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The judicial system is vulnerable to human error, and the appeals process is in place for when this occurs.
Be aware that there are very strict deadlines in the appeals process. If you are convicted of a misdemeanor, you have just 30 days from the day of sentencing to file your notice of appeal, and 60 days for a felony. In most cases, the only circumstances under which a court will allow a late notice of appeal is if the trial attorney failed to perform one or more duties relating to a possible appeal, or the principle of constructive filing, which occurs when an incarcerated prisoner asks the prison or jail to mail his or her notice of appeal to the Superior Court.
You must file an appeal for a federal crime with the United States Court of Appeals for the Ninth Circuit and, if necessary, with the Supreme Court. These appeals are governed by different procedural rules.
It is important to understand that an appeal is not a retrial. Appellate courts do not listen to testimony from witnesses nor do they hear evidence. They examine the trial record and decide whether there were any legal errors that were prejudicial, preventing the defendant from receiving a fair trial, and whether the trial might have had a different outcome had the error not occurred.
If a defendant pleaded guilty in the trial, this prevents him/her from filing an appeal except pertaining to issues concerning the legality of the plea or the trial court’s jurisdiction. Even under these circumstances, the trial court must first issue a certificate of probable cause to prevent frivolous appeals. Once this certificate is issued, the defendant may appeal any cognizable issues.
After the defendant has filed the notice of appeal, the court will issue a briefing schedule to give the defendant about 45 days to file his/her opening brief, in which the appellant’s lawyer cites what happened in the trial court, what errors occurred, and why the appellate court should take action. The government then responds, and the appellants finally file a reply.
It is possible to get out of prison on bail while the appeal is pending if the defendant can present clear and convincing evidence that he/she will not flee or pose a danger to public safety. The defendant must also show that he/she is likely to win on the merits of the appeal and that there will be no further prison time.
People often hope that a criminal appeal is an opportunity to overturn a guilty verdict, but this is often very difficult because the appellant cannot present any evidence that wasn’t used during the trial, although there are exceptions to that rule.
A defendant has a constitutional right to counsel on appeal. Trial counsel must file a notice of appeal for a defendant within 60 calendar days of judgment or order. Some appeals require a certificate of probable cause from the trial court (a written statement under oath stating the grounds for the appeal). Some issues are appealable with or without a certificate of probable cause, such as mental competency at the time of plea, ineffective waiver of constitutional rights, ineffective assistance of counsel, plea induced by misrepresentation, challenges to the validity of admission to a sentencing enhancement, denial of a motion to withdraw the guilty plea when the motion did not challenge the validity of the plea, search and seizure, as well as juvenile matters.
There are issues that cannot be appealed when there is a guilty plea entered. The courts require a certificate of probable cause to be issued to weed out frivolous appellate issues in this context. When there is a guilty plea involved, appealing the following may not be possible: a prior conviction that is claimed to be invalid that was an element of a current offense, admissibility of extrajudicial statement, inadequate factual basis for the plea, denial of motion to suppress identification evidence, denial of motion to change venue, error in limine evidence ruling, destruction of evidence, denial of motion to dismiss, and denial of disclosure of a confidential informant. However, once a certificate of probable cause is issued, all other preserved issues may be raised.
Identifying which issues are subject to appeal, and whether to file a writ of coram nobis or a writ of habeas corpus requires experienced and skilled appellate and post-conviction attorneys who have filed and argued briefs and know the inner workings of trial practice.
Appeals are based on the record, and a defendant has a right to transcripts on appeal. A person can even ask for bail on appeal pending appeal if it can be demonstrated that they are not likely to flee, they don’t pose a danger to the community, and the appeal is not frivolous but based on substantial legal questions.
Appellate issues can concern a wide variety of issues from ineffective assistance of counsel claims to improper jury selection claims, to erroneous rulings as to admissibility of evidence and/or testimony. An appellate attorney may also file a motion to augment the record to include transcripts of jury voir dire and opening statements not typically part of the normal record.
A good appellate attorney will always frame the issues as ones of federal constitutional law to preserve federal appellate rights. Appeals consist of an opening brief with a statement of the case, a statement of the facts, and persuasive legal arguments that demonstrate prejudice sufficient to reverse a conviction. One of three standard tests are reviewed on appeal:
When an appeal results in a reversal based on insufficiency of the evidence, this bars retrial, and the defendant is protected by the Double Jeopardy Clause. In other instances where an appeal results in reversal, the general next step is a new trial because the defendant is deemed to have consented to waive the protection of double jeopardy by appealing a judgment that results in reversal.
This petition informs the trial court of the discovery of new facts which are unrelated to the merits that would have affected the judgment. It can be used to vacate the judgment where a defendant wasn’t advised of immigration consequences, the prosecutor gave inaccurate information to induce the plea, among other narrowly drawn circumstances. Unlike a habeas corpus, a person does not have to be in custody to file this relief.
Our attorneys have successfully argued to resentence a defendant to rehab while they were already serving a 3-year custody sentence in jail based on facts that were not communicated to the defendant prior to sentencing.
A strategy tip may be to use a writ of coram nobis where an appellate court may simply correct sentencing errors that would end in a worse result for the defendant than a negotiated disposition.
Federal Habeas Corpus petitions are only available for a person in custody in violation of the U.S. Constitution, and the petitioner must be in custody at the time the habeas petition is filed. The custody requirement is satisfied if the petitioner is on probation or parole. There is a one-year filing deadline that runs from the conclusion of direct review or expiration of time for seeking review, the removal of any unconstitutional state impediment to filing a habeas petition, a new constitutional right that has been made retroactive, or the date on which the factual claim could have been discovered by due diligence.
Actual innocence claims can override the one-year statute of limitations if they can show that it is more likely than not that the petitioner would not have been convicted in light of new evidence. An unexplained delay in presenting the new evidence does not completely block relief but is viewed as a factor in whether actual innocence has been reliably shown. There can also be equitable tolling claims if the petitioner can show they were acting with diligence and some extraordinary circumstance prevented their filing.
In some cases, the statute doesn’t begin to run until the Brady material was discovered or the date which allowed a petitioner to assert in good faith facts indicating his trial counsel was ineffective.
A petition for collateral review in state court tolls the federal habeas statute of limitations if it is filed on time. A petitioner can file a protective petition in federal district court to stay the federal habeas proceedings until state remedies are exhausted to preserve their rights.
California law does not set out specific deadlines for filing state habeas petitions. Federal courts often have to decide whether or not the timeliness of a specific state petition was reasonable. Persuasive lawyering can explain whether or not the delay was reasonable due to the complexity of legal issues and the size of the record.
