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Home / Case Digests / Weekly Case Digests – May 18, 2020 – May 22, 2020

Weekly Case Digests – May 18, 2020 – May 22, 2020

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Jason Douglas v. The Western Union Company, et al.

Case No.: 19-1868

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

Focus: Class Action – Jurisdiction

Appellant Bethany Price objected to a proposed class‐action settlement, but the district judge ruled that she was not a class member and she did not contest that ruling. Price then sought attorney’s fees and an incentive award for objecting. The judge denied her requests because as a nonclass member, she had no standing to object or to receive fees or an award. Price appeals the denial of her fee and award requests, arguing that nonclass members can be compensated for objecting. Because Price does not challenge the ruling that she is not a class member, we conclude that she is not a party and lacks standing to appeal. Thus we dismiss the appeal for lack of appellate jurisdiction.

Dismissed

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7th Circuit Court of Appeals

Case Name: Gerald Winfield v. Stephanie Dorethy, Warden,

Case No.: 19-1441; 19-1547

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

Focus: Ineffective Assistance of Counsel

Gerald Winfield confessed to police that he shot Jarlon Garrett. Based on that confession, a judge on the Circuit Court of Cook County convicted Winfield of attempted murder. Winfield was also accused of killing Dominick Stovall in the same shooting, but the trial judge acquitted him of that charge because no credible witness had placed Winfield at the scene of the crime and his confession did not mention Stovall. The judge rejected Winfield’s argument that his confession had been coerced, as well as his half-hearted alibi defense, and sentenced him to thirty years’ imprisonment. In his direct appeal, Winfield’s new counsel raised one unsuccessful argument—that the judge had abused his discretion at sentencing.

These appeals require us to consider the performance of Winfield’s trial and appellate counsel. The Illinois state courts, on post-conviction review, concluded that trial counsel’s presentation of Winfield’s alibi was not so deficient that it violated the Constitution, but they did not address the performance of appellate counsel to any meaningful degree. The district court, therefore, applied the stringent and deferential standard of the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d), to Winfield’s claim that he received ineffective assistance of trial counsel and denied that part of his petition for writ of habeas corpus. On the matter of appellate counsel, the district court concluded that AEDPA did not apply because the claim had not been “adjudicated on the merits in State court,” id., but had instead been overlooked. It considered the claim without any deference to the state courts’ denial of relief. Through that lens, and although it believed it to be a close case, the court found appellate counsel had rendered ineffective assistance by omitting an argument that there was insufficient evidence to convict because Winfield’s confession was uncorroborated.

Both parties have appealed. The state argues that the district court erred in granting relief on the appellate counsel claim; Winfield contends that the court erred in denying relief on the trial counsel claim. We affirm the judgment in part and reverse it in part, as we conclude that Winfield is not entitled to habeas corpus relief under either theory.

Affirmed in part. Reversed in part.

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7th Circuit Court of Appeals

Case Name: United States of America v. Michael L. Chaparro

Case No.: 18-2513

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

Focus: Sufficiency of Evidence

A jury found Michael Chaparro guilty on three felony charges for viewing and transporting child pornography. The charges arose from three crimes separated by significant gaps in time: viewing child pornography on a hard drive in July 2013, transmitting child pornography files over the Internet in August 2014, and viewing child pornography on a smartphone in November 2014. Chaparro was sentenced to three concurrent prison terms of 210 months each. On appeal he challenges his convictions on three distinct grounds: the sufficiency of the evidence that he was the person using the electronic devices; the admission at trial of a statement that he made to Pretrial Services; and allegedly improper remarks by the prosecutor during rebuttal.

The first and third challenges were not raised in the district court and provide no basis to disturb the convictions. Granted, the government’s case could have been stronger as to the identity of the devices’ user. The computer forensics led investigators to a home, not to an individual, and little evidence showed that Chaparro resided at the relevant street address before December 2014. Nevertheless, there was sufficient evidence to sustain the convictions on plain-error review. Any improper rebuttal comments did not affect Chaparro’s substantial rights.

The admission of Chaparro’s pretrial services statement was an error, though. When Congress created Pretrial Services, it made pretrial services information “confidential” and specifically prohibited its admission “on the issue of guilt in a criminal judicial proceeding.” 18 U.S.C. § 3153(c)(1) & (3). This rule may protect some accused defendants, but its most important benefits accrue to the judicial system as a whole. Confidentiality helps pretrial services officers obtain the information needed to make quick and accurate recommendations about pretrial release and detention.

This case concerns a judge-made impeachment exception to Congress’s mandate of confidentiality. In his pretrial interview, Chaparro had said that he lived at the scene of the crimes on all the relevant dates. The government left the record blank on that key point during its case in chief. Chaparro’s lone witness, his uncle Eddie Ramos, then testified that Chaparro did not live at the address until just before his arrest. As rebuttal, the government sought to call the pretrial services officer who interviewed Chaparro. The district court allowed the testimony, over objection, relying on cases from other circuits that have recognize an exception to pretrial confidentiality for impeachment. See, e.g., United States v. Griffith, 385 F.3d 124 (2d Cir. 2004).

Those precedents were inapposite, and it was a legal error to admit Chaparro’s statement to Pretrial Services. Chaparro’s words were not a prior inconsistent statement by Ramos, the testifying witness. Instead, the government used them for “impeachment by contradiction” against Ramos. Despite the “impeachment” label, someone else’s contradictory statement is relevant only if it is offered for the truth of the matter asserted. The statement by Chaparro was thus offered as evidence of guilt, a purpose specifically prohibited by statute. This error was not harmless for two of the three convictions. Considered for its truth, Chaparro’s statement filled a key gap in the government’s cases on the July 2013 and August 2014 charges. Those convictions must therefore be vacated. Chaparro is entitled to a new trial on those charges or, in the alternative, to resentencing on the remaining conviction.

