Appeals and Post-Conviction Relief

Once a person is convicted and sentenced, there are still legal remedies available to reverse the conviction, obtain a new trial, or receive a new or different sentence. The criminal defense team at Kimerer & Derrick, P.C., are experienced in handling appeals and obtaining post-conviction relief and can assist in getting relief from a conviction after trial or even after a plea agreement has been entered.

Appeals and post-conviction relief are different remedies. An appeal is a constitutional right and is available following a conviction after trial, and sometimes may arise during the course of the lower court proceedings.  An appeal is meant to identify and correct errors that took place during the trial and sentencing proceedings, as well as issues addressed in pretrial motions. A person is entitled to relief on appeal regardless of who committed the error. The most common claims of error involve the judge making inaccurate legal rulings, including allowing improper evidence or testimony into trial. Improper conduct committed by the government can also be identified and challenged on appeal. It is best to have a knowledgeable and experienced criminal attorney review the record to determine all of the issues that can be raised on appeal. Often, if an issue is not identified and presented on the appeal, it cannot be raised again in the future. There are specific deadlines where an appeal must be filed, so it is critical to contact an attorney immediately for assistance on an appeal.

The appeals process has its own set of procedural rules, deadlines, and requirements regarding evidence and testimony. A trial, especially one involving capital crimes, is a very complex machine whose purpose is to ensure justice is done. The system does not always work as intended. Understanding how to operate within the expectations and limitations of appellate procedure is important for leveraging your case and avoiding delays or denials. Kimerer & Derrick lawyers have represented numerous clients in criminal appeals at both the state and federal levels.

Post-Conviction Relief Petitions after Trial

Post-conviction relief petitions are different than an appeal. Also called “PCR’s” or “Rule 32 petitions”, Post-conviction relief is available after an appeal is unsuccessful, following entry of a plea agreement or at any time there is new evidence that the court should consider. Just like with appeals, there are deadlines that a person must meet to file a timely PCR petition. Issues not timely raised in a PCR proceeding may be deemed waived. In that instance courts will not consider the petition except in rare instances.

After an appeal has been filed and resolved, a person can still file a PCR Petition challenging other aspects of the case that could not be addressed on appeal. This normally relates to the conduct of the defense attorney. If the defense attorney was ineffective for any number of reasons, an individual may be entitled to have their conviction or sentence vacated which results in a new trial or the opportunity to be re-sentenced.

Post-Conviction Relief Petitions after a Plea Agreement

When a person enters a plea agreement they waive or give up the right to direct appeal. They retain, however, the right to challenge their sentence, or the conduct of their attorney in a post-conviction relief proceeding. In many cases, the judge did not properly consider information that should have resulted in a more lenient sentence. In other instances, the attorney did not present information that should have been presented. Additionally, there are cases where the defense attorney did not properly advise a client about their case, the plea offer or penalties associated with it. Any of these reasons, along with many others, entitle a court to grant relief from the conviction or penalty.

Kimerer & Derrick work directly with the Innocence Project, a legal defense organization begun by Barry Scheck and Peter Neufeld.  The Innocence Project is dedicated to exonerating people wrongly convicted for crimes they did not commit. Their work has helped free people on death row, as well as numerous people wrongly convicted for other offenses.

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