Weekly Case Digests – March 14, 2022 – March 18, 2022

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Brian Lax v. Alejandro Mayorkas, Secretary of U.S. Department of Homeland Security

Case No.: 20-3288

Officials: SYKES, Chief Judge, and FLAUM and JACKSONAKIWUMI, Circuit Judges.

Focus: ADA and Rehabilitation Act Violation – Equitable Tolling

Plaintiff-appellant Brian Lax brought suit against defendant-appellee Secretary of the Department of Homeland Security, alleging that the agency, his employer, had discriminated against him in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et. seq. (the “Act”). The Act requires that suits be brought within ninety days of receiving the final agency decision and notice of the right to sue. Because Lax filed his suit on the ninety-first day after receiving this notice, we affirm the district court’s dismissal on timeliness grounds.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Latrina Cothron v. White Castle System, Inc.,

Case No.: 20-3202

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

Focus: Illinois Biometric Information Privacy Act Violation – Statute of Limitations

Latrina Cothron works as a manager at an Illinois White Castle hamburger restaurant where she must scan her fingerprint to access the restaurant’s computer system. With each scan her fingerprint is collected and transmitted to a third-party vendor for authentication. Cothron alleges that White Castle did not obtain her written consent before implementing the fingerprint-scanning system, violating the Illinois Biometric Information Privacy Act. She brought this proposed class-action lawsuit on behalf of all Illinois White Castle employees.

White Castle moved for judgment on the pleadings based on the statute of limitations. The restaurant argued that a claim accrued under the Act the first time Cothron scanned her fingerprint into the system after the law took effect in 2008. That was more than a decade before she sued, making her suit untimely under the longest possible limitations period. Cothron responded that every unauthorized fingerprint scan amounted to a separate violation of the statute, so a new claim accrued with each scan. That would make her suit timely for the scans within the limitations period.

The district judge rejected White Castle’s “one time only” theory of claim accrual and denied the motion. But he found the question close enough to warrant an interlocutory appeal under 28 U.S.C. § 1292(b). Cothron now asks us to certify the question to the Illinois Supreme Court.

We agree that this issue is best decided by the Illinois Supreme Court. Whether a claim accrues only once or repeatedly is an important and recurring question of Illinois law implicating state accrual principles as applied to this novel state statute. It requires authoritative guidance that only the state’s highest court can provide.

Decision

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7^th Circuit Court of Appeals

Case Name: United States of America v. John Buncich

Case No.: 20-2569

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

Focus: Sentencing Guidelines

Defendant John Buncich served as Sheriff of Lake County, Indiana. As sheriff, he received thousands of dollars from local towing companies. In return, those companies received lucrative towing contracts within the county. A jury convicted Buncich of wire fraud and bribery in 2017, and he was sentenced to 188 months in prison. Following an earlier appeal that vacated three of the six counts of conviction, he was resentenced to 151 months.

Buncich now challenges that decision on three grounds. He argues that the district court erred in its Sentencing Guideline calculation, that the court failed to explain its guideline findings sufficiently and made other procedural errors, and that his sentence was substantively unreasonable. We reject all three arguments and affirm his sentence.

Affirmed

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7^th Circuit Court of Appeals

Case Name: St. Augustine School, et al., v. Jill Underly, et al.,

Case No.: 17-2333

Officials: RIPPLE, KANNE, and WOOD, Circuit Judges.

Focus: Statutory Interpretation – School District Transportation

The State of Wisconsin provides transportation benefits to most of its school-aged children. See Wis. Stat. §§ 121.51, 121.54. For private-school students, however, it limits those benefits to only one school “affiliated or operated by a single sponsoring group” within any given attendance area. That may seem like a straightforward criterion, but the fact that this case is now on its second trip to the Seventh Circuit, after intermediate stops at the Supreme Court of the United States and the Wisconsin Supreme Court, demonstrates that complexities abound when a private school’s affiliation is religious in nature. The particular question before us is whether the state Superintendent of Public Instruction, then Tony Evers (the present Governor of the state), correctly decided that St. Augustine School, a freestanding entity that describes itself as Catholic but independent of the church’s hierarchy, is “affiliated with or operated by” the same sponsoring group as St. Gabriel High School, which is run by the Archdiocese of Milwaukee and therefore indisputably Catholic. (Governor Evers’s successor in the post of Superintendent is now Jill Underly, whom we have substituted as the appellee.)

