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7th Circuit rules on attorney withdraw brief practicalities

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Ruling on an issue of first impression, the 7th Circuit Court of Appeals today extended the logic of an eight-year-old case to how criminal defendants challenge their supervised release and revocation penalties and what must be discussed in attorney withdraw briefs on those issues.

Circuit Judge Richard Posner authored a unanimous decision today in U.S. v. Vertran M. Wheaton, No. 09-3171, which grants a motion for counsel to withdraw and dismisses an appeal from the Northern District of Indiana. The case involves a defendant’s supervised release, which was revoked because he admitted to violating its terms by helping to distribute marijuana and U.S. Judge Theresa Springmann in Fort Wayne sanctioned him with 36-months in prison. But Wheaton appealed, and his court-appointed attorney filed a brief requesting to withdraw from the criminal case on the belief that the appeal is frivolous.

However, the interesting appeal issue is that Wheaton objects to the 36-month prison term imposed by the judge but not to the revocation of supervised release on the basis of the “knowing and voluntary” admissions he made.

In United States v. Knox, 287 F.3d 667, 670-72 (7th Cir. 2002), the appellate court held that a guilty plea’s voluntariness is not a potentially appealable issue that must be discussed within an Anders brief, unless the defendant wants to withdraw the plea after an attorney informs him or her about the risks of pleading guilty – he cannot retain the plea while challenging admissions on which it was based.

“He cannot in other words have his cake (a plea that may have resulted in a lighter sentence than if he had refused to plead guilty and been convicted after a trial) and eat it (withdraw admissions, made in the plea hearing, that might undermine challenges he may now wish to make after his conviction or sentence),” Judge Posner wrote, noting that no other reported case addresses that issue except for Knox.

“The logic of Knox extends to a case (also one of first impression) in which the defendant does not challenge the revocation of his supervised release,” Judge Posner wrote. “We hold therefore that he cannot be allowed to challenge admissions that undergird that revocation. He can challenge them and the revocation, but if he is content with the revocation (fearing the possible consequences of a new revocation hearing) he cannot challenge it indirectly by attacking the admissions on which it was based.”
 

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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