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Weekly Case Digests

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Dana Ludwig v. United States of America

Case No.: 21-1205

Officials: FLAUM, ST. EVE, and KIRSCH, Circuit Judges.

Focus: Recreational Immunity

After Brent Ludwig drowned in a tragic accident on United States Forest Service property in Oregon, Dana Ludwig, his wife and administrator of his estate, brought an action against the United States under the Federal Tort Claims Act. Dana Ludwig sought damages for both negligence and wrongful death. The district court granted summary judgment for the United States on the basis that Oregon’s recreational use statute protected the government from suit. Dana Ludwig argues on appeal that the district court’s application of Oregon law was erroneous. We agree with the district court and affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Sultan Issa

Case No.: 20-2949

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

Focus: Sentencing Guidelines – Enhancement

Sultan Issa embezzled tens of millions of dollars, pled guilty, and was sentenced to a below Guidelines 200 months in prison. He now appeals his sentence, claiming that the district court violated his due process rights by erroneously admitting and relying upon sentencing submissions from victims of his crimes. He also claims that the district court erroneously applied a vulnerable victim enhancement. Finding no errors, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Ronnie Martin

Case No.: 21-1527

Officials: KANNE, ROVNER, HAMILTON, Circuit Judges.

Focus: First Step Act – Compassionate Release

Ronnie Martin was sentenced to 43 months’ imprisonment for possessing heroin with the intent to distribute. 21 U.S.C. § 841(a)(1). With his direct appeal of his sentence pending, Martin moved for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), raising arguments available on direct appeal. The district court denied the motion. Because Martin shows no “extraordinary and compelling” reason for release, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Sylvia Leszanczuk v. Carrington Mortgage Services, LLC,

Case No.: 21-1367

Officials: SYKES, Chief Judge, and KANNE and HAMILTON, Circuit Judges.

Focus: Illinois Consumer Fraud and Deceptive Business Practices Act Violation

After Sylvia Leszanczuk defaulted on her mortgage, her mortgage servicer, Carrington Mortgage Services, inspected her residence and charged her a $20.00 fee for the inspection. Leszanczuk brought a putative class action against Carrington, alleging that the fee constituted a breach of her mortgage contract under Illinois law and violated the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”). The district court dismissed her second amended complaint with prejudice for failure to state plausible claims. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Nathan Mansfield

Case No.: 20-2981

Officials: KANNE, BRENNAN, and KIRSCH, Circuit Judges.

Focus: De Novo Review – Sentencing Guidelines

Nathan Mansfield was convicted of possession with intent to distribute methamphetamine and sentenced to 188 months in prison. He now argues the district court erred by considering his arrest history during sentencing. But Mansfield waived this challenge when his counsel did not object to the district court’s consideration of the presentence investigation report or its contents. Even if this point was not waived, a substantial history of arrests, especially if they are similar to the offense of conviction, can be a reliable factor to consider at sentencing. We therefore conclude the district court did not err when it reviewed Mansfield’s arrest history.

Affirmed

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7th Circuit Court of Appeals

Case Name: Samuel Wegbreit, et al., v. Commissioner of Internal Revenue

Case No.: 20-1306

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

Focus: Frivolous Appeal – Sanctions

Samuel and Elizabeth Wegbreit sheltered several million dollars of income in a life‐insurance policy held by a sham trust. The IRS caught on to the Wegbreits’ scheme and issued a deficiency notice showing that they owed millions in back taxes. The Wegbreits challenged the notice in the tax court. After discovery revealed a series of suspicious documents and transactions relating to the Wegbreits’ finances, the IRS added civil fraud allegations. The tax court agreed with the IRS, finding that the Wegbreits underreported their income by nearly $15 million and engaged in a pattern of conduct intended to defraud the government.

We affirm. The Wegbreits’ rambling brief spans 78 pages yet somehow develops only two coherent arguments remotely related to the tax court’s decision. And those two arguments are baseless: the Wegbreits stipulated them away in the tax court. We therefore order John E. Rogers, the Wegbreits’ attorney, to show cause why he should not be sanctioned under Rule 38 for filing this frivolous appeal.

