I’ve Been Convicted of a Sex Crime—Can I Appeal?

A criminal conviction can be devastating blow, especially after a hard-fought legal battle.  If you’ve been convicted of a sex crime, your first thought may be to appeal your case.  But how do appeals work?  Will you get another trial?  Is an appeal a complete legal “do-over”?  Can you work with the same attorney who handled your trial?  What appellate strategies might be available to you?

Anyone convicted at trial in the United States is entitled to an appeal.  In Washington State, an appeal will be heard by the Washington State Court of Appeals, Division I (Seattle), II (Tacoma), or III (Spokane), depending on the county where you were convicted. Whichever side loses in the Court of Appeals can then move the Washington Supreme Court for discretionary review—a further appeal—but the supreme court can refuse to examine the case, and it chooses to review only a small fraction of the cases it is asked to review. So you’re only guaranteed one level of appeal from a superior court conviction.

There are several other important things to know about criminal appeals before you decide whether an appeal is right for your case. This post will cover those important considerations, but you should also be sure to consult with your attorney before making decisions regarding an appeal.

Don’t delay!

Appeals generally must be filed within one 30 days of judgment in the trial court.  For a person convicted of a crime, judgment happens at sentencing. The sentencing hearing starts the 30-day clock. It is critical to file a notice of appeal before the 30 days expire. One has longer to assemble the arguments for the court of appeals; it is only the simple notice of appeal that must be filed within 30 days.

If you aren’t sure you want to appeal, you probably should file a notice of appeal within the 30 days. If you later decide you don’t want to appeal, you can withdraw the notice.

Is an appeal just like a second trial?

No, it isn’t.  A court of appeals functions much differently from a trial court.  At trial, either a jury or a judge acting without a jury hears testimony and looks at other evidence.  Then the jury or judge evaluates the evidence, decides what facts have been proven, and applies the law to those facts to decide the case.

The court of appeals’ job is not to hold a second trial, re-hearing witness testimony and reconsidering the evidence anew.  Instead, the court of appeals reads a transcript of the trial and the papers the lawyers filed in the trial court to see whether the trial was conducted properly.  Mostly the court of appeals evaluates the decisions the trial judge made.  Essentially, it functions like a boss giving an employee a performance review.

At the end of its study of these documents, the court of appeals will decide whether you received a fair trial under the law.  It won’t consider whether it would have decided the case the same way the jury did. If the court of appeals thinks the trial judge did her job well, it will likely affirm your conviction, even if it might not have reached the same decision the jury did.

Of course, judges are human, so there may be times when they think that an innocent defendant has been convicted and that influences their decision. But that is not their job, and it rarely happens.

If the court of appeals decides you did not get a fair trial, it may order that you be granted a new trial (which would take place back at the county court level).

Here are some of the issues that sometimes lead to success on appeal in sex crime cases:

• the improper admission of evidence that you had committed sexual misconduct or domestic violence before
• incorrect jury instructions
• improperly admitted character evidence (unrelated evidence suggesting you have a bad character and are therefore more likely to do bad things)
• improperly admitted or obtained confessions, or uncorroborated confessions

Is there any way to get relief from a criminal conviction other than through appeal?

Yes. One can make what the law calls a “collateral attack” on a criminal conviction. In Washington State, the most common form of collateral attack is the petition for relief from personal restraint, often called a personal restraint petition or PRP. (Among the other forms of collateral attack is a writ of habeas corpus; that device is rare in Washington but common in other states and the federal court.)

Like appeals, PRPs are heard in the courts of appeal, but they are separate proceedings. The PRP has one advantage over an appeal: you can submit in support of a PRP evidence that is not in the trial transcript or the other papers filed in the trial court.

When Should I File a PRP?

Although it is possible to pursue an appeal and a PRP at the same time, most often a PRP is filed after an appeal has failed. A PRP should be filed within one year of the end of an appeal because most error claims expire if not filed within that year.

Since the courts of appeal work slowly, PRPs are most often filed by persons who receive sentences of ten years or more. Persons with shorter sentences may serve most or all of their sentences before a PRP is decided.

The court considering a PRP will grant you relief from a conviction if it finds that imprisoning you is unlawful because:

• the decision in the criminal proceeding was entered by a court without jurisdiction over you
• your conviction or sentence was entered in violation of the federal or state constitution or Washington State law
• material facts exist which have not been previously presented and heard, and the interests of justice require vacating your conviction or sentence
• there has been a significant change in the law which is material to your conviction or sentence, and sufficient reasons exist to require retroactive application of the changed law to your case
• the conditions or manner of your imprisonment are in violation of the federal or state constitution or Washington State law (but in that case your best possible outcome is probably improved conditions of confinement)

A PRP is usually necessary to present a claim of ineffective assistance of counsel—that is, a claim that your lawyer performed deficiently.  Showing the lawyer’s poor performance usually requires evidence that is not in the trial transcript of the papers filed in the trial court—for example, evidence of what your lawyer did or didn’t do to prepare for the trial.

Should my trial attorney handle my appeal or my PRP?

That depends on several things.

First, many lawyers don’t handle appeals or PRPs at all.

If your trial attorney does handle appeals and PRPs, consider whether you want another attorney to examine their work for errors. It would be unreasonable to expect the trial attorney to spot all their own errors, and a conflict of interest for the trial attorney to handle an appeal in which alleged errors they made were central to the appeal.

But some trial attorneys do excellent work in appeals and PRPs. If your trial attorney doesn’t seem to have a conflict of interest and you would like them to continue to represent you, that may be a good choice.

Conclusion

In neither an appeal nor a PRP will a court look at all the aspects of your case. In neither of them will your case get as complete an airing as it can get at trial.

Trial is your best opportunity to win. Don’t wait until after trial to devote all the energy and resources you can to your defense. The Marshall Defense Firm has a long history of fighting vigorously at trial for defendants in sex crime cases. Contact us at 206.826.1400 or solutions@marshalldefense.com.