Seventh Circuit rules collateral attacks allowed.

• Author: Ziemer, David

Byline: David Ziemer

A Seventh Circuit decision issued Aug. 21 demonstrates the importance of closely examining prior convictions, especially those from other jurisdictions, when calculating a client's criminal history. Ultimately, the court held that Josue Feliciano's prior Florida conviction for possession of marijuana was properly included in his criminal history, but other defendants could benefit from the court's analysis. In the current case, Feliciano was charged in Wisconsin federal court with distributing methamphetamine. He pleaded guilty, and at his sentencing hearing, he objected to the inclusion in his criminal history of the Florida marijuana possession charge, arguing that he was denied his right to counsel in that case. In the Florida case, the judge told Feliciano that, if he pleaded guilty, he would not be sentenced to jail. He waived the right to counsel, pleaded guilty, and the judge sentenced him to a time-served disposition of two days in jail, plus probation. U.S. District Judge Barbara B. Crabb overruled the objection, holding that Feliciano had no constitutional right to counsel in the Florida case, and sentenced him to 55 months. Feliciano appealed, but the Seventh Circuit affirmed in a decision by Judge Diane P. Wood, although on different grounds. The court first held that the sentencing proceeding is a proper forum in which to mount a collateral attack on the Florida conviction. The court concluded that, because a conviction obtained in violation of the Sixth Amendment is void, and a sentence can't be enhanced with a void conviction, Feliciano could challenge the conviction at sentencing. The court also held that Feliciano had a right to counsel in the Florida case. At issue was whether he was subject to incarceration: if a defendant may be imprisoned, he has the right to counsel; if he is not subject to incarceration or not sentenced to incarceration, there is no Sixth Amendment violation, and the conviction may be considered in subsequent sentencing proceedings. Nichols v. United States, 511 U.S. 738, 748-49 (1994). The court concluded that, even though Feliciano received a time-served disposition, he had the right to counsel, relying on its holding in U.S. v. Staples, 202 F.3d 992 (7th Cir. 2000). In Staples, the court held that a defendant's sentence of imprisonment qualifies as a sentence in calculating a defendant's criminal history, even if the sentence was fully satisfied by pre-conviction jail time. By...