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Weekly Case Digests – January 20, 2019 – January 24, 2020

By: WISCONSIN LAW JOURNAL STAFF//January 24, 2020//

Weekly Case Digests – January 20, 2019 – January 24, 2020

By: WISCONSIN LAW JOURNAL STAFF//January 24, 2020//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Andrew J Dollard, et al. v. Gary Whisenand, et al.

Case No.: 19-1602; 19-1604; 19-1605

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

Focus: Search Warrant – Probable Cause

In 2013, the Drug Enforcement Administration (DEA) began investigating Dr. Larry Ley and his opioid addiction treatment company, Drug Opiate Recovery Network, Inc. (DORN), for dealing a controlled substance. After conducting undercover surveillance, lead agent Gary Whisenand decided Dr. Ley did not have a legitimate medical purpose in prescribing Suboxone, a drug used to treat opioid addiction.

After finding probable cause, two Indiana courts issued a series of warrants that culminated in twelve separate arrests of five medical providers (four physicians and one nurse) and seven non-provider DORN employees. In the ensuing prosecution, the Indiana courts quickly dismissed the charges against all the non-providers and the nurse. The State eventually proceeded to a bench trial against Dr. Ley, where an Indiana court ultimately acquitted him. Following this acquittal, the State dismissed the rest of the charges against the three remaining providers.

Together, DORN’s providers and non-provider employees sued the DEA agent and others in federal court alleging false arrest, malicious prosecution, and civil conspiracy. The district court entered summary judgment for the defendants on all claims, holding probable cause supported the warrants used to arrest the plaintiffs. We affirm the district court’s judgment as to every plaintiff except Joseph Mackey. With respect to Mackey, we reverse and remand the judgment because the undisputed facts at the summary judgment stage do not establish that officers had probable cause to arrest Mackey or even that reasonable officers could believe probable cause existed.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Michael A. Allgire

Case No.: 19-2348

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

Focus: Sentencing – Supervised release

The district court revoked Michael Allgire’s supervised release after Allgire skipped out one month into his six-month term at a halfway house. The district court sentenced him to reimprisonment—24 months on one count of his original conviction and 17 months on another count, set to run concurrently. He now argues both that his total 24-month sentence was unreasonable and that the district court committed reversible error by imposing two concurrent sentences. We disagree with both contentions.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Bernard A. Fish, Sr.,

Case No.: 2018AP962-CR

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

Focus: Plea Withdrawal

Bernard Fish, Sr., appeals from both a judgment of conviction for being a felon in possession of a firearm and the denial of his postconviction motion. Fish claims he is entitled to plea withdrawal because the circuit court failed to establish a factual basis for his plea. He also argues the court did not make clear at the plea hearing the difference between a concurrent sentence and a consecutive sentence, and therefore his plea was not knowing, intelligent and voluntary. We reject Fish’s arguments and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Toby J. Vandenberg

Case No.: 2018AP1810-CR

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

Focus: OWI – Ineffective Assistance of Counsel

Toby Vandenberg appeals a judgment, entered upon his no-contest plea, convicting him of seventh-offense operating a motor vehicle while intoxicated (OWI) and an order denying his motion for postconviction relief. Vandenberg claims that his trial attorney provided ineffective assistance at his sentencing hearing, and he therefore seeks resentencing.

Vandenberg contends that his trial attorney performed deficiently at his sentencing hearing by: (1) arguing for the imposition of an illegal sentence; and (2) failing to meaningfully advocate for Vandenberg. He further contends that because his attorney’s deficient performance was tantamount to a complete denial of counsel, we should apply a presumption of prejudice to his ineffective assistance claim. In the alternative, he argues that even if prejudice is not presumed, there is a reasonable probability that the result of his sentencing hearing would have been different had he received the effective assistance of counsel at that hearing.

