Appeals
The appeal lawyers at Shell & Nermyr PLLC can help a person get a second chance at life. After a person is convicted of a criminal offense that person has appeal rights. Appeals can take months or even years to complete. The fortunate thing is that the appellate lawyers at SNK can often times suspend the sentencing until the case is appealed. That means that a person does not have to pay the fines or go to jail until the appeal process has run its course. Even if a person has pleaded guilty to a charge, they have a right to appeal that process as well. The post conviction rights attorneys at Shell & Nermyr can appeal a person’s plea agreement and sentencing. Post Conviction Review (PCR) is an appeal process that ensures that the judge, the prosecutor, and the defense attorney all did their job properly. Often times a PCR is focused on whether a person had ineffective assistance of counsel or effective representation.
DIRECT APPEALS
Whether you are found guilty by a judge, jury, or even if you pleaded guilty, you still have valuable Constitutional rights that need to be protected. The appeal lawyers at Shell & Nermyr can protect those rights. Contact a lawyer at the appeal attorneys of SNK:
SHELL & NERMYR PLLC
Weekend and Evening Appointments Available
Affordable payment plans available
90 South Kyrene Road Suite 1
Chandler Arizona 85226
(602) 745 1211
(480) 775 4800
What is an Appeal?
An appeal is a review of a case to determine whether a mistake was made. Mistakes are made by judges, lawyers, and even the legislature that writes the laws. Every person has the right to Due Process of law in America; an appeal makes sure that due process is honored in every case. An appeal is conducted at a higher court than the trial court. Too many people fail to exercise their appeal rights and simply assume that everybody did a good job and nobody made a mistake. The appeal lawyers at Shell & Nermyr are professionals when it comes to reviewing the record and finding mistakes or loopholes. Contact the appeal lawyers at Shell & Nermyr as soon as possible because there are very strict deadlines when it comes to the appeal process.
Can I appeal a case from a City Court or a Justice Court?
Absolutely, appeals from either a City Court or a Justice Court are considered “Lower Court Appeals.” These types of appeals are filed with the original court, but they are then transferred to the Superior Court in the county that either the City or Justice Court is in. For example, an appeal from a decision in the Phoenix Municipal Court would be transferred to the Maricopa County Superior Court. An appeal from a decision in the Apache Junction City Court would be transferred to the Pinal County Superior Court.
What are the stages in a Lower Court Appeal?
Appeal stage 1 – Trial Court
File the Notice of Appeal with the Trial Court
To appeal a conviction from a City Court or a Justice Court, a “Notice of Appeal” must be filed with the trial court within 14 calendar days from the final order or final judgment which is usually the sentencing. If the trial lawyer does not file the notice of appeal, let the appeal attorneys at SNK know immediately so that we can file the notice in a timely manner. It is extremely important to file your notice of appeal within the time allowed by law or you will lose your right to appeal. A Notice of Appeal should ALWAYS be filed even if you are not sure if you are going to appeal the case, the Notice of Appeal can always be withdrawn. If you have been found guilty by either a judge or jury, contact the appeal attorneys at Shell & Nermyr immediately so that they can preserve your appellate rights.
Bond on Appeal
If your release status at the time of the appeal is “own recognizance”, you will retain that status pending the appeal. If you have posted a bond to secure your release, your bond will remain with the court pending the appeal unless modified by the court. Therefore a person will remain free until the appeal process is finished.
Stay of Execution of Sentence
Execution of any sentence requiring incarceration will be stayed, pending the appeal. Additionally, a person will not have to pay fines or attend counseling while the appeal is pending. However, contact the appeal lawyers at Shell & Nermyr to discuss which consequences of the trial do go into affect. For example, MVD ramifications are not stayed as they are administrative and not judicial issues. If you have posted a bond to secure your release, your bond will remain with the court pending the appeal unless modified by the court.