The convictions as to Count One and Count Three of the indictment are REVERSED, and the sentence on Count Two is vacated. The case is remanded to the district court for a new trial on Counts One and Three and/or resentencing on Count Two in a manner consistent with this opinion.

Reversed and remanded in part Vacated in part.

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7th Circuit Court of Appeals

Case Name: Davin Hackett v. City of South Bend, et al.,

Case No.: 19-2574

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

Focus: USERRA Violation – Retaliation Claim

Davin Hackett was a police officer for the City of South Bend. He asserts that the city discriminated and retaliated against him in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. § 4301 et seq. The district court granted summary judgment in favor of the city. On appeal, Hackett raises a new hostile work environment claim. Because this new argument was forfeited and Hackett fails to confront the grounds for the district court’s decision, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Dustin Caya

Case No.: 19-2469

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

Focus: Warrantless Search – Extended Supervision – Suppression of Evidence

Dustin Caya was indicted on drug-trafficking and firearms charges based on evidence found in his home during a search conducted on the authority of section 302.113(7r) of the Wisconsin Statutes. The statute authorizes law-enforcement officers to search the person, home, or property of a criminal offender serving a term of “extended supervision”—the period of community supervision that follows a prison term—based on reasonable suspicion of criminal activity or a violation of supervision. Caya moved to suppress the evidence recovered from his home, arguing that the search was unlawful under the Fourth Amendment. The district judge denied the motion. Caya pleaded guilty, reserving his right to challenge the suppression ruling on appeal.

We affirm the judgment. Fourth Amendment law has long recognized that criminal offenders on community supervision have significantly diminished expectations of privacy. More specifically, the privacy expectations of offenders on post imprisonment supervision are weak and substantially outweighed by the government’s strong interest in preventing recidivism and safely reintegrating offenders into society. Indeed, the Supreme Court has held that a law-enforcement officer may search a person on parole without any suspicion of criminal activity. Samson v. California, 547 U.S. 843, 847 (2006). In Wisconsin extended supervision is essentially judge-imposed parole. It follows that a search under section 302.113(7r), which requires reasonable suspicion of criminal activity or a violation of supervision, is constitutionally permissible.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District IV

Case Name: Waushara County Department of Human Services v. A.J.P.

Case No.: 2019AP2387

Officials: BLANCHARD, J.

Focus: Termination of Parental Rights – Abuse of Discretion

A.J.P. appeals the circuit court’s order terminating his parental rights to his child, E.D.P., on the petition of Waushara County Department of Human Services (the County). He challenges only the circuit court’s ruling in the dispositional phase of proceedings and makes no arguments regarding the grounds phase. He argues that the circuit court erroneously exercised its discretion by failing to adequately consider three of the factors pertinent to the disposition of a termination of parental rights case under WIS. STAT. § 48.426(3). I affirm the court’s ruling.

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WI Court of Appeals – District III

Case Name: Marathon County v. R.J.O.

Case No.: 2018AP1037

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

Focus: Prisoner – Involuntary Commitment

R.J.O. was involuntarily committed under WIS. STAT. § 51.20 (2017-18), and her commitment was later extended. However, the circuit court subsequently granted R.J.O.’s postdisposition motion to dismiss her commitment. The court agreed with R.J.O. that it had lost competency to consider Marathon County’s petition to extend her commitment when it failed to hold a recommitment hearing before the initial commitment expired.

The County now appeals, arguing the circuit court erred by granting R.J.O.’s postdisposition motion because the time for holding a recommitment hearing was extended when the court issued an order for R.J.O.’s detention under WIS. STAT. § 51.20(10)(d). R.J.O. cross-appeals, arguing the court erred by holding that she received proper notice of the originally scheduled recommitment hearing. R.J.O. also argues her trial attorney was ineffective by advising her not to appear at that hearing. In addition, R.J.O. argues the court incorrectly determined that she did not timely demand a jury trial. In the alternative, she argues that if the court’s conclusion in that regard was correct, her trial attorney was ineffective by failing to timely file a jury trial demand.

Based on our supreme court’s recent decision in Waukesha County v. S.L.L., 2019 WI 66, 387 Wis. 2d 333, 929 N.W.2d 140, we agree with the circuit court that R.J.O. received proper notice of the recommitment hearing because the requisite notice was provided to her attorney. Moreover, it is undisputed in this case that R.J.O.’s attorney provided her with actual notice of the recommitment hearing, which the subject individual in S.L.L. did not receive.

Although we agree with the circuit court that R.J.O. received proper notice of the recommitment hearing, we reject the court’s conclusion that it lost competency to consider the County’s petition to extend R.J.O.’s commitment when it failed to hold a recommitment hearing before the original commitment expired. We instead agree with the County that the time to hold a recommitment hearing was extended when R.J.O. failed to appear at the originally scheduled recommitment hearing and the court therefore issued an order for detention. We reject the remaining arguments raised in R.J.O.’s cross-appeal. Accordingly, we reverse the order granting R.J.O.’s postdisposition motion to dismiss her commitment.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Ronald Eugene Provost

Case No.: 2018AP1268-CR; 2018AP1269-CR

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

Focus: Court Error – Right to Speedy Trial and Ineffective Assistance of Counsel

In these consolidated appeals, Ronald Provost appeals a judgment, entered upon a jury’s verdict, convicting him of causing a child to view sexual activity and a judgment, entered upon his guilty pleas, convicting him of seventh-offense operating a motor vehicle while intoxicated (OWI) and felony bail jumping. He also appeals the orders denying his motions for postconviction relief.