We conclude that Vandenberg’s trial counsel did not perform deficiently. In reaching this conclusion, we recognize that a portion of Vandenberg’s trial attorney’s sentencing argument—when viewed in isolation— was arguably unreasonable insomuch as counsel requested that the circuit court place Vandenberg on probation. When considering the totality of the circumstances surrounding counsel’s argument, however—namely, the fact that counsel framed his argument as seeking an extension of the law and alternatively argued that the court impose the minimum three-year initial confinement period mandated by existing law—we conclude that counsel’s overall performance was reasonable. In addition, we determine that counsel’s decision not to focus on Vandenberg’s good character and positive social history was not an abdication of counsel’s role at sentencing; rather, it was a reasonable strategic decision.

We further conclude that, even assuming Vandenberg’s trial attorney performed deficiently, Vandenberg was not prejudiced by that deficient performance. With respect to Vandenberg’s argument that we should presume prejudice in this case, we determine that the circumstances of this case do not amount to a complete denial of counsel and therefore such a presumption is not warranted here. And, finally, we determine that Vandenberg has failed to demonstrate that there is a reasonable probability that the result of his sentencing hearing would have been different but for his attorney’s assumed deficient performance. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Deandre M. Smith

Case No.: 2018AP1835-CR

Focus: Order Correcting Opinion

PLEASE TAKE NOTICE that corrections were made to paragraphs 20 and 23 in the above-captioned opinion which was released on November 27, 2019. A corrected electronic version in its entirety is available on the court’s website at www.wicourts.gov.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. James L. Jackson, Jr.,

Case No.: 2018AP2074-CR

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

Focus: 1st Amendment Violation – Sex Offender Registry

James L. Jackson, Jr., challenges a provision of the Wisconsin sex offender registry statute, WIS. STAT. § 301.45(2)(a)6m. (2017-18), as violating the First Amendment. This provision requires registrants to disclose to the Department of Corrections (DOC) e-mail addresses, Internet user names, Internet profiles, and websites created or maintained by the registrant. The circuit court found no First Amendment violation. We agree and affirm.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Herman Whiterabbit

Case No.: 2018AP2343

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

Focus: Ineffective Assistance of Counsel

Herman Whiterabbit appeals an order denying his WIS. STAT. § 974.06 (2015-16) postconviction motion. Whiterabbit contends that his trial counsel, James Ewers, was per se ineffective because following Whiterabbit’s trial Ewers was disbarred for illegal conduct that occurred prior to the trial. Whiterabbit also contends that the circuit court erred by denying his ineffective assistance of counsel claim on the ground that it was procedurally barred under State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). We reject Whiterabbit’s claim that his trial counsel was per se ineffective, and we affirm on that basis. See State v. Trecroci, 2001 WI App 126, ¶45, 246 Wis. 2d 261, 630 N.W.2d 555 (we may affirm the circuit court’s decision on other grounds than relied on by the court). Accordingly, we need not address whether the procedural bar applies.

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WI Court of Appeals – District II

Case Name: The Estate of Tom W. Sawyer v. Timothy Sawyer, et al.

Case No.: 2018AP2455

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

Focus: Trusts & Estates – Land Contract

Timothy Sawyer, Laura Sawyer, Diane Wellnitz, and Elizabeth Nadow (“the Interested Parties”) appeal an order ruling that the Estate of Tom W. Sawyer reasonably forgave the remaining balance of a land contract between Beulah Beach, Inc., and his daughter, Kathleen Ferry and her husband James, and denying the Interested Parties’ demand that the Ferrys pay the Estate monies on the land contract and satisfy other alleged obligations. The appellants’ position would require undoing a stipulation the parties entered into and that the court signed. We decline to do so. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Pheng Yang

