Appeals in PA are an amazing mess of rules and procedures. They all seemed designed to kick cases out of the system for the smallest mistake. It is very easy for anyone to make a mistake. Defendants only get one shot at appeals in PA. Choose the right appeals attorney.
You have just lost your case. You can’t believe it. Now, there are so many questions like:
- 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. We will give you enough information right now to help you get all of the information when you call us.
What happens after a conviction in PA?
First, after the conviction or guilty plea, the judge sentences you. Sentencing triggers a couple of important rights with strict and short deadlines you must act on. If you are out of time, you lose 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?
You or your attorney must file a post-sentence motion within ten days after sentencing. Many lawyers refuse to talk to their clients after the sentencing. They have closed the file. Moved on. It is up to you and you alone to make sure that that doesn’t happen.
For example, a defendant files a post-sentence motion to ask the trial court to order a new trial due to some error in the verdict. Additionally, we file post-sentence motions to request the trial court reduce the sentence. There are a couple of claims that you must raise in a post-sentence motion, or you lose them forever. This means that if you don’t raise the issue now, you will never be able to argue it in any subsequent appeals. Some of those use it or lose it areas include:
- A request for a new trial because the verdict is against the weight of the evidence
- A claim that the sentence is excessive.
What if my attorney didn’t do it right?
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.
Additional recommended reading: PCRA Post Conviction Relief Act
What happens next?
If you don’t file a post sentence motion for those two specific areas (with detailed reasoning), you lose the right to appeal. You must raise those types of claims with the trial court before you can raise them with the appellate court. If claims have already been presented to the trial court, either pre-trial or at trial (like a timely objection to evidence in the trial or hearing), 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. Also, it gives us additional time before the next mandatory step on an appeal happens: fling a notice of appeal.
When do I have to file for an appeal?
If you don’t file a post-sentence motion, you must file a notice of appeal within 30 days of sentencing. If you do file a post-sentence motion, it tolls (or stops) this 30 day timeline until the trial court decides the post-sentence motion. However, in the case of a county probation violation appeal, you must file a notice of appeal within 30 days of the sentencing with or without filing a post-sentencing 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.
For non-probation re-sentencing cases, you must file a notice of appeal within 30 days after the court decides your post-sentence motion or it is denied by operation of law.
When should I hire an appellate attorney?
You should hire an appellate attorney before sentencing. It provides your new attorney time to learn the case, obtain transcripts, and get to know you and the case before filing a post-sentence motion. 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 is 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. Plus, its a fresh set of eyes on the problem. That is a major benefit.
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 you raised in the trial court:
- Any pre-trial motions your side lost;
- any trial objections or issues your side lost; and
- any claims preserved in a post-sentence motion.
This includes things like:
- denial of a suppression motion,
- the sufficiency of the evidence (is there no evidence of an essential element of the crime),
- 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),
- an excessive sentence, and
- the weight of the evidence (the government did not prove its case beyond a reasonable doubt).
Additional recommended reading: PA Appeals:The Bill Cosby appeal (explained in plain English)
What is the difference between sufficiency of the evidence and weight of the evidence in PA appeals?
Sufficiency of the evidence is claiming that the prosecutor did not produce any evidence of a certain element of the crime. If you raise this claim and win it on appeal, the appellate court will order the conviction vacated (overturned). 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.
Can I get bail on appeal?
Yes, in some cases, you may not have to go to jail while the appeal is going on in the appellate courts. 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. They have to set bail. There may be money required or certain new conditions, but the court must grant the bail request.
Alternatively, 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. You begin to serve your sentence.
What to do right now
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 (717) 657-3900. We are ready to fight for you. When you think of appeals, think McShane.
Additional recommended reading:
- Free guide on all post conviction lawyer issues
- Pennsylvania Case Law Update While You Drive Podcast
- Summary Offense Appeal in PA