The Record
Also, within the time to appeal you must file an original and one copy of the DESIGNATION OF RECORD. A designation of the record is a formal list of the items in the court record that you want to include in the appeal. The trial lawyer should always be thinking about the appeal while preparing a case for trial. If the trial lawyer does not do a good job of making a good record there may not be much to work with for the appeal lawyer. The criminal trial lawyers at Shell & Nermyr are experienced attorneys that know how to make a good appeal record during trial so that the appeal lawyers have multiple arguments for appeal.
The justice court and city court records are made by audiotape, CD or video. The court will provide a copy of the audiotape, CD or video if the proceedings were on the record. The appeal lawyers at Shell & Nermyr will pay the cost of the CD if it is under $50. The appeal attorneys at SNK will obtain a copy of the audiotape, CD or video within 10 days after we file the NOTICE OF APPEAL.
If the taped proceedings are more than 90 minutes in length, it will be necessary for our client to pay a court reporter to prepare a transcript (a typed record) of the proceedings. Within 14 calendar days after we file the NOTICE OF APPEAL, we will make arrangements with the court reporter or transcriber to pay any record or transcript preparation fees. The transcript must be filed with the trial court before, or at the same time, we file the memorandum
If you cannot afford to pay for the transcript, we will ask the clerk for a waiver or extension to make payment at a later time. If you fail to pay for the transcripts your appeal may be dismissed. We will not let this happen but it is important for people to know just how strict the courts are when it comes to appeals. The appeal lawyers at Shell & Nermyr will provide you a copy of every filing and transcript for your personal appeal file at no cost to you.
The Written Appellant’s Memorandum
The appellant’s memorandum is our written “brief” or explanation of why the trial court ruling was legally wrong. The memorandum will refer to specific portions of the record of the trial or hearing to point out where there was error by the court (that is why a written record must be prepared).
The memorandum will be typed or printed on letter-sized white paper, double spaced, and not exceed 15 pages in length. We will also attach exhibits from the trial or hearing to the memorandum.
Filing the Appellant’s Memorandum
The APPELLANT’S MEMORANDUM must be filed with the trial court within 60 calendar days of the deadline to file the NOTICE OF APPEAL. The lawyers appealing your case will keep track of every deadline and will not miss any deadlines. When you retain the appeal lawyers at Shell & Nermyr you can relax and know that every deadline is met with time to spare. You do not need to worry about deadlines or worry that deadlines have passed.
Appeal stage 2 - The Superior Court
Notification from the Superior Court
Once the appellate lawyers at Shell & Nermyr have completed all of the steps of the first stage, your case moves to Superior Court where an appeals judge will review the case. About 60 days after SNK files the memorandum you will receive notification that your case has been sent to Superior Court. Next, you will receive a second notice from the Superior Court assigning a Superior Court case number to use in all further correspondence. The notice will also inform you what will happen next. Additionally, at this point you will sit down with you appeal lawyer from Shell & Nermyr so that we can answer any and all questions you might have and explain what happens next in the appeal process.
Superior Court Action on the Appeal
The Superior Court will rule on the appeal. Your attorney handling the appeal will argue to the Superior Court Judge that an error occurred that prevented you from receiving a fair trial. The Superior Court has the right to affirm the trial court; overrule the trial court; modify some of the trial court’s decision; or, if the record is not clear, order a new trial in the trial court.
If the Superior Court Judge rules in favor of you the court can rule that: the trial be vacated and the case dismissed entirely; a new and fair trial must take place; that a new trial take place but without some tainted evidence; or that the trial was fair but the sentence was not so therefore a new sentence must be handed down. If the final outcome of your case is that the ruling stands, or if your appeal is dismissed for any reason you may have to return to the trial court to receive further instructions.
SHELL & NERMYR PLLC
Weekend and Evening Appointments Available
Affordable payment plans available
90 South Kyrene Road Suite 1
Chandler Arizona 85226
(602) 745 1211
(480) 775 4800
Post Conviction Relief (PCR)
What is Post-Conviction Relief?
