Appealing a Criminal Conviction
Criminal Appeals and Post-Conviction Relief
Appellate, Post-Conviction and Innocence Project (APIP) Mission Statement
It’s always better to have a case from the beginning. As criminal defense and appellate attorneys, we would rather conduct our own intake interview, start our own investigation, and work up the appeals case our way.
But we don’t and can’t represent everyone at the trial court level. And there are plenty of quality criminal defense attorneys. But we are often contacted by families or friends of those who have been convicted. They may just be scratching the surface of the appellate system, confused about where to start. Or they may be at the end game in federal or state courts on collateral appeal.
We have represented people at virtually all levels of state and federal courts. Though cases take all forms with almost infinite issues and variables, there is a consistent theme. People are confused and perplexed by the appellate system. They hear terms like “direct appeal,” “collateral attack,” “discretionary review,” and “post-conviction.”
With the myriad of options, life after conviction can be a labyrinth of courts, issues, and options. And without careful assessment, the wrong choice can ruin future options. And all too often, funds and resources are limited. Careful and informed choices involving appeals are a must.
On every streaming network we can see someone attacking a wrongful conviction, with the lawyers working tirelessly around the clock to exonerate an innocent person. Those shows make for great reality TV, but they don’t always show the reality of the system. And they certainly don’t explain the mix of confusing procedural nuances of the post-conviction world.
That is why we have created the APIP. The idea is to provide comprehensive representation for those who have already been convicted. We have the resources to help at all levels.
Appealing a sentence or conviction in a criminal case starts with a consultation with team members. We will meet to discuss the procedural status of the case and determine where and how best to help. This is an honest assessment. Too often attorneys get involved just to bill hours and get a fee. We believe in transparency. If we cannot help, we will be candid about it. If the chances of success are remote, it may not make sense to commit valuable funds and resources.
Typically, we can’t always provide an opinion right away in a criminal appeal. We will need to take the time to research the status of the case, the issues still available, and the likelihood of success. Sometimes this requires extensive work, including review of transcripts, appellate and post-conviction filings, and additional legal research. Other times the process is far more streamlined. It really depends on the individual case. But no matter where in the process the case stands, we are willing and able to assess it and provide an honest written opinion on our thoughts of the procedural posture, the legal issues still viable, the possible remedies, and the cost estimate moving forward.
The idea here is to de-mystify the appellate and post-conviction world, providing the client and families with a clear understanding of where they are in the process and what can be done.
To be sure, many cases do not warrant the investment of time and energy to pursue appellate and post-conviction remedies any further. They may be at the end of the legal ladder. Or the chances of success too remote to justify more expense. But there will at least be some closure and understanding of criminal appeals law and the criminal appeals court process, and any option that may or may not be available.
Other cases may have a more viable path, with plenty of remedies still available. Sometimes timelines are tight, requiring last minute work to get in before a procedural or jurisdictional deadline. And still other cases seem to be over, but they may still require an “innocence workup” with investigation for “newly discovered” witnesses and evidence. In any situation, we can provide a proposal for the required work.
What is the Criminal Appeals Process?
The appellate and post-conviction appeals process is nothing short of confusing, even for criminal lawyers who don’t typically handle such matters. And all too often, viable options and remedies are missed unwittingly by attorneys and clients alike. The key is to understand the system and the ladders that must be climbed and navigated.
Generally, it is helpful to split the explanation of the process into two separate areas— 1) Direct Appeal and 2) Post-Conviction Relief, or Collateral Review
Appealing a Criminal Conviction – Direct Appeal
What is a Direct Appeal?
This is the most common “appeal.” And it’s probably what most people consider when they hear the word “appeal.”
In the state court system, a direct appeal is typically provided as a “right.” In other words, those convicted at the trial court level have a right to appeal the conviction to the court of appeals serving the county where the trial court resides. This means that the court of appeals at least must consider the appeal. It cannot refuse to hear the case.
Notice of Appeal & Timing
The direct appeal starts with a Notice of Appeal. The convicted defendant must file this Notice within 30 days of the date of sentencing (as marked by the trial court’s sentencing issues). This is a formal document that notifies the trial court and court of appeals that the trial court that the defendant is appealing.
