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  • WisBar News
    January 26, 2016

    Court Accepts 12 Cases, Including One on Immigration Status at Sentencing

    Jan. 26, 2016 – A criminal conviction in Wisconsin can lead to deportation for persons who are not U.S. citizens. But can judges consider a defendant’s immigration status as a factor in fashioning a sentence? The Wisconsin Supreme Court may soon decide.

    The seven-justice court recently added 12 new cases to its docket, including State v. Salas Gayton. In that case, Leopoldo Salas Gayton pled no contest to one count of homicide by intoxicated use of a vehicle. Gayton, who had entered the U.S. illegally in the 1990s, admitted that he drank 12 beers while driving around Milwaukee in 2011.

    Gayton was driving the wrong way on Interstate-94 when his vehicle collided head-on with another vehicle, killing the 34-year-old mother who was driving the other car.

    His blood, drawn about 20 minutes after the crash, showed a blood alcohol concentration of 0.145, almost twice the legal limit of 0.08. At the sentencing hearing, the judge gave a lengthy statement and referenced his illegal entry into the country.

    Gayton, who received 15 years in prison with seven years of extended supervision, including a drug and alcohol assessment and treatment, filed a postconviction motion for relief. He argued, in part, that the judge improperly relied on his immigration status.

    The motion was denied, and Gayton appealed. The appeals court upheld the sentence, concluding the sentencing judge relied on proper factors and did not abuse discretion.

    Citing a federal decision, the appeals court noted that judges may not consider a defendant’s nationality in reaching a sentence, but may consider immigration status if the judge makes no “inflammatory, provocative, or disparaging” comments about it.

    Now the state supreme court may decide whether sentencing judges can consider a defendant’s immigration status. If the court decides that immigration status is an improper factor, it may also examine whether automatic resentencing is required.

    Other Cases Accepted for Review: Criminal & OWI

    State v. Loomis (2015AP157-CR). This case examines whether judges can rely on pre-sentencing assessments known as COMPAS (Correctional Offender Management Profiling for Alternative Sanctions) in whole or in part when fashioning a sentence. The state appeals court certified the case to the supreme court without a decision.

    State v. McKellips (2014AP827-CR). The case examines a statute prohibiting the use of a computer to facilitate a child sex crime. Specifically, the court is asked to interpret the term “computerized communication system” in the context of cell phone use.

    An appeals court reversed a conviction, based on a jury instruction that asked the jury to decide whether a cell phone, in itself, is a “computerized communication system.” The defendant, a former girls’ basketball coach, argues the phone is not a computerized communication system unless “data” is being used, and he did not use data.

    State v. Booth (2015AP869). In this case, the court will examine whether a circuit court had subject matter jurisdiction to enter a conviction judgment on a first-offense OWI in 1992. The defendant, charged with a seventh OWI in 2014, says the 1992 conviction should be vacated because she had a previous OWI conviction in Minnesota in 1990.

    The Eau Claire City Attorney’s Office prosecuted the 1992 case. But the defendant says city attorneys lack power to prosecute crimes, and a second OWI is a criminal offense.

    The city says the defendant waived a right to challenge the court’s competency, which is different from subject matter jurisdiction, and it was allowed to pursue the first-offense OWI because it did not know about the defendant’s prior out-of-state OWI conviction.

    Other Cases Accepted for Review: Civil

    Seifert v. Balink (2014AP195). In this medical malpractice case, the court will examine whether a physician’s testimony should have been excluded at trial under the statute that governs admissibility of expert testimony, known as the Daubert standard.

    A mother sued her doctor for negligent care during birth and delivery of her child, who suffered permanent arm damage. During trial, another doctor testified that the defendant doctor did not meet the standard of prenatal and delivery care.

    An appeals court allowed the testimony. The defendant says the testimony did not meet the standards for admissibility under Wis. Stat section 907.02(1).

    Milwaukee Police Association v. City of Milwaukee (2014AP400). In this case, the court will examine whether the City of Milwaukee has constitutional home rule authority to impose residency requirements on its employees, or whether a state statute, enacted in 2013, controls to prohibit the city from imposing such restrictions.

    The City of Milwaukee has maintained a “residency requirement” ordinance on city employees for the last 75 years, requiring them to live within the city limits. A state appeals court upheld the ordinance, concluding residency requirements are not matters of statewide concern, and home rule authority protects local matters.

    Dufour v. Progressive Classic Insurance Co. (2014AP157). This case arises from a motorcycle accident, in which Dennis Dufour received policy limits from the at-fault driver’s insurer, Dairyland, as well as his own insurer. Dairyland also paid for his property damage, but the cost to treat his injuries still exceeded the amount of proceeds received. Dufour sued to receive subrogated funds to help make him whole.

    A supreme court decision is expected to determine whether Dairyland, which received subrogated funds from Dufour’s insurer, was obligated to reimburse Dufour under the “made whole doctrine,” and whether Dairyland acted in bad faith by rejecting his claim.

    Blake v. Jossart (2012AP2578). In this case, the court will hear a challenge to Wisconsin’s caregiver law, Wis. Stat. section 48.685(5)(br)5, a law enacted in 2009 that permanently bars persons with certain convictions from holding a child care license. In this case, the defendant’s child care certification was revoked after the local human services department learned that she pleaded no contest to welfare fraud in 1986.

    Moustakis v. DOJ (2014AP1853). This case examines several issues related to a public records request that The Lakeland Times newspaper made to the Wisconsin Department of Justice (DOJ), asking for documents related to complaints or investigations against the district attorney in Vilas County, Al Moustakis.

    Moustakis sought an order to block DOJ’s release of the documents. He said any complaints concerned unsubstantiated allegations by a former political rival. A state appeals court ruled that Moustakis did not have standing to challenge release.

    Water Well Solutions Service Group v. Consolidated Ins. Co. (2014AP2484). The City of Waukesha sued Water Well Solutions, the company it hired to remove an old water pump and install a new one. Problems arose, and insurers got involved.

    Water Well’s insurer denied coverage and did not provide a defense, relying on “your product” and “your work” exclusions. Water Well sued its insurer, but the circuit and appeals courts ruled for the insurer, concluding that the insurer’s duty to defend is determined by reviewing the four corners of the complaint, without extrinsic evidence.

    Water Well said the courts should find a duty to defend based on a reasonable inference of pre-existing damage, an allegation not found in the complaint. The supreme court may decide whether there are exceptions to the four corners rule in Wisconsin.

    Clark v. American Cyanamid Company (2014AP775). Certified from the state appeals court, the supreme court may decide whether a state statute prohibiting plaintiffs from asserting claims against manufacturers of white lead carbonate under the “risk contribution theory” retroactively deprives a plaintiff of a vested property right.

    A plaintiff, through her guardian, filed a negligence suit in 2006, alleging she suffered irreversible neurological damage from exposure to lead paint while living in Milwaukee rental units in 2003, 2004, and 2006 at age two, three, and five.

    Singh v. Kemper (2013AP1724). The case examines whether and how positive adjustment time may be applied retroactively to a prison sentence.

    These summaries are derived from full summaries available on the Wisconsin Court System website.



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