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How the Criminal Appeals Process Works: Appealing a Conviction, Appealing a Sentence and Post-Conviction Relief

Criminal Appeals FAQs

I lost a jury trial and was convicted of a felony crime.  What can I do?

After a conviction, it’s common to feel overwhelmed and helpless.  Before conviction, the entire focus was on winning the trial.  It is a surreal experience to hear the resounding “guilty” verdict from the jury.  Certainly no one is happy about this.  But all is not lost.  Depending on the circumstances, there are several options.

Most people know that they can “appeal” a conviction.  Typically, an “appeal” after trial refers to the direct appeal process. To get that process started, a Notice of Appeal must be within 30 days after the trial court files its sentencing entry.

If there is to be any challenge at all, it’s imperative to start the direct appeal as soon as possible. But it’s far more complicated than that.  There are other avenues that must be explored.

There still may be options at the trial court level.  For instance, if there were jury misconduct, insufficient evidence, irregularities in the trial process, or even newly discovered evidence, there may be grounds for a Motion for New Trial under Criminal Rule 33.  This Motion for New Trial is filed at the trial court level, and it gives the original judge/court the opportunity correct mistakes and irregularities independent of an appeal to a higher court.

But timing matters.  A Motion for New trial may be due as early as 14 days after trial.  And once deadlines pass, it may be impossible to raise and challenge certain issues.

It is important to consult with a qualified appellate attorney as soon as possible to explore all the options and take the appropriate action.

Can I appeal a sentence?

Trial judges have broad discretion in imposing sentences. It is difficult to challenge this discretion. But under certain circumstances, it is possible to appeal the judge’s sentence successfully.

Unlike most appellate issues that arise before or during trial, defendants may challenge sentencing issues even when there was not a trial. Even after a defendant pleads guilty, a sentence can be appealed. In many cases, the prosecutor and the defense enter into a plea bargain. They may even jointly recommend a particular outcome or sentence to the judge. It is important to know that the judge does not have to follow the recommendation of the parties. In fact, many judges impose sentences above and below the recommended sentence. When there was a trial, the judge imposes a sentence based on the guilty verdict (rather than a plea).

In either instance, a defendant can appeal the judge’s sentence. But the issues are limited. The purposes of felony sentencing are spelled out in the Section 2929.11 of the Ohio Revised Code. Generally, the court must impose a sentence that will protect the public from future crime, punish the defendant, and promote rehabilitation. The Ohio Revised Code then sets out specific factors that the judge must consider. Ohio Revised Code Section 2929.12

For certain types of crimes (such as sex offenses, drug offenses, and homicide or murder offenses), the judge must impose a mandatory sentence. This means that the judge has little choice in the matter. For instance, murder convictions often result in a mandatory sentence of 15 years to life. The judge must impose a sentence that falls within those sentencing guidelines. The law also mandates similar life sentences for certain sex offenses (rape) involving minors.

All these factors, including the mandatory nature of the sentence, are important to consider when assessing a sentencing appeal. The law requires the court to expressly address these factors on the record to explain the basis of the sentence. If the judge fails to do so, there may be grounds for appeal.

But the remedy on appeal may not be a reduced sentence. Where a judge fails to address the proper factors on the record during sentencing, the appellate court will simply send the case back for a new sentencing hearing. The second time around, the judge will typically impose the same sentence, then say the “magic words” by addressing the required factors.

In some cases, the judge imposes an incorrect sentence. If the court of appeals determines that the court did not follow the proper mandated sentence, it can send the case back for the proper sentence. It is possible that this results in a lesser sentence.
In summary, there are no short answers to criminal sentencing and appeals questions. The factors are complicated yet often just procedural. Appeal attorneys should review the record and sentencing entry carefully. Even when the factors are not followed perfectly, an appeal may not be worth the cost. However, some sentences are fundamentally flawed and must be corrected. In those situations, a successful appeal can result in a reduced sentence.

