Criminal Law

Guilty Pleas and Appeals

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Most criminal cases don't go to trial where a judge or a jury decides if the person accused of a crime, called the "defendant," committed the crime. Rather, more often than not, the defendant is convicted, or found "guilty," after he enters a guilty plea - he agrees to admit to committing the crime in exchange for some favorable treatment, like the promise of a light sentence or punishment. Then, after the plea is accepted by a judge, the defendant is sentenced and, technically, the case is over.

That doesn't always mean the end of things, though. It's not uncommon for a defendant to "appeal" or challenge his conviction or sentence. He may do this for any number of reasons, but usually an appeal is filed in an effort to get the conviction thrown out or the sentenced lowered.

Appeal Basics

What exactly is an "appeal?" In simple terms, an appeal is when one side of the case - either the prosecution or the defendant (on appeal, the defendant is called the "appellant") - doesn't like the outcome of the case and asks another judge or a higher court to look at the case again for errors or mistakes. Generally, the court or judge on appeal doesn't re-weigh the facts or the evidence. That is, the court or the judge doesn't make a new, independent decision about whether you actually committed the crime. Rather, they'll look at the case to see if the judge who made the decision, in this case the judge who accepted your guilty plea and/or sentenced you, made some sort of a legal mistake that makes the conviction or sentence unfair or unlawful.

There are very strict rules that need to be followed in an appeal. There are separate rules for federal courts, and each state has its own rules, which are usually very similar to the federal rules. To start an appeal, you need to file certain form with the clerk of the court where you entered your plea. In the federal courts, and many state courts, this form is called a notice of appeal.

One of the most important rules to keep in mind has to do with how long you have to file your notice of appeal. If you don't file it within the time allowed, it's very likely that a new court or judge won't look at your case. Generally, in federal courts, you have to file the notice within 10 days after the judgment or order you're appealing (either your conviction or sentence) is entered into the court records. This time period may be different if your case was in state court.

An appeal is usually a complicated process, so you need to carefully read the rules for the court where the appeal will be heard to make sure you're doing things right. It is possible to handle the appeal by yourself, but it's usually not advisable. If you're thinking about filing an appeal, you should talk your attorney. 

Appeal Your Conviction

As a general rule, every criminal defendant has the right to appeal his conviction, even if the conviction came after a guilty plea. However, when it comes to guilty pleas, it's not easy to "win" on appeal. That's because you admitted to committing the crime, and if the judge and the prosecution did everything properly when you entered your plea, you were told about the consequences of your plea and you agreed to and accepted those consequences. In other words, you pled guilty, knew what you were doing when you entered the plea, and so now you've got nothing to complain about.

In most cases when there's an appeal after a guilty plea, the appellant claims that the conviction is no good because the plea wasn't made knowingly, intelligently, and/or voluntarily. That is, you didn't understand what you were doing when you pled guilty, or the judge didn't tell you everything she was supposed to. This isn't always easy to do, but you may be successful on your appeal if you can show that, for example:

  • When you appeared before the judge to enter your plea, the judge didn't’t tell you all or some of the important rights that you were "waiving" or giving up with your plea, such as your rights to a jury trial, to confront the witnesses against you, and to have every element of the crime proven beyond a reasonable doubt. There's a federal rule that sets out what you have to be told, and most states have a similar rule
  • Someone threatened you or your family with physical violence if you refused to plead guilty, and so your plea was "coerced" and not voluntary
  • The prosecution promised you something that it knew you weren't going to get, like probation as a sentence for a very serious crime, or made other "improper inducements" to get you to agree to the plea
  • The prosecution broke or "breached" the plea bargain; it didn't keep its part of the deal. For example, if the prosecution agreed to drop certain charges in exchange for your agreement to testify against a co-defendant, and you do so, but the prosecution charges you anyway

Appeal Your Sentence

Successfully appealing the sentence that you were given after you pled guilty isn't easy, either. Here, you need to show either that your sentence is:

  • Illegal, such as when it's more than the sentence allowed under the law, or it's unconstitutional because it amounts to "cruel and unusual punishment" under the Eight Amendment to the US Constitution. For example, if a state law lists the maximum sentence a defendant may receive on a conviction for a certain crime and the judge sentences you to more than the listed amount, the sentence is probably illegal and may be challenged successfully on appeal
  • More than what you agreed to. If your sentence was part of the plea agreement, meaning that you and the prosecution agreed that the prosecution would recommend that the judge impose a particular sentence, you may be able to appeal your sentence successfully. Similarly, if the prosecution promised to recommend a certain sentence but it doesn't so, you may be able to challenge the sentence on appeal

What if You Win?

Winning on an appeal doesn't necessarily mean that your conviction will be thrown out or that you have a "get out jail free" card. That can happen, but it's pretty rare. Usually what will happen is your case will be sent back (called "remanded") to the judge or court that accepted your plea and/or sentenced you and you may:

  • Be given a new trial on the criminal charges, and perhaps even another chance to negotiate a plea with the prosecution
  • Have a new sentencing hearing, where, usually, the judge or court will fix the sentence so that it's no longer illegal or follows the terms of the plea agreement. In many cases, the judge or court on appeal will give the judge specific instructions on how to fix the sentence


You can, and sometimes you may have to, waive your right to appeal after you plead guilty. At the federal level, prosecutors almost always make such a waiver part of any plea deal. In fact, the federal court rules require judges to tell defendants that they may be waiving their right to appeal by pleading guilty. You need to read your plea agreement carefully to see if there's a waiver of your right to appeal. If so, it may allow you to appeal in some cases, such as when the judge imposes a sentence that's more than the one agreed to in the plea deal.

If you agreed to waive your right to appeal, a court may ignore the waiver if you can show that it wasn't knowingly and/or voluntarily waived. For example, if the waiver was never explained to you by the judge before you pled guilty, or the waiver was put into the agreement after you signed it, you may be able to show that the waiver is no good.

Questions for Your Attorney

  • How long will it take before my appeal will be decided? Can I get released from jail while I'm waiting for the appeal?
  • Do I have to pay anything when I file an appeal? What if I can't afford it?
  • The state promised not to prosecute my wife on drug-related charges if I pled guilty and testified against the leader of a "drug ring." Is the promise about my wife an "improper inducement," making my plea involuntary?
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