Seventh Circuit Permits Court Appointed Lawyer to Withdraw From ‘Frivolous’ Appeal – U.S. v. Konczak

May 7, 2012 by David S. Seltzer

As a child pornography possession defense attorney, I frequently tell my clients about their options on appeal. If you’ve never come into contact with the criminal justice system before, you might not know that appeals are requests to a higher court to review the decisions of a lower court, usually the court that heard a trial. Though appeals are often handled by different lawyers from those who handle trials, there are things attorneys can do at trial that lay the groundwork for a successful appeal. Trial attorneys can also give defendants their opinions about the chances of success on appeal, which may help defendants decide whether to pursue one. In United States v. Konczak, however, defendant Chad Konczak apparently disagreed with his court-appointed defense lawyer about whether there was any merit to his appeal of his child porn conviction.

Konczak was a student at a community college in Mattoon, Ill. when campus police officers caught him in the act of using library computers to download sexually explicit pictures of underage girls. He was arrested and ultimately pleaded guilty to charges of using an “Internet website” to view child pornography. He received a within-guidelines sentence of 45 months in prison, but then decided to appeal. His court-appointed attorney, who was not named in the decision, asked to withdraw from the case, saying all possible arguments Konczak could make on appeal would be frivolous. Konczak opposed the motion, and the Seventh U.S. Circuit Court of Appeals took up the issue of whether the lawyer should be permitted to withdraw.

The court reviewed all possible arguments identified by the defendant’s and attorney’s briefs on appeal, starting with the legality of the guilty plea. It started by taking the attorney to task for failing to document whether the plea had been discussed with Konczak. Attorneys should not explore this kind of argument without discussing the issue with the client and ensuring that the client really wants to withdraw the guilty plea, the court said. However, the issue is moot, it went on to say, because it was satisfied from the record that no basis for a challenge exists — there was nothing in the transcript or the plea colloquy suggesting problems. The Seventh next agreed with the lawyer that the record showed no basis for a challenge to the sentence. A within-guidelines sentence is presumptively reasonable, it said, and nothing in the record supports an exception. Konczak argued that the trial court failed to take into account that most of his Internet use was legal, but the appeals court noted that this doesn’t support an inference that the court confused legal and illegal images. Thus, it granted the attorney’s request to withdraw and dismissed the appeal.

This case illustrates a problem for criminal defendants like Konczak: It’s difficult to make a good argument on appeal without the help of an experienced attorney. Unless you have legal training, it’s easy to miss deadlines, get confused about the legal arguments or otherwise make mistakes that an experienced cyber crime criminal defense lawyer like me would not. While it’s unusual for a court-appointed lawyer to withdraw, plenty of defendants have the more common legal problem of not being able to afford an attorney. This is a shame, because sometimes, appeals conducted without a lawyer are lost for procedural reasons that have nothing to do with the merits of the case. My job as a child pornography criminal defense attorney includes understanding the process and procedures, so nothing stops the court from considering the strengths of the legal arguments.

At Seltzer Law, P.A., we focus our practice on defending serious crimes involving computers, the Internet or other forms of technology. Lead attorney David Seltzer is a former cyber crime prosecutor for Miami-Dade County and has extensive experience with how prosecutors build their cases in this specialized area. If you or someone you love is in trouble and you’d like to discuss your options, call us anytime — 24 hours a day and seven days a week — at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

Similar blog posts:

Texas High Court Upholds Child Pornography Conviction Because Jury’s Findings Were Reasonable – Wise v. State

Florida Supreme Court Rules State May Not Appeal Criminal Sentence for Procedural Errors – State v. McMahon

Seventh Circuit Twice Vacates Very-Far-Above-Guidelines Sentence for Sex With Minor – U.S. v. Bradley