7th Circuit rules on attorney withdraw brief practicalities

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 The case involves a defendant’s supervised release, which was revoked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.”