May 7, 2012 – A Wisconsin man who faced conspiracy to distribute cocaine and heroin charges pled guilty to a lesser charge. Recently, a federal court ruled he can't withdraw the guilty plea and go to trial on the original charges.

In August 2010, Hipolito Alcala, a native Spanish speaker with an eighth grade education, went to trial on federal charges of conspiracy to possess with intent to distribute cocaine, cocaine base, and heroin. However, he pled guilty to the lesser charge of "unlawfully using a communication facility to further a drug trafficking offense" after hearing government witnesses testify against him.

As part of the plea deal, he waived a right to appeal the conviction and sentence, besides post-conviction motions challenging a punishment in excess of a statutory maximum, the sentencing court’s reliance on a constitutionally impermissible factor, or ineffective assistance of counsel.

Shortly after, Alcala requested to withdraw the guilty plea and go to trial. A Wisconsin federal district court later denied the motion, and Alcala appealed the denial.

In U.S. v. Alcala, No. 11-2412 (May 3, 2012), a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit dismissed the appeal.

The panel clarified that an “appeal of a denial of a motion to withdraw a plea constitutes an appeal of the conviction,” an issue on which it had not previously ruled.

“In addition to the Sixth Circuit, the Second, Third, Fourth, Eighth, Ninth and Tenth Circuits have each held that when a defendant waives his right to appeal in a plea, he also waived his right to appeal a denial of his motion to withdraw that plea,” Judge Joel Flaum wrote.

“We agree with our sister circuits that a defendant challenges his conviction when he challenges the district court’s denial of his motion to withdraw a plea.”

The appeals panel rejected Alcala’s argument that by asking “yes” and “no” questions, the district court did not properly assess his ability to understand the plea colloquy proceedings.

“Alcala’s alleged language difficulties and level of education might be troubling if he represented himself pro se or if he alleged ineffective assistance of counsel,” wrote Judge Flaum, noting that an interpreter was present at the plea colloquy proceeding. “He did not do so, and he makes no such charge against his original trial counsel.”

Joe Forward, Legal Writer, State Bar of Wisconsin