What does a criminal appeal entail?
I often receive calls from people that have retained other lawyers and have been sentenced in criminal matters and are unhappy with the results. The first question asked by people is: can I appeal this? The second question I am invariably asked is: how good do my chances look? The first question is easy to answer because appeals are governed, for the most part, by the Wisconsin statutes. If someone has been criminally convicted, they have the absolute right to appeal the decision as long as it is done in a timely manner. At the end of every sentencing hearing, a judge will instruct the defense attorney to inform their client about their right to appeal and will have the client sign a document that indicates that if they wish to do so, a Notice of Intent to Pursue Post-Conviction Relief must be filed within 20 days of the sentencing date. It is, at that point, when defendants then seem to get lost in the process. Because the original trial attorney’s representation ends after sentencing the ball would fall in the defendant’s court. If a defendant is eligible for a public defender, the State Public Defender’s office would appoint an appellate attorney and that attorney could represent the person. Often, however, the person is not eligible for public defender representation or wishes to hire counsel of their own choosing. What do they do next?
A blog post prepared by Attorney Greg Petit. Read more here.
Someone contemplating an appeal should promptly contact an appellate attorney to discuss their rights and discuss the timelines associated with same. If appeals are not promptly filed, the person could lose their right to have an appeal. Appeals filed after the statutory deadlines, unless an extension is granted, would then become discretionary appeals and could be denied without even a hearing before the court.
Many times someone will call me and tell me some of the facts of their case and ask me how it might look on appeal. My response to them is: would you ask a doctor to tell you about your health while only describing a couple of symptoms. Obviously, when people go into a doctor, if they think something is seriously wrong, they would expect a doctor might do an X-ray, an MRI, blood tests, a physical examination, or order other lab work after a blood draw takes place. You would want the doctor to be thorough before they made a guess on whether or not they thought you had a cold or lung cancer. When preparing to represent somebody for an appeal, the attorney also has to do a thorough review of what has happened before they would have a good picture of what may happen in an appeal. Our office, when retained on an appeal, will review the complete file of the attorney that previously represented the person (which, by law, they have to turn over to the appellate attorney), we would do a complete review of the court file, and we would do a complete review of all transcripts of all hearings that took place in the matter. At that point, the attorney then has seen all of the information that might be available. We would then ask the defendant to give us a summary of all the facts and circumstances surrounding the case as well as what the defendant thought was done wrong at the plea, trial, and/or sentencing hearing. Our office would then look into what should have been done and, if necessary, have our investigator do further investigation or enlist the aid of experts that could provide consultation if there is a specific area that may have been overlooked during the trial level representation (e.g., a toxicologist, accident reconstructionist, psychologist, etc.).
Once we have had a chance to look at everything there is to look at, we would then examine the law and determine what mistakes may have been made during the trial level representation and what remedies might be available for those mistakes. Sometimes the remedy for a mistake might be a resentencing hearing or sometimes a new trial. Contrary to popular belief the remedy is rarely, if ever, that the case simply gets dismissed. Usually, the best that can be done upon a successful appeal is for the court to order a new trial or a new sentencing hearing.
A good appellate attorney would not guess concerning what the outcome would be when consulting with someone for potential retention as the appellate attorney. Often times I have people that want to consult with me and have me make my best guess on how things look prior to retaining our services. The best I can tell people is that the vast majority of appeals fail. This isn’t because the attorney may not know their craft or because the attorney isn’t doing everything possible, but it is because there are procedural hurdles put in the way of a defendant that impact their chance to succeed. In order to be successful on appeal, the attorney needs to find that there was something that was done wrong; either through a mistake of the defense attorney, by the State or by the court. The error has to be large enough that it isn’t considered “harmless error”, which is one of the standards that the Court of Appeals often applies to criminal appeals. Alternatively, if the attorney can find newly discovered evidence that wasn’t known at the time of trial or was unknowingly overlooked, this may be an entry into the Court of Appeals and a way to obtain a new trial. In most cases, the appellate attorney would need to convince the trial court (or eventually the Court of Appeals or the Wisconsin Supreme Court) that the trial was not fair and that the proceedings were not reliable and fair.
Because of the painstaking nature of the appeal, appeals can be expensive. I often explain to potential appellate clients that the process is a bit like looking for a needle in a haystack. Unfortunately, when we start taking each piece of hay from the haystack and methodically look for any errors or newly discovered evidence, we are not sure that by the time we get down to the last piece of hay in the haystack that there is in fact a needle contained therein. In other words, even if we are as thorough as possible, dedicated to our craft and as knowledgeable as we can be, that does not mean that we will be successful on an appeal. In order to be successful, a mistake had to be made that is large enough to undermine the court’s confidence in the outcome of the trial or newly discovered evidence that would make the court believe that a new trial should be ordered. While we strive to do everything we can to find a way to get matters reopened, there are still cases, despite our best efforts, that will result in the court denying our request for resentencing or a new trial. However, even though the odds may be against a person attempting an appeal, if the person does not attempt the appeal, their odds will be zero.