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 The case involves a defendant’s supervised release, which was revoked because he admitted to violating its terms by helping to distribute marijuana and U.S. Judge Theresa Springmann in Fort Wayne sanctioned him with 36-months in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 have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.