We conclude that the Superintendent’s decision in the case before us was not justified by neutral and secular considerations, but instead necessarily and exclusively rested on a doctrinal determination that both St. Augustine and St. Gabriel’s were part of a single sponsoring group—the Roman Catholic church—because their religious beliefs, practices, or teachings were similar enough. The fact that the Superintendent reached this result largely just by looking at St. Augustine’s description of itself on its website does not matter—the doctrinal conclusion was an inescapable part of the decision. We therefore reverse the judgment of the district court and remand for further proceedings.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Xavier Elizondo, et al.,

Case No.: 20-2167; 20-2366

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

Focus: Sufficiency of Evidence

Chicago Police Officers Xavier Elizondo and David Salgado used their positions to embezzle drugs and cash, some of which they distributed to informants. As part of their scheme, they encouraged informants to present false information to state judges to obtain search warrants, which in turn yielded more drugs and cash. The FBI caught on and initiated sting operations. The first sting failed because officers discovered security cameras the FBI had set up at a vacant apartment, leading the defendants to inventory the full amount of money they recovered there. After seeking and obtaining court authorization to wiretap Elizondo’s phone, the FBI conducted another sting operation. In the second sting agents recorded Elizondo and Salgado stealing cash they recovered from an FBI-controlled rental vehicle. Salgado saw law enforcement towing the rental vehicle the next day, and he told Elizondo, who in turn instructed Salgado to “relocate” items from Salgado’s home.

A grand jury indicted Elizondo and Salgado on conspiracy and theft charges related to their scheme. Elizondo was also charged with obstruction of justice for instructing Salgado to destroy or conceal evidence. They went to trial and a jury found them guilty on all counts. Elizondo and Salgado appeal: (1) the use of the evidence obtained from the government’s wiretap application; (2) the district court’s Batson inquiry during jury selection; (3) the sufficiency of evidence on the obstruction charge; and (4) the district court’s calculation of the intended loss under the Sentencing Guidelines.

We find no reversible error. The wiretap application was not an improper subterfuge search because the government was forthright about the scope of its investigation. Likewise, we can trace the logic of the district court’s Batson inquiry, and that court followed the applicable steps. The evidence presented at trial on the obstruction charge was sufficient for the jury to infer that Elizondo acted with the intent to prevent the use of evidence in an official proceeding. Finally, there was no clear error in the district court’s loss calculation at sentencing. We therefore affirm Elizondo and Salgado’s convictions and sentences.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Brooke Persinger v. Southwest Credit Systems, L.P.,

Case No.: 21-1037

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

Focus: FCRA Violation – Summary Judgment

In 2017, a bankruptcy court discharged Brooke Persinger’s debts. A few months later, Southwest Credit Systems began collection efforts on a pre‐petition debt of Persinger’s, including by acquiring a type of credit information called her “propensity‐to‐pay score.” Alleging that this information had been secured without a permissible purpose, Persinger sued Southwest under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. The district court granted summary judgment to Southwest, holding that Southwest’s compliance procedures were reasonable and thus met the FCRA’s requirements. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Curtis Lovelace, et al., v. Adam Gibson, et al.,

Case No.: 20-3254

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

Focus: Qualified Immunity

Cory Lovelace died in her bed one morning in February 2006. Cory was not in good health, and nobody at the time suspected foul play. But seven years later, while browsing through old photographs, Detective Adam Gibson hatched a theory: that Cory’s husband, Curt Lovelace, had suffocated her with a pillow. Gibson, along with Coroner James Keller and several other local officials, launched a relentless investigation, leading to Curt’s arrest and prosecution for murder. In the end, Curt was acquitted by a jury, but only after he endured a mistrial, a series of evidentiary irregularities, and more than two years’ detention. After Curt was vindicated at trial, he sued Gibson, Keller, and the other officials, alleging numerous violations of his constitutional rights. At summary judgment, the officials asserted qualified immunity from some of Curt’s claims. The district court denied their motions.