With respect to his conviction for causing a child to view sexual activity, Provost contends that he was denied his constitutional right to a speedy trial under the traditional four-factor test established in Barker v. Wingo, 407 U.S. 514 (1972), as applied and interpreted by our case law. In the alternative, he argues that because two of the attorneys appointed to represent him failed to adhere to the minimum performance guidelines set by the Office of the Wisconsin State Public Defender (SPD), we should adopt and apply the “systemic breakdown” exception established by Vermont v. Brillon, 556 U.S. 81 (2009), to conclude that his speedy-trial right was violated.

As to his conviction for seventh-offense OWI, Provost contends that his trial counsel provided him with ineffective assistance. Specifically, he faults his counsel for failing to collaterally attack two of his prior OWI-related criminal convictions in Minnesota. We conclude that: (1) considering the four Barker factors in light of the totality of the circumstances, there was no violation of Provost’s right to a speedy trial; (2) even assuming that two of the attorneys assigned to represent Provost failed to adhere to the minimum standards set by the SPD (an assumption which, for reasons explained below, is generous), no “systemic breakdown” occurred within the meaning of Brillon; and (3) Provost has failed to demonstrate that he was prejudiced by his counsel’s failure to collaterally attack the challenged prior OWI convictions. Consequently, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Mark A. Mayo

Case No.: 2018AP1844-CR

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

Focus: Plea & Sentencing – Resentencing

Mark Mayo appeals a judgment, entered upon his no-contest pleas, convicting him of eight counts of capturing an image of nudity without consent, where the person depicted has a reasonable expectation of privacy. Mayo also appeals the order denying his postconviction motion for resentencing. Mayo argues that he is entitled to resentencing because his sentence was based on inaccurate information. We reject Mayo’s arguments and affirm the judgment and order.

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WI Court of Appeals – District III

Case Name: Robin Zahran, et al. v. Bank of America

Case No.: 2018AP1929

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

Focus: Court Error – Issue and Claim Preclusion

Robin Zahran and Karen Zahran (collectively “the Zahrans”), pro se, appeal an order dismissing their complaint against Bank of America, N.A. (“BANA”). The Zahrans argue the circuit court erred by concluding their complaint is barred under the doctrines of issue preclusion and claim preclusion. We agree with the circuit court that claim preclusion bars the Zahrans’ complaint. We therefore affirm the order.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Michael K. Wojciechowski

Case No.: 2018AP2086-CR

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

Focus: Sufficiency of Evidence

Michael Wojciechowski appeals a judgment, entered upon a jury’s verdicts, convicting him of theft of movable property from a corpse and obstructing an officer. Wojciechowski challenges the sufficiency of the evidence to support his conviction for theft from a corpse. We reject Wojciechowski’s arguments and affirm the judgment.

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WI Court of Appeals – District III

Case Name: Samuel Ison v. Department of Health Services and Division of Medicaid Services

Case No.: 2018AP2260

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

Focus: Medicaid Claim – InterQual Criteria

Samuel Ison appeals an order denying his WIS. STAT. ch. 227 (2017-18) appeal from the administrative denial of a Medicaid claim. Ison challenges his health maintenance organization’s (HMO) use of InterQual criteria to deny his requested prior authorization for back surgery and a decision by the Department of Health Services to uphold the denial of the prior authorization request as medically unnecessary. We conclude Ison forfeited the first issue regarding the use of InterQual criteria and there is substantial evidence in the record to support the Department’s decision. We therefore affirm.

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WI Court of Appeals – District III

Case Name: Aydin Turk Mardan v. Ingie Mardan

Case No.: 2018AP2295

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

Focus: Divorce – Property Division

Aydin Mardan appeals a judgment of divorce resolving all contested issues, including property division. Aydin argues the circuit court erred by allowing his attorney to withdraw from representation at the beginning of the contested hearing, by ordering him to make a $64,006.50 equalization payment to his former wife, Ingie Mardan, and by ordering him to pay $2,880 of her attorney fees. We conclude all of Aydin’s arguments either were forfeited, are undeveloped, or lack merit, and we affirm.

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WI Court of Appeals – District III

Case Name: Mark Emmett Gilbert v. Theresa Noelle Gilbert

Case No.: 2018AP2312

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

Focus: Divorce – Remedial Sanction

Mark Gilbert appeals a postdivorce order requiring him to pay $28,117.63 to his former spouse, Theresa Gilbert.  The circuit court ordered the payment be made to Theresa in her role as trustee for a constructive trust the court had previously imposed, as a remedial sanction, on Mark’s real estate after finding him in contempt. Mark argues, for several reasons, that the court erred in ordering the payment. We reject Mark’s arguments and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Aaron K. Hall

Case No.: 2018AP2365-CR

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

Focus: Plea Withdrawal

Aaron Hall appeals from a criminal judgment convicting him of one count of delivering cocaine and one count of delivering marijuana, each as a repeat offender. The sole issue on appeal is whether the circuit court erred by denying Hall’s presentence motion to withdraw his guilty pleas to the charges. We affirm the circuit court’s determination that Hall has failed to demonstrate a fair and just reason for plea withdrawal.

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WI Court of Appeals – District III

Case Name: Aurora Summerhill, et al. v. Dennis M. Lins

Case No.: 2019AP274; 2019AP275; 2019AP276

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

Focus: Injunction – Sufficiency of Evidence

In these consolidated cases, Dennis Lins appeals from orders denying his motions for relief from harassment injunctions entered in favor of Jennifer, Aurora, and Gabriella Summerhill. Lins contends the circuit court erred, for a number of reasons, in denying his motions.

We affirm the circuit court’s denial of Lins’ motion for relief from the injunction entered in favor of Summerhill on the grounds that, due to Lins’ failure to timely appeal that injunction, we lack jurisdiction to consider Lins’ appellate argument that insufficient evidence supported the injunction. We reverse the orders denying Lins’ motions for relief from the injunctions granted in favor of Aurora and Gabriella, however, because the court failed to hold evidentiary hearings before granting the injunctions, and the injunctions are therefore void. We remand with instructions that those two injunctions be vacated.

