Criminal Appeals

If you call this firm about a criminal appeal, you are going to be asked the following questions:

1) Was the Defendant convicted by a jury in Superior Court, or did the Defendant take a plea?

If the Defendant took a plea, his options for an appeal are limited. These limits apply even if the Defendant entered a no-admission “Alford” plea. For details about the limited options after pleading guilty, click HERE.

2) Has the Defendant entered notice of appeal?

Giving notice of appeal is simply the process of indicating to the court system, and to the District Attorney, that the Defendant will be pursing an appeal. Giving notice of appeal does not itself constitute an appeal; it is like making a reservation at a restaurant. It is not the eating of the meal itself.

Notice of appeal can be given in two ways: by oral statement at the conclusion of trial, or by a written document (usually just a page or two) which must be filed within 14 days of the judgment.

3) Were there any audio or video exhibits? Did any experts testify?

The answers to these questions directly impact the amount of time which must be spent on the appeal. Expert can pull in extensive exhibits and give testimony that non-experts would not be allowed to give. Videos can require close listening, repetitive watching, and sometimes even frame-by-frame analysis. All of this added time ultimately increases the cost of the appeal.

4) Who will be handling the business of the representation?

The Defendant himself will obviously be a client of the firm, but since Defendants are almost always incarcerated, someone must serve as the client of contact. This person will also sign the fee agreement. While the costs for a criminal appeal are sometimes “crowd sourced” by friends and family, one person must assume ultimate responsibility for collecting funds and paying the firm.

After a potential client has provided answers to these questions, they invariably have questions of their own. Some of the typical questions are as follows:

1. How long does it take to get a final decision in a criminal appeal?

2. Can you tell me whether this appeal has any merit before I retain the firm?

Unfortunately, no. In order to figure out whether the case has any chance of success, an attorney must review two main sources of information. First, a transcript will be prepared of everything that every person said during the trial. Court reporters prepare these transcripts, and it can take them multiple months to finish a transcript. Second, the court file (including every motion, exhibit, order, etc.) must be sorted into a “record on appeal” and then reviewed.

The attorney must “issue spot” based on the court file and transcript, looking for rulings, objections, and motions that the trial court may not have properly handled. Next, the attorney has to do legal research to see if prior North Carolina cases substantiate that an error occurred. This process takes time and money. As a result, any Defendant who wishes to pursue an appeal must commit funds to the first phase of the appeal somewhat on faith, before an assessment of the merits can be completed.

Our firm structures its fee schedule to match this process. An initial retainer is due when the representation begins, and a later retainer is needed if the Defendant decides, after the evaluation of his case, that the appeal is worth completing. The major task of completing the appeal is to write the brief. The brief is a document of anywhere from 25 to 50 pages which explains the errors of the case to the reviewing court.

3. How much will a criminal appeal cost?

Costs can vary widely based on the length of the transcript and the contents of the file. The number of charges, exhibits, and possible issues also has a significant impact on projected costs. There are just too many variables to provide a meaningful answer here. However, it does not take long to interview a potential client and deduce what the cost range should be. All estimates are made in good faith and cannot always be accurate, but over time I have been able to establish a good track record of providing estimates that align with actual costs. If you are seeking an attorney for a criminal appeal, I invite you to reach out for a phone consultation, after which I can provide a personalized cost estimate. This estimate will include an estimate of overall costs through a decision by the Court of Appeals. It will also include the amount of the required initial retainer in order to start on the case.

Guilty Plea Appeals (from footnote)

A Defendant who took a plea can argue on appeal that he should be allowed to take back his plea because he did not enter it “knowingly and willingly.” This standard is hard to meet. The Defendant must have had a fundamental misunderstanding about what he was doing. This does not include next-day regret, or the realization that the State’s case wasn’t as strong as originally believed. It would include situations like being told the sentence would be suspended, but then getting an active sentence. Trial courts always engage in a question-and-answer exchange in open court, and they also make the Defendant sign a written plea with all the details included, for the very reason of rebutting any later claims that the plea was not made willingly and voluntarily. Many Defendants complain that their attorneys “forced” them to take a plea. This is not grounds for reversing the plea unless the attorney literally entered the plea on the Defendant’s behalf over his objection in court.

Defendants who plead guilty can also appeal whether they were correctly sentenced. Structured sentencing in North Carolina means that the offense level and prior record level together limit the possible sentences to a limited and prescribed range. If a Defendant is sentenced outside the proper range, he can appeal that error even if he pled guilty. Many potential clients who were convicted of multiple charges ask whether it is possible to argue on appeal that the judge should have imposed concurrent sentences rather than consecutive sentences. Unfortunately, the judge’s decision between consecutive and concurrent sentences will not be reversed on appeal.

Defendants can also appeal based on the denial of a motion to suppress evidence, but only if their plea agreement expressly reserves that right. If the Defendant’s trial attorney filed a motion to suppress and it was denied, and the Defendant then ultimately pled guilty while reserving this issue for appeal, then an appeal is possible.