Weekly Case Digests – November 29, 2021 – December 3, 2021

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. LaShawn L. Wilks

Case No.: 21-2559

Officials: SYKES, Chief Judge, and ROVNER and BRENNAN, Circuit Judges.

Focus: Sentencing – Revocation of Pretrial Release

This is an appeal from an order revoking pretrial release based on the defendant’s violation of his release conditions. We have not yet had occasion to address the legal standards for revocation or the standard of review on appeal. We do so here.

In June 2020 Lashawn Wilks was indicted in the Southern District of Illinois for possessing a firearm as a prohibited person. He was released on bond with strict conditions, including home confinement (with limited exceptions for employment and the like) and additional restrictions on his activities and associations. Several months later the grand jury issued a superseding indictment in an earlier-filed drug-trafficking case adding Wilks as a defendant and charging him with conspiracy to distribute methamphetamine and related drug charges. The new indictment also included the original firearm charge; his bond and release conditions were carried over to the new case.

Wilks obtained the district court’s permission to leave his home near Indianapolis to stay overnight in Centralia, Illinois, from July 2–6, 2021, for the purpose of attending two medical appointments, a family wedding, and religious services. But while there he did not confine himself to those activities. In the early morning hours of July 4, Wilks was at a bar in Mount Vernon, Illinois, where a fatal shooting occurred. Though he is not a suspect in the homicide, surveillance video shows that shortly before the shooting, he was talking with one of his codefendants who was also there. Wilks remained at the scene afterward, encountering law-enforcement officers when they arrived.

The government moved to revoke Wilks’s release as a sanction for violating his release conditions, which prohibited any contact with codefendants and also required him to promptly report any contact with law enforcement to his pretrial-services officer. The district judge held a hearing, viewed the video, and revoked Wilks’s release, though on grounds other than those argued by the government. Wilks appealed.

Revocation of pretrial release is governed by 18 U.S.C. § 3148. As we will explain, the judge did not hew to the statutory framework in making the revocation decision. We therefore reverse and remand for further proceedings.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Ranita Railey v. Sunset Food Mart, Inc.,

Case No.: 21-2533

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

Focus: Appellate Jurisdiction – Class Action Fairness Act

Ranita Railey clocked in and out of work at the Sunset Food Mart in Lake Forest, Illinois, by placing her hand on a biometric scanner. She later brought a class action in state court alleging violations of the Illinois Biometric Information Privacy Act. Two years into litigation, Sunset removed the case to federal court. The district court found Sunset’s removal untimely. Exercising the appellate jurisdiction Congress provided in the Class Action Fairness Act, we affirm the district court’s order remanding to state court.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Miles J. Olson

Case No.: 2019AP729-CR

Officials: Brash, C.J., Donald, P.J., and White, J.

Focus: 4^th Amendment Violation – Warrantless Search – Community Caretaker Doctrine

Miles J. Olson appeals a judgment convicting him of one count of possession of cocaine with intent to deliver and one count of operating a vehicle while intoxicated, as a fifth offense. Olson argues that the police violated the Fourth Amendment when they searched his car after his arrest. We conclude at conference that summary disposition is appropriate. See WIS. STAT. RULE 809.21 (2019-20). Upon review, we affirm.

WI Court of Appeals – District I

Case Name: Milwaukee County v. R.T.H.,

Case No.: 2019AP1763

Officials: WHITE, J.

Focus: Involuntary Medication and Treatment

Robert appeals the circuit court order for involuntary medication and treatment. Robert argues that Ozaukee County failed to fulfill the statutory requirements to explain the advantages and disadvantages of medication in a timely manner. We conclude that his appeal is moot and Robert has not shown that any of the exceptions to mootness apply, and, therefore, we dismiss.

