Weekly Case Digests – January 24, 2022 – January 28, 2022

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Michael Price

Case No.: 20-2490

Officials: EASTERBROOK, ROVNER, and WOOD, Circuit Judges.

Focus: Sentencing Guidelines – Enhancement

Believing that Carissa Sammons had stolen some of his girlfriend’s jewelry, Michael Price called the house in Indianapolis where Sammons was staying and announced that he was coming to get the jewelry back—by force, if necessary. When Price tried to gain entrance, Brian Butler closed the front door. Price fired a revolver several times through the door, hitting Edwin Smith in the leg. Price dropped the revolver and fled. When police caught up with his truck, they found a Taurus pistol. Price has pleaded guilty to the crime of possessing a gun, which his felony record made unlawful. 18 U.S.C. §922(g)(1). Although the indictment does not identify the gun or guns that Price unlawfully possessed, the factual basis proffered in support of the plea identifies possessing the Taurus pistol as the crime of conviction. The court sentenced Price to 110 months in prison.

The presentence report recommended that the judge add four offense levels under U.S.S.G. §2K2.1(b)(6)(B), which applies when the defendant “used or possessed any firearm or ammunition in connection with another felony offense”. The PSR observed that shooting into an occupied house amounts to the state offense of criminal recklessness, Ind. Code §35-42- 2-2(b)(1)(A), if not something more serious. Unfortunately, the report did not quote §2K2.1(b)(6)(B) accurately. Instead it paraphrased the rule as one that adds four levels if “[t]he defendant possessed the firearm while committing another felony offense.”

At sentencing the judge quoted from that paraphrase rather than from §2K2.1(b)(6)(B). Yet the two concepts differ. An enhancement for a felony committed “while possessing” a firearm would apply if Price had left the Taurus in a bank vault and arrived at the house with a baseball bat or a knife. The crime of possession continues as long as a gun is under a felon’s control; it need not be in his hand (or truck). But under §2K2.1(b)(6)(B) the enhancement is appropriate only if the firearm was “used or possessed … in connection with another felony offense”—in other words, only if the firearm was involved in, or contributed to, the other felony. See, e.g., United States v. LePage, 477 F.3d 485, 489 (7th Cir. 2007).

The judge did mention that, by possessing the revolver long enough to shoot it, Price independently violated §922(g)(1). And the Assistant United States Attorney observed that the indictment is broad enough to encompass the revolver—which three witnesses say Price brought to the door, though Price says he obtained during a struggle with Butler. Still, the crime of conviction entailed the pistol but not the revolver, given the factual basis admitted in the plea colloquy. The district court’s failure to make an essential finding means that we must remand. The United States has not argued that any error was harmless.

The judgment is vacated, and the case is remanded for proceedings consistent with this opinion.

Vacated and cause remanded

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7^th Circuit Court of Appeals

Case Name: Billie Vargas Love v. United States of America

Case No.: 20-3534

Officials: EASTERBROOK, MANION, and WOOD, Circuit Judges.

Focus: Statutory Interpretation – FTCA – Expert Testimony

Louis Vargas received extensive medical care from the Veterans Administration. He argues in this suit under the Federal Tort Claims Act, 28 U.S.C. §§ 2671–80, that a nurse employed by the VA was negligent in failing to order additional tests after receiving the results of a urinalysis in October 2015. More testing, Vargas contended, would have revealed that he suffered from a urinary tract infection. He continues: Failure to diagnose that infection led to a heart attack, which led to extended hospitalization, which led to pain and inflammation caused by the catheters inserted into his hands during this stretch in the hospital.

The district court held a bench trial and ruled against Vargas on all of his principal contentions. Vargas v. United States, 430 F. Supp. 3d 500 (N.D. Ill. 2019), motion for a new trial denied, 2020 U.S. Dist. LEXIS 220349 (Nov. 24, 2020). The judge found that further testing to identify a potential urinary tract infection was not required by the appropriate standard of care, given the judge’s finding that no other indication of infection was present. The results that Vargas contended implied a need to search for an infection were consistent with benign prostate hypertrophy (an enlarged prostate), for which Vargas had been treated since 2004.

On appeal Vargas contests some of the important factual findings, but none is clearly erroneous. (Vargas died after the district court’s opinion was issued, and the appeal is being prosecuted by the administrator of his estate. We refer to the appellant as “Vargas” for clarity.) Vargas’s principal appellate arguments concern expert evidence.