Can the judge give me a longer sentence after a successful appeal?

If a defendant appeals a sentence successfully, the court of appeals will remand or send the case back for another sentencing hearing. This presents a fundamental concern that the sentence will worsen the second time around.

This is possible, but generally only where the sentence was shorter than legally mandated. Defendants often worry that the judge will be upset about the appeal and impose a harsher sentence. But this is not permissible. The judge cannot impose a harsher sentence after appeal absent a really good reason. Otherwise, it will be deemed vindictive and violate due process of law. The point is to protect the defendant’s right to challenge errors in the process. This right would be “chilled” if defendants were worried about upsetting a judge and “making it worse.”

Is an appeal a re-trial?

No. An appeal is not a retrial of the case. The appeals courts look at the existing law, case and trial decision to determine if there were any legal mistakes. Appellate courts are confined to the record at trial. It will not hear testimony, consider new evidence, or re-try the case in any way.
If the appellate court finds a legal error, the remedy is generally to send the case back (remand) to the trial court for a new trial (or other appropriate relief).

What happens when a defendant wins an appeal?

This all depends on the issues involved. Most of the time, a successful direct appeal results in a new trial. This means that the court of appeals determined that there was a legal mistake that resulted in the conviction. The remedy is a “do over.” The court of appeals will send the case back to the trial court with instructions to fix the mistake. The same is true if the appeal involved a sentencing issue. The appellate court will remand the case back to the trial court for a new (correct) sentence.

In certain limited circumstances, a successful appeal can result in a discharge or dismissal of the case. This occurs where the appeals court finds that there was insufficient evidence to support the conviction. Or that the verdict was against the manifest weight of the evidence. Other types of errors are considered structural, resulting in a process that was so fundamentally flawed that discharge is warranted.

Such structural errors are often overlooked. They can “hide” in a faulty indictment or in some other procedural facet of the trial. Good appellate attorneys know to look for and identify these types of issues. The appellate fight is a difficult and uphill battle. It requires a careful and experienced review of the record in order to frame the issues for the best relief possible.

Can the prosecutor appeal?

Generally, the prosecutor does not have a right to appeal if a defendant is acquitted (found not guilty) at trial. Based on Double Jeopardy, the state is precluded from re-trying the case. But prosecutors can (and often do) appeal pre-trial decisions and sentencing issues.

For instance, a prosecutor can appeal a trial court decision to suppress (or throw out) evidence. This happens frequently in drug cases. If the court suppresses the drugs based on a Fourth Amendment violation, the prosecutor has no evidence to present at trial. In this situation, the prosecutor can appeal the pre-trial decision directly to the court of appeals. If successful, the case will come back to the trial court for trial or other resolution.

Prosecutors can also appeal sentencing issues if they believe the trial court did not follow the correct procedure. Again, if successful, the case can come back for another sentencing hearing.

After a conviction when a defendant appeals, the prosecutor may file a cross-appeal challenging other legal decisions made before or during trial.

Can the attorney who represented me at trial also represent me on appeal?

Sometimes. Hopefully, there was a healthy working relationship with the trial attorney.  If so, the trial attorney can be a great resource to discuss appellate and post-conviction options, particularly since time deadlines are tight.

But be cautious. There are potential problems.  At the outset, it is always helpful to have a “fresh look” at a case from a qualified appellate attorney.  It is easy (and maybe preferential) for trial attorneys to become immersed in the case.  This is great for trial.  But the trial attorney may be singularly focused on certain issues.  There may be other issues that emerge from an independent review of the record.

And there are certain issues that trial counsel are not permitted to raise.  For instance, for ethical and professional reasons, trial counsel cannot challenge their own “ineffective assistance” at trial.  As a practical matter, trial counsel may not even be aware that they made a mistake, missed something, or otherwise could have done something different.  Even if they are aware, it is awkward (to say the least) for trial counsel to argue in the court of appeals (or anywhere else) that their own mistakes warrant a new trial.  And, even worse, trial counsel may be motivated (for reasons of ego, self-interest, etc.), not to raise issues relative to their own mistakes.

