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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 The case involves a defendant’s supervised release, which was revoked because he admitted to violating its terms by helping to distribute marijuana and U.S. Judge Theresa Springmann in Fort Wayne sanctioned him with 36-months in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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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