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Understanding the Criminal Appeals Process 

Law Offices of John Schmidt & Associates Sept. 21, 2022

A criminal case does not necessarily end with a conviction, and off goes the defendant to serve time behind bars, pay fines, and/or undergo a period of probation. The defendant can always file an appeal. In Kentucky, the trial judge then has the discretion of allowing the defendant to be free on bail – except in cases resulting in life imprisonment or the death penalty – while the appeals process plays out.  

Appeals are no slam dunk. According to a study by the U.S. Department of Justice (DOJ) of appeals heard by appellate courts across the 50 states, more than half the cases (52 percent) had their verdicts confirmed, another 37 percent were denied review, and only 12 percent were reversed, remanded back for a new trial, or had a component of their final decision modified.  

A one-in-twelve chance may sound low, but that represents a fairly wide window for launching an appeal, especially if your conviction was because of inadequate representation or other courtroom errors by your defense attorney or by the judge or prosecuting attorney.  

According to standards set forth by the American Bar Association (ABA), appeals are designed ”to protect defendants against prejudicial legal error in the proceedings leading to conviction and against verdicts unsupported by sufficient evidence.”  

However, in an appeal, you, your attorney, and the attorneys for the prosecution cannot call new witnesses or introduce new evidence. An appeal is a review of the already-concluded trial. You and the Commonwealth representatives are allowed (required is a better word) to submit briefs, and in rare cases, both sides may be allowed to give brief 15-minute oral arguments.  

If you’ve been convicted of a crime in or around Shepherdsville, Kentucky, contact the Law Offices of John Schmidt & Associates immediately as the clock is ticking to file an appeal. Once the sentence is read, you have 30 days to appeal. Our attorneys can examine what went on in your trial and assess the basis for a possible appeal.  

The Law Offices of John Schmidt & Associates proudly serves clients in Louisville, Elizabethtown, Jeffersontown, Mount Washington, Radcliff, and Shepherdsville, Kentucky. 

Filing an Appeal 

As mentioned, you have 30 days after your sentencing to appeal. Before that, you have five days after sentencing to request a new trial. If that request is denied, you then have 30 days to file an appeal.  

If you are convicted in a district court, which hears misdemeanor cases and some felonies that carry sentences of less than 12 months behind bars, then the county circuit court will be assigned the appeal. If you’re convicted in a circuit court of a felony, then your appeal will go to the Court of Appeals.   

If the case at the circuit court level results in a sentence of death, life imprisonment, or more than 20 years imprisonment, the case is appealed directly to the Kentucky Supreme Court. 

The Appeals Process 

Once an appeal is filed, the trial court will prepare, certify and forward the official record of the trial. Once the court hearing the appeal receives the official record, the defendant and defendant’s attorney have 60 days to file a brief with the court outlining why the conviction should be overturned or reversed.  

The Office of Criminal Appeals in the Office of the Attorney General represents the Commonwealth in all criminal appeals. The office has 60 days after the defendant’s brief to submit a brief in response to arguments made by the defense.   

The relevant court overseeing the appeal will schedule a hearing, which will be open to the public. No new testimony or evidence can be submitted. The court may, in some cases, allow both sides to present brief, 15-minute oral arguments. In addition, the appellate court proceeds by examining and weighing the court record and opposing briefs. A decision is not reached at the hearing. The final decision usually comes months later. 

Factors the Court Will Consider 

Since no new evidence or testimony is allowed in a criminal appeals hearing, the court will examine the evidence already submitted in the original trial and the court’s application of the law in jury instructions and in explanations of relevant statutes. Some of the issues and terms that apply to the appeals process include:  

  • ABUSE OF DISCRETION STANDARD: This refers to the judge’s decision-making, often to admit or not to admit the evidence. If the judge’s use of discretion in any matter is found to be arbitrary, capricious, or just plain wrong in terms of the law, the appeals court can cite such abuse in its final decision.  

  • SUBSTANTIAL EVIDENCE STANDARD: The appellate court will review the decision by a jury to determine if a “reasonable person” would have found enough “substantial evidence” to support the conclusion reached.  

  • DE NOVO STANDARD OF REVIEW: This means that the appellate court will decide all the issues in the case under review as if hearing everything for the first time as if the lower court had not already rendered a decision. 

Turn to Reliable Legal Representation 

You might find yourself regretting your reliance on a public defender in your trial, and you feel that your assigned attorney failed to challenge testimony and evidence brought by the prosecutor and/or failed to offer to rebut evidence or testimony. In other words, you feel yourself to be the victim of ineffective representation, and now you’re facing the consequences.  

This certainly can be a valid reason to file an appeal, but remember that you must act quickly. If you languish in jail for a couple of months to think about past decisions and then decide you’ve been wronged, you could be out of luck unless you can find new evidence to force a retrial.  

Your best option is to contact and retain experienced legal counsel the moment you come under investigation and certainly as soon as you’ve been charged. You have 30 days to file an appeal after sentencing. Reach out immediately to the Law Offices of John Schmidt & Associates. Let’s go over what transpired during your trial, assess the grounds for an appeal, and move to the next stage of your fight for a fair trial and freedom. We proudly serve clients in Louisville, Elizabethtown, Jeffersontown, Mount Washington, Radcliff, and Shepherdsville, Kentucky.