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WI Court of Appeals – District I

Case Name: Jacek Salachna v. Edgebrook Radiology, et al.,

Case No.: 2020AP1062

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

Focus: Motion for Change of Venue Denied

Marten Transport, Ltd. and Shem David Wark appeal from a nonfinal order denying their motion to change venue from Milwaukee County to Barron County. Marten and Wark assert that Barron County was the proper venue pursuant to WIS. STAT. § 801.50(2), and that the circuit court erred by finding that it could keep the case in Milwaukee County pursuant to WIS. STAT. § 801.52. As discussed below, we agree and therefore reverse the circuit court’s order and remand for the circuit court to grant the motion to change venue to Barron County.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: Milwaukee Deputy Sheriffs’ Association, et al., v. County of Milwaukee County of Milwaukee County Clerk, et al.,

Case No.: 2020AP2028-AC

Officials: Brash, C.J., Donald, P.J., and White, J.

Focus: Public Records – Public Interest Balancing Test

The Estate of Ceasar Stinson and Stinson’s spouse, Chipo Samvura (collectively, “the Estate”), appeal a circuit court order which restrains the Milwaukee County Sheriffs’ Office (MCSO) from releasing an internal affairs file. On appeal, the Estate argues that this is not “an exceptional case” in which the public’s strong interest in the disclosure of government records is outweighed by the public’s interest in keeping the records confidential. We agree with the Estate and reverse the circuit court’s order.

Recommended for Publication

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WI Court of Appeals – District I

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

Case No.: 2020AP2119-CR

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

Focus: Ineffective Assistance of Counsel

Larry L. Jackson appeals his judgment of conviction for first-degree intentional homicide, as a party to a crime with the use of a deadly weapon, and for possession of a firearm by a felon. He also appeals the trial court’s order denying his postconviction motion.

Jackson argues that his trial counsel was ineffective for failing to investigate potential alibi witnesses, for failing to prepare a witness called at trial, and by erroneously advising Jackson that he would have to testify before the other defense witnesses. The trial court denied his postconviction motion without a hearing, finding that Jackson’s allegations regarding counsel’s deficient performance were conclusory, and further, that he failed to establish prejudice. Upon review, we affirm.

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WI Court of Appeals – District I

Case Name: Milwaukee County v. D.C.B.,

Case No.: 2021AP581

Officials: BRASH, C.J.

Focus: Involuntary Commitment – Sufficiency of Evidence

D.C.B. appeals an order of the trial court extending his involuntary civil commitment, pursuant to WIS. STAT. ch. 51, by twelve months. D.C.B. argues that Milwaukee County failed to provide sufficient evidence to prove D.C.B.’s dangerousness as required under WIS. STAT. § 51.20(1).

Although not discussed by either party, we reviewed the requirement for recommitment hearings set forth by our supreme court in Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277; specifically, that the trial court must “make specific factual findings with reference to the subdivision paragraph of WIS. STAT. § 51.20(1)(a)2. on which the recommitment is based.” D.J.W., 391 Wis. 2d 231, ¶3. D.J.W. was released on April 24, 2020—more than four months before the recommitment hearing in this case was held on August 28, 2020. Thus, its requirement is applicable in this case.

Upon our review of the record, we conclude that the trial court did not comply with that requirement. Furthermore, the trial court has lost competency to conduct further proceedings on this matter, rendering the remand of this matter for additional fact finding an inappropriate remedy. We therefore conclude that we must outright reverse the recommitment order for D.C.B.

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WI Court of Appeals – District III

Case Name: Oconto County v. Hayden K. Hawk

Case No.: 2020AP52

Officials: GILL, J.

Focus: Sufficiency of Evidence

Hayden Hawk, pro se, appeals from a civil forfeiture judgment for theft. Hawk contends that: (1) he did not receive proper notice of his trial; (2) the circuit court and the court of appeals erred in declining to appoint an attorney to represent him; (3) his confession was coerced; (4) the circuit court erred in not ordering the victim to preserve or produce surveillance camera footage; (5) his case was pursued only because of his ethnicity; and (6) there was insufficient evidence to support a finding of guilt. We reject Hawk’s arguments and affirm the civil forfeiture judgment.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Kyle M. Kleinschmidt

Case No.: 2020AP881-CR

Officials: GILL, J.

