U.S. v. Brandt, 96-2898
| Decision Date | 07 May 1997 |
| Docket Number | No. 96-2898,96-2898 |
| Citation | 113 F.3d 127 |
| Parties | UNITED STATES of America, Appellee, v. Delwayne BRANDT, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jiming Zhu, Fargo, ND, for appellant.
Lynn E. Crooks, Assistant U.S. Attorney, Fargo, ND, for appellee.
Before MAGILL, BEAM, and LOKEN, Circuit Judges.
Delwayne Brandt appeals the district court's order revoking his probation and sentencing him to eight months in prison. We dismiss this appeal as moot.
Brandt was indicted by a federal grand jury on two counts of using interstate communications to threaten injury to an individual, in violation of 18 U.S.C. § 875(c). Upon advice of counsel, Brandt pled guilty to Count Two, in exchange for the dismissal of Count One.
The facts underlying Count Two can be briefly summarized. Brandt was frustrated with what he perceived to be threats and harassment against him and his family members by a local sheriff. Brandt called the governor's office to complain about the alleged harassment. When he eventually spoke with one of the governor's aides, Brandt threatened to kill the sheriff.
After accepting Brandt's guilty plea, the district court sentenced Brandt to forty-eight months of probation on March 28, 1995. Brandt did not appeal this conviction or ask to withdraw his guilty plea at that time. On June 25, 1996, following a state court conviction for attempted criminal mischief, Brandt's probation was revoked. He was sentenced to eight months in prison.
On July 5, 1996, Brandt's counsel filed a notice of appeal from the district court's order revoking probation. Brandt's counsel was then permitted to withdraw his representation and Brandt was appointed new counsel. The appeal was based on three claims of ineffective assistance of counsel. Brandt alleges that his prior counsel was ineffective in that: (1) he failed to move to dismiss Count Two of the indictment; (2) he advised Brandt to plead guilty to Count Two despite his alleged lack of mental culpability; and (3) he failed to call witnesses at the probation revocation hearing.
Brandt's notice of appeal was from the district court's order revoking probation. On appeal, however, Brandt raises only claims of ineffective assistance of counsel--two of which are attempts to collaterally attack his original conviction and a third which relates to the probation revocation. Except in unusual circumstances, claims of ineffective assistance of counsel are not properly considered on direct appeal. United States v. Iversen, 90 F.3d 1340, 1342 (8th Cir.1996). Consequently, we refuse to deal on...
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