“What to Expect When You File a Criminal Case Appeal: A Bird’s Eye View” Part 2
Process and Analysis
Every attorney who handles criminal appeals has a different preference as to when they meet with their client — some prefer right away, others after receiving the court file, others not until after they have received some or all of the transcripts. Regardless, your appellate attorney will ask you the reasons that you were not satisfied with the outcome of your case and what specific issues you think exist. Appellate attorneys often look for things that “don’t feel right” when reviewing a case, so if something seemed off to you it is worth bringing to their attention because it could be a good starting point for their analysis.
To determine what action to take, if any, the appellate attorney will need to take a close look at the court file (including any rulings on motions that were filed), the trial attorney’s file, the transcripts of each hearing, and any witness statements or other evidence discovered during appellate investigation. In terms of what can be accomplished after a conviction, outcomes are as varied as each individual case. In some cases there be a sentence credit issue, in others it could be a matter of restitution. In some cases there have been a motion that the trial court decided incorrectly. A good appellate attorney will be creative in evaluating not only grounds for appeal but what remedies you can pursue.
When people refer to a criminal appeal they are actually referring to a process that can take many routes depending on the case. There are only two instances where an appeal can be taken directly to the Wisconsin Court of Appeals: (1) where there is a challenge to the sufficiency of the evidence at trial; and (2) where the trial court made a ruling on a previously litigated motion. In all other cases, what the appellate attorney is looking for is issues to raise in a “post-conviction motion,” which would be filed with the Circuit Court (the trial level court you were in front of for sentencing).
After reviewing your case and discussing potential issues with you, your appellate attorney will have a decision to make: whether there is an issue that is “arguable” based on their analysis. An “arguable” issue is not one the appellate attorney needs to be certain will win on appeal, but rather an issue where there can be argument about whether a correct decision was made and/or whether a particular outcome was justified.
If your appellate attorney determines that there is an arguable issue…Hooray! Your case may be on its way to the Court of Appeals or to the Circuit Court. However, before deciding whether or not taking further steps is prudent, your appellate attorney should discussed with you the pros and cons of your decision. If you do move forward, your post-conviction proceedings could involve additional hearings or simply filing a motion that the court will rule on.
There are cases where no arguable issues exist. If that is the case, you should have a candid discussion with your attorney about how they reached that conclusion, what sources of information they looked at in reaching that conclusion, and your rights moving forward.
A blog post prepared by Attorney Scott Engstrom.