Legal Question in Criminal Law in California

How to start the appeals process

I am an attorney, but not a criminal law attorney. I need to know how one is to start the appeals process for ineffective counsel.

My nephew was recently convicted of armed robbery, false imprisonment, witness intimidation and all with gun enhancements. I, along with his mother, were two of the three alibi witnesses. His defense counsel failed to investigate the information provided to him, and failed to produce existing documentary evidence to support the alibi testimony.

The all white jury convicted this 25 y/o black man in 13 minutes based solely on the shaky testimony of the victim. Because the defense attorney did not submit a defense, stating that the jury would never beleive the victim.

At the conclusion of trial, the defense counsel stated he would provide a statement to new counsel in support of his ineffective assistance of counsel.

Sentencing is this week. As his family, we put up the money for private defense counsel, but funds are depleted for Appeal. The PD's office told us he should appear at sentencing, advise the Court he is dismissing his private counsel, ask for a PD and a continuance to file an appeal and a writ. Is this correct? Is there anything else we can do at this time?


Asked on 2/18/07, 10:56 am

2 Answers from Attorneys
Edward Hoffman Law Offices of Edward A. Hoffman

Re: How to start the appeals process

With few exceptions, appeals are based solely upon the record from the trial court. It is often not possible to prove ineffective assistance of counsel (IAC) on appeal because most or all of the evidence that counsel was ineffective does not appear on the record. The errors you describe most likely fall into this category. Such errors may be challenged via habeas corpus instead.

Your nephew should file a notice of appeal, since there may have been other errors in his trial which are apparent from the record. He will need to bring both an appeal and a habeas petition.

I'm not sure what you mean about asking for a continuance "to file an appeal and a writ." You make it sound as if the idea is to get these documents filed before the rescheduled sentencing hearing takes place. The notice of appeal and the habeas petition can't be filed until after sentencing, so this strategy makes little sense.

Perhaps your nephew wants a different lawyer to handle his sentencing; if so, asking for a PD makes sense. Just be sure your nephew understands exactly what the PD says he should do.

Your nephew will be entitled to an appointed attorney on appeal if he is indigent. His appointed counsel should handle both the appeal and the habeas petition.

Feel free to contact me directly if you are still considering private counsel. I am certified as an appellate specialist by the State Bar's Board of Legal Specialization and have a great deal of experience in this area.

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Answered on 2/19/07, 3:11 pm
Daniel J. Mangan III JuryTrialJustice

Re: How to start the appeals process

First order of business is a motion for a new trial based on IAC and anything else in the record..desperately need a transcript of the trial and postpone sentencing. Depending on the jurisdiction, it may be possible to obtain a new trial without the long wait on appeal....plus, looks like the IAC is outside the record so at the appellate level, it's a habeas writ....many of the appointed appeals lawyers are excellent, but the fight is not over in the trial court, the post verdicts motions are very necessary.

DJM

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Answered on 2/19/07, 10:07 pm


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