Case No.: 2018AP1423-CR

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

Focus: Plea & Sentencing – Ineffective Assistance of Counsel

Pheng Yang appeals from a judgment, entered on his guilty plea, convicting him on one count of second-degree intentional homicide. He also appeals from an order denying his postconviction motion for plea withdrawal. Yang claims that: (1) his plea was not knowing, intelligent, and voluntary because he did not understand he was admitting an intent to kill; and (2) trial counsel was ineffective for not properly explaining the impact of the plea and for not requesting additional time with Yang before he entered the plea. We agree with the circuit court that the record reflects a valid plea and no ineffective assistance; thus, the circuit court did not err in denying the motion without a hearing. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Antonio L. Bell

Case No.: 2018AP1593-CR; 2018AP1594-CR

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

Focus: Evidentiary Hearing

Antonio L. Bell appeals his judgments of conviction for second-degree sexual assault of a child and third-degree sexual assault, as well as the order denying his postconviction motions. The victims in this case are Bell’s daughter, C.B., who was nine years old at the time the charges were filed, and his stepdaughter, S.E., who was fourteen. Bell pled no contest to these charges but maintained his innocence, stating that he entered the pleas to spare his children from having to testify at a trial.

After the assaults were reported, both girls tested positive for a sexually-transmitted disease—chlamydia. In his initial postconviction motion, Bell argued that his trial counsel was ineffective for failing to investigate S.E.’s boyfriend as a potential third-party perpetrator, because he was known to have tested positive for chlamydia, whereas there was no evidence that Bell ever had chlamydia.

In his supplemental postconviction motion, Bell argued the existence of newly discovered evidence relating to C.B. Prior to Bell entering his pleas, C.B. had recanted her statement that Bell had assaulted her. After he was sentenced, however, C.B. made a second, more detailed recantation: not only did she again state that Bell had not assaulted her, she declared that the perpetrator was actually S.E.’s boyfriend, and that the boyfriend had encouraged her to blame Bell for the assault.

The trial court denied both of Bell’s postconviction motions without granting hearings. It found that Bell had not demonstrated that he was prejudiced by trial counsel’s failure to investigate S.E.’s boyfriend because the court did not believe it was a viable third-party defense. The court also rejected Bell’s newly discovered evidence claim, stating that C.B. had made her first recantation prior to Bell entering his pleas, and thus the second recantation did not constitute new evidence. We conclude that Bell has demonstrated that he is entitled to an evidentiary hearing on his claims. We therefore reverse and remand this matter for such a hearing before the trial court.

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WI Court of Appeals – District I

Case Name: City of Milwaukee v. Mohammad A. Choudry, et al.

Case No.: 2018AP1693

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

Focus: Delinquent Real Estate Taxes

Mohammad A. Choudry, together with his companies PAK Rentals & Construction LLC; PAK Property 1 LLC; PAK Property 2 LLC; and PAK Property 3 LLC (collectively “Choudry”), appeal from an order of the trial court dismissing the action after real estate owned by Choudry was transferred into an irrevocable trust. The action was filed by the City of Milwaukee in October 2016 seeking to recover delinquent real estate taxes on numerous properties owned by Choudry. The City’s complaint also alleged that there were thousands of code violations that had been assessed against the properties, constituting a public nuisance. The complaint listed several other causes of action as well.

The trial court granted a temporary restraining order in November 2016 to manage Choudry’s properties and bar Choudry from acquiring more property. Also at that time, the court appointed a receiver to manage the properties, with whom Choudry cooperated in making repairs on the properties. However, after performing these duties for approximately one and one-half years, the receiver filed a motion to transfer the properties into a trust, with the receiver as the trustee, asserting that this would allow the receiver to continue managing the properties without the court’s involvement until such time that all of Choudry’s debts were repaid; at that point, the remaining assets in the trust would be returned to Choudry. The court granted the motion in July 2018, and the City then dismissed the action against Choudry.