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WI Court of Appeals – District III

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

Case No.: 2019AP420

Officials: STARK, P.J.

Focus: Court Error – Abuse of Discretion

Adam appeals a dispositional order adjudicating him delinquent on one count of criminal damage to property, as a party to the crime. Adam argues the circuit court should have granted his motion to dismiss the delinquency petition because the State failed to comply with the time limits set forth in WIS. STAT. §§ 938.24 and 938.25. We conclude that regardless of whether the State complied with those time limits, the court did not erroneously exercise its discretion by denying Adam’s motion to dismiss. We therefore affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Shannon G. Potocnik

Case No.: 2019AP523-CR

Officials: SEIDL, J.

Focus: Warrantless Search – Blood Test

Shannon Potocnik, pro se, appeals a judgment convicting him of operating a motor vehicle with a prohibited alcohol concentration (PAC) as a second offense. The conviction was entered on Potocnik’s no-contest plea following the circuit court’s denial of his motion to suppress. That motion sought to suppress the result of a warrantless chemical blood test obtained at a hospital after a law enforcement officer had entered Potocnik’s house without a warrant. Potocnik argues the circuit court erred in concluding that: (1) the community caretaker exception to the Fourth Amendment’s warrant requirement applied to permit the warrantless search of his house; and (2) Potocnik’s warrantless blood draw did not violate the Fourth Amendment due to exigent circumstances. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jason A. Marcotte

Case No.: 2019AP695-CR

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

Focus: Sentencing – Objective Bias

Jason Marcotte appeals a judgment convicting him of one count of delivering three grams or less of amphetamine, as a party to the crime. He also appeals an order denying his postconviction motion for resentencing. Marcotte argues the judge who sentenced him after the revocation of his probation was objectively biased for two reasons. First, he contends the judge made multiple comments indicating that he had prejudged Marcotte’s sentence. Second, Marcotte argues the judge was objectively biased as a result of his dual role as the sentencing judge in this case and as the presiding judge in a drug court program that Marcotte failed to complete. We agree with Marcotte that these factors, taken together, are sufficient to demonstrate objective bias. We therefore reverse and remand for Marcotte to be resentenced by a different judge.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Larry Alexander Norton

Case No.: 2019AP1796-CR

Officials: BRASH, P.J.

Focus: Unlawful-stop Claim – Reasonable Suspicion

Larry Alexander Norton appeals his judgment of conviction for resisting an officer. Norton contends that the trial court erred in denying his motion to suppress evidence that was seized by police during their investigation of a report of shots fired, asserting that the police did not have the requisite reasonable suspicion to stop him.

The trial court disagreed, finding that the officers had reasonable suspicion for the stop based on the nature of the call to which the police were responding, the fact that the area was considered “troublesome,” and that Norton made “furtive movements” when the police approached him. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Ronell N. Hibbler

Case No.: 2018AP1876-CR

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

Focus: Abuse of Discretion – Ineffective Assistance of Counsel

Ronell N. Hibbler appeals from a judgment convicting him after a jury trial of three drug-related charges and two counts of felony bail jumping and from an order denying his motion for postconviction relief. We affirm the judgment and order. Pursuant to information provided by two paid informants, City of Racine police executed a no-knock search warrant shortly after 5:00 a.m. at the home of Hibbler’s girlfriend, GS, where he also resided. Hibbler and GS were asleep in a bedroom in which police found $2075 in a dresser drawer, a Samsung flip phone belonging to Hibbler, and $480 in a pocket of Hibbler’s pants. GS plausibly accounted for $247 found in the closet. A digital gram scale and a plastic baggie containing what proved to be marijuana were on an end table in the living room. A zipped case containing substances that tested positive for cocaine, crack cocaine, and marijuana was discovered beneath the front porch.

After Investigator Donald Nuttall read Hibbler his Miranda rights, Hibbler acknowledged being aware of the cocaine found in the case under the porch. Nuttall asked if the amount was approximately one ounce; Hibbler responded that it was “about an ounce.” Nuttall believed the 42.7 grams of crack cocaine (“the cocaine evidence”) found in the case, which had an approximate street value of $4270, was a high amount for personal use and that the amount of marijuana was greater than that for a casual user. Hibbler was charged with possession with intent to deliver cocaine (>15-40 grams), possession with intent to deliver THC (<=200 grams), maintaining a drug-trafficking place, and two counts of felony bail jumping, all as a repeater.

Hibbler’s defense theory was that the drugs were not his and that the informants’ credibility was questionable because they were being paid by the police. The jury found him guilty as charged. He filed a postconviction motion alleging that the trial court erroneously exercised its discretion regarding a ruling on the cocaine evidence and that he received ineffective assistance of counsel. He sought either a new trial or a Machner hearing. The trial court denied the motion without requiring a response from the State and without a hearing. This appeal followed. Additional facts will be supplied as the issues warrant.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Deandre L. Jackson

Case No.: 2018AP2096-CR

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

Focus: Ineffective Assistance of Counsel

Deandre Jackson appeals from a judgment convicting him of possessing heroin with intent to deliver as a second and subsequent offense and from an order denying his postconviction motion claiming ineffective assistance of trial counsel in connection with arguments made in a motion to suppress. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Thomas F. Ball, II

Case No.: 2018AP2184; 20182185-CR

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

Focus: Ineffective Assistance of Counsel

In these consolidated cases, Thomas F. Ball, II, appeals from judgments convicting him of nine crimes and from the orders denying his postconviction motions.  Ball contends defense counsel performed ineffectively at resentencing by failing to challenge the structure of his sentences and his sentence credit and failing to request a restitution hearing. He also contends a new factor merits sentence modification. His arguments are unpersuasive; we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Kevin M. Lipscomb

Case No.: 2018AP2353-CR

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

Focus: Court Error – Abuse of Discretion

A jury found Kevin M. Lipscomb guilty of being party to a crime (PTAC) of armed robbery. He appeals from the judgment of conviction, alleging that the trial court erred by: (1) refusing to allow him to demonstrate his distinctive walk for the jury without being sworn or subject to cross-examination, (2) admitting cell phone photographic evidence of guns and cash, and (3) sua sponte instructing the jury that the victim’s homeowners insurance policy did not cover the loss. He also seeks a new trial in the interest of justice. If the court did err, any reviewable error was harmless. We affirm.

