of Milwaukee’s $31,800 tax valuation of his property for 2016. This appeal is nearly identical in law and fact to Collison’s prior appeal of his 2012 property tax assessment. See State ex rel. Collison v. City of Milwaukee, No. 2013AP2130, unpublished slip op. (WI App Sept. 9, 2014). Collison argues that the assessment of his property was improper because his property’s fair market value is zero dollars. He also argues that both the City of Milwaukee Environmental Contamination Standards (CMECS) and the Wisconsin Property Assessment Manual conflict with WIS. STAT. § 70.32 (2017-18). We affirm.

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WI Court of Appeals – District III

Case Name: Janet Mueller v. Labor and Industry Review Commission, et al.

Case No.: 2018AP707

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

Focus: LIRC Review – Disability Benefits

Janet Mueller appeals a circuit court order affirming a decision by the Labor and Industry Review Commission (the Commission), which dismissed Mueller’s application for worker’s compensation temporary disability benefits. Mueller argues the Commission erred by concluding that Mueller’s voluntary retirement from her employment precluded her from establishing that she suffered an actual wage loss, and that she therefore was not entitled to receive disability benefits under WIS. STAT. § 102.43 (2017-18). In the alternative, Mueller argues that even if her voluntary retirement initially prevented her from showing an actual wage loss, the Commission erred by concluding that she failed to show she suffered an actual wage loss when she tried—and eventually succeeded—to re-enter the labor market.

We conclude that under WIS. STAT. § 102.43, an employee must show that he or she sustained an actual wage loss attributable to his or her injury in order to be entitled to temporary disability benefits. Applying that standard, we determine that the Commission did not err in dismissing Mueller’s claim because, as the Commission found, Mueller voluntarily retired for reasons entirely unrelated to her injury, and her subsequent attempts to re-enter the labor market were not impaired by her work-related injury. Therefore, any wage loss Mueller suffered is solely attributable to her own choices, and not to her work-related injury. Consequently, we affirm.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: Dale Chapp, et al. v. Colgate-Palmolive Company

Case No.: 2018AP937

Officials: Kessler, Kloppenburg and Dugan, JJ.

Focus: Product Liability – Negligence

Dale Chapp, individually and as the personal representative of the Estate of Ruth Chapp, deceased, appeals from the trial court’s order granting summary judgment to Colgate-Palmolive Company, the manufacturer of Cashmere Bouquet talcum powder, dismissing Chapp’s claims against it.

This action arises from Chapp’s claim that his wife, Ruth Chapp, was directly exposed to inhalable asbestos from her daily use of “asbestos containing” Cashmere Bouquet talcum powder from 1969 to the mid-1980’s and that this asbestos exposure was a contributing cause of Ruth’s death due to mesothelioma, a type of cancer associated with exposure to asbestos. Chapp acknowledges that his occupation and projects resulted in Ruth’s exposure to asbestos fibers. Chapp states that Ruth was regularly exposed to inhalable asbestos from the products and/or machinery that he worked with and around when she shook out and laundered his work clothes. He also alleges that Ruth was exposed to inhalable asbestos because she used Colgate’s Cashmere Bouquet talc powder that contained asbestos, at least once a day for approximately nine years.

Chapp alleges the following claims against Colgate: (1) strict liability defective design; (2) strict liability unreasonably dangerous products; (3) negligence; (4) negligence per se; and (5) punitive damages. The trial court granted Colgate’s motion for summary judgment because it concluded, as a matter of law, that Chapp had “not shown more than the mere possibility of causation,” which was insufficient to overcome the summary judgment motion. The trial court determined Chapp’s submissions could only show that some of the Cashmere Bouquet used by Ruth could have contained asbestos. It concluded that because, at best, liability and non-liability were evenly balanced, the jury could only find causation by speculation and conjecture, which would be improper.

Chapp argues that the trial court erred as a matter of law when it granted summary judgment to Colgate on the issue of causation because it failed to view the evidence in a light most favorable to Chapp and to draw all reasonable inferences in his favor. We disagree and, therefore, affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kris V. Zocco

Case No.: 2018AP1146-CR

Officials: Kessler, Brennan and Kloppenburg, JJ.

