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Right to Assistance of Counsel: First Appeal

Most people assume that all criminal defendants have the right to an attorney. All one has to do is look at the rules from the Miranda v. Arizona case. After all, the Miranda warning states that when the police arrest a person or take them into custody, they “have the right to an attorney." The warning says, “If you can't afford one, one will be appointed for you."

The question is whether this right applies to all criminal proceedings. Do defendants have the right to counsel when they file an appeal? The answer to this question is not as straightforward. Just because an indigent defendant faces jail time doesn't automatically mean they'll enjoy an appointment of counsel.

The U.S. Supreme Court has held that a criminal defendant's Sixth Amendment right to assistance of counsel extends to their first appeal after conviction. This doesn't mean they have the right to an attorney throughout the appellate process. For example, if they choose to file an appeal with the Supreme Court, the court won't appoint a free criminal defense lawyer.

Below, you'll learn critical information about the differences between an appeal as of right and a discretionary appeal. We'll also discuss the right to assistance of counsel at the first appeal and where to go for further information and legal aid.

What is the first appeal after a criminal conviction?

Everybody has the right to appeal a felony conviction. In fact, most people can appeal a misdemeanor conviction as well. It depends on how far along in the criminal court process you are. It also depends on the potential sentence the court may hand down.

If you read the Sixth Amendment to the U.S. Constitution with care, you'll see that the right to counsel only exists if a conviction carries the threat of imprisonment. You may not have a public defender if you're on trial for a misdemeanor that only holds a threat of thirty days in the local jail.

This first appeal stage is sometimes called an appeal as a matter of right. Since it's a constitutional right, the state courts cannot take it away from a criminal defendant. Having counsel during your first appeal is part of due process. Sometimes, it's the only way to ensure a fair trial.

Appeal as of right vs. Discretionary appeal: What's the difference?

Not all appeals are mandatory. The first appeal from a decision made by a trial court is always an appeal as of right. This means that the court cannot deny your first appeal.

In almost all U.S. states, an appellate court hears appeals directly from a trial court's decision. The attorney for the defendant, or appellant, files a notice of appeal. This initiates the appeals process.

A discretionary appeal comes after the first appeal is over. The defendant (petitioner) usually submits their request to the state's highest court. This is often the Supreme Court in that state.

Litigants don't have a legal right to a discretionary appeal. The highest court in the state, or the U.S. Supreme Court in a federal case, has discretion on whether to hear the case or deny the appeal. Even if the court approves your request for an appeal, you have no right to the assistance of counsel in this situation.

Imagine you want to appeal a criminal conviction in California. Your first appeal as of right would go to the California Court of Appeal. At this point, the court must hear your appeal. You'll also have the right to legal counsel.

You can petition the California Supreme Court if the court denies your appeal, but this will be a discretionary appeal and you won't have the right of assistance of counsel. Of course, you can hire a skilled criminal defense attorney to assist you in the appeals process.

Will the court appoint an attorney to handle your plea bargain?

Very few criminal cases go to trial. Most of the time, your attorney will negotiate a plea bargain. The problem is that if you don't have an attorney, there is a reasonable probability that your plea deal will not be favorable.

You want an attorney at this critical stage of the criminal process. It's hard to imagine a defendant in a capital case trying to negotiate a fair plea deal on their own. It's not even a matter of competency. It's a matter of having the knowledge and leverage to work out a fair plea bargain.

The good news is that plea bargaining takes place during the initial trial. At this stage, the judge will appoint counsel to all criminal defendants facing prison time who cannot afford an attorney. Whether your attorney tries your case in state or federal court won't matter.

All criminal prosecutions involving a potential prison sentence warrant a criminal law attorney. Even if you can stand trial alone, you shouldn't have to.

What if you can't afford to hire an attorney for a first appeal?

You have the right to assistance of counsel at earlier stages of the criminal justice process. For example, the court must appoint a public defender for your preliminary hearing and criminal trial.

The government also appoints an attorney to represent a criminal defendant who can't afford a lawyer for a first appeal. That is the defendant's right during their initial appeal. However, the defendant must pay their criminal defense lawyer for subsequent appeals.

There are times when public interest or civil rights groups act as defense counsel for free. Some private criminal attorneys also handle criminal cases pro bono, especially during post-conviction.

Get Legal Help Understanding Your Right To Counsel in the Appeals Process

You have the right to court-appointed counsel for your first appeal. That doesn't mean you can't ask your criminal defense attorney for a second opinion. You can even ask them to join your defense team.

This is essential at the appellate stage. Many attorneys specialize in certain areas, such as DNA evidence, which may be at issue in your case. Find out more by contacting a litigation and appeals attorney near you to discuss your case and find out about your options.

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