Found Guilty: Now What? Appeals and Sentence Reductions in Ohio

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A guilty verdict, or even a plea, doesn't necessarily finish your defense. You may still have options and opportunities to improve your future outlook. Every criminal defendant is entitled to have a conviction reviewed by a court of appeals to be sure that the trial was fair, and the verdict was correct.

But an appeal of a conviction isn't a new trial. You can't introduce new evidence, or introduce a change in trial strategy. It doesn't replace a good trial effort, or make up for a lack of evidence. If legal mistakes were made at your trial, however, it can give you a chance at a new trial, or a reduction in charges or sentence.

Appeals

The most important thing to know about appeals is that they don't happen automatically and are controlled by strict rules and time limits. You can't wait until you can hire a better lawyer, or if you have time to research issues yourself, to file your own appeal. In many states including Ohio, a notice of appeal in a felony case must be filed within 30 days of the judgment entry containing your conviction and sentence. That means that the notice is actually received by the clerk of courts, not just put in the mail. If you miss this deadline, you must ask permission to file a delayed appeal, and give the court a good reason for missing the deadline. The court is not required to accept your reason or to hear your appeal. Any issue that you could have raised in a direct appeal is waived, or given up forever, if you don't raise it in this first appeal; or if you fail to file an appeal in time. You can't wait to file, or save some issues to raise in later appeals.

Even after you file your notice of appeal, it will take time for the court reporter to type up the transcript. This gives you time before you or your lawyer has to file the document (appellate brief) that actually tells the court what mistakes were made, and why you should get a new trial or new sentencing. The brief should review the evidence or facts important to your arguments, explain why you think mistakes were made and how they affected your case, and show that other courts have ruled in your favor in similar cases.

Sentence Reduction

In felony cases, the judge doesn't always have the power to change a sentence once you start serving it. The judge only has the power he or she is given by the law, and the law in Ohio is very specific on this subject. If you are not sentenced to the penitentiary, the judge has much more power to change the sentence. He can shorten a local jail sentence or change the conditions of your probation, including terminating it early.

If you are sentenced to prison, however, the judge can change the sentence only if he does it before you have been transported to that prison. Once you start serving your sentence, the sole options for change are judicial release, which was formerly called shock probation, or a prison program such as boot camp, that offers early release to certain nonviolent offenders who complete a program. Both of these options require the agreement of the judge. If you qualify for an early release program, the prison will send the judge a letter asking permission to place you in that program. If you are eligible for judicial release, you or your attorney must file a motion asking the judge to consider releasing you early and placing you on probation. Not all offenses or offenders are eligible for early release or judicial release. The law changes frequently. Judicial release motions must be filed at specific times, depending on the nature of your conviction and the length of the sentence you received. Right now, the law does not allow judicial release for any sentence longer than 10 years, even if you have served most of that time. You cannot receive judicial release if you are serving a mandatory sentence. If you are unsure whether you are eligible for judicial release, you should consult an attorney.

Other Options

There are a few other special remedies that might be available to you after conviction. All of them have very specific rules and time limits.

Acquittal or new trial

For mistakes that are immediately apparent at the time of the verdict, your attorney can file a motion for judgment of acquittal or new trial. Either one has to be filed soon after the verdict, unless they are based on new evidence that you didn't know about and couldn't have discovered before the trial. These motions are heard by the judge that heard your trial.

Post-conviction petition

If mistakes were made in your case that don't show up in the transcript for some reason, you can't bring them up in your appeal, because the court of appeals only considers facts and evidence that were considered by your trial court. Your are not allowed to introduce new evidence. Mistakes that are based on such new evidence can be raised in a post-conviction petition. Your petition must be filed within 180 days of the day when the transcript is filed for your appeal, or if you didn't appeal, 180 days from the last day to file an appeal. You must attach evidence or sworn affidavits of witnesses to support any claimed mistakes in your trial. The trial judge also hears this petition. If you just repeat objections or issues already ruled on in your trial, or make the same legal arguments made in your appeal, the judge will dismiss your petition. He will only give you a hearing if your raise something new, and something that couldn't be raised any other way.

Counsel and Documents

If you don't have money for an attorney or transcript, you are entitled to have the court appoint counsel and provide a transcript for your first appeal. You can file a motion in the trial court, or in the court of appeals after you file your notice of appeal. You are not entitled to court-appointed counsel or other financial assistance for any other post-conviction motions or petitions. Your trial counsel should be responsible for any new trial motion immediately after the verdict, and should make sure that a notice of appeal is filed for you if you cannot afford counsel. He is not required to continue to represent you past that point, however, and you must make sure to either hire an attorney or ask the court to appoint one to handle the appeal.

Consult an Attorney

Appeals and other post-conviction remedies are very complicated, and doing them without counsel means a high risk of missing a deadline or failing to follow mandatory rules. You can lose your chance to raise an argument or benefit from a change in law if you don't follow the rules. If you can't get counsel, try to get samples of other motions or petitions to use as a pattern. Read the rules and follow them carefully. Don't leave anything to the last minute. A simple mistake or equipment failure can mean a missed deadline.

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