The officials now seek to take an appeal, again in pursuit of qualified immunity from Curt’s Fourth and Fourteenth Amendment theories. We lack appellate jurisdiction over the Fourth Amendment theory underpinning Curt’s Count II, however, and so we dismiss that portion of the appeal. As for the Fourteenth Amendment theory underpinning Count I, Curt concedes that circuit precedent now forecloses it, and so we reverse on the basis of his withdrawal of that argument.

We DISMISS those aspects of the appeal related to the Fourth Amendment (Count II). We REVERSE the district court’s denial of qualified immunity from the Fourteenth Amendment theory (Count I) to Gibson, Keller, Copley, Summers, and Dreyer, and we REMAND for entry of summary judgment in their favor on that theory of the case. Each side will bear its own costs on appeal.

Dismissed in part. Reversed ad remanded in part.

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7^th Circuit Court of Appeals

Case Name: United States of America v. Syed F. Ahmad

Case No.: 19-3290

Officials: SYKES, Chief Judge, and HAMILTON and ST. EVE, Circuit Judges.

Focus: Warrantless Search & Seizure – Suppression of Evidence

A deputy sheriff on drug-interdiction duty in central Illinois observed an RV with a dirty license plate traveling on Interstate 72. He followed the RV as it exited the freeway and pulled into a truck-stop parking lot. The driver, Syed Ahmad, entered the convenience store with one of his passengers. When a store employee informed the deputy that the two men were acting strangely, the officer asked to speak with them before they reentered the RV. They agreed. After a few preliminary questions, the deputy asked for Ahmad’s driver’s license and the rental agreement for the vehicle. Ahmad produced the documents. The deputy then asked for consent to search the RV. Ahmad agreed, but the deputy did not immediately conduct a search. Instead, he called for a K-9 unit.

The unit arrived a few minutes later, and Ahmad agreed to a dog sniff of the RV. The dog quickly alerted. At that point—about 15 minutes into the encounter—Ahmad was detained while the deputy searched the RV, where a large quantity of marijuana was discovered. Ahmad was indicted for possession of more than 100 kilograms of marijuana. He moved to suppress the drugs, arguing that his consent to search was involuntary because he had already been seized for Fourth Amendment purposes at the moment the deputy retained his driver’s license and the RV rental agreement. The district judge disagreed and denied the motion. Ahmad pleaded guilty but reserved the right to appeal the denial of suppression.

We affirm. The deputy’s brief possession of Ahmad’s license and rental agreement did not transform this otherwise consensual encounter into a seizure. Ahmad voluntarily consented to both the external dog sniff and the search of the RV.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Ana Alverez

Case No.: 21-1119

Officials: FLAUM, EASTERBROOK, and KIRSCH, Circuit Judges.

Focus: Restitution Order

In 2019, a jury convicted Ana Alverez of thirteen counts stemming from her participation in a scheme involving the creation of hundreds of fake credit cards. Alverez appeals the second restitution order entered in this case. We vacated the first when the government agreed with Alverez that certain discrepancies required the district court to revise it. Now, the government again agrees that the restitution order must be vacated and remanded, although it does not agree that we need to decide all the issues Alverez raises.

Accordingly, the second restitution order is vacated and remanded for the reasons on which the parties agree: because the restitution order did not address Alverez’s argument for joint and several liability, nor her apparent indigency. We do not reach Alverez’s arguments concerning whether a second sentencing hearing was required by 18 U.S.C. § 3553(c) or the Constitution; on remand, however, the district court in its discretion may now elect to hold a hearing before entering a revised restitution order.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Orvil Duane Hassebrock

Case No.: 20-3328

Officials: HAMILTON, KIRSCH, and JACKSON-AKIWUMI, Circuit Judges.

Focus: Writ of Coram Nobis

Orvil Hassebrock, who has served his sentence for tax crimes, appeals from the district court’s order denying his petition for a writ of coram nobis. Because he could have raised all his arguments on direct appeal or in his prior motion under 28 U.S.C. § 2255, we affirm. In this opinion we address a narrow, but open question in our circuit: whether the separate judgment requirement of Rule 58 of the Federal Rules of Civil Procedure applies to coram nobis petitions. We join the other circuits to consider the issue and conclude that it does.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. David Perez

Case No.: 19-1448

Officials: SYKES, Chief Judge, and KANNE and ST. EVE, Circuit Judges.