Affirmed

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7th Circuit Court of Appeals

Case Name: Michael Gilbreath v. Dan Winkleski, Warden

Case No.: 20-2638

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

Focus: Habeas Relief – Ineffective Assistance of Counsel

Michael Gilbreath was convicted by a Wisconsin jury of first degree sexual assault of a child for repeatedly molesting his step-granddaughter, S.L., beginning in approximately 2002 or 2003 when she was nine years old, and ending in 2006 when she was twelve. The district court granted his petition for a writ of habeas corpus on the basis of ineffective assistance of counsel. We reverse.

Reversed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Vernon K. Sommerfeldt

Case No.: 2019AP1602-CR

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

Focus: Ineffective Assistance of Counsel

Vernon Sommerfeldt appeals from a judgment of conviction for second-degree sexual assault and an order denying him postconviction relief. Sommerfeldt claims that his trial counsel was ineffective in several respects. We reject his arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Marques Edward Hubbard

Case No.: 2020AP416-CR; 2020AP417-CR

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

Focus: Postconviction Relief – Admissible Evidence

Marques Edward Hubbard appeals judgments of conviction entered upon guilty pleas for two counts of second-degree recklessly endangering safety and one count of felony witness intimidation. He also appeals the circuit court’s order denying his postconviction motion for plea withdrawal after an evidentiary hearing. Hubbard argues that the circuit court improperly relied upon inadmissible evidence when it denied him postconviction relief. We conclude that any errors in the admission of evidence at the evidentiary hearing were harmless because they did not affect the outcome of his postconviction motion. Therefore, we affirm.
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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jared J. Lanier-Cotton

Case No.: 2020AP1119-CR

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

Focus: Ineffective Assistance of Counsel

Jared J. Lanier-Cotton appeals his judgment of conviction for substantial battery intending bodily harm, intimidating a witness by use of force, battery to a witness, all as party to a crime, and felony bail jumping. Further, he appeals the trial court’s denial of his motion for postconviction relief. Lanier-Cotton argues he received ineffective assistance of counsel because trial counsel failed to object to the State’s use of other-acts evidence for an impermissible purpose. Additionally, he contends the trial court erroneously admitted testimony that impermissibly vouched for another witness and admitted impermissible hearsay in violation of his constitutional Confrontation Clause rights. Finally, he argues that the trial court erred when it failed to strike a juror for cause. We reject all of his arguments and, accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Steve DeShunn Young

Case No.: 2020AP1142-CR; 2020AP1143-CR; 2020AP1144-CR

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

Focus: Ineffective Assistance of Counsel

Steve Deshunn Young appeals his judgments of conviction entered after he pled guilty to charges of operating a vehicle without the owner’s consent; second-degree recklessly endangering safety, with a habitual criminality enhancer; felony bail jumping, with a habitual criminality enhancer; possession with intent to deliver heroin; and possession with intent to deliver cocaine. He also appeals the order denying his postconviction motion.

In his postconviction motion, Young argued that the prosecutor materially and substantially breached the plea agreement with comments made at the sentencing hearing, and that his trial counsel was ineffective for failing to object to that breach. He therefore requested a Machner hearing on this issue, seeking to withdraw his pleas or alternatively, to be resentenced. The postconviction court rejected his claims without granting a hearing. Upon review, we affirm.

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WI Court of Appeals – District I

Case Name: James E. Miller, et al., v. City of Milwaukee and Milwaukee Employees’ Retirement System

Case No.: 2020AP1346

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

Focus: ERISA – Retirement Benefits – Minimum Service Age

The City of Milwaukee and Milwaukee Employees’ Retirement System (collectively the City) appeal an order of the circuit court granting summary judgment in favor of James E. Miller, Jr. and Marion Holley. Miller and Holley, two former police officers with the City, commenced this action against the City arguing that they were entitled to begin collecting their retirement benefits at the age of fifty-seven. The City disagrees and argues that Miller and Holley were not entitled to collect retirement benefits until the age of sixty because Miller and Holley returned to employment with the City as general city employees, thereby changing the minimum service retirement age applicable to both Miller and Holley from fifty-seven to sixty.

