What Happens When You Appeal a Sentence?

Upon a criminal conviction, a defendant has the right of appeal. A conviction occurs only after a finding of guilt and a court's decision on a sentence. Some call this an "automatic right of appeal." That does not mean the appeal happens automatically. 

Imagine a criminal case where the crime carries a possible jail or prison sentence. This might be a misdemeanor DUI or a felony case like robbery. In such a case, a defendant can either try the case to the jury or to the judge. Except for a death penalty case, the jury only decides the defendant's guilt or innocence. If it issues a guilty verdict, it takes no role in the sentencing hearing that follows. The case proceeds to the presiding judge to issue a sentence. In contrast, if the defendant elects to try the case to the judge (a bench trial), the same person who decides guilt or innocence will decide the sentence.

It means that the appellate court must take the defendant's appeal from the lower court. It has a very limited ability to refuse.

The following article explains what happens when you appeal a criminal sentence. It includes an overview of appeal rights and what steps you must take to appeal. It discusses the possible outcomes of an appeal and other methods of attacking a conviction.

Can I Appeal Any Criminal Sentence?

Let's say it was a DUI case. You went to trial, and despite your and your attorney's best efforts, the jurors didn't believe your story. They found you guilty beyond a reasonable doubt. The judge sentenced you to 60 days in jail and a $500 fine. On top of that, she suspended your driver's license for six months. Can you appeal? Now imagine the same scenario, but instead of taking the case to trial, you pled guilty to the DUI. Can you appeal in this situation?

The answer in the first case is yes. Upon conviction, you have the automatic opportunity to file an appeal of your conviction, including your criminal sentencing. Most criminal appeals occur in this manner—after the criminal trial. Depending on the circumstances, your attorney may advise you to appeal both the conviction and the sentence. In the second case, where you pled guilty, the opportunity to have the court of appeals review your case is not guaranteed. Your attorney will have to ask permission from the court to file an appeal after a guilty plea or a plea bargain agreement.

Keep in mind that appeals can only be used to challenge legal errors in the trial court or in the application of the law. The focus of the criminal appeals process is not to give you a second bite at the apple, so to speak. In most circumstances, working with an attorney on an appeal makes sense. Your appeals attorney may be different than your trial attorney.

How Do You Start the Appeals Process?

While you have the right to an appeal upon conviction, you must start the process. An attorney must file the notice of appeal and an appellate brief, in which they argue your reasons for appeal. Criminal defendants convicted at trial should have little difficulty getting their appeal heard. Those who pled guilty (or no contest) often have their request to appeal denied. At a plea hearing before trial, the court goes over with the defendant all the rights they waive in a guilty plea. One of them is the right to appeal the court's finding of guilt and sentence.

In order to get the court of appeals to look at your case, your attorney will need to file a notice of appeal in a timely fashion. There are rarely second chances with the deadline—you either meet it or you don't. If you don't, you'll need good cause for why you didn't follow the filing rules. Procedural filing deadlines may vary between federal court and state court. For this reason, it's important to tell your appellate attorney about your desire to file an appeal as soon as possible. If your criminal defense lawyer doesn't handle appellate work, they'll refer you to someone else. Regardless, the clock is ticking. You need to make sure you file your notice of appeal on time.

After filing the notice of appeal, your appeals lawyer will order the trial transcript from the court reporter. If the sentence is the focus of the appeal, they'll want to make sure the transcript includes the sentencing hearing. If the issue involves a plea hearing, they need to clarify that. The court reporter needs to know the dates of the hearings, the specific court, and the approximate times. A transcript is the official record of what happened in your case. Your lawyer and the prosecutor will write appellate briefs arguing legal issues. They'll support this with excerpts from the transcript.

If sentencing is the only issue or the legal or factual error is obvious, your attorney may want to file a motion for resentencing. This motion can be filed quickly with the trial court. If the court accepts the motion, it may correct its own mistake. No appeal would be necessary. But timing can be key. Your attorney still wants to preserve the right to appeal if possible.

Is an Appeal a Retrial?

No. You may have a new trial strategy, new evidence, or didn't like your lawyer. But that does not play into an appeal. Appellate judges will look only at the "four corners" of the court reporter's transcript in their review. Their goal is to make sure the verdict was proper based on the evidence, the trial was fair, and there wasn't a violation of your right to due process.

You and your attorney have the duty to say what you think went wrong and prove your case. Your attorney and the prosecutor may be able to argue the case before the judges after the written briefs have been filed. The judges will come to a decision. They will write an opinion stating their reasons for either affirming your conviction or granting your appeal.

What Issues May Be Raised in an Appeal of Sentence?

There may be several issues raised in an appeal of sentence. Both federal and state laws provide sentencing guidelines for trial courts. Guidelines may provide ranges for a sentence. They may provide specific lists of aggravating and mitigating factors the court should consider. Appellate issues often fall into these categories:

  • Factual errors: The sentencing judge's stated factual findings conflict with the evidence in the case. For example, in our DUI example, the judge states the defendant caused an accident. Yet, they made a mistake. There was no accident in the case.
  • Legal errors: The sentencing judge failed to follow the law when sentencing. For example, they failed to consider the mitigating factor that this was the defendant's first DUI offense or that the defendant's conduct caused no injuries.
  • Severity of the sentence: This might occur when the judge gives no good explanation for departing from legal guidelines and issuing a harsher sentence. It might also occur if there was evidence of judicial bias.
  • Ineffective assistance of counsel: In this type of appeal, the appellate attorney is stating that the defense attorney's errors denied them their right to counsel under the Sixth Amendment of the U.S. Constitution. The U.S. Supreme Court case, Strickland v. Washington (1984), provides a two-part test: (1) the attorney's performance fell below an objective standard of reasonableness, and (2) the attorney's performance gives rise to a reasonable probability that if they had performed adequately, there would have been a different result.

When a defendant appeals their conviction and not just their sentence, they may raise other issues. This may include whether the evidence on any element of the crime was sufficient.

What Can the Appellate Court Do With My Case?

There are a few things that can happen if you appeal your case:

  • The court can keep the conviction (and sentence) the way it is ("affirming the conviction").
  • The court can uphold the conviction but reverse the sentence, remanding the case back to the trial court for resentencing.
  • The court can reverse the conviction (and sentence) and remand the case to the trial court for a new trial. If the court rules that there was insufficient evidence for the conviction, they may throw it out.

Keep in mind, if the court of appeals affirms your conviction, you may still be able to seek relief from a higher court. But further appeals with the higher court are discretionary. So, the higher court doesn't have to take the case. At times, an attorney may advise other avenues of post-conviction relief, including through a writ of habeas corpus petition.

Do You Have More Questions About Sentence Appeals? Get Answers From a Lawyer

A conviction or sentence may not mean game over for your case. There are several strategies your attorney may pursue, including a direct appeal. In many communities, appellate work is its own specialization. Consider getting legal advice from an attorney who has experience with criminal appeals. Talk with a criminal defense attorney specializing in appellate work.

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