In short, it is always best to have a good relationship with trial counsel.  That is a great resource for appellate and post-conviction issues.  Trial counsel lived the case, worked the case, and (hopefully) know the issues better than anyone.  Even if trial counsel cannot (or should not) handle the next phases after conviction, it is often beneficial for appellate attorneys to consult with trial counsel as they work through the appellate process.

And if everyone determines that it is preferable to have the trial attorney handle the appeal, it is imperative (at a minimum) to discuss possible issues of ineffective assistance of counsel.  It’s advisable to have an outside appellate attorney at least review the record to make sure there are no such issues and be at the ready to take over the case should that be necessary.

What’s the difference between an appeal and a post-conviction petition?

It’s easy to be confused by the appellate process.  But it’s important to distinguish the possible avenues of relief.

Generally, when folks talk about “an appeal,” they are referring to the direct appeal.  This is the appeal taken “as a matter of right” to the next highest court after a conviction at trial.  This is the most typically avenue taken after conviction.  Everyone has a right to a direct appeal.  Basically, the county court of appeals reviews the trial court record for errors of law (not facts).  If there are problems, the court of appeals can send or remand the case back to the trial court for a new trial or to otherwise correct the errors of law.

If there is to be any challenge to a conviction, it most certainly starts with the direct appeal.  If there is to be any further review after that, it is almost always imperative to pursue a direct appeal.  Any issues that could be raised on direct appeal, must be raised on direct appeal.  If not, they can be lost and waived forever.  Other courts in the future may (and often do) refuse to look at issues that were not first raised on direct appeal.

Post-Conviction petitions are different than a direct appeal.  Post-Conviction Petitions are filed at the trial court level. They typically focus on issues outside the record.  There may be newly discovered evidence, mistakes by the trial attorney, or any other problems (even factual) that do not show up in the trial transcript or anywhere else in the record.

Like the direct appeal process, certain issues must be raised in post-conviction to preserve them for future review.  Courts looking back (federal or state) will generally not consider any issues (even viable ones) if they are not first presented in post-conviction.

It is best not to preclude any possible avenues or challenges to a conviction.  But the process takes careful review.  Even attorneys can be confused or mistaken about the process.  It’s imperative to consult with a knowledgeable attorney as soon as possible to make sure all possible angles are considered.

The court of appeals affirmed and did not reverse the conviction.  Can I appeal to the Ohio Supreme Court?

Aside from post-conviction relief, the next step is review by the Ohio Supreme Court–the highest court in the state.  But this is not the same as direct appellate review.  Unlike the courts of appeal, there is no absolute right to appellate review by the Ohio Supreme Court.  It engages only in discretionary review.  This means that the Ohio Supreme Court can “pick and choose” the cases it wants to review.  Generally, it will look at cases that have significance that is broader than the facts at hand.  It wants to take on issues that have greater public concern and/or unique constitutional issues.

Because of this discretionary power, the Ohio Supreme Court has limited jurisdiction.  It accepts jurisdiction over very few cases.  But it is imperative to seek Ohio Supreme Court review to exhaust all avenues of relief.  The litigant must at least request the Ohio Supreme Court to look at the issues by filing a timely Memorandum in Support of Jurisdiction (below). If a convicted defendant fails to ask the Ohio Supreme Court to review viable issues, it may permanently impede review by federal courts.

If the Ohio Supreme Court accepts jurisdiction over a case, the next step is a Merit Brief.  This is a more thoroughly researched document that outlines the legal and substantive issues to be decided.  Ultimately, the Court will hear Oral Arguments and issue a decision.