Focus: Sentencing Guidelines – RICO Violation

David Perez was a member of the Latin Kings street gang in Maywood, Illinois, and served in several leadership positions in which he ordered or personally carried out acts of violence, including the attempted murder of a former gang member. He pleaded guilty to conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d), and possessing a firearm as a felon, id. § 922(g)(1). The district judge sentenced him to concurrent terms of 336 months and 120 months in prison, respectively—below the advisory range under the Sentencing Guidelines.

Perez challenges his sentence on two grounds. He first argues that the judge incorrectly held that the attempted murder predicate for the RICO violation increased the maximum penalty on that count to life in prison under 18 U.S.C. § 1963(a). He also contends that the judge committed a procedural error by failing to consider his argument under 18 U.S.C. § 3553(a)(6) about the need to avoid unwarranted sentencing disparities with similarly situated defendants.

We affirm. The judge correctly determined that the RICO violation was “based on” an act of racketeering that is punishable by life imprisonment under state law— discharging a firearm in an attempted murder—a predicate act that raised the applicable maximum penalty from 20 years to life under § 1963(a). See United States v. Brown, 973 F.3d 667, 709 (7th Cir. 2020). The argument about unwarranted sentencing disparities is both waived and meritless. It is waived because at sentencing the judge twice asked Perez’s counsel whether he was satisfied with the court’s explanation of the sentence, and both times counsel failed to mention any § 3553(a)(6) concerns. Waiver aside, a sentence within or below a properly calculated Guidelines range necessarily complies with § 3553(a)(6). United States v. Sanchez, 989 F.3d 523, 540–41 (7th Cir. 2021).

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. DeLano Maurice Wade

Case No.: 2019AP2111

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

Focus: Ineffective Assistance of Counsel

Delano Maurice Wade, pro se, appeals from an order of the circuit court denying his WIS. STAT. § 974.06 (2019-20) motion. Wade contends that trial counsel and postconviction/appellate counsel were ineffective in multiple ways. We conclude that Wade’s claims lack merit. Therefore, we affirm.

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WI Court of Appeals – District III

Case Name: Benjamin Paul Meeuwsen v. Darci Lynn Meeuwsen

Case No.: 2020AP418

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

Focus: Divorce – Property Division

Darci Meeuwsen, pro se, appeals postdivorce orders regarding property division.  Darci argues the circuit court erred when it offset amounts that she allegedly owed against equalization payments owed to her by her former husband, Benjamin. Darci contends that Benjamin’s lump sum payment of the entire equalization payment—rather than his payment of that sum over the fifteen years the court permitted—prevented Darci from receiving interest payments over the period. Darci further argues the court erred by failing to hold a de novo hearing regarding unpaid variable expenses that Darci allegedly owed. Additionally, Darci argues that the court should never have appointed a guardian ad litem (GAL) to help represent her best interests, while she simultaneously argues that the court erred by failing to accommodate her disability. We reject these arguments and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Mark S. Miller

Case No.: 2020AP721-CR

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

Focus: Suppression of Evidence – Blood Test

Mark Miller appeals from a judgment of conviction for fifth-offense operating a motor vehicle while intoxicated (OWI), and from the denial of his reconsideration motion. Miller argues that his consent for a blood draw was coerced and involuntary. We reject his arguments and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Mychael R. Hatcher

Case No.: 2020AP774

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

Focus: Ineffective Assistance of Counsel

Mychael Hatcher appeals from the denial of his WIS. STAT. § 974.06 (2019-20), postconviction motion. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Shayne T. Trudelle

Case No.: 2020AP1410-CR

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

Focus: Ineffective Assistance of Counsel

Shayne Trudelle appeals a judgment of conviction, following a jury trial, of multiple crimes. He also appeals from the order denying his postconviction motion for relief. Trudelle contends that his trial counsel was ineffective in several respects. Upon review, we affirm.

