If you have been convicted of a crime and been sentenced, you may be considering an appeal. Well, in New York and at the federal level, time is short to do that.
Direct criminal appeals allow you to have your conviction or sentence reviewed by a higher court. Most have the right to appeal their cases and most will exercise that right, especially after losing a jury trial. However, the laws that govern appeals are very complex. If you are considering an appeal for your case, you do not want to handle it on your own.
You need a lawyer to make sure it is done properly. One error could get your appeal denied. Hiring a good criminal attorney can mean the difference between a lengthy sentence and an overturned verdict.
Understanding Direct Criminal Appeals
A direct criminal appeal is filed directly to the appeals court after a defendant pleads guilty or after a jury trial. Because it is filed soon after the criminal case has ended, and is filed directly to the appeals court, it is called a direct appeal.
The appeal must be prepared, filed, and served properly, or the defendant could lose their right to appeal the case. A direct appeal is usually prepared by the defendant’s lawyer, who must file it with the proper clerk and serve a notice of appeal on the prosecutor. Nevertheless, it is important to remember that an appeal is not a new trial, so only issues that are already part of the pretrial or trial record can be reviewed by the court.
At the federal level, the appeal is heard in the Circuit Court of Appeals. If the defendant wishes to appeal it again, he or she can request permission to take the appeal to the U.S. Supreme Court.
It is important to note that a direct appeal does not always mean that the jury verdict is being challenged directly. Instead, the defendant’s legal team may be trying to show that negligence or other errors in the case may have denied the defendant a fair trial or unfairly affected its outcome.
It is a very complex process, and it is in the defendant’s best interest to obtain legal counsel to handle all the footwork and paperwork as well as represent them in court.
If you are looking to appeal your case, you don’t want any part of it to fall through the cracks. That is why is it very important that you get a competent, experienced criminal defense attorney to handle your appeal.
The Right to Appeal
If a defendant is convicted in a guilty plea, he or she will usually waive their right to appeal as part of the plea agreement. However, legal issues that deal with constitutional guarantees or violations are not waivable and are always appealable. If the defendant was convicted at a trial by a judge or jury, then they will always have the right to appeal any legal issues found to be appealable.
In states where the death penalty is enforced, the defendant is allowed an automatic appeal of any conviction where they received a death sentence.
Typically prosecution is not able to appeal a not guilty verdict. Appealing a not guilty verdict would violate the Fifth Amendment of the U.S. Constitution – the Double Jeopardy Clause – which states that a person cannot be tried twice for the same crime. However, sometimes a judge may set aside a jury’s guilty verdict. In those cases, the prosecution may be able to appeal that not guilty verdict. In addition, the prosecution may be able to appeal pre-trial decisions and rulings that pertain to the admissibility of evidence or other trial-related issues.
Grounds for an Appeal
In criminal cases, there are several grounds for appeal:
- Legal error – This can mean several things, including lack of sufficient evidence to support a guilty verdict, jury instructions were incorrect, or evidence was improperly admitted. The court has to find that the outcome of the case was affected by these errors in order to grant the appeal. It must find that if the errors had not occurred, the verdict would have been different.
- Juror misconduct – The jury acted improperly or was influenced improperly during the trial or deliberations. This can include improper communications between counsel or witnesses and the jurors, substance abuse, or use during the trial or deliberations.
- Ineffective assistance of counsel – The defendant feels that their legal counsel did not provide adequate representation. The defendant usually must prove that their attorney’s actions were substantially the only reason for the outcome of the case.
Federal Direct Appeal Statute
The federal statute that governs direct criminal appeals is lengthy and covers every step of the process.
Appeal by the defendant – A defendant can file a notice of appeal in the district court to request a review of the sentence if it was illegally imposed, if the sentencing guidelines were incorrectly applied, exceeds the sentence specified in the guideline range, or was imposed for an offense that does not have sentencing guidelines and is unreasonable.
Appeal by the government – The government can file a notice of appeal in the district court to request a review of the sentence if it was illegally imposed, if the sentencing guidelines were incorrectly applied, exceeds the sentence specified in the guideline range, or was imposed for an offense that does not have sentencing guidelines and is unreasonable.