The doctrine on which Vargas relies—one under which medical professionals must stay within the scope of their expertise, see, e.g., Sullivan v. Edward Hospital, 209 Ill. 2d 100, 113–15 (2004)—is designed to ensure that judges and juries rely on properly supported testimony. So, for example, a nurse practitioner could not testify in Illinois to the standard of care by a urologist; medical doctors have greater knowledge than nurses on matters within their specialties. Federal courts would reach the same conclusion under Rule 702. But the doctrine need not work in reverse. Coogan testified that even a board-certified urologist would not have seen anything in the October 2015 test result calling for further lab work. If that is a correct statement of the medical standard of care at the highest level—and the district judge found that it is—then a nurse practitioner’s identical decision cannot be negligent. Illinois does not hold nurses to the higher standard of specialists; but when the standard of specialists has been met, a nurse cannot be blamed for a bad outcome. None of Vargas’s remaining arguments requires discussion.

Affirmed
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7^th Circuit Court of Appeals

Case Name: United States of America v. Timothy Kurzynowski

Case No.: 20-3491

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

Focus: Abuse of Discretion – Compassionate Release

Timothy Kurzynowski pleaded guilty to distributing child pornography. He admitted to officers that he spent years in internet chatrooms discussing sexual behavior involving minors and that his sexual interest focused on 10- to 13-year-old boys. His more recent online conversations explored fantasies of cooking and eating children. In 2015, the district court sentenced Kurzynowski to 96- months in prison. Kurzynowski thereafter moved for compassionate release pursuant to § 603 of the First Step Act of 2018, 18 U.S.C. § 3582(c)(1)(A)(i). The district court denied the motion. Kurzynowski appeals, arguing the district court improperly thought the Sentencing Commission’s criteria in U.S.S.G. § 1B1.13 constrained its discretion.

We affirm for two reasons. First, the district court properly exercised its discretion in denying Kurzynowski’s motion. Second, under United States v. Broadfield, 5 F.4th 801 (7th Cir. 2021), the fact that Kurzynowski is vaccinated precludes a finding that the COVID-19 pandemic presents extraordinary and compelling reasons for his release.

Affirmed
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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Edward R. Lee

Case No.: 2017AP2482

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

Focus: Plea Withdrawal – Right to Counsel

Edward R. Lee appeals pro se from an order of the circuit court denying his WIS. STAT. § 974.06 (2019-20) motion. Lee contends that the circuit court erred in denying his attorney’s request to withdraw at the preliminary hearing, he was deprived of his right to counsel at his preliminary hearing, and his subsequent attorneys were ineffective for failing to challenge the preliminary hearing.

We conclude that by entering a plea, Lee waived any complaints he may have about the preliminary hearing. Moreover, we conclude that Lee’s arguments are conclusory and insufficiently plead, thus, the circuit court properly denied Lee’s WIS. STAT. § 974.06 motion. We therefore affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jamey Lamont Jackson

Case No.: 2019AP2306

Officials: Brash, C.J., Graham and White, JJ.

Focus: Motion for Reconsideration Denied – Newly Discovered Evidence

Jamey Lamont Jackson, pro se, appeals from orders of the circuit court that denied his motions for a new trial and for reconsideration. Jackson asserts that a federal district court ruling in proceedings he initiated constitutes newly discovered evidence. We affirm the orders.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Edward S. Kuchinskas

Case No.: 2020AP369

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

Focus: Motion for Reconsideration Denied – Newly Discovered Evidence

Edward S. Kuchinskas appeals from an order of the circuit court denying his motion to vacate his conviction and grant him a new trial. Kuchinskas asserts that the report and opinions of Dr. Michael Weinraub attached to his motion constitute newly discovered evidence. We conclude that they do not. Dr. Weinraub’s report and opinions do not show that there has been a shift in mainstream medical opinion regarding the issue of whether short falls can cause brain injuries in infants and toddlers.

We further conclude that Dr. Weinraub’s opinions that injuries to an infant or toddler’s head may result from a short fall involving occipital—back of the head—impact are not relevant to this case because in his report, Dr. Weinraub acknowledges that the record shows there was no occipital impact in this case. In his report, he describes the falling incident as follows: “[Oliver] fell on the ground first onto a thick carpeted floor, landing on his right side, then rolled over onto his back and then [Kuchinskas] fell landing with his hand on [Oliver].” Dr. Weinraub’s reference to occipital impact in this case is not consistent with the facts in the record and, thus, renders his opinions speculative and not relevant to this case.