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WI Court of Appeals – District III

Case Name: Katherine Baumel, et al., v. Society Insurance, et al.,

Case No.: 2020AP1610

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

Focus: Recreational Immunity – Issue of Material Fact

Katherine Baumel sued Michael Frear, Kari Frear, and Deer Tail Lodge, LLC (collectively, “the Lodge”), along with the Lodge’s insurer, after she tripped and fell on the Lodge’s property. The circuit court granted summary judgment in favor of the Lodge, concluding Baumel’s claims were barred by the recreational immunity statute, WIS. STAT. § 895.52 (2019-20). Baumel argues the court erred because she was not engaged in a recreational activity at the time of her fall. Alternatively, she argues there is a genuine issue of material fact as to whether the “profit” exception to recreational immunity applies. We reject these arguments and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Randy J. Promer

Case No.: 2020AP1715-CR

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

Focus: Unlawful-stop Claim – Reasonable Suspicion – Suppression of Evidence

Randy Promer appeals a judgment convicting him of one count of operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood, as a seventh offense, and one count of possession of methamphetamine. Promer argues the circuit court erred by denying his motion to suppress evidence. He contends that law enforcement lacked reasonable suspicion to stop his vehicle, and that the community caretaker doctrine did not justify the stop.

We conclude the stop of Promer’s vehicle was permissible under the community caretaker doctrine. In so doing, we reject Promer’s argument that the United States Supreme Court’s decision in Caniglia v. Strom, 141 S. Ct. 1596 (2021), “eliminat[ed] the community caretaker doctrine as a standalone exception to the Fourth Amendment warrant requirement.” Instead, we conclude Caniglia merely held that the community caretaker doctrine cannot be used to justify a warrantless intrusion into a home. As this case involves the stop of an automobile, Caniglia is inapplicable. Accordingly, the circuit court properly denied Promer’s suppression motion, and we therefore affirm his judgment of conviction.

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WI Court of Appeals – District I

Case Name: JD Prime Games Kiosk, LLC, et al., v. Wisconsin Department of Revenue, et al.,

Case No.: 2020AP1935

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

Focus: Statutory Interpretation – Gambling Machine

The Wisconsin Department of Revenue, the Wisconsin Department of Justice, Richard G. Chandler, Brian Waldherr, and Brad D. Schimel (collectively, the “DOR”) appeal an order by the trial court which declared that video gaming machines distributed by JD Prime Games Kiosk, LLC are not gambling machines as defined in WIS. STAT. § 945.01(3) (2019-20).

We conclude that the video gaming machines meet the statutory definition of a gambling machine. We therefore reverse the trial court’s order granting declaratory judgment in favor of JD Prime, and remand this matter for the entry of an order declaring that its video gaming machines are indeed gambling machines, as asserted by the DOR.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. K.B.W.,

Case No.: 2021AP47

Officials: WHITE, J.

Focus: Abuse of Discretion – Juvenile Sex Offender Registration

K.B.W. appeals from a circuit court order requiring him to comply with juvenile sex offender registration requirements for a period of fifteen years. He argues that the circuit court failed to make a required finding that his underlying offense was “sexually motivated;” therefore, the circuit court failed to consider the correct standard of law and erroneously exercised its discretion. Upon review, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Daniel J. Lewer

Case No.: 2020AP446-CR

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

Focus: Postconviction Relief – Jury Instructions

Daniel Lewer appeals from a judgment convicting him of operating while intoxicated (7th, 8th or 9th offense) and from a circuit court order denying his postconviction motion alleging plain error relating to the jury instruction for “operating” and ineffective assistance of trial counsel. We affirm.

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WI Court of Appeals – District II

Case Name: John Schuler v. Schubbe Family Chiropractic, Ltd.,

Case No.: 2020AP1753

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

Focus: Statutory Interpretation – Patient Health Care Records Access

John Schuler’s attorneys were charged $29.79 for “certification” and “retrieval fee[s]” on March 21, 2017, by Schubbe Family Chiropractic, Ltd. (Schubbe) for requested healthcare records under WIS. STAT. § 146.83 (2019-20). Schuler argues the charges violated WIS. STAT. § 146.84. The circuit court granted Schubbe’s motion to dismiss Schuler’s complaint. We affirm, as the charges were made after our release of Moya v. Aurora Healthcare, Inc., 2016 WI App 5, 366 Wis. 2d 541, 874 N.W.2d 336 (Moya I), and prior to our supreme court’s reversal of Moya I in Moya v. Aurora Healthcare, Inc., 2017 WI 45, 375 Wis. 2d 38, 894 N.W.2d 405 (Moya II).

