What happens after a conviction? When should I hire an appellate attorney? Do I have the right to appeal? What can I appeal? When can I appeal? Can I wait to serve my sentence?
These are all common questions for people who have just been found guilty of a crime. I will attempt to answer each one.
First, after the conviction or guilty plea, there is sentencing. Sentencing triggers a couple of important rights with limited time frames to act on those rights. If you do not act within the required time frame, you may lose those rights forever. Sentencing starts the clock running on your right to appeal and right to file a post-sentence motion.
What is a post-sentence motion and is it necessary?
A post-sentence motion is due ten days after sentencing. A post-sentence motion is traditionally used to request the trial court order a new trial due to some error in the verdict. A post-sentence motion is also often used to request the trial court reduce the sentence that was imposed. There are a couple of claims that must be raised in a post-sentence motion, or those claims are lost forever. This means that if you don’t raise the issue now, you will never be able to argue it in any subsequent appeals. First, a request for a new trial because the verdict is against the weight of the evidence must be raised in the post-sentence motion or this claim is lost forever. Second, a claim that the sentence is excessive must be raised in a post-sentence motion or it lost forever. Potentially these claims could be revived if lost by filing a PCRA petition and claiming ineffective assistance of counsel, but that is a different discussion altogether.
The reason a post-sentence motion must be filed is to preserve any claims for appellate review. Claims must be raised with the trial court before they can be raised with the appellate court. If claims have already been presented to the trial court, either pre-trial or at trial, then a post-sentence motion may not be required. However, it is a good idea to always file a post-sentence motion with the trial court. It allows the trial court to review the claims and provides additional time before a notice of appeal is due.
When do I have to file for an appeal?
If a post-sentence motion is not filed, a notice of appeal is due 30 days after sentencing. If a post-sentence motion is filed, it tolls (or stops) this 30 day timeline until the trial court decides the post-sentence motion. If the trial court does not decide the post-sentence motion within 120 days, the post-sentence motion is denied by operation of law. A notice of appeal is due 30 days after the post-sentence motion is decided or denied by operation of law.
You should hire an appellate attorney before sentencing. It provides your new attorney time to learn the case, obtain transcripts, and get acquainted with you and the case before a post-sentence motion is due. If you hire an appellate attorney after sentencing, they may not be able to investigate the case and preserve all claims in a post-sentence motion in time. If your trial attorney files a post-sentence motion for you, your appellate attorney will be stuck with those claims. Most often, your new appellate attorney will not be able to add additional claims to the post-sentence motion. Hire an appellate attorney early. The sooner they can learn the case, the better chances you will have on appeal.
What is a direct appeal?
A direct appeal is an appeal as of right. The direct appeal is the first appeal after a conviction. And that means that after your conviction, you have the right to appeal.
As explained above, you can appeal any issue that has been raised with the trial court. Any pre-trial motions that were decided adverse to your side can be raised; any trial objections or issues that were decided adverse to your side can be raised; and any claims preserved in a post-sentence motion can be raised. This includes, but is not limited to, denial of a suppression motion, denial of a motion to dismiss the charges, denial of a motion in limine (traditionally, either a motion to admit certain evidence into trial or a motion to exclude certain evidence from trial), the sufficiency of the evidence, an excessive sentence, and the weight of the evidence.
What is the difference between sufficiency of the evidence and weight of the evidence?
Sufficiency of the evidence is claiming that the prosecutor did not produce any evidence of a certain element of the crime. If this claim is raised and won on appeal, the charge will be dismissed. The prosecution will not have the opportunity to try to convict you of that charge a second time.
Weight of the evidence is claiming that the prosecutor did produce some evidence of a certain element, but not enough to find you guilty beyond a reasonable doubt. If this claims is raised and won on appeal, the court will order a new trial. The prosecution will get a second chance to try to convict you of that charge.
I’d like to end this discussion by noting that some individuals may not have to serve their sentence while an appeal is pending. This request is called a petition for bail pending appeal or a petition for bail after a finding of guilt. If the maximum sentence imposed is less than two years, then you have the same right to bail as before the guilty verdict. You just have to ask the court in a petition and they will order bail. Traditionally, it is the same bail that was imposed before trial. However, the trial court is permitted to modify bail. If the maximum sentence imposed is two years or more, the trial court has the choice of whether to allow bail to continue or not. When bail pending appeal is granted, an appeal must be filed within the time limits set out above. If an appeal is not filed, the trial court will revoke the bail order and order you to serve the sentence imposed.
Here at The McShane Firm, in addition to our experienced and knowledgeable trial attorneys, we have an attorney who specializes in appeals. We are here to fight for you to give you the best possible defense at every stage of your case. If you need an appellate attorney, call 1-866-McShane. We are ready to fight for you.