Focus: OWI – Reasonable Suspicion – Suppression of Evidence

Kyle Kleinschmidt appeals from a judgment of conviction for one count of operating a motor vehicle while revoked and one count of misdemeanor bail jumping. He contends the circuit court erred by denying his motion to suppress evidence. Kleinschmidt argues that it was unreasonable for the arresting officer to stop him, insomuch as the officer’s actions were based on an incorrect interpretation of law, and that the Wisconsin Administrative Code was inapplicable in this case. Because we agree with the court that the arresting officer had reasonable suspicion to believe that Kleinschmidt had committed a traffic violation, we affirm.

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WI Court of Appeals – District III

Case Name: Jeanne Fransway v. Markquart Automotive Inc.,

Case No.: 2020AP2035

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

Focus: Wisconsin Consumer Act – Summary Judgment

Jeanne Fransway appeals a summary judgment dismissing her claims against Markquart Automotive Inc. for violations of the Wisconsin Consumer Act (“WCA”), WIS. STAT. chs. 421-427 (2019-20). To prevail on her claims, Fransway needed to establish that Markquart was acting as a “debt collector,” as that term is used in WIS. STAT. § 427.104. We conclude the undisputed facts establish that Markquart was not acting as a “debt collector,” and we therefore affirm the circuit court’s grant of summary judgment in favor of Markquart.

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WI Court of Appeals – District III

Case Name: Troy Lasecki v. Bryan Nowak

Case No.: 2021AP54

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

Focus: Court Error – Claim Preclusion

Troy Lasecki appeals an order dismissing his claims against Bryan Nowak arising out of the dissolution of an LLC in which he and Nowak were the only members. Lasecki argues that the circuit court erred by concluding that his claims were compulsory counterclaims which were required to be pled in a prior case, Outagamie County case No. 2015CV1233, also involving Lasecki and Nowak, and were thus barred by the doctrine of claim preclusion. We conclude the court properly dismissed Lasecki’s claims against Nowak as being claim precluded and affirm.

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WI Court of Appeals – District II

Case Name: Morris S. Reece v. Carson D. Combs

Case No.: 2021AP79

Officials: NEUBAUER, J.

Focus: Due Process Violation

Carson D. Combs appeals from an order of the circuit court granting eviction and issuing a writ of restitution in an action filed by his landlord, Morris S. Reece. As we understand his briefing, Combs appears to argue that the circuit court lacked competency to proceed over the eviction action, violated his due process rights for various reasons, and was biased against Combs. We affirm the order of the circuit court.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Victor H. Benitez

Case No.: 2020AP55

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

Focus: Ineffective Assistance of Counsel

Victor H. Benitez appeals an order denying his WIS. STAT. § 974.06 (2019-20) postconviction motion for a new trial and postconviction discovery, entered following an evidentiary hearing. Benitez argues that postconviction counsel was ineffective for failing to raise claims alleging ineffective assistance by trial counsel, and that he is entitled to additional testing of airbag fiber evidence. We conclude that trial counsel did not perform deficiently and therefore, postconviction counsel was not ineffective. We further conclude that Benitez is not entitled to the postconviction discovery he seeks. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. William C. MacDonald

Case No.: 2020AP605-CR

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

Focus: Postconviction Motion – Surcharge Reduction

The issue in this appeal is how many images are “associated with” William C. MacDonald’s crime of possession of child pornography for purposes of assessing the statutorily mandated surcharge of $500 per image. See WIS. STAT. § 948.12 (2019-20) (criminalizing possession of child pornography); WIS. STAT. § 973.042(2) (mandating surcharge on images or copies of images “associated with the crime[s]” of possession of child pornography or sexual exploitation of a child) (sometimes referred to in this decision as the surcharge statute). The criminal information charged MacDonald with ten counts of possession of child pornography, each based on a single image, and MacDonald pled no contest to a single charge. Read in for sentencing purposes were the nine dismissed charges and ninety additional uncharged images. The circuit court imposed a total surcharge of $50,000 ($500 for each of the 100 images) and denied MacDonald’s postconviction motion to reduce this total amount.