Focus: Search Warrant – Probable Cause

A jury convicted Kris Zocco of knowingly possessing sixteen recordings of child pornography. Zocco raises numerous issues on appeal. First, Zocco argues that the circuit court erroneously denied his motions to suppress evidence obtained from his apartment pursuant to two search warrants on the grounds that: (1) probable cause did not support the issuance of a warrant for the search of photos and videos on Zocco’s smartphone, the execution of which led to the issuance of a subsequent warrant to search “devices” on which the child pornography recordings were found; and (2) the seizure of an external hard drive and CDs exceeded the scope of that subsequent warrant. Second, Zocco argues that the evidence was insufficient to establish that he knowingly possessed the sixteen child pornography recordings. Third, Zocco argues that he is entitled to a Machner hearing on whether trial counsel was ineffective for not requesting a supplemental jury instruction that defined the knowledge element of the charged crime. Fourth, Zocco argues that the court erroneously rejected Zocco’s “other acts” objection and motion for a mistrial related to the State’s reference at trial to uncharged images of child pornography located on the CDs seized from Zocco’s apartment. Fifth, Zocco argues that he is entitled to a new trial in the interest of justice because of the errors alleged above. Sixth, Zocco argues that the court erroneously exercised its discretion in imposing sentence based on the court’s deeming Zocco to be a “consumer” of child pornography and on the aggravated nature of the contents of the recordings. Seventh, Zocco argues that the court improperly required as a condition of extended supervision that he “not be involved in any conduct that rises to the level of a finding of probable cause that you have violated the criminal law.” For the reasons stated, we reject all of Zocco’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Levelt Dewarren Musgraves

Case No.: 2018AP1334-CR

Officials: Kessler, Brennan and Kloppenburg, JJ.

Focus: Sentence Credit

Levelt Dewarren Musgraves appeals the circuit court’s order denying his motion for sentence credit. He argues that the circuit court should have applied sentence credit to his life sentence in a manner that made him eligible for parole sooner. We reject this argument. Therefore, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. DeAndre E. Tanner

Case No.: 2018AP1391-CR; 2018AP1392-CR; 2018AP1393-CR

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

Focus: Ineffective Assistance of Counsel

Deandre E. Tanner appeals judgments convicting him of one count of battery, one count of disorderly conduct and three counts of felony witness intimidation, all charges as a domestic abuse repeater. He also appeals an order denying his postconviction motion. Tanner argues: (1) he received ineffective assistance of trial counsel because his counsel failed to ask the circuit court to give the jury an instruction defining the concept of attempt; (2) he received ineffective assistance of trial counsel because his counsel did not object to the prosecutor’s closing argument; and (3) the circuit court erroneously exercised its sentencing discretion when it imposed thirteen years of initial confinement and ten years of extended supervision for his crimes. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Aston Devon Brown

Case No.: 2018AP1867-CR

Officials: Kessler, Brennan and Kloppenburg, JJ.

Focus: 6^th Amendment Violation

Aston D. Brown appeals a judgment convicting him after a jury trial of unlawfully possessing a firearm as a previously convicted felon. He argues: (1) the State violated his constitutional right to a speedy trial; and (2) his trial attorneys were ineffective for failing to enforce his speedy trial rights. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Rodney R. Baer

Case No.: 2018AP1469-CR

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

Focus: Court Error – Exclusion of Evidence

Rodney R. Baer appeals from a judgment convicting him after a jury trial of two counts of repeated sexual assault of the same child and two counts of incest. Baer argues that the trial court violated his constitutional right to present a defense when it disallowed him from presenting evidence relevant to the children’s motivation to lie. We conclude exclusion of the evidence was harmless error. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Kari E. Mravik

Case No.: 2018AP2300-CR

Officials: BLANCHARD, J.

Focus: OWI – Abuse of Discretion

Kari E. Mravik appeals a judgment of conviction for operating while intoxicated (OWI), as a second offense. She also challenges a guilty verdict for operating a motor vehicle with a prohibited alcohol concentration, as a second offense, although she acknowledges that I need reach this issue only in the event that I reverse the OWI conviction.

In her challenge to the OWI conviction, Mravik argues that the circuit court erroneously exercised its discretion when it denied her request to make one modification to WIS JI—CRIMINAL 2663 (2018) (“Instruction 2663”), which is the pattern jury instruction regarding OWI as a criminal offense. Mravik argues that Instruction 2663 misstates the proper legal standard because it omits the word “materially,” in what she says should be the phrase “was materially impaired,” in the course of defining what it means for an operator to be “under the influence of an intoxicant.” For the following reasons, I disagree with Mravik and accordingly affirm.