On appeal, Choudry argues that there was never any final adjudication regarding the causes of action in the complaint, and without that final adjudication the trial court did not have the authority to impose a remedy. We agree. We therefore reverse the order of the trial court and remand this matter for further proceedings consistent with this decision.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Lucious Emmit Mason

Case No.: 2018AP2136-CR

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

Focus: Ineffective Assistance of Counsel

Lucious Emmit Mason appeals from a judgment of conviction for one count of armed robbery with use of force, one count of false imprisonment while using a dangerous weapon, and one count of substantial battery while using a dangerous weapon. See WIS. STAT. §§ 943.32(2), 939.63(1)(b), 940.30, and 940.19(2) (2015-16). Mason also appeals from an order denying his motion for postconviction relief. Mason argues that he is entitled to a new trial because trial counsel provided ineffective assistance in four ways. We reject his arguments and affirm the judgment and order.

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WI Court of Appeals – District III

Case Name: Adoptions of Wisconsin, Inc., v. N.R.K.

Case No.: 2019AP1726

Officials: SEIDL, J.

Focus: Termination of Parental Rights

Noah appeals a circuit court order terminating his parental rights to his daughter, Natalie, based on the petition of an organization called Adoptions of Wisconsin, Inc.  Noah argues the court erred by determining that grounds exist for the termination of his parental rights due to his failure to assume parental responsibility under WIS. STAT. § 48.415(6). Adoptions of Wisconsin cross-appeals, asserting: (1) the court erred in reopening the termination of parental rights (TPR) case to allow Noah to contest the termination of his parental rights; and (2) the court erred in determining that Adoptions of Wisconsin failed to prove that grounds existed to terminate Noah’s parental rights due to his abandonment of Natalie under § 48.415(1).

We agree with the circuit court’s determination that Noah failed to assume parental responsibility for Natalie. Therefore, we affirm the order terminating his parental rights to her. Because we affirm the TPR order on this ground, we need not address the issues Adoptions of Wisconsin raises in its cross-appeal. Accordingly, we dismiss the cross-appeal.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. D.I.H.

Case No.: 2019AP1874

Officials: DUGAN, J.

Focus: Termination of Parental Rights

D.I.H. appeals the orders terminating the parental rights of her mother, V.T, and her father, S.D.H., to her. D.I.H. argues that the trial court erroneously exercised its discretion when it concluded that termination of V.T. and S.D.H.’s parental rights was in D.I.H.’s best interests. This court disagrees and, therefore, affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin ex rel. Joshua M. Wren v. Reed Richardson Warden

Case No.: 2019 WI 110

Focus: Postconviction Motion Denied – Laches Doctrine

After his conviction in 2007 for reckless homicide, Joshua M. Wren alleges his counsel failed to file a notice of intent to pursue postconviction relief as promised, causing Wren to lose his direct appeal rights. Wren knew this, however, by sometime in 2010 or 2011. Over the next several years, Wren filed four pro se motions relating to his conviction, none of which raised his counsel’s alleged blunders. Then, in 2017, Wren filed a petition for a writ of habeas corpus asserting ineffective assistance of counsel for failing to appeal, and seeking to reinstate his direct appeal rights. In defense, the State pled laches, resting its case on the fact that the attorney who made the alleged missteps passed away in 2014, and no case files or notes remained. The court of appeals agreed with the State, imposed laches, and denied the petition.

Before us, Wren asserts that our adoption of laches as an available defense to a habeas petition was ill-considered and should be reexamined. But even if laches can bar his claim, Wren maintains that the State failed to prove the elements, and that the court of appeals erroneously exercised its discretion in applying laches here.

We disagree. This court held just a few months ago that the State may assert laches as a defense to a habeas petition. See State ex rel. Lopez-Quintero v. Dittmann, 2019 WI 58, ¶10, 387 Wis. 2d 50, 928 N.W.2d 480. We decline to revisit that ruling today. On the merits, we agree with the court of appeals that the State established unreasonable delay and prejudice, the two laches elements Wren challenges. We further conclude that the court of appeals did not erroneously exercise its discretion by applying laches and barring relief.

Affirmed

Concur:

Dissent: ANN WALSH BRADLEY, J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY, and DALLET, JJ., joined.

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