Criminal Law: Appeals FAQs

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  • Can I appeal my sentence?

  • Can a crime victim appeal a "not guilty" verdict ?

  • Can a judge set aside a guilty plea after sentencing ?

  • Can I appeal on grounds of lack of evidence ?

  • How do you prove - ineffective assistance of counsel - on appeal?

    Q: Can I appeal my sentence?

    A: If you're found guilty after a trial, you have the right to appeal both your conviction (the finding of guilt) and your sentence. In federal court, there is a time limit for filing a notice to appeal a conviction or sentence. In state courts, the time limits vary from state to state.

    If you pled guilty, you may not be able to appeal your conviction, unless you try to withdraw your guilty plea under a special set of rules. But you can appeal your sentence, if the sentence is illegal or if it was higher than you and the prosecutor agreed to in a plea bargain, and the court agreed to the terms of the bargain before sentencing you. For a sentence to be illegal (which is rare), it has to be higher than that allowed by law.

    You may also be able to request a reconsideration of your sentence on general mercy grounds.

    It's also possible to have your conviction and/or sentence set aside on the grounds that the conviction or sentence violated one or more of your constitutional rights, or that new evidence has been discovered since your trial. For newly discovered evidence, you'll likely have to show that you couldn't have reasonably found out about it before trial, and that if it was presented at a new trial, it would likely result in a different verdict.

    Your best bet is to immediately contact a criminal defense lawyer in your state who can review the facts of your case and advise you of all your available options. This should be done right away, as there are probably time limits on some of your options.

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    Q: Can a crime victim appeal a "not guilty" verdict?

    A: No. A crime victim can't appeal a jury's decision that a defendant charged with committing a crime isn't guilty. Victims of crime aren't parties to a criminal action; they're witnesses. The district attorney or state's attorney is the lawyer for the state and its citizens. Because victims aren't parties to a criminal case, they have no right to appeal.

    You might consider contacting a civil lawyer in your area to see if you can sue the defendant for money damages. Many lawyers will accept these kinds of cases on a "contingent fee" basis, where his or her fee is contingent on getting a settlement or verdict in your favor.

    In a civil lawsuit for money damages, you would be the "plaintiff." In a civil case, your burden of proof would be the lesser "preponderance of the evidence" standard rather than the standard of "beyond a reasonable doubt." If you prove to the jury that the defendant more likely than not sexually abused you, you should prevail.

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    Q: Can a judge set aside a guilty plea after sentencing?

    A: Usually, once you've been sentenced for a crime, the issue as to guilt is considered resolved. However, there are "post conviction remedies" available in certain situations:
    • If the plea or sentence was imposed in violation of a constitutional right
    • If the sentence was illegal
    • If the law under which the person was convicted is unconstitutional
    • If the court didn't have proper jurisdiction over the person or the offense
    • If new evidence has come to light since the conviction, which could not have been known at the time of the plea and sentence

    In these circumstances, the conviction and sentence can be set aside in the interest of justice.

    There are varying but strict time limits for requesting such post-conviction relief, both at the state and federal level. If you think the facts of your case fall into one of these listed categories, immediately contact a lawyer in your state to find out what options might be available to you.

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    Q: Can I appeal on grounds of lack of evidence?

    A: Yes, but the standard for reversing a conviction based on the lack of credibility of witnesses and insufficiency of the evidence is a very tough one. The court must decide whether the evidence, when viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the charged crime beyond a reasonable doubt. The prosecution is given the benefit of every reasonable inference that could be fairly drawn from the evidence.

    A jury's decision as to which witnesses to believe is rarely reversed. The witness' testimony would have to be found to be "palpably false and incredible," such that no person would believe it to be true.

    Your lawyer would want to review the transcripts of the trial before providing an opinion as to the likelihood of success on appeal.

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    Q: How do you prove "ineffective assistance of counsel" on appeal?

    A: The Sixth Amendment to the United States Constitution guarantees the right to effective assistance of counsel to every defendant in a criminal case. "Effective assistance of counsel" doesn't mean perfect counsel. A lawyer's representation of a client is "ineffective" only if it falls below an objective standard of reasonableness and prejudices his defense.

    The burden is on the defendant to establish ineffective assistance of counsel. There is a strong presumption that a lawyer's conduct falls within the wide range of reasonable professional assistance. The court won't focus on what's prudent or appropriate, but on what is constitutionally necessary. And the defendant must show that there's a reasonable probability that, but for the lawyer's unprofessional errors, the result of the case would have been different.

    Courts realize that a person isn't ordinarily able to recognize his lawyer's errors and evaluate his professional performance. A person may very well not know he hasn't been competently represented until after trial or appeal, usually when he consults another lawyer about the case. So many courts will allow a person to file a claim to set aside his conviction for ineffective assistance of counsel in federal court, even if he didn't directly appeal his state conviction and sentence or file to withdraw his guilty plea.

    If you've missed the filing deadlines for a motion for a new trial or to file a notice of direct appeal, you might first try to reduce the sentence under your state's laws for post-conviction relief. If that fails, and you believe there are grounds to support it, you can attempt to file what's called a "habeas corpus" petition in federal court alleging ineffective assistance of counsel.

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