Law You Can Use: Direct Appeals Can Remedy Trial Errors

JoeBurkeLogo_presented2Q:        My nephew was convicted of a crime and sentenced to prison, but some mistakes were made during his trial. Can he challenge his conviction and sentence?

A:        Yes. If errors occurred “on the record,” meaning errors that are obvious from motions and other documents filed in the trial court, including the trial transcript, then your nephew can challenge his conviction and sentence by filing a direct appeal to the court of appeals.

Q:        When must the appeal be filed?

A:        Usually, a Notice of Appeal is due 30 days after the trial court’s judgment in the case is filed. Your nephew (the “appellant”) should talk with an attorney, who will order the case record and transcript to be filed in the court of appeals within 40 days after the Notice of Appeal is filed. Once the record and transcript have been filed, the attorney has 20 days to provide the court with the “appellant’s brief” explaining the error(s) that are on the record.

Q:        If my nephew can’t afford an attorney to file his appeal, will the court appoint one?

A:        If the original trial court found your nephew to be indigent (meaning without funds), and an attorney was appointed for him at the trial without charge, he can ask the trial court to also appoint an attorney to represent him for appeal. If your nephew hired an attorney for his trial, but can’t afford an attorney for the appeal, he (or his trial attorney) should tell the trial court judge. If the judge determines that he meets the financial requirements, then an attorney will be appointed for him at the state’s expense.

Q:        Can my nephew represent himself on the appeal?

A:        Yes. He can file a “pro se” brief in the case and the court will consider it. (“Pro se” means self-representation.) Prisons have access to a legal database of cases and a prison library, but your nephew probably lacks the training or experience of an appellate attorney, so it is not recommended for him to file his own brief. Sometimes an inmate chooses to file a pro se brief in addition to the appellate attorney’s brief. The court may, but is not required to, consider such a brief.

Q:        What happens during the appeal process?

A:        The appellate attorney should keep your nephew informed about the appeal and ask him if any issues should be raised. (The attorney will determine whether issues have merit, but your nephew was at the trial, so he has information that the appellate attorney does not have.) After the appeal is filed and the state has responded, your nephew’s attorney can file a reply to rebut issues raised in the response.

Q:        How long will it take for the appeal to be decided?

A:        Usually within three to six months after the brief is filed, the court will schedule an oral argument. Your nephew’s attorney will make this argument before a three-judge panel rather than a jury. If your nephew is still incarcerated, he will not be present in court for this argument. After the oral argument, the appeals court will release a decision, which may take anywhere from three months to one year. (Note: If your nephew is still incarcerated and wants to proceed without an attorney, then the court is not required to schedule oral argument.)

Q:        What happens if my nephew wins his appeal?

A:        If he wins, the state can appeal that decision to the Supreme Court of Ohio. The Supreme Court can decide whether or not to accept the case for review. If the case is accepted, both sides will again file briefs, and an oral argument will be scheduled before the justices. If the Court does not accept the case, then the court of appeals’ decision stands.

Q:        What happens if he loses his appeal?

A:        If he loses, he can appeal that decision to the Supreme Court of Ohio. If the Court accepts the case, the same process is followed as described above. The Supreme Court may uphold or overturn the court of appeals’ decision. If they uphold it, then the court of appeals’ decision stands. If they overturn it, then they may send the case back to the court of appeals with an order to grant some form of relief, such as a new trial or other appropriate remedy. If the Supreme Court does not accept the case for review, then the court of appeals’ decision stands.

This “Law You Can Use” consumer information column was provided by the Ohio State Bar Association. It was prepared by Kathryn Sandford, an attorney with the Ohio Public Defender’s Office. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Joseph Burke Law_WEB3

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