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WI Court of Appeals – District II

Case Name: Southport Commons, LLC, v. Wisconsin Department of Transportation

Case No.: 2019AP130

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

Focus: Time-barred

Southport Commons, LLC appeals the circuit court’s order granting the Wisconsin Department of Transportation’s motion for judgment on the pleadings. Southport contends the court erred in ruling that its action is barred because it filed its claim for inverse condemnation more than three years after the damage at issue occurred to its property. Southport argues that statutory language indicating its claim against DOT needed to be filed “within 3 years after the alleged damage occurred,” WIS. STAT. § 88.87(2)(c) (2017-18) (emphasis added), really means the claim needed to be filed within three years after the alleged damage was discovered. Because we conclude the statute means what it says, we affirm.

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WI Court of Appeals – District I

Case Name: Monica R. Pennell v. American Family Mutual Insurance Company S.I. et al.

Case No.: 2019AP170

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

Focus: Jury Instructions

Monica R. Pennell was injured in an automobile accident. Pennell appeals from a money judgment entered in her favor against American Family Mutual Insurance Company, S.I. and Carmella Covelli. Pennell argues the circuit court erred in refusing to instruct the jury as to whether Covelli’s negligence was “a cause” of her injuries (WIS JI—CIVIL 1500) and erred in refusing to instruct the jury on “aggravation or activation” of a pre-existing condition (WIS JI—CIVIL 1720). We agree with Pennell and reverse and remand for a new trial.

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WI Court of Appeals – District IV

Case Name: A.C.E. v. I.M.

Case No.: 2019AP573

Officials: NASHOLD, J.

Focus: Termination of Parental Rights

I.M. appeals an order of the circuit court terminating his parental rights to his child, E.M.C. I affirm.
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WI Court of Appeals – District IV

Case Name: State of Wisconsin ex rel. Marcus J. Kerby v. Jon Litscher

Case No.: 2018AP284

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

Focus: Prisoner Trust Accounts

John Litscher, as secretary of the department of corrections, appeals a circuit court order enjoining the department from deducting funds from Marcus Kerby’s prisoner trust account at a rate greater than 25%. We dismiss this appeal as moot.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Michael C. Henderson

Case No.: 2018AP1638-CR

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

Focus: 6th Amendment Violation

Michael Henderson appeals a judgment convicting him, after a jury trial, of one count of first-degree intentional homicide. He also appeals an order denying his motion for postconviction relief. On appeal, Henderson argues that his constitutional rights to counsel were violated during discussions with law enforcement that took place on June 10 and June 13, 2014. Henderson also argues that his confrontation rights were violated when the circuit court admitted statements written in a notebook kept by the victim. We reject these arguments and affirm the judgment and order of the circuit court.

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WI Court of Appeals – District IV

Case Name: Jaime Martinez, et al. v. Regent Insurance Company, et al.

Case No.: 2018AP1685

Officials: Blanchard, Graham, and Nashold, JJ.

Focus: Sufficiency of Evidence

Jamie and Maggie Martinez appeal a judgment, following a jury trial, dismissing their claims against Country Kitchen, its owners Craig and Dawn Dougherty, and its insurer, and an order denying the Martinezes’ post-verdict motions. The Martinezes argue that they are entitled to a new trial because, they contend: (1) Country Kitchen failed to disclose an expert witness prior to trial, and the witness’s testimony and supporting videotape evidence were false and misleading; and (2) the Doughertys intentionally destroyed videotape footage of the slip and fall of Jamie Martinez (Martinez) at the Country Kitchen restaurant. We reject these arguments and accordingly affirm.

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WI Court of Appeals – District IV

Case Name: Julie Ann Hynek v. Christopher Michael Hynek

Case No.: 2018AP2148

Officials: Blanchard, Kloppenburg, and Graham, JJ.

Focus: Divorce – Stipulation Order

Christopher Hynek appeals a post-divorce order that denied his motions for contempt and enforcement of a stipulation on child support. We conclude that the circuit court properly denied the motions on the grounds that the stipulation was nonfinal and, therefore, not binding. We also reject Hynek’s arguments that Hynek’s ex-wife, Julie Knoble, is guilty of criminal failure to support a child, that Knoble’s attorney is liable for civil conspiracy, and that the circuit court judge was biased against Hynek. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Jason Whittlesey v. Labor and Industry Review Commission, et al.

Case No.: 2018AP2164

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

Focus: LIRC – Unemployment Benefits

Jason Whittlesey and the Department of Workforce Development appeal an order of the Wood County Circuit Court affirming the Labor and Industry Review Commission’s determination that Whittlesey voluntarily terminated his employment without good cause attributable to the employer, within the meaning of WIS. STAT. § 108.04(7)(b) (2017-18), and was therefore ineligible to receive unemployment insurance benefits. We conclude that Whittlesey had good cause attributable to the employer to terminate his employment. Accordingly, we reverse the circuit court’s order affirming the Commission’s decision and remand this matter to the circuit court for remand to the Commission to reinstate Whittlesey’s unemployment insurance benefits.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Aman D. Singh

Case No.: 2018AP2412-CR

Officials: KLOPPENBURG, J.