For the reasons set forth herein, we agree with the City, and we conclude that Miller and Holley are not entitled to receive retirement benefits until age sixty as a result of their re-employment under the classification as general city employees. We further conclude that Miller and Holley had no vested right in the minimum service retirement age applicable to police officers. Accordingly, we reverse the order of the circuit court and remand with directions to grant summary judgment in favor of the City.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. T.A.,

Case No.: 2020AP1350

Officials: HRUZ, J.

Focus: Sex Offender Registration – Lift-of-Stay Hearing

Tanner appeals an order lifting the stay on a previously imposed requirement that he register as a sex offender, and an order denying his motion for postdisposition relief. Tanner seeks a new hearing to address whether the stay on his sex offender registration should be lifted (“lift-of-stay hearing”), arguing that the circuit court relied on an inaccurate interpretation of his Juvenile Sex Offender Assessment Protocol-II (“J-SOAP-II”) score when it concluded that the stay should be lifted. We agree, and we therefore reverse and remand for a new lift-of-stay hearing.

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WI Court of Appeals – District I

Case Name: VK Citgo LLC, et al., v. City of Milwaukee, et al.,

Case No.: 2020AP1458

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

Focus: Due Process Violation

VK Citgo LLC and Gurdev Singh (collectively “Citgo”) appeal the order of the circuit court affirming the decision of the City of Milwaukee and the City of Milwaukee Common Council (collectively the “City”) not to renew Citgo’s licenses for Extended Hours Establishment, Filling Station, Weights and Measures, and Food Dealer (the “Licenses”). Citgo argues that the hearing notice sent by the City regarding the potential nonrenewal of the Licenses was inadequate, in that it did not contain specific reasons that the City was considering denying Citgo’s renewal application, as required under the City of Milwaukee Code of Ordinances. Therefore, Citgo asserts that the City failed to act according to law and violated Citgo’s due process rights. Upon review, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Paul B. Jones

Case No.: 2020AP1496-CR

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

Focus: Sufficiency of Evidence

Paul Brian Jones appeals from a judgment, entered following a bench trial, convicting him of first-degree sexual assault of a child under thirteen years old and from orders denying him postconviction relief. Jones was charged in November 2016, after Devin, then a five-year-old boy, reported that “Brian” had touched his penis while he was at his father’s home. Jones was known colloquially as “Brian,” and he was the only adult male present when the alleged sexual contact occurred.

Jones argues that insufficient evidence existed to convict him of the charged crime because while Jones was present in the courtroom, Devin testified that “Brian” was not present in the courtroom, and because Jones and his girlfriend, Johnnie Maria (“Maria”), both testified that Jones never touched Devin. We disagree that the evidence was insufficient. Viewing the evidence in the light most favorable to the State and the conviction, a reasonable fact finder could find that someone had sexual contact with Devin and that Devin identified Jones as the offender by consistently stating that Brian had touched him. We therefore affirm the circuit court’s order denying postconviction relief on insufficient evidence grounds.

Jones also argues that he is entitled to a new trial because the circuit court relied on extraneous information when reaching its verdict. He contends that the court improperly relied on its own knowledge of sexual abuse victims experiencing nightmares and changes in behavior after an assault, and that it improperly researched case law regarding the legal effect of a victim being unable to identify the defendant in court. Although we reject Jones’s argument that the court improperly researched case law, we agree that the court improperly relied on its own knowledge of sexual abuse victims experiencing nightmares and changes in behavior. Such knowledge was not based on evidence admitted at trial, nor was it within the common knowledge of a layperson. We therefore reverse Jones’s conviction and remand for a new trial.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Charles E. Fedie

Case No.: 2020AP1596-CR

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

Focus: Ineffe

ctive Assistance of Counsel

Charles Fedie appeals from a judgment of conviction for both possession of child pornography and sexual exploitation of a child, as well as the denial of his motion for postconviction relief. Fedie argues a manifest injustice compels the withdrawal of his guilty pleas, based on ineffective assistance of his counsel for failing to challenge a search warrant. We reject his arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Tommie Lee Carter

Case No.: 2021AP68-CR

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

Focus: Plea Withdrawal

Tommie Lee Carter appeals his judgment of conviction entered after he pled guilty to attempted robbery with the threat of force. He also appeals the order denying his postconviction motion without a hearing. Carter seeks to withdraw his plea on the grounds that it was not knowing, intelligent, and voluntary because the nature of the offense was never adequately explained to him. We agree, and therefore reverse the order denying his postconviction motion, and remand this matter for an evidentiary hearing on his claim.