If the Court declines to review a case, it will typically issue a short, one-page entry declining jurisdiction.  As a general matter, the Court declines most cases.  But if the issues are at least raised and presented, they are now ripe and ready for federal review.

What is a Memorandum in Support of Jurisdiction in the Ohio Supreme Court?

The review process in the Ohio Supreme Court starts with a Memorandum in Support of Jurisdiction.  This document requests the Court to review the case.  It must clearly present the relevant issues and explain why they are important. At this level the Court is not necessarily concerned about a simple mistake or some issue that only impacts the case at hand.  It wants to look at broader issues that impact the public or the state of the law in general.  It’s important that the Memorandum in Support of Jurisdiction re-frames the issues to meet these standards.

This requires a unique shift in focus.  And it cannot start after the court of appeal declines to reverse the case.  Good appellate attorneys know to look forward and frame issues at the outset to set up potential review by the Ohio Supreme Court.  In other words, there must be a multi-faceted approach with an aim to win the case on direct appeal but have and incorporate a plan of attack for review by other courts in the future (if that is necessary).  It is not enough to look at a case in a vacuum.  Quality appellate representation requires intimate experience and knowledge of the entire process.

The timing in the Ohio Supreme Court is critical.  The Memorandum in Support of Jurisdiction must be filed within 45 days the court of appeals decision.  This is a jurisdictional deadline.  If missed, there is no opportunity to seek review by the Ohio Supreme Court.  And this can severely impact potential review by the federal courts.

I missed my deadline to file a Notice of Appeal in the court of appeals.  Is there anything I can do and what is a delayed appeal?

Like so many other legal questions, there is not a bright line answer.  It all depends.  But generally, there may be some relief if the missed deadline was for a direct appeal.  In most criminal cases, defendants have a right to a direct appeal.  Where a deadline is missed for a notice of appeal, appellate courts may permit a delayed appeal based on special circumstances.

Generally, a Motion for Delayed appeal will spell out the reasons for the missed deadline.  Perhaps there was ineffective assistance of counsel, clerical error, or some other reasonable excuse.  If so, the court of appeals may permit the delayed filing.  It is generally better if the delay is shorter (days or weeks) than longer (months or years).

Even if the court of appeals will not allow a late Notice of Appeal, there may be some relief in the trial court.  Under certain circumstance, a defendant may file for post-conviction relief claiming ineffective assistance of appellate counsel.  If appropriate the trial court may vacate the original judgment entry and refile it.  This process re-sets the deadline (30 days) for the Notice of Appeal.

It is always better (for obvious reasons) not to miss any deadlines.  The appellate process is arduous and difficult as it is, even if all deadlines and procedural requirements are met.  It can be an impossible once deadlines are missed.

My case is scheduled for an “Oral Argument.”  What does that mean and what will happen?

On direct appeal and in many other appellate situations, the court will schedule an oral argument after both sides (defense and prosecution) file their appellate briefs.  The oral argument is hearing where each side gets an opportunity to explain and argue the issues to the court of appeals.  In most state-level direct appeals, there is a three-judge panel assigned to the case.

The procedure is formal and simple.  The court allots a certain amount of time to each side (typically 15 minutes).  The “appellant” (typically the defendant who appealed the conviction) argues first and can reserve a few minutes for a final rebuttal.  The “appellee” (prosecutor) goes second. The judges on the panel often interrupt the attorneys with questions and comments about the arguments, the issues in the briefs, or even outside policy matters that might be relevant to the case.

Unlike arguments on TV and movies, appellate courts rarely (if ever) render a decision from the bench at after oral arguments.  The court instead will “take the matter under advisement” and issue a written opinion later.

Does it matter if my attorney does not plan to appear at the oral argument?

Oral arguments are based on tradition.  Attorneys historically appeared in courts and presented arguments in a formal setting.  They engaged in discussion and debate about the legal issues and used oral argument as a last opportunity to convince the court of the veracity of their position.