MacDonald appealed, arguing that the sentencing court should have assessed only $500, the surcharge amount for the single image supporting the single count of conviction. At MacDonald’s request, this appeal was placed on hold pending our supreme court’s decision in State v. Schmidt, 2021 WI 65, ___ Wis. 2d ___, 960 N.W.2d 888, decided on June 18, 2021. The Schmidt court held that the surcharge statute applies not only to images forming the basis of the counts of conviction but also to images forming the basis of read-in charges. Although the court discussed “read-in charges” generally, it also explicitly stated that it “d[id] not address … whether the circuit court must impose the child pornography surcharge for images of child pornography that were not charged.” Id., ¶49. Thus, the court did not address the applicability of the surcharge statute to uncharged read-ins.

Following the issuance of Schmidt, MacDonald conceded in this court that the circuit court properly imposed the statutory surcharge on ten images: the one image forming the basis of the count of conviction and the nine images forming the basis of counts that were charged, dismissed, and read in. MacDonald maintains, however, that Schmidt does not control the remaining question on appeal: whether the circuit court was required to assess the surcharge on the ninety uncharged read-in images. We conclude that Schmidt does not directly answer this question but that, consistent with its analysis, the surcharge applies to read-in images regardless of whether there is an accompanying charge, so long as those images are “associated with the crime.” See id., ¶4. On this record, however, it is not evident that the sentencing court determined which, if any, of the ninety uncharged read-in images were in fact associated with the count of conviction. We agree with the State that the circuit court should revisit its ruling in light of Schmidt’s guidance.

Thus, we accept MacDonald’s concession that the circuit court correctly imposed a $5,000 surcharge, corresponding to the ten images that the parties agree are the proper basis for assessment. We reverse, however, the court’s order denying MacDonald’s postconviction motion for surcharge reduction as to the remaining amount. We remand for a determination of whether any of the ninety uncharged and read-in images are associated with the crime of possession of child pornography (the single count of conviction in this case).

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Michael D. Martin

Case No.: 2020AP1575-CR

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

Focus: Ineffective Assistance of Counsel

Michael Martin appeals a judgment of conviction for sexual assault of a child under the age of thirteen in violation of WIS. STAT. § 948.02(1)(e) (2019-20) following a jury trial. He also appeals the circuit court’s order denying his postconviction motion for a new trial. Martin argues that his trial counsel rendered ineffective assistance of counsel by failing to object to the following: several portions of the prosecutor’s cross examination of him during trial, rebuttal testimony related to some of this cross examination, and one portion of the prosecutor’s closing arguments. As to each claimed instance of ineffective assistance, we conclude that he fails to establish one or the other of the required prongs for such a claim, either that his counsel performed deficiently or that he was prejudiced. Based on the same reasoning, we reject closely related arguments Martin makes for a new trial based on plain error or that we should use our discretionary power under WIS. STAT. § 752.35 to order a new trial. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: County of Dane v. Mary Jo Johnson

Case No.: 2021AP869; 2021AP70

Officials: KLOPPENBURG, J.

Focus: Court Error – Failure to State Claim

Dane County sued Mary Jo Johnson and TCOB2 Irrevocable Trust, seeking injunctive relief and forfeitures for the alleged conveyance of property by Johnson to the Trust in violation of County ordinances governing minimum lot sizes and the preparation of certified survey maps. The County argues that the circuit court erroneously dismissed the complaint for failure to state a claim on which relief can be granted. I agree and, therefore, reverse and remand for further proceedings.

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