We also conclude that Dr. Weinraub’s report and opinion are merely a challenge to Dr. Angela Rabbitt’s—a pediatric child abuse specialist—opinions in the nature of a Daubert challenge that should have been brought at the time of trial. Dr. Weinraub’s report discusses evidence that he believes should have been introduced during trial. Dr. Weinraub also opines that opinions by other experts, such as a radiologist and an ophthalmologist, are necessary to determine the causes of Oliver’s injuries. First, Dr. Weinraub does not opine that opinions from those experts could not have been obtained at the time of the trial. Second, Kuchinskas has not submitted any reports from those experts. Therefore, if opinions from those experts are necessary to determine the cause of Oliver’s injuries, any opinion by Dr. Weinraub regarding the cause of Oliver’s injuries is speculative.

Thus, we conclude that Kuchinskas has not presented newly discovered evidence, and we affirm the circuit court’s order denying Kuchinskas’s motion without a hearing.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Bruce Terrell Davis

Case No.: 2020AP1051-CR

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

Focus: Postconviction Relief – Right to Present a Defense

Bruce Terrell Davis appeals from a judgment of conviction for one count of robbery and three counts of burglary, and an order of the circuit court denying his motion for postconviction relief. On appeal, he argues that the circuit court’s credibility determinations from the hearing on his postconviction motion were clearly erroneous and, thus, the circuit court erred in denying his motion. He also argues that the circuit court erred when it found that his right to present a defense was not violated when the trial court removed photos from the manila folders used for conducting the photo array that Oliver viewed, and sent the loose photos to the jury room during deliberations.

We conclude that the circuit court’s credibility determinations are not clearly erroneous. Thus, we uphold the circuit court’s denial of Davis’s motion. We further conclude that the trial court’s decision to provide the jury with loose photographs did not violate Davis’s right to present a defense because the manila folders accompanying those photos were not essential to his defense. Accordingly, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jeffrey J. Wickman

Case No.: 2020AP1184

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

Focus: Ineffective Assistance of Counsel

Jeffrey Wickman, pro se, appeals from an order denying without a hearing his postconviction motion for plea withdrawal based on alleged ineffective assistance of counsel or, in the alternative, for resentencing based upon an illegal sentence. We conclude that the circuit court properly denied Wickman’s plea withdrawal motion without a hearing, but that Wickman was entitled to resentencing. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Hollis Tristan Dukes

Case No.: 2020AP1468-CR

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

Focus: Admission of Evidence – Other Acts Evidence

Hollis Dukes appeals a judgment, entered upon a jury’s verdict, convicting him of second-degree sexual assault by sexual contact with an unconscious person, contrary to WIS. STAT. § 940.225(2)(d) (2019-20). Dukes argues that the circuit court erroneously exercised its discretion by admitting other acts evidence. We reject Dukes’ arguments and affirm the judgment.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Joseph L. Slater

Case No.: 2020AP1936-CR

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

Focus: Postconviction Relief – Sentence Credit

Joseph Slater appeals from orders denying his postconviction motions for additional sentence credit. Slater was on probation in a prior case involving the possession of drugs (“the drug case”) when he was arrested and charged with three counts of armed robbery in the instant case (“the armed robbery case”). Slater’s arrest on the armed robbery charges triggered a probation hold in the drug case, and his probation was subsequently revoked. Slater was not, however, transferred to prison to begin serving his previously imposed-and-stayed sentence in the drug case. Instead, after Slater’s probation was revoked, he remained in the Marathon County Jail awaiting resolution of the armed robbery case for over three years.

Pursuant to WIS. STAT. § 973.10(2)(b) (2019-20), Slater argues that his imposed-and-stayed sentence in the drug case did not begin to run until he was received in prison, which did not occur until after his sentencing in the armed robbery case. Slater therefore argues that he is entitled to 1,096 additional days of sentence credit against his sentences imposed in the armed robbery case, representing the three-year period after his probation in the drug case was revoked. Stated differently, Slater argues he is entitled to credit for “the entire time he spent in jail before sentencing” in this case—a total of 1,260 days.

In response, the State contends that Slater is not entitled to the additional sentence credit he seeks because awarding him credit against his sentences in this case for the three years that he spent in jail after his probation in the prior case was revoked would result in an impermissible award of dual credit against non-concurrent sentences. The State correctly notes that dual credit is permissible only when two sentences are imposed concurrently, see State v. Boettcher, 144 Wis. 2d 86, 100, 423 N.W.2d 533 (1988), and it argues there is no indication that the circuit court intended Slater’s sentences on the armed robbery charges to be concurrent to his imposed-and-stayed sentence in the drug case. In the alternative, the State asserts that we should reject Slater’s claim for additional sentence credit because Slater invited any error that the court may have made when it granted him only 164 days of credit.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Robert M. Anderson, Jr.,

Case No.: 2020AP2131-CR

Officials: Brash, C.J., Dugan and White, JJ.