Unfortunately, oral argument it is becoming a lost art.  Many appellate attorneys “waive” oral argument, leaving the matter to the court to decide from the written briefs.  There is no magic formula to determine whether an oral argument is helpful to convince the court and win an appeal.  But the opposite is also true—there is no indication that it is not helpful.  In other words, absent really good reason (where the issues are perhaps purely procedural and the outcome is reasonably predictable), there is no downside to appearing and arguing the issues in person.

Effective appellate advocacy requires more than simple writing skills.  Attorneys must have the experience and ability to appear in a formal courtroom and discuss the issues.  They must be prepared and ready to answer questions from the panel of judges.  And they must have the ability to pivot and “think on their feet” to answer challenges to their arguments.  Too often, attorneys waive the argument just to avoid the intimidating experience.  In short, it may seem like there is no reason to appear and argue.  But that should not be the test.  The real question is whether there is any reason not to. And if that question cannot be answered, it is best to appear and argue the issues.  If nothing else, it is a last chance to convince the court that the conviction should be reversed.

Defendants seeking assistance on appeal (direct or otherwise) should ask prospective attorneys for their thoughts on oral argument, their experience in appellate arguments, and their strategy.  Irrespective of the new trend to avoid arguments, Oral advocacy still plays an important role in the appellate process.

Can my attorney call witnesses to testify at an oral argument in the court of appeal?

No.  Appellate arguments focus on the legal issues presented to the court of appeals in the appellate briefs.  The attorneys appear and present their arguments to the court.  The appellate courts typically do not engage in any fact-finding. The parties cannot call witnesses to testify or present any other evidence.  The arguments are limited to the issues raised on appeal, premised only on the facts already in the record at trial.

Can I appear at my oral argument?

Yes.  Appellate courts are open to the public.  Anyone can appear and watch the arguments.  Most courts now record the arguments and make them available (on request) for the public to purchase for a nominal price.

Can the court of appeals find me not guilty?

Yes. No. Maybe.  The appellate court generally does not “re-try” the case.  It’s not a second chance to have another court decide that a witness is lying.  The appellate court is limited to review of the legal issues, and it generally will not reconsider the facts.  In legal terminology, it is not de novo review of the facts.  This means that the appellate court will give deference (or even presume) that the jury correctly decided the factual issues.

Most of the time, the court of appeals will look for legal mistakes.  Where it finds a mistake that impacted the outcome of the case, the court will reverse the conviction and order a new trial with instructions to avoid the mistake.

For instance, if the trial judge refused to allow the defense to admit evidence, the court of appeals may review that decision and assess whether it was proper.  If not, the appellate court must decide whether it had a significant impact on the conviction.  In other words, if the evidence was “not that important” the court may find that the mistake was harmless and affirm the conviction anyway.  But if the court determines that the evidence was significant and probably impacted the outcome of the case, it may reverse and remand the matter for a new trial with instructions for the trial court to allow the evidence.

In the typical scenario, a “win” on appeal means that the defendant gets a new trial.  But there are certain limited issues that can result in a complete “discharge” from prosecution.  If the prosecutor failed to offer any proof on an essential element of the crime(s), discharge is warranted.  Or if the appellate court finds that the jury “lost its way” and the conviction was against the “manifest weight of the evidence,” the appellate court can order the matter dismissed.

When an appellate attorney reviews a case, it is not enough simply to identify the issues.  There must be a calculated strategy to seek the proper relief from the appeals court.  If possible, issues should be framed to permit a complete discharge, even if such a discharge is rare.  Even appellate attorneys can miss critical gaps in the evidence. For example, although it doesn’t happen often, the criminal defense attorney who tried the case and the court can make fatal mistakes at trial, such as not proving an element of the offense.  Attorneys must at a minimum check each offense to ensure that all the elements are met.  Experienced appeals attorneys who know what to look for will find these errors in their review of the case and trial record, making for a strong appeal that is much more likely to be successful.

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