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WI Court of Appeals – District III

Case Name: Kim C. Gronewold v. Jan Gronewold

Case No.: 2021AP776

Officials: GILL, J.

Focus: Contempt of Court – Maintenance Order

Jan Gronewold appeals from an order finding him in contempt of court for failing to pay court-ordered maintenance to his ex-wife, Kim Gronewold. Jan argues that the circuit court erred by finding him in contempt because: (1) all of his arrears had been paid “in full” at the time of the contempt hearings; and (2) his failure to make the ordered payments was not willful or intentional. Jan also argues that a finding of contempt should not have been made because the affidavit supplied by Kim contained inaccurate information, the court refused to allow Jan to question Kim, and the court improperly ordered a contempt sanction. We reject Jan’s arguments and affirm the order.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Andrew M. Obregon

Case No.: 2019AP758-CR

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

Focus: Plea Withdrawal

Andrew M. Obregon appeals from a judgment of conviction for various offenses, including first-degree intentional homicide, as well as from an order denying his postconviction motion seeking plea withdrawal. Obregon argues that the statements he made during three custodial interviews with police were involuntary. He also argues that his waiver of rights following the administration of Miranda warnings was not knowing, intelligent, and voluntary. Finally, he asserts his statements during the second interview were obtained in violation of his Sixth Amendment right to counsel. We reject his arguments and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Daimon Von Jackson, Jr.,

Case No.: 2019AP2383-CR

Officials: Neubauer, Reilly and Grogan, JJ.

Focus: Plea Withdrawal – Ineffective Assistance of Counsel

Daimon Von Jackson, Jr. appeals from a judgment of conviction entered after his no contest plea to second-degree reckless homicide as a repeater with the use of a dangerous weapon contrary to WIS. STAT. §§ 940.06(1) (2013-14),1 939.62(1)(c), and 939.63(1)(b) (hereinafter “second-degree reckless homicide”), and from an order denying his postconviction motion seeking to withdraw his plea. On appeal, Jackson asserts he should be allowed to withdraw his plea because: (1) he received ineffective assistance of trial counsel; (2) the circuit court erred in denying his request to have trial counsel replaced; and (3) the interests of justice require plea withdrawal or resentencing to correct a miscarriage of justice. Because we conclude Jackson’s trial counsel was not ineffective, the circuit court did not err in denying Jackson’s request to replace trial counsel, and the interests of justice require neither plea withdrawal nor resentencing, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Tanya M. Liedke

Case No.: 2020AP33-CR

Officials: Neubauer, Reilly and Grogan, JJ.

Focus: Sentence Credit

Tanya M. Liedke appeals from an order denying her motion for correction of sentence credit. She argues that she is entitled to additional sentence credit based on an erroneous calculation. Liedke further claims entitlement to sentence credit for the time spent on GPS monitoring. She argues that our supreme court’s interpretation of the statutory term “custody” in State v. Magnuson, 2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536, violates her right to equal protection. We reject Liedke’s equal protection argument and agree with the circuit court that she is not entitled to sentence credit for the time she spent on a GPS monitor. We reverse on the amount of sentence credit, as the parties agree that Liedke is entitled to additional credit but dispute what the amount is. As the record before us does not allow us to make that calculation, we remand for the court to determine the correct amount of sentence credit.

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WI Court of Appeals – District II

Case Name: Julie C. Valadez v. Ricardo Valadez

Case No.: 2020AP1006

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

Focus: Divorce – Child Placement Order

Julie C. Valadez appeals from a judgment of divorce terminating her marriage to her former husband, Ricardo Valadez. As relevant to our disposition of this appeal, Julie argues that the circuit court erred in awarding sole legal custody of their children to Ricardo based on its erroneous conclusion that Ricardo overcame the statutory presumption against custody by proving that he received batterer’s treatment from a certified treatment program or a certified treatment provider. See WIS. STAT. § 767.41(2)(d)1.a. (2019-20). Because of the court’s finding that Ricardo engaged in a pattern of domestic abuse against Julie, she similarly takes issue with the court’s decision granting the parties shared placement without making the safety of Julie and the children the court’s paramount concern, as required by § 767.41(5)(bm). For the reasons stated, we reverse and remand with the directions specified below.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Robert C. Stryker