Focus: Evidentiary Hearing – Newly Discovered Evidence

Robert M. Anderson, Jr. appeals his judgment of conviction after entering pleas to charges of second-degree reckless homicide by use of a dangerous weapon and possession of a firearm by a felon. He also appeals the order denying his motions for postconviction relief.

In Anderson’s first postconviction motion, he sought to withdraw his pleas on the grounds that he received ineffective assistance of counsel because counsel did not advise him that he could receive the maximum penalty. He further asserted that his sentence was unduly harsh and excessive, and sought resentencing. The trial court rejected those claims and denied that motion without a hearing.

Anderson then filed a supplemental postconviction motion claiming that he had newly discovered evidence in the form of an affidavit by a witness who stated that he saw Anderson’s brother commit the homicide. In the alternative, Anderson sought resentencing on the grounds that the trial court improperly considered Anderson’s race as a sentencing factor, and that the trial court did not allow Anderson’s trial counsel the opportunity to argue that consideration should be given to Anderson’s taking responsibility for these crimes by entering guilty pleas. The trial court rejected Anderson’s claims in the supplemental motion as well, and also denied it without a hearing.

Upon review, we conclude that Anderson is entitled to an evidentiary hearing on his claim relating to newly discovered evidence. We therefore remand this matter to the trial court for an evidentiary hearing on that issue. However, with regard to Anderson’s other claims in his postconviction motions, we affirm.

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WI Court of Appeals – District III

Case Name: Kim C. Gronewold v. Jan Gronewold

Case No.: 2021AP394

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

Focus: Abuse of Discretion – Divorce – Maintenance Modification

Jan Gronewold appeals a postdivorce order, arguing that the circuit court erroneously exercised its discretion by concluding there was no substantial change in circumstances justifying a modification in his monthly maintenance obligation. We reject Jan’s arguments and affirm the order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Thomas Louis Giegler

Case No.: 2021AP952-CR

Officials: WHITE, J.

Focus: Sufficiency of Evidence – Temporary Restraining Order

Thomas Louis Giegler appeals a judgment of conviction entered following a jury trial on one count of knowingly violating a temporary restraining order (TRO) and one count of disorderly conduct, both counts with the habitual criminality penalty enhancer and domestic abuse assessment. Giegler moved for postconviction relief and the circuit court concluded that a new trial was warranted because the record did not reflect that his waiver of counsel was knowingly, intelligently, and voluntarily made. However, the circuit court denied his motion for a judgment of acquittal on the charge of knowingly violating the TRO. Because we conclude that the evidence presented by the State was insufficient to prove beyond a reasonable doubt that Giegler knowingly violated the TRO, we reverse and remand to the circuit court with directions to enter a judgment of acquittal of the TRO charge. We do not disturb the remainder of the circuit court’s order for a new trial on count two for disorderly conduct.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. P.G.,

Case No.: 2021AP1232; 2021AP1232; 2021AP1233

Officials: BRASH, C.J.

Focus: Termination of Parental Rights

P.G. appeals the orders of the trial court terminating his parental rights to P.G., Jr., and twins J.G. and J.G. He argues that the petitions filed by the State seeking to terminate his parental rights to the children were insufficiently specific to meet the requirements of WIS. STAT. § 48.42(1)(c)2. He also argues that the COVID-19 pandemic interfered with his ability to complete the conditions required for reunification with the children, and therefore his right to due process was violated. Upon review, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Robert J. Stynes

Case No.: 2020AP598-CR

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

Focus: Ineffective Assistance of Counsel

Robert J. Stynes appeals the judgment of conviction, following a jury trial, of one count of second-degree reckless homicide. Stynes also appeals the order denying his postconviction motion for relief. Stynes contends that he received ineffective assistance of trial counsel and that the cumulative effect of counsel’s errors prejudiced his defense. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Quentin L. Rogers

Case No.: 2020AP759-CR

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

Focus: Brady Violation

Quentin L. Rogers appeals from a judgment convicting him after a jury found him guilty of three counts of retail theft as a repeater. He also appeals from an order denying his motion for postconviction relief in which he alleged Brady/discovery violations, prosecutorial misconduct, ineffective assistance of trial counsel, and additionally sought postconviction testing of physical evidence for fingerprints and DNA. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Russell James Hierl

Case No.: 2020AP1187-CR

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

Focus: Probable Cause – Reasonable Suspicion

Russell Hierl appeals a judgment, entered upon his guilty plea, convicting him of one count of operating under the influence of an intoxicant (OWI), as a seventh offense. See WIS. STAT. § 346.63(1)(a) (2019-20). On appeal, Hierl challenges the circuit court’s denial of his suppression motion, raising two Fourth Amendment issues. We affirm the decision of the circuit court.