Focus: OWI – Motion for Reconsideration Denied

In a previous appeal by Aman Singh of his conviction for operating while intoxicated (OWI) as a second offense, this court summarily reversed and remanded to the circuit court to provide the relief that Singh sought on appeal, specifically, relief due under WIS. STAT. § 973.13, which this court stated “provides only one remedy: voiding any penalty in excess of the statutory maximum.” State v. Singh, No. 2017AP1609, unpublished slip op. ¶11 (WI App July 26, 2018).

On remand, the circuit court issued an order providing that, “pursuant to WIS. STAT. § 973.13, the Court commutes any sentence above the maximum penalty authorized by law.” The court denied Singh’s subsequent motion for reconsideration because the court had “granted [the] relief directed by [the] Court of Appeals.”

Singh, pro se, now appeals the circuit’s court denial of his motion for reconsideration. Singh argues that the circuit court erred by misreading this court’s mandate and that he is entitled to vacation of the judgment of conviction and to a refund of the fine, or, alternatively, to withdrawal of his plea, based on either a correct reading of this court’s appellate mandate or a recently issued Wisconsin Supreme Court decision.

As I explain, I conclude that the circuit court correctly interpreted this court’s mandate and that Singh forfeited the argument he asserts is based on the recent Wisconsin Supreme Court decision.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Keith M. Abbott

Case No.: 2019AP21-CR

Officials: Blanchard, Graham, and Nashold, JJ.

Focus: Plea Withdrawal – Suppression of Evidence

Keith Abbott appeals a judgment of conviction for second-degree intentional homicide, which the circuit court entered after accepting Abbott’s Alford plea. Abbott argues that the circuit court erred by denying his motions to suppress two sweatshirts that police seized at his residence, a transparent “patient belongings bag” containing other clothing that police seized at a hospital, and statements that Abbott made to investigators during a custodial interrogation. We conclude that the circuit court properly denied the motions to suppress Abbott’s sweatshirts and statements. We also conclude that the State did not meet its burden to prove that the seizure of the patient belongings bag falls within an exception to the warrant requirement. Nevertheless, we conclude that the circuit court’s failure to suppress this evidence was harmless. Accordingly, we affirm the circuit court.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Melvin Wilson, Jr.,

Case No.: 2019AP307-CR

Officials: Blanchard, Graham and Nashold, JJ.

Focus: Ineffective Assistance of Counsel

Melvin Wilson, Jr., appeals a judgment convicting him of one count of operating a motor vehicle while intoxicated as a seventh offense and one count of hit and run. Wilson also appeals the circuit court’s order denying his motion for postconviction relief. The charges against Wilson arose out of an automobile accident in which an SUV crashed head-on into the victim’s vehicle. The SUV driver walked away from the scene, but the victim later identified Wilson as the driver. Wilson argues that his counsel was ineffective at trial for failing to (1) challenge police officers’ testimony that Wilson “matched” the victim’s description of the driver, (2) object to the prosecutor’s assertion that an officer testified that Wilson was wearing a baseball cap, and (3) present statements Wilson made to police regarding an alternative suspect. We conclude that, even if counsel performed deficiently in these respects, Wilson fails to show prejudice. We therefore affirm.

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WI Court of Appeals – District IV

Case Name: Global Proppant Supply, LLC, v. Shadowland Holdings, LLC, et al.

Case No.: 2019AP655

Officials: Blanchard, Graham, and Nashold, JJ.

Focus: Land Dispute – Foreclosure

This is a second appeal in this case. See Global Proppant Supply, LLC v. Tuttle, No. 2017AP1137, unpublished slip op. (WI App March 22, 2018) (“Global I”). As explained in detail in Global I, this is a long running dispute involving conflicting claims to rights in Juneau County land. See Global I, No. 2017AP1137, ¶¶5-11. The land was at one time intended to be used as a frac sand mine, but those plans have been abandoned, at least at all times pertinent to issues addressed in Global I and this appeal. See id. Lender Global Proppant Supply brought this foreclosure action against property owner Shadowland Holdings and named four sets of persons who had sold parcels to Shadowland Holdings for the mining operation. See id. Global had provided loans, which were secured by the parcels, financing the purchases of the land by Shadowland. Id. Shadowland defaulted on the Global loans, resulting in this action by Global to foreclose on parcels that the sellers had sold to Shadowland. Id.

From this point forward, we assume the reader’s complete familiarity with Global I, including its four specific conclusions, one of which is central to the first issue we address. See id., ¶¶4, 64. We fill in additional background as necessary to explain issues pertinent to this appeal. Global is the appellant in this appeal and the respondents are the parties we referred to in Global I as the Stickney Group and the Strohmeyer Group. See id., ¶6. In this opinion we refer to the Stickney Group and the Strohmeyer Group collectively as “the sellers.”

The first issue in this appeal involves the law of the case doctrine. Global argues that Judge Hepler, following remand, erred in failing to apply that doctrine to preclude the sellers from revisiting an issue that we resolved in Global I. That issue is whether the sellers’ options to repurchase the property, as established in the Repurchase Agreements (as written and not as they were reformed by Judge Roemer), had ripened—in other words, had the ability of the sellers to exercise these repurchase options ripened. See id., ¶53. We agree with Global that the sellers cannot relitigate in any court this execution-of-the-options issue based on the contents of the record as it existed at the time of Global I. As a result, we agree with Global that Shadowland could not use quitclaim deeds to transfer its property interests to the sellers shortly after Judge Roemer issued the rulings challenged in Global I. Use of the quitclaim deeds was impermissible because it was an attempt to exercise the sellers’ rights under the Repurchase Agreements as they had been reformed by Judge Roemer, and we determined in Global I that the reformation was error. Accordingly, we reverse this aspect of the judgment entered by Judge Hepler.

