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 All About Appeals


Practically every week, our law office Robinson & Brandt, P.S.C. learns of a new person suffering from a bad experience in the criminal justice system who wishes to appeal. If that person does not have counsel or if that person is seeking a new attorney, and if we learn the case involves issues that need to be appealed, we often reach out to help with the appeal.

Appeals. The criminal justice system is stacked against a citizen charged and convicted of a crime. The resources of the state and federal governments greatly exceed the resources of the individual defendant. Thus, the defendant must take every opportunity to challenge the government's case and the legitimacy of the conviction in order to maximize the chance of obtaining justice. Your direct appeal is the first best chance to correct the injustice in your case.

The Best Arguments for Appeal.The category of issues that are strongest for appeal are those that were raised before the district court and that the district court ruled upon (or erred by failing to rule on them). This is because the court of appeals does not sit in the place of the district court and second-guess the rulings and try to figure out what the court of appeals judges would have ruled if they had been presiding over the case. Instead, the usual role of the court of appeals judges is to review and question the decisions of the district court judges under a variety of standards. For example, the court of appeals takes a "hands-off" approach to findings of fact of the district court judges, choosing to reverse those decisions only if the district court judge's finding of fact is clearly erroneous. Similarly, the court of appeals will usually defer to a district court judge's evidentiary ruling, choosing to reverse only if the ruling was an abuse of discretion. On the other hand, the court of appeals will review most district court legal conclusions from scratch—as if the court of appeals were the first court hearing the argument. Thus, it is incredibly important that the attorney representing you on appeal have a great deal of experience with appeals and knowledge regarding the standards of review.

This does not mean that you can only appeal the issues raised in the district court. It is true that, if you raise on appeal an issue that was not brought to the attention of the district court judge, the court of appeals will review that question under what is called the "plain error" standard. But this means that the court of appeals will reverse your conviction or sentence only if it finds an error occurred that is plain and that it is willing to recognize. It is important to know how some issues that could be raise on appeal as weaker plain error arguments might be better off left out of the appeal and raised later in a different and stronger form. A smart, experienced attorney will know from experience or will spend the time to research which type of error is likely to succeed.

Being Smart and Holding Some Claims for Later: As complicated and unbelievable as it sounds, it is important not to raise issues on appeal that you might need to raise and win at a later stage. For example, it is rare for us to represent a defendant on appeal where that client does not point out an error the former attorney is believed to have made. Claims of ineffective assistance of counsel are incredibly important to each and every client's overall strategy for relief, and that strategy for post-conviction relief must be outlined before the opening brief is filed. But ineffective assistance claims are not appropriate for direct appeal (except in the rare circumstance that the claim was raised and ruled upon in the district court). Much more often than not, the complaint is that the attorney erred in failing to take particular action (such as moving to dismiss the indictment, moving to suppress evidence, moving to exclude evidence, moving to withdraw a guilty plea, objecting to a sentence enhancement, moving for a downward departure or sentence variance). The defendant is obly able to prove that, had the attorney take the action suggested, the case would have turned out differently, if the defendant presents the argument and evidence the attorney should have submitted in the beginning. Fortunately, the U.S. Supreme Court has made clear that you will not err by saving a claim of ineffective assistance until after your direct appeal. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S. Ct. 1690 (2003). The preferable method for bringing claims of ineffective assistance is through a motion brought under 28 U.S.C. § 2255. See Massaro, 538 U.S. at 504-05. If the district court denies those claims, the defendant may then seek an appeal and, at that point, finally and properly bring the matter to the attention of the court of appeals.

Why You May Want to Appeal Even if you Signed an Appeal Waiver. One of the most frequent questions or issues that comes up is whether to appeal in cases where the defendant pleaded guilty and the plea agreement contains an appeal waiver. More often than not, the defendant is convinced that he or she should not appeal. The problem with that strategy is that is passes up the first best opportunity to overcome the waiver. The court with the most power in determining whether an appeal waiver is valid, or the extent of the appeal waiver, is the court that would hear the appeal—the court of appeals. The argument that the waiver was invalid should be first brought to the court appeals on direct appeal. The argument that the waiver was limited and does not cover the issues that the defendant wants to raise on appeal should be first brought to the court of appeals. Because the court of appeals can interpret the waiver as not covering or precluding the issue, it is a substantial mistake to forego the appeal. Because a ruling from the court of appeals that the appeal was valid can set the stage for an argument that the defendant's attorney erred, that ruling should be obtained before moving on to other action.