The PCR lawyers or post conviction lawyers or Rule 32 lawyers at Shell & Nermyr can help you get a second chance at your case. Way too often people charged with crimes get ineffective assistance of counsel from their trial lawyer. Either that lawyer didn’t work hard on the case, or they were inexperienced, or they had too many other cases that prohibited them from doing a good job on another case. The Post Conviction Rights lawyers at Shell & Nermyr can review your case and make sure that your lawyer did a competent job.
A Petition for Post-Conviction Relief (“PCR”) pursuant to Rule 32 of the Arizona Rules of Criminal Procedure can be filed following a guilty verdict by a judge or jury, or even after a defendant enters a plea of guilty. A PCR is similar to an appeal, but it is used to raise different legal issues than are raised in a direct appeal. Because PCR’s raise different issues than direct appeals, PCR’s are generally filed after a person enters a plea agreement or after a direct appeal has been filed and fully litigated. Some of the more common issues raised in post-conviction relief proceedings include the following:
1. Ineffective assistance of counsel. The denial of the constitutional right to representation by a competent lawyer at every critical stage of the proceeding. (Emphasized because this is the most common basis for a Rule 32)
2. The introduction at trial of evidence obtained by an unconstitutional search and seizure.
3. The introduction at trial of an identification obtained in violation of constitutional rights.
4. The introduction at trial of a coerced confession.
5. The introduction at trial of a statement obtained in the absence of a lawyer at a time when representation is constitutionally required.
6. Any other infringement of the right against self-incrimination.
7. The introduction at trial of evidence obtained pursuant to an unlawful arrest.
8. The unconstitutional suppression of evidence by the state.
9. The unconstitutional use by the state of perjured testimony.
10. An unlawfully induced plea of guilty or no contest.
11. Violation of the right not to be placed twice in jeopardy for the same offense.
12. The abridgement of any other right guaranteed by the constitution or the laws of this state, or the constitution of the United States, including a right that was not recognized as existing at the time of the trial if retrospective application of that right is required.
13. The existence of newly-discovered material which requires the court to vacate the conviction or sentence. (Specify when you learned of these facts for the first time, and explain how they would have affected the case.)
14. The lack of jurisdiction of the court which entered the conviction or sentence.
15. The use by the state in determining sentence of a prior conviction obtained in violation of the United States or Arizona constitutions.
16. Sentence imposed other than in accordance with the sentencing procedures established by rule and statute.
17. Being held beyond the term of sentence imposed.
18. The failure of the judge at sentencing to advise you of your right to appeal and the procedures for doing so.
19. The failure of your attorney to file a timely notice of appeal after being instructed to do so.
20. The obstruction by state officials of the right to appeal.
21. Any other ground within the scope of Rule 32 of the Arizona Rules of Criminal Procedure.
You should also be aware of the fact that:
1. There is no provision for obtaining a sentence reduction or modification in post-conviction relief proceedings. However, a sentence can possibly be reduced if (a) your attorney was ineffective during the sentencing proceeding, thus violating your U.S. and Arizona constitutional rights to the effective assistance of counsel, (b) newly discovered material facts exist and such facts probably would have changed the sentence, or (c) the sentence imposed exceeds the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law.
2. If your conviction and sentence is based on a plea agreement, the only relief the court can grant a defendant is to set the plea agreement and/or sentence aside. At that point, your case will start over with all original charges reinstated against the defendant. There is no guarantee that you will receive a better plea offer or even the same offer, so you should be advised that you could receive a greater sentence.
SHELL & NERMYR PLLC
Weekend and Evening Appointments Available
Affordable payment plans available
90 South Kyrene Road Suite 1
Chandler Arizona 85226
(602) 745 1211
(480) 775 4800
OTHER POST-CONVICTION REMEDIES
What if I took a plea but I have not been sentenced?