The second issue involves the concept of the “waste” of property held as security. Global argues that it would violate an order of Judge Roemer, entered prior to Global I, prohibiting “[a]ll parties and all persons claiming under them” “from committing waste upon the Mortgaged Property” for Shadowland to transfer the parcels to the sellers. Judge Hepler rejected this argument and we affirm on this issue.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin ex rel. Paul Brian Asik, Jr., v. Elizabeth Tegels, et al.

Case No.: 2019AP779

Officials: Blanchard, Graham, and Nashold, JJ.

Focus: Equitable Tolling

Paul Brian Asik, Jr., pro se, appeals a circuit court order that dismissed Asik’s petition for a writ of certiorari as untimely and the order denying his motion for reconsideration. Asik contends that his petition was timely under statutory and equitable tolling provisions. We conclude that Asik has not established that any tolling provisions apply in this case. We affirm.

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WI Court of Appeals – District IV

Case Name: Sarah M. Reed v. Christopher T. Pappathopoulos

Case No.: 2019AP801

Officials: Blanchard, Graham, and Nashold, JJ.

Focus: Child Support – Modification

Sarah Reed and Christopher Pappathopoulos were divorced in 2016 following a bench trial on issues that included child support. During the trial, Reed asked the circuit court to calculate the amount of child support using the parties’ base salaries only, without considering other sources of income such as Reed’s bonus or Pappathopoulos’s side jobs. Reed introduced an exhibit with her proposed calculation, and Pappathopoulos’s attorney later stated, “We’re going to accept [Reed’s] child support calculation ….”

In early 2018, Reed reported that she had received a substantial bonus and other miscellaneous income that significantly increased her total 2017 income from what it had been at the time of trial. Pappathopoulos filed a motion asking the circuit court to modify child support to reflect Reed’s total 2017 income, and the court dismissed the motion by written order issued April 5, 2019. The court asserted that Pappathopoulos had “stipulated to child support being calculated on base salaries only” at the time of the divorce, and that it was not equitable to relieve him from his stipulation. In this appeal, Pappathopoulos argues that there was no stipulation and that the court erred by dismissing his motion based on equitable estoppel.

We conclude that, even if the on-the-record statements by Pappathopoulos’s trial attorney are properly characterized as a stipulation to Reed’s proposed framework for calculating child support, they cannot be reasonably interpreted as an agreement that the parties were giving up the statutory right to seek a future modification based on a substantial change in bonus or side income of either party. Thus, the circuit court erred when it dismissed the motion based on equitable estoppel. Further, the court did not determine whether there was a substantial change in circumstances justifying a child support modification, and there is no other basis in the record to affirm the circuit court’s denial of the motion. Therefore, we reverse the order and remand for the court to consider that question now, consistent with this opinion.

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WI Court of Appeals – District IV

Case Name: The Bank of New York Mellon v. Timothy R. Rumpf

Case No.: 2019AP879

Officials: Blanchard, Graham, and Nashold, JJ.

Focus: Foreclosure – Prima Facie

Timothy Rumpf appeals from a judgment of mortgage foreclosure, which was entered after the circuit court granted summary judgment in favor of the mortgage holder, Bank of New York Mellon (the “Bank”). Rumpf contends that the circuit court erred in granting summary judgment because evidence that the Bank introduced to make its prima facie case is not admissible, and also because there are genuine issues of material fact about Rumpf’s affirmative defenses. We reject both arguments and affirm.

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WI Court of Appeals – District IV

Case Name: Petitioner v. Michael J. Thunder

Case No.: 2019AP1024

Officials: Kloppenburg, Nashold, and Graham, JJ.

Focus: Sufficiency of Evidence

Michael J. Thunder appeals a Dane County circuit court order granting a petition for a domestic abuse injunction against him. Thunder argues that the evidence before the circuit court was insufficient to support the issuance of the injunction, that the court “denied [Thunder’s] right to cross-examine the [P]etitioner” at the injunction hearing, and that the court conducted an impermissible “independent investigation.” For the reasons set forth below, we affirm

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WI Court of Appeals – District IV

Case Name: Gertrude L. Adams v. Trudie Teynor

Case No.: 2019AP1065

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

Focus: Trust & Estates – Undue Influence

In June 2017, Clarence J. Teynor executed a will directing that his property be sold and the net proceeds from the sale be distributed to his siblings and one nephew. The will directed that no provision be made for Clarence’s children. After Clarence died in November 2017, his three living children, Trudie Teynor, Melissa Teynor, and Jennifer Siverio, challenged the will on the ground that Clarence was “medically, physically, and mentally incapacitated and disabled” and that Clarence’s sister, Gertrude Adams, and Gertrude’s husband, Gary Adams, exercised undue influence over Clarence when he executed the will. Following a court trial in May 2019, the circuit court concluded that Clarence had testamentary capacity when executing the will and that the will was not a product of undue influence. Clarence’s daughter Trudie appeals, arguing that the court’s findings regarding undue influence are clearly erroneous.  We conclude that Trudie fails to show that the court’s findings as to the undue influence elements are clearly erroneous. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Marwood Corporation, et al. v. Janesville Spatz Limited Partnership

Case No.: 2019AP1408

Officials: FITZPATRICK, P.J.

Focus: Eviction – Equitable Estoppel

Marwood Corporation and the Gloria Woodman Survivor’s Trust, by its trustee, Jeffrey Woodman (which will be referred to collectively as “Marwood”), appeal an order of the Rock County Circuit Court denying Marwood’s motion for summary judgment on Marwood’s eviction claim against Janesville Spatz Limited Partnership (“Spatz”) and granting Spatz’s request on summary judgment that Marwood’s eviction claim be dismissed. The circuit court determined that Marwood is equitably estopped from asserting its eviction claim against Spatz.