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WI Court of Appeals – District IV

Case Name: Eric D. Olmanson, et al., v. Brenda Weits

Case No.: 2021AP438

Officials: Sheila T. Reiff Clerk of Court of Appeals

Focus: Order Correcting Opinion

PLEASE TAKE NOTICE that corrections were made to paragraph 17 in the above-captioned opinion which was released on December 16, 2021. A corrected electronic version in its entirety is available on the court’s website at www.wicourts.gov.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Dennis B. Hassel

Case No.: 2020AP1301-CR

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

Focus: Motion for New Trial – Admissible Evidence

Dennis Hassel appeals a judgment of conviction for first-degree intentional homicide. He also appeals the circuit court’s order denying his motion for a new trial. Hassel asks us to exercise our discretion to grant a new trial in the interest of justice. He argues that the real controversy was not fully tried because the jury was not presented with important fingerprint evidence of a third party’s guilt. Hassel contends that this evidence was admissible pursuant to State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984). Denny requires the application of a three-prong test in which the defendant must show the third party’s (1) motive, (2) opportunity, and (3) “direct connection” to the crime. See id. at 625. Hassel does not persuade us that he has satisfied the Denny test and, consequently, he does not persuade us that we should exercise our discretion to order a new trial in the interest of justice. We affirm the circuit court.

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WI Court of Appeals – District IV

Case Name: Michael S. Eisenga v. Clare A. Hawthorne

Case No.: 2020AP1404

Officials: Kloppenburg, Fitzpatrick, and Nashold, JJ.

Focus: Child Support Modification

Michael Eisenga appeals an order denying his motion to modify child support. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Anthony Carl Chancy

Case No.: 2020AP1849-CR; 2020AP1850-CR

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

Focus: Postconviction Relief – Plea Withdrawal

Anthony Carl Chancy appeals judgments of conviction for two counts of second-degree recklessly endangering safety and an order denying his postconviction motion to withdraw two pleas of guilty. Chancy argues that his pleas were not knowingly and intelligently entered because he did not understand the elements of second-degree recklessly endangering safety. Alternatively, he argues that his pleas lacked a sufficient factual basis. We reject Chancy’s arguments. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Nestor Luis Vega

Case No.: 2021AP126-CR

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

Focus: Postconviction Motioned Denied – Due Process Violation

Nestor Luis Vega was arrested after an informant told law enforcement officers that he purchased heroin from Vega on five separate occasions. Vega was charged with: five counts of delivery of heroin; felony possession of tetrahydrocannabinol (THC); maintaining a drug trafficking place; and two counts of felony bail jumping. Vega pled no contest to possession of THC and the bail jumping charges, and the case proceeded to trial in the Portage County Circuit Court on the remaining charges.

At trial, the State sought to prove that Vega sold heroin to the informant during each of five controlled purchases. In support, the State presented testimony from the informant and two officers involved with organizing the alleged controlled purchases. Vega testified in his own defense and asserted that he had never sold heroin and indicated that the informant was not telling the truth. On cross-examination, the prosecutor asked Vega three questions regarding Vega’s exercise of his right to remain silent after his arrest, including Vega’s decision not to provide his exculpatory version of events to the police. The circuit court overruled Vega’s objection to these questions, and the prosecutor proceeded to ask another three questions on the same subject. The jury found Vega guilty on all counts.

Vega filed a postconviction motion seeking a new trial on the ground that his constitutional rights were violated because the prosecutor questioned him at trial about his exercise of his right to remain silent after he had been arrested and was read the Miranda warnings. The circuit court denied Vega’s motion, stating that the questions did not violate Vega’s constitutional rights and, even if those questions did, the error was harmless because the jury would have found Vega guilty absent the questions. Vega appeals his judgment of conviction and the circuit court’s order denying his postconviction motion.

We conclude that Vega is entitled to a new trial. First, the prosecutor’s questions regarding Vega’s exercise of his constitutional right after he was arrested violated Vega’s due process rights. Second, those constitutionally prohibited questions were not harmless error because the State has not met its burden to prove beyond a reasonable doubt that those questions did not contribute to the jury’s verdict. Accordingly, we reverse Vega’s judgment of conviction with respect to the counts relating to delivery of heroin and maintaining a drug trafficking place and the circuit court’s order denying Vega’s postconviction motion, and remand this matter for a new trial.