Timing matters. It is crucial to meet the filing deadline for the Notice of Appeal. Generally, appellate courts will reject late filings, and a defendant can lose the right to appeal. There are some possible exceptions that might permit a late appeal. But (like many things in the appellate process) the odds of success turn quickly against the defendant.
What Can Be Raised on Direct Appeal
There is a lot of confusion about what can and cannot be raised on direct appeal. The court of appeals will not re-try the case. It will not consider new facts, old facts, or any new or old evidence. Generally, the appellate court will only look at the record of the trial court proceedings and determine of there were any legal mistakes.
This means that the court of appeals will not act like a jury and re-consider the facts and evidence with a fresh perspective. Instead, the court is looking for errors in the legal process. For instance, the court will review the trial judge’s decision to admit or exclude evidence, to permit or disallow certain arguments, or determine the effectiveness of trial counsel. Good appellate attorneys understand the limitations of the appellate process and can frame arguments to fit within the framework of reviewable issues.
The Written Brief
The appellate attorney’s job is to review the entire record of the trial, identify legal mistakes made, and write about them in a written brief. This sounds simple, but it is a subjective process that requires vast legal knowledge, creativity, and critical thought. Often legal mistakes are buried in the “clutter” of the process. What seems on its face as perfectly valid and lawful, may be a substantial legal issue in disguise.
There is no textbook for great appellate lawyering. Not all attorneys have the capacity for creative legal analysis of appellate issues. This is a nuanced area of practice that requires a unique analytical process and vast knowledge of constitutional law, trial procedure, and artful advocacy.
Once the issues are identified, they must be researched thoroughly and reduced to concise written argument. This also requires a unique skillset. Compelling legal writing is an artform of its own. All too often legal writing is disjointed, lengthy, and incomprehensible. Good appellate attorneys can identify the obvious legal issues, research them, and write about them. Great appellate attorneys can identify and create legal issues when they are not necessarily obvious. Then they present the arguments in precise and compelling form.
Appellate judges read hundreds of appellate briefs every year. In a pool of average and good writing, the great ones stand out. The best briefs make sense on all levels, even those that involve complex legal argument.
The Oral Argument
After the written brief is filed, the appellate court will schedule and oral argument. This is not a trial where witnesses appear and provide testimony. In fact, there is typically no evidence presented at all. This is an opportunity for the appellate attorney to present and discuss the legal issues before a panel of judges.
Most of the time, there are at least three judges in the panel. The attorney gets a limited time period to present and argue the issues. It is typically impossible to cover every possible argument raised in the appellate brief. When appealing a case, the attorney must decide how best to present the issues, which points are the most important, and do so in the most compelling manner possible.
The judges in the panel often ask questions of the attorneys. It is critical that the appellate lawyer is knows the entire record of the case, the law, and the facts. Again, it is possible to present a passable argument with minimal preparation. But like great writing, a great oral argument is an art form. It requires experience, skill, and preparation. Often, the argument planned has to change in response to questioning from the panel. The attorney has to be ready to change strategies, yet still punctuate the most important issues.
The relief sought on direct appeal depends on the issues involved.
If the court of appeals reverses a conviction based upon an incorrect legal decision by the trial judge, generally the remedy is to reverse and remand the case for new proceedings or a new trial with instructions to follow the mandates of the decision.
But if the court of appeals reverses a decision based upon insufficient evidence, the defendant may be discharged from further prosecution.
If the issues involve a claim related to an improper sentence, the remedy might just be a new sentencing hearing.
There are often multiple issues under review. It is important to identify the nature of the case and the precise relief sought.
Choosing an Appellate Attorney for Direct Appeal
The short timeframe to perfect an appeal often places pressure on defendants to find an appellate attorney quickly. This type of pressure can lead to bad decisions.
The timeframe is not as tight as it seems. The 30-day filing deadline provides ample time to meet and interview appellate attorneys. Often this task falls on family and supporters (if the defendant is incarcerated).