Plea agreements – The Defendant and the Government can appeal a sentence only if the sentence is greater or lower than the guideline range of the sentence agreed to or outlined in the plea agreement.
Record on review – If the notice of appeal is filed in the district court by the defendant or the government, the clerk must certify to the court of appeals that:
- That portion of the record in the case that is designated as pertinent by either of the parties;
- The presentence report; and
- The information was submitted during the sentencing proceeding.
Consideration – Upon review of the record, the court of appeals shall determine whether the sentence:
- Was imposed in violation of law;
- Was imposed as a result of an incorrect application of the sentencing guidelines;
- Is outside the applicable guideline range, and
- The district court failed to provide the written statement of reasons required by section 3553(c);
- The sentence departs from the applicable guideline range based on a factor that—
- Does not advance the objectives outlined in section 3553(a)(2); or
- Is not authorized under section 3553(b); or
- Is not justified by the facts of the case; or
- The sentence departs to an unreasonable degree from the applicable guidelines range
- Was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.
Decision and disposition – If the court of appeals determines that the sentence was imposed in violation of the law or the sentencing guidelines were applied incorrectly, the court will remand the case for further sentencing proceedings. If the sentence is outside of the guideline range and the court doesn’t provide a statement of reasons, if the sentence is too high or too low, the case will be remanded for further sentencing proceedings. However, if the sentence does not meet any of these then it will stand.
Sentencing upon remand – When a case is remanded, the defendant will be resentenced
New York Direct Appeal Statute
New York law provides a detailed process for direct criminal appeal in the state. It is taken directly after a guilty plea or trial. A defendant in New York has the right to one direct appeal once convicted. This appeal goes to the appellate division or a county court. If the defendant loses the first appeal, they can request a review of the sentence and verdict by the New York Court of Appeals. This is the highest appeals court in the state. However, the Court of Appeals has no obligation to hear the case.
- 450.10 – Appeal by defendant to intermediate appellate court; in what cases authorized as of right.
- 450.15 – Appeal by defendant to intermediate appellate court; in what cases authorized by permission.
- 450.20 – Appeal by people to intermediate appellate court; in what cases authorized.
- 450.30 – Appeal from sentence.
- 450.40 – Appeal by people from trial order of dismissal.
- 450.50 – Appeal by people from order suppressing evidence; filing of statement in appellate court.
- 450.55 – Appeal by people from order reducing a count of an indictment or directing the filing of a prosecutor information.
- 450.60 – Appeal to intermediate appellate court; to what court taken.
- 450.70 – Appeal by defendant directly to court of appeals; in what cases authorized.
- 450.80 – Appeal by people directly to court of appeals; in what cases authorized.
- 450.90 – Appeal to court of appeals from order of intermediate appellate court; in what cases authorized.
How and Where to File an Appeal
Within in certain amount of days, 14, 21, or 30 (depending on the court and the type of appeal), after the court entered a judgment of conviction, the attorney will file a notice of appeal with the clerk of the court where the case was tried. These time frames for filing a notice of appeal are mandatory. However, the defendant does have an option to move for leave to file a late notice of appeal after the initial time period has ended. In order to do so, they must base the request on excusable neglect. If that motion for leave to file a late is appeal is denied, that too can be appealed.
Once the notice of appeal is filed, the record is prepared which includes the reporter’s transcripts of all proceedings throughout the entire trial as well as the clerk’s records that include jury instructions, court orders, and motions.
The filing of an appeal must adhere to the laws of the jurisdiction. For instance, an appeal for a conviction in federal court would adhere to the federal statutes that govern appeals. An appeal for a conviction in New York would adhere to the New York statutes that govern appeals.
If you have been convicted of a crime and considering your appeal options, talk to a lawyer who knows the ropes and understands how to navigate the appeal process in the federal and state court system. Get an attorney who has the education and experience to help you get the best possible outcome for your case.
Get The Litvak Law Firm.
Mr. Litvak is a New York criminal defense attorney with years and experience behind him to handle your appeal – to fight for you. He has worked on numerous appeals and has an impeccable track record.
Contact the Litvak Law Firm today, call (718) 989-2908. You have rights, make sure they are protected.