I affirm the circuit court’s summary judgment order, but for a reason different than that given by the circuit court. I conclude that Marwood’s eviction claim fails because Marwood was required to provide to Spatz a notice of default to terminate the tenancy pursuant to WIS. STAT. § 704.17(3)(a), but failed to provide proper notice under that statute.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Katelyn Marie Leach

Case No.: 2019AP1830-CR

Officials: FITZPATRICK, J.

Focus: OWI – Suppression of Evidence

Katelyn Leach appeals a judgment of conviction from the Waupaca County Circuit Court for operating a motor vehicle with a detectable amount of a controlled substance in her blood, second offense, contrary to WIS. STAT. § 346.63(1)(am). On appeal, Leach challenges the denial of her motion to suppress evidence that she gave the arresting officer while questioned by the officer, and all evidence obtained thereafter. Leach argues that the evidence she gave the arresting officer was not given freely and voluntarily, and was thus illegally obtained, and that all subsequently acquired evidence was obtained through the exploitation of the illegally procured evidence. I affirm for the reasons set forth below.

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WI Court of Appeals – District IV

Case Name: Martindale Pinnacle Construction v. John Pulley

Case No.: 2019AP2290-FT

Officials: NASHOLD, J.

Focus: Small Claims – Judgment

Martindale Pinnacle Construction (MPC) appeals an order denying MPC’s motion to reopen a default judgment entered against it in a small claims action. The circuit court’s order is affirmed.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Joan C. Pulkkila v. James M. Pulkkila, et al.

Case No.: 2020 WI 34

Focus: Trusts & Estates – Life Insurance – Beneficiaries

The petitioner, Lynnea Landsee-Pulkkila (Lynnea), seeks review of an unpublished, authored decision of the court of appeals applying a constructive trust to proceeds she collected from a life insurance policy maintained by her late husband, James Pulkkila (James). She asserts that the court of appeals erred by determining that a constructive trust is an available remedy and by applying that remedy.

James and Joan Pulkkila (Joan) divorced in 2009. They arrived at a marital settlement agreement (MSA), which the circuit court incorporated in its judgment of divorce. The MSA contained a provision requiring James and Joan to maintain life insurance with their children as beneficiaries. Joan alleges that James breached this provision when he made Lynnea, whom he married in 2013, the sole beneficiary of his life insurance policy. She argues that a constructive trust should be placed on the proceeds.

Lynnea contends that a constructive trust cannot be applied to the life insurance proceeds because the MSA provides that a lien on James’s estate is the exclusive remedy for breach of the life insurance provision. Further, she asserts that the court of appeals erred by applying a constructive trust in the absence of additional proceedings in the circuit court.

We conclude first that the lien provision of the MSA is not an exclusive remedy. Second, we conclude that the court of appeals erred in imposing a constructive trust absent findings of fact that would support such an imposition. We remand to the circuit court to engage in factfinding and subsequently determine whether to impose a constructive trust in the first instance.

Accordingly, we reverse the decision of the court of appeals and remand to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded

Concur:

Dissent: REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Patrick J. Hudec

Case No.: 2020 WI 37

Focus: Attorney Disciplinary Hearing

We review a report filed by Referee James J. Winiarski, accepting a stipulation executed by Attorney Patrick J. Hudec and the Office of Lawyer Regulation (OLR), in which Attorney Hudec pled no contest to four counts of professional misconduct and agreed that the allegations of the OLR’s complaint were established by clear, satisfactory, and convincing evidence. Consistent with the terms of the stipulation the referee recommends we suspend Attorney Hudec’s law license for 60 days and require Attorney Hudec to attend an OLR trust account seminar within one year. The referee also recommends we order Attorney Hudec to pay the full costs of this proceeding, which total $3,991.10 as of January 29, 2020. The OLR did not request restitution and no restitution is ordered.

We adopt the referee’s findings of fact and conclusions of law as derived from the parties’ stipulation. We agree that a 60-day suspension is appropriate and we direct Attorney Hudec to attend an OLR trust account seminar within one year of the date of this order as a condition of his continued practice of law. We impose the full costs of this proceeding on Attorney Hudec.

License suspended

Concur:

Dissent:

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WI Supreme Court

Case Name: State of Wisconsin v. Richard H. Harrison, Jr.,

Case No.: 2020 WI 35

Focus: Sentence Credit

We review an unpublished decision of the court of appeals reversing an order of the circuit court that granted sentence credit to Richard H. Harrison, Jr. pursuant to Wis. Stat. § 973.155(1)(a) (2017–18) and remanded with directions to advance the commencement of concurrent terms of extended supervision for Harrison’s 2007 and 2008 cases to the date they would have begun but for Harrison’s confinement for unrelated convictions that later were set aside.

We agree with the court of appeals that Harrison is not entitled to sentence credit pursuant to Wis. Stat. § 973.155(1)(a). Harrison is not entitled sentence credit under § 973.155(1)(a) because the days he spent in custody for which he seeks sentence credit were not in connection with the courses of conduct for which those sentences were imposed. He also is not entitled to sentence credit pursuant to Wis. Stat. § 973.04 because sentences for the 2007 and 2008 crimes were not vacated and re-imposed for the same crimes and the requested credit did not arise from vacated sentences for those crimes. Furthermore, we conclude that the court of appeals erred by advancing the commencement of Harrison’s terms of extended supervision for the 2007 and 2008 cases. Whether to employ advancement is a public policy decision that is better left to the legislature. Accordingly, we reverse the court of appeals decision in regard to advancement.

Reversed

Concur: DALLET, J., filed a concurring opinion in which ANN WALSH BRADLEY, J. joined.

Dissent:

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