Like hiring an attorney for any other matter, there is no substitute for a fact-to-face meeting. Unless impossible, our team strongly encourages an office consultation. This gives us an opportunity to introduce ourselves, share our thoughts on the process, and provide insight and answers to questions. We are happy to provide written samples of our work, and explain how we generally approach the process, and what to expect. We are often able to provide more specific insight into the case based on information provided at the meeting.
In summary, it is important to us that we have a comfortable, professional relationship with the client and family. Once a case reaches the appellate level, the amount of personal interaction can seem limited. We want to make sure the client and the family understand the process and have an open channel of communication as the case proceeds.
Collateral Review – Post-Conviction Petitions & Other Relief
New Evidence and Other Post-Conviction Issues
While direct appeals are limited to legal and factual issues that are in the trial court record, post-conviction relief is the opposite. In post-conviction matters, we look for matters and issues that are not in the trial court record. Such issues might relate to newly discovered evidence, ineffective assistance of counsel (that is not in the record), and similar legal and factual issues that require additional investigation.
Ohio Revised Code
The most common form of post-conviction relief falls under Ohio Revised Code 2923.21, 2923.22, and 2923.23.
Generally, a defendant can challenge a conviction in a post-conviction petition where there “was such a denial or infringement of the person’s rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States…” O.R.C. 2923.21(A)(1)(a). Post-Conviction is also the appropriate filing where a defendant has a claim of “actual innocence” based on DNA testing. O.R.C. 2923.21. These are broad general standards. There is not necessarily a limitation on the legal issues that can be raised, so long as they are viable under the statutory standards. There must be a factual and/or legal basis for a post-conviction claim.
Pursuing both Direct Appeal and Post-Conviction Relief
During the typical meeting with a defendant or family on a direct appeal consultation, we often learn of possible issues that are outside the record at trial. They cannot be raised on appeal, but they are viable for post-conviction. In this situation, our approach is to explore and advise folks of all avenues of relief, not just the limited options for direct appeal. Our team evaluates possible post-conviction claims at the same time we review convictions for direct appeal. We believe that it borders on legal malpractice not to inform a defendant of a viable post-conviction claim just because we are only retained to work on a direct appeal.
Investigation and Expert Assistance
Post-Conviction matters often require additional investigation. This might require us to invoke the assistance of the team’s private investigator to interview witnesses, track down evidence, or even visit/recreate the alleged crime scene. There are no limits to the possibilities. The investigation unfolds as the facts unfold.
Other types of expert assistance can be helpful. Sometimes DNA analysis, cell phone analysis, or other forensic work is necessary. Again, the facts and circumstances pave the way for the proper work-up.
The timing for post-conviction is critical. Generally, a petition for relief must be filed within 365 days of the date when the trial court transcript was filed in the direct appeal. That means that a defendant must be mindful of post-conviction remedies at the outset. If the time period expires, there are very limited exceptions. The issue could be waived and permanently immune from any court review later (state or federal). With these limits in mind, the work up must begin as soon as possible.
The relief sought on post-conviction can range from total exoneration (actual innocence) to a new trial or something in between. The relief sought will depend on the issues at hand.
Ohio Law permits other types of challenges to convictions. Generally, the closer to the date of conviction, the more possibilities there are.
Rule 33 of the Ohio Rules of Criminal Procedure allow a defendant to file a motion for a new trial for varies reasons, including misconduct of a juror, insufficient evidence, errors of law at trial, irregularity of the proceedings or an abuse of discretion by the court that denied the defendant a fair trial, or newly discovered evidence (that was not available before or during trial).
Such motions must be filed within 14 days of the guilty verdict. If based on newly discovered evidence, the motion must be filed within 120 days of the verdict or (if the court orders) within 120 days from the discovery of the new evidence.
Appeal of Post-Conviction Matters
If a trial court denies post-conviction relief, the defendant may challenge that decision in a separate direct appeal to the county court of appeals. The process is then reviewed much like a direct appeal of a conviction.
If you want to file an appeal or a petition for post-conviction relief, remember there are strict time limits, so it is important to not delay. If you or a loved one needs the help of an experienced appellate attorney, please email or call our office at 614-224-6142 for a confidential consultation.