Case No.: 2020AP1482-CR

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

Focus: Court Error – Postconviction Motion Denied

Robert C. Stryker, pro se, appeals a judgment of conviction for first-degree sexual assault of a child and an order denying his motion for postconviction relief. Stryker argues the circuit court erroneously denied his motion to admit at trial prior untruthful allegations of sexual assault by the victim and her mother. He also argues the court erroneously denied his motion for a mistrial after “Guardians of the Children” motorcycle club members accompanied the victim through public areas of the courthouse during the trial. We reject his arguments and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Willie G. Allison

Case No.: 2020AP1519-CR

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

Focus: Abuse of Discretion – Evidentiary Hearing

Willie Allison appeals a judgment, entered upon a jury’s verdicts, convicting him of three counts of human trafficking, as a repeater; one count of second-degree reckless injury, as a repeater; two counts of delivering three grams or less of heroin, as a second or subsequent offense, with one count as a party to a crime; and one count of maintaining a drug trafficking place, as a second or subsequent offense. Allison also appeals the order denying his postconviction motion, which sought a new trial or, in the alternative, resentencing.

Allison argues that the State engaged in prosecutorial misconduct related to the cross-examination of a witness; the circuit court erroneously exercised its discretion by limiting cross-examination of the same witness; the evidence was insufficient to support his conviction for second-degree reckless injury; and he was denied the effective assistance of trial counsel. Allison also claims that the court erroneously exercised its sentencing discretion, and that he is entitled to resentencing with a new presentence investigation report (“PSI”). Finally, Allison contends that the court erred by denying his motion for a new trial without an evidentiary hearing. We reject Allison’s arguments, and we affirm the judgment and order.

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WI Court of Appeals – District III

Case Name: Douglas County Department of Health & Human Services v. J.S., et al.,

Case No.: 2021AP1123

Officials: HRUZ, J.

Focus: Termination of Parental Rights

Jessica appeals from an order terminating her parental rights (TPR) to her daughter, and an order denying her motion for postdispositional relief. Jessica contends that the Douglas County Department of Health & Human Services (the County) presented insufficient evidence for the jury to find that she was an unfit parent.

Specifically, Jessica argues that the County failed to make a reasonable effort to provide the court-ordered services that were necessary for her to meet the requirements of the dispositional order finding her daughter a child in need of protection or services (CHIPS). Jessica further argues that the County failed to abide by either Wisconsin or federal guidelines establishing best practices for creating a family interaction plan in CHIPS cases, thereby preventing the County from making a reasonable effort to provide Jessica with the services ordered by the court, as required in WIS. STAT. § 48.415(2)(a)2.b. On these bases, Jessica argues that she should be granted a new trial, or that her CHIPS case should be reopened for the County to provide her these court-ordered services.

We conclude that the County presented sufficient evidence at trial on the many ways in which it made a reasonable effort to provide Jessica with court-ordered services, and the jury’s verdict was therefore supported by credible evidence. Additionally, the Wisconsin and federal standards that Jessica identifies do not control the jury’s analysis of whether the County has made a reasonable effort to provide Jessica with the services ordered by the court. We reject the remainder of Jessica’s claims because they are premised on her failed evidentiary challenge. These claims include that her attorney was ineffective for not challenging the sufficiency of the evidence at trial, and that a new trial should be granted in the interest of justice because the jury was not presented with all of the relevant evidence. Accordingly, we affirm the TPR order, as well as the order denying Jessica’s motion for postdispositional relief.

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WI Court of Appeals – District IV

Case Name: Petitioner v. Walfred E. Kivisto

Case No.: 2020AP1079

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

Focus: Court Error – Harassment Injunction

Walfred Kivisto appeals a harassment injunction order issued pursuant to WIS. STAT. § 813.125 (2019-20). Kivisto argues that his conduct did not satisfy the statutory standard for harassment. We disagree and affirm.

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