Contrary to what the government (or some defense attorneys) might have us believe, appeal waivers do not always deprive the court of appeals of jurisdiction. The court of appeals has jurisdiction to hear a defendant's appeal following a judgment order under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. The district court's entry of a defendant's sentence is a final decision and § 1291 confers subject matter jurisdiction upon the court of appeals. See Corey v. United States, 375 U.S. 169, 84 S. Ct. 298 (1963); Berman v. United States, 302 U.S. 211, 212, 58 S. Ct. 164 (1937).

Although a defendant may waive his or her statutory right to appeal, the waivers must be made voluntarily and intelligently. Mabry v. Johnson, 467 U.S. 504, 508-09, 104 S. Ct. 2543 (1984). In many cases, the waiver is not knowingly, intelligently, or voluntarily made, and many times that is the result of a mistake by counsel. The appeal can be the first step to demonstrating that fact because it is the appellate court that is often the final word on matters dealing with whether a waiver was properly entered. Moreover, the courts of appeals analyze waivers of appeal in plea agreements using contract law. The waiver is enforceable only to the extent that the government invokes the waiver provision. The government does not always choose or remember to do so.

Finally, there are many different forms of appeal waivers. Government attorneys write them up, and they write them up differently. Sometimes defense attorneys negotiate for changes in the language of the appeal waivers. Thus, waivers are different from case to case, and that means that some waivers prevent some arguments on appeal, while other waivers prevent other arguments. The waiver in any one particular case may not be broad (or specific) enough to cover one or more of the issues that the defendant wants to raise. Even if only one issue exists that could be appealed that would not be covered by the appeal waiver, the defendant should go forward with direct appeal and save for later challenging the waiver.

Better Late Than Never: By the time of the appeal, some defendants have already become disappointed with their attorneys' representation or are beginning to worry about the appeal. Maybe the attorney does not communicate with the defendant enough or has not explained what issues are most important to appeal or most likely to win on appeal. Maybe the attorney fails to show a draft of the opening brief to the defendant before it is filed, or even fails to send a copy of any draft filed by the attorney or the government. Maybe the attorney files a brief with only one issue, or with several issues that have no chance for relief. Even worse, maybe the attorney torpedoes the appeal by filing a no-error brief (technically called an Anders brief) before giving the client any notice. The no-error brief tells the court of appeals that the defense attorney does not believe any error occurred.

When these types of things happen, many defendants believe there is nothing that can be done—that they are simply out of luck and have to count on simply losing the appeal. They are wrong. Over the years, and especially in the past few years, our law firm has become involved in appeals after the original appellate attorney has filed the defendant's opening brief or even after the government has filed its answer brief. In almost all those cases, we have been successful in having the already-filed briefs stricken so that we can enter a new opening brief that raises the best available issues with the best available arguments.

Obviously, waiting until the briefs are filed or the case is dismissed before hiring an attorney is not the best option. We are not suggesting that defendants put themselves in the position of needing to hire new counsel at the last minute and needing to move to have briefs stricken. But sometimes a defendant has no choice because he or she learned of the poorly prepared briefs after they have been filed. Do not make the mistake of assuming that, once the briefs are filed, no hope exists of getting those briefs thrown out. Defendants should do their best to obtain a new appellate attorney as quickly as possible, and have that attorney enter an appearance and move to strike the briefs.

Our law firm has found success in this area because we are able to demonstrate the problems with the opening briefs and the issues initially brought before the courts. And one way we do that is by getting to know the client's case as quickly as possible, and possibly even drafting a proposed replacement brief when we move to strike. No matter what, the quicker you act to have a new attorney step in and fight to correct the appeals mistakes, the better.