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WI Court of Appeals – District IV

Case Name: Dane County v. N.W.

Case No.: 2019AP48

Officials: FITZPATRICK, J.

Focus: Plea Colloquy

N.W. appeals an order of the Dane County Circuit Court extending his involuntary commitment for mental health treatment under WIS. STAT. § 51.20, and an order denying his postdisposition motion to vacate that extension. N.W. entered into a written stipulation to the extension of his involuntary commitment. N.W. now contends on appeal that, before the circuit court accepted N.W.’s stipulation, the court was required to conduct a personal colloquy with him to ensure that he knowingly, intelligently, and voluntarily agreed to the extension. N.W. asserts that, because the court did not conduct such a colloquy, the court’s acceptance of the stipulation and the entry of the order extending his commitment violated his constitutional right to due process. I conclude the circuit court was not required to conduct a personal colloquy with N.W. before accepting his stipulation and affirm the orders of the circuit court.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Richard R. Rusk

Case No.: 2019AP135-CR

Officials: KLOPPENBURG, J.

Focus: Statutory Interpretation

Richard Rusk pled no contest to and was convicted of operating a motor vehicle while intoxicated as a third offense. On appeal, Rusk challenges the circuit court’s denial of his motion to suppress evidence obtained as a result of the traffic stop of his vehicle, which was based solely on the belief of the officer who conducted the stop that Rusk’s white window tinting on the vehicle’s windshield extended too far down in violation of WIS. ADMIN. CODE § TRANS 305.34(6)(c) (May 2014).

In support of his appeal, Rusk makes two discernible arguments. First, Rusk argues that the express prohibition against window tinting below a certain portion of the windshield in WIS. ADMIN. CODE § TRANS 305.34(6)(c) is invalid because it imposes a standard that Rusk contends is more restrictive than the standard contained in what Rusk calls the rule’s “enabling statute,” WIS. STAT. § 346.88(3), as that statute was interpreted by our supreme court in State v. Houghton, 2015 WI 79, 364 Wis. 2d 234, 868 N.W.2d 143.3 Therefore, according to Rusk, the stop premised on his vehicle’s violation of an invalid rule was itself invalid, the officer’s “mistake of law” was unreasonable, and the evidence obtained as a result of the stop must be suppressed.

Second, Rusk seems to argue that the language in WIS. ADMIN. CODE § TRANS 305.34(6)(c), which prohibits window tinting below the “A” line, should not apply because it conflicts with the introductory language in subsection (6) providing that “[n]othing may be placed … so as to obstruct the driver’s clear vision through the windshield.” Rusk bases this argument on our supreme court’s interpretation in Houghton of language similar to that introductory language.

As I explain, Rusk’s first argument fails for at least the reason that this court lacks competency over his challenge to the validity of WIS. ADMIN. CODE § TRANS 305.34(6)(c) because Rusk fails to show that he served the Joint Committee for Review of Administrative Rules as required by WIS. STAT. § 227.40(5). Rusk’s second argument is defeated by the plain language of WIS. ADMIN. CODE §§ TRANS 305.34(6) and (6)(c).

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WI Court of Appeals – District IV

Case Name: Michelle L. Merkes v. Kareen Kuecker

Case No.: 2019AP472

Officials: FITZPATRICK, J.

Focus: Small Claims – Judgment

In this small claims action, Kareen Kuecker, pro se, appeals a judgment of the circuit court ordering her to give possession of a motorcycle to her sister, Michelle Merkes, unless an agreement was reached by Kuecker and Michelle as to the purchase price of the motorcycle and that price was fully paid before a day specified in the judgment. I affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. John Doe

Case No.: 2017AP2163-CR

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

Focus: Ineffective Assistance of Counsel

John Doe appeals a judgment convicting him of second-degree sexual assault. He also appeals the circuit court’s order partially denying his motion for sentence modification. Doe argues that: (1) there are new factors that warrant sentence modification; (2) the circuit court misused its discretion when it reduced his sentence by one year; and (3) he received ineffective assistance of counsel. We reject these arguments. Accordingly, we affirm.

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