Contact Shell & Nermyr as soon as possible. A good appeal lawyer can get you out of the plea if you want out. Often times after a defendant pleads guilty, they learn new information about the case that they did not know before pleading guilty. In order to withdraw from a plea agreement, a defendant has to prove that a “manifest injustice” has taken place. Contact the good appeal lawyers at Shell & Nermyr for a free confidential consultation in order to get out of the plea and use the new information to beat the charges with a good trial lawyer from Phoenix, Arizona. Manifest injustice is similar to “fundamental unfairness” and therefore it implies that a defendant has been deprived of due process. The American Bar Association Standards for Criminal Justice: Pleas of Guilty, 3d ed., Standard 14-2.1. Plea withdrawal and specific performance (1999) provides that:
Withdrawal (of a plea of guilt) may be necessary to correct a manifest injustice when the defendant proves, for example, that:
1. The defendant was denied the effective assistance of counsel guaranteed by constitution, statute, or rule;
2. The plea was not entered or ratified by the defendant or a person authorized to so act in the defendant's behalf;
3. The plea was involuntary, or was entered without knowledge of the charge or knowledge that the sentence actually imposed could be imposed;
4, The defendant did not receive the charge or sentence concessions contemplated by the plea agreement and the prosecuting attorney failed to seek or not to oppose these concessions as promised in the plea agreement; or
5. The defendant did not receive the charge or sentence concessions contemplated by the plea agreement, which was either tentatively or fully concurred in by the court, and the defendant did not affirm the plea after being advised that the court no longer concurred and after being called upon to either affirm or withdraw the plea; or
6. The guilty plea was entered upon the express condition, approved by the judge that the plea could be withdrawn if the charge or sentence concessions were subsequently rejected by the court.
Who decides if a manifest injustice has occurred?
Once a defendant enters a guilty plea, a defendant has to prove to the trial judge that a manifest injustice has occurred. The great Tempe appeal lawyers at Shell & Nermyr have convinced numerous judges that a manifest injustice has occurred. Arizona courts have held that the trial judge has the discretion to grant a motion to withdraw a plea of guilty. This discretion is to be liberally exercised in favor of permitting withdrawal where there is any showing that justice will be served thereby. Withdrawal of the plea of guilty is not automatic, but the judge has wide discretion to allow a defendant to change his or her mind and withdraw from a plea agreement.
What have Arizona courts found to be manifest injustice?
1. The defendant admitted to doing something they didn’t do during the change of plea proceeding in order to establish a factual basis for the plea of guilty. The plea must be set aside for denial of due process of law. It is not unusual for a defendant that is represented by an incompetent defense attorney to plead guilty to something they didn’t do. The appeal and trial lawyers at Shell & Nermyr will never allow a client to plead guilty to something they didn’t do.
2. The defendant must be allowed to withdraw from admission of probation violation if the admission is done as part of a plea agreement that the court later rejected.
3. The defendant misunderstood material terms of plea agreement. Or the defendant did not understand the plea agreement. The excellent lawyers at Shell & Nermyr would never allow this to happen as the attorneys at Shell & Nermyr take the time necessary to fully explain everything to their clients.
4. The defendant learned after entering a guilty plea, but prior to sentencing, that he had a fatal illness (HIV).
5. The defendant can present substantial objective evidence to show that he mistakenly believed that the terms of the plea agreement were more lenient than the actual sentence imposed by trial judge.
6. The defendant entered a guilty plea based on the fact that the State’s case was based on the credibility of witness. Later, however, the credibility of the State’s witnesses is called into question. A competent defense lawyer should already know the credibility of a witness before they allow their client to enter a plea agreement with the government. The defense lawyers at Shell & Nermyr evaluate the credibility of every witness prior to advising their client on how to proceed in the case.
7. Defense counsel was so ineffective, and so unreasonable under all circumstances, where “but for” counsel’s unprofessional errors, the result of the proceeding would have been different. The defense attorneys at Shell & Nermyr don’t even need to address this issue.
SHELL & NERMYR PLLC
Weekend and Evening Appointments Available
Affordable payment plans available
90 South Kyrene Road Suite 1
Chandler Arizona 85226
(602) 745 1211
(480) 775 4800
|