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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 The case involves a defendant’s supervised release, which was revoked because he admitted to violating its terms by helping to distribute marijuana and U.S. Judge Theresa Springmann in Fort Wayne sanctioned him with 36-months in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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  2. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  3. I agree. My husband has almost the exact same situation. Age states and all.

  4. Thanks Jim. We surprised ourselves with the first album, so we did a second one. We are releasing it 6/30/17 at the HiFi. The reviews so far are amazing! www.itsjustcraig.com Skope Mag: It’s Just Craig offers a warm intimacy with the tender folk of “Dark Corners”. Rather lovely in execution, It’s Just Craig opts for a full, rich sound. Quite ornate instrumentally, the songs unfurl with such grace and style. Everything about the album feels real and fully lived. By far the highlight of the album are the soft smooth reassuring vocals whose highly articulate lyrics have a dreamy quality to them. Stories emerge out of these small snapshots of reflective moments.... A wide variety of styles are utilized, with folk anchoring it but allowing for chamber pop, soundtrack work, and found electronics filtering their way into the mix. Without a word, It’s Just Craig sets the tone of the album with the warble of “Intro”. From there things get truly started with the hush of “Go”. Building up into a great structure, “Go” has a kindness to it. Organs glisten in the distance on the fragile textures of “Alone” whose light melody adds to the song’s gorgeousness. A wonderful bloom of color defines the spaciousness of “Captain”. Infectious grooves take hold on the otherworldly origins of “Goodnight” with precise drum work giving the song a jazzy feeling. Hazy to its very core is the tragedy of “Leaving Now”. By far the highlight of the album comes with the closing impassioned “Thirty-Nine” where many layers of sound work together possessing a poetic quality.

  5. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

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