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WI Court of Appeals – District IV

Case Name: Waupaca County v. G.T.H.,

Case No.: 2021AP1490

Officials: FITZPATRICK, J.

Focus: Involuntary Commitment and Medication – Extension

On May 18, 2021, after an evidentiary hearing, the Circuit Court for Waupaca County signed two orders regarding G.T.H., each of which was requested by Waupaca County. One order was an extension of a WIS. STAT. ch. 51 commitment of G.T.H. for twelve months. The other order was for the involuntary medication and treatment of G.T.H. during that twelve-month period of commitment.

G.T.H. appeals and argues, as one basis for his appeal, that the circuit court erred in not making factual findings linked to the statutory basis for the court’s determination of dangerousness. See Langlade Cnty. v. D.J.W., 2020 WI 41, ¶¶3, 40, 391 Wis. 2d 231, 942 N.W.2d 277 (requiring a circuit court to “make specific factual findings with reference to the subdivision paragraph of WIS. STAT. § 51.20(1)(a)2. on which the recommitment is based”). The County has not filed a responsive brief in this court. Rather, the County has filed a letter which states, in pertinent part: “Waupaca County is respectfully declining to file a Respondent’s Brief in this matter as the record indicates the requirements of [D.J.W.] have not been satisfied.” Accordingly, the County has conceded that the circuit court erred. In addition, my independent review of the record leads me to agree with G.T.H.’s argument and the County’s concession on this point, and I conclude that this issue is dispositive.

G.T.H. requests “reversal” of the circuit court’s orders rather than remand for further fact-finding by, or explanation from, the circuit court. By not challenging this requested relief from G.T.H., the County implicitly concedes that the remedy requested by G.T.H. is the correct remedy. See Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994) (explaining that “[t]his court has held that respondents cannot complain if propositions of appellants are taken as confessed which respondents do not undertake to refute”).

Further, the County does not dispute that, because I reverse the WIS. STAT. ch. 51 extension order regarding G.T.H., it then follows that the involuntary medication and treatment order that is based on that extension order is also reversed. See WIS. STAT. § 51.61(1)(g)3. For those reasons, the order of the circuit court is reversed.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin ex rel. City of Waukesha v. City of Waukesha Board of Review, et al.,

Case No.: 2021

Focus: Certiorari Review – Tax Assessment

The petitioner, City of Waukesha (the City), seeks review of a published opinion of the court of appeals that reversed the circuit court’s order that allowed the City to seek certiorari review of a tax assessment determination of the City of Waukesha Board of Review (the Board). The court of appeals concluded instead that the City could not seek such review, reversed the circuit court’s determination, and remanded to the circuit court with directions to quash the writ of certiorari and dismiss the action.

This case raises the novel question of whether the municipality itself can seek certiorari review of a determination of the municipality’s board of review. The City contends that the statutory language of Wis. Stat. § 70.47 (2017-18)2 allows it to appeal a Board determination by bringing a certiorari action pursuant to § 70.47(13). The Board, in contrast, argues that the City has no such right and that the City’s participation in a tax assessment proceeding ends after the Board has made its decision.

We conclude that Wis. Stat. § 70.47 does not allow the City to seek certiorari review of a decision of the Board. Accordingly, we affirm the decision of the court of appeals.

Affirmed

Concur:

Dissent:

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Eric L. Crandall

Case No.: 2021 WI 90

Focus: Attorney Disciplinary Proceedings

We review the report of Referee James Evenson recommending that the court suspend Attorney Eric L. Crandall’s license to practice law in Wisconsin for 60 days. Neither party has appealed from the referee’s report and recommendation.

After careful review of the matter, we adopt the referee’s findings of fact and conclusions of law with respect to Attorney Crandall’s misconduct and agree that the misconduct warrants a 60-day suspension of Attorney Crandall’s license to practice law in Wisconsin. The Office of Lawyer Regulation (OLR) does not seek restitution, and we do not order restitution. As is our usual custom, we order Attorney Crandall to pay the full costs of this disciplinary proceeding, which are $5,824.25 as of October 6, 2021.

Attorney’s license suspended

Concur:

Dissent:

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