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WI Court of Appeals – District IV

Case Name: Benjamin M. Dykman v. Board of Regents of the University of Wisconsin

Case No.: 2020AP1256

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

Focus: ADA Violation – Employment Classification 

Benjamin Dykman seeks judicial review of a decision by the provost of the University of Wisconsin, which affirmed a decision by the university’s office of compliance, which denied Dykman’s disability discrimination complaint. In this appeal, Dykman purports to assert up to twenty separate issues for our review, and he makes wide-ranging allegations of impropriety against the university’s department of psychology, the office of compliance, the provost, and the circuit court. At bottom, Dykman asks us to conclude that the department changed his employment classification in March 2014 because of a perceived disability. He also asks us to relieve him of obligations he assumed under an agreement that he reached with the department in November 2014 to resolve an earlier grievance he filed based on the same adverse employment decision and nearly identical facts. We reject Dykman’s arguments and affirm the circuit court, which affirmed the provost’s decision.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. LaVerne Ware, Jr.,

Case No.: 2020AP1559-CR

Officials: Fitzpatrick, Graham, and Nashold, JJ.

Focus: Warrantless Search – Emergency Aid Exception

Laverne Ware appeals a judgment of the Dodge County Circuit Court convicting him of first-degree intentional homicide, hiding a corpse with intent to conceal a crime, incest, and possession of a firearm as a felon. Ware was arrested at his residence after law enforcement officers responded to a 911 call from another resident of the home who reported seeing a large amount of blood in the garage. After Ware was taken into custody, one of the officers searched the garage at the residence and discovered a body. In the circuit court, Ware moved to suppress evidence stemming from the search of the garage on the ground that the evidence was the product of an unconstitutional warrantless search. The court denied Ware’s motion concluding that the search was justified under the community caretaker exception to the Fourth Amendment’s warrant requirement. This matter went to trial, and a jury found Ware guilty on all counts.

Ware appeals the circuit court’s ruling regarding the search. We affirm, but for a reason different than that given by the circuit court. After the circuit court’s ruling, the United States Supreme Court held that the community caretaker exception does not authorize the warrantless search of a residence. Caniglia v. Strom, 141 S. Ct. 1596, 1600 (2021). Nonetheless, we conclude that the circuit court properly denied Ware’s motion to suppress because the search was justified under the emergency aid exception to the Fourth Amendment’s warrant requirement.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Mario T. Ostrum

Case No.: 2020AP1615-CR

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

Focus: Sufficiency of Evidence

Mario T. Ostrum appeals a judgment of conviction for one count of first-degree sexual assault of a child. He contends that the evidence at trial was insufficient for the jury to conclude beyond a reasonable doubt that he had sexual contact with the victim or, in the alternative, that he is entitled to an evidentiary hearing and a new trial based on newly discovered evidence. He also contends that his sentence should be modified, either because he has presented a new factor warranting modification or because it is unduly harsh. We reject Ostrum’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Terence S. O’Haire

Case No.: 2021AP564

Officials: GRAHAM, J.

Focus: OWI – Implied Consent – Suppression of Evidence

Terence S. O’Haire appeals a revocation judgment for unlawfully refusing to submit to an implied consent test (the “refusal”), a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant, first offense (the “OWI” offense), and a judgment of conviction for possession of an open intoxicant in his motor vehicle (the “open intoxicant” offense). O’Haire argues that the results of a preliminary breath screening test (“PBT”) and his subsequent refusal to submit to an evidentiary breath test under implied consent laws should have been suppressed because the arresting officer coerced his consent to the PBT, invalidating his consent for Fourth Amendment purposes. For the reasons explained below, I disagree and affirm the judgments.

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WI Court of Appeals – District IV

Case Name: Juneau County Department of Human Services v. B.J.,

Case No.: 2021AP1359; 2021AP1360; 2021AP1361

Officials: NASHOLD, J.

Focus: Termination of Parental Rights – Abuse of Discretion

In these consolidated appeals, B.J. challenges the circuit court’s entry of partial summary judgment in the grounds phase of a termination of parental rights (TPR) proceeding as to his three minor children, “Ben,” “Mary,” and “George.”  B.J. argues that summary judgment was inappropriate; he further argues that the circuit court erroneously exercised its discretion in not considering certain documents he sought to introduce in that proceeding. I conclude that the Department set forth a prima facie case for summary judgment, that B.J. did not submit any admissible evidentiary materials setting forth facts in opposition to that motion, and that summary judgment was therefore appropriate. I affirm.

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