The Law Offices of John Ferrara

Can I Appeal A Case Where I Pled Guilty?


Many guilty pleas require a defendant to waive or to give up his right to appeal. This waiver severely reduces one’s right to appeal a conviction. It is important to note, however, it does not eliminate one’s right to appeal. First, appellate courts will not enforce the waiver of a right to appeal, unless the waiver of appeal was knowingly, intelligently, and voluntarily made. (People v. Seaberg, 74 N.Y.2d 1 [1989]). The factors the court will consider when deciding whether to uphold a waiver of appeal are the seriousness of the crime, the competency, experience and actual participation by counsel, the rationality of the plea bargain, the pace of the proceedings in the particular criminal court, and whether the defendant consulted with his attorney about the constitutional consequences of the guilty plea. (People v. Harris, 61 N.Y.2d 9, 16 [1983]).

Secondly, there are several rights that cannot be waived. For example, if the sentence is illegal, the appellate court will hear the appeal, despite the waiver of appeal. (People v. Callahan, 80 N.Y.2d 273 [1992]) Additionally, if you want to search for a violation of the constitutional right to a speedy trial, the appellate court will hear the case despite the waiver of appeal. (People v. Callahan, 80 N.Y.2d 273 [1992]). If the record establishes the guilty plea was not knowing, voluntary, and intelligent, the appellate court will reverse. (People v. Lowe, 133 A.D.3d 1099 [3rd Dept. 2015]). If the defendant was promised a particular sentence and through no fault of his own the trial court imposes a harsher sentence, the appellate courts will afford a remedy. (People v. Perez, 146 A.D.3d 494 [1st Dept. 2017]).

Beyond the waiver of appeal however, guilty pleas generally impose great challenges to the appellate counsel who must search for a good issues to appeal. Simply put, a guilty plea provides a trial judge with fewer opportunities for error. But there are still some that arise frequently. For example, if the facts admitted by the defendant are insufficient to establish the crime, and the defendant moves to lower court to vacate the conviction, the appellate court will address the insufficiency. (People v. Pellegrino, 60 N.Y.2d 636 [1983]).

The defendant has to make a motion in the trial court. He has to make the application before the trial court to vacate the guilty plea. He cannot just admit when something is missing, or he didn’t admit to the full crime. He must also make that motion. Another type of appeal we see often despite a guilty plea argues the guilty plea was unknowing, involuntary, and unintelligent, the appellate courts would reverse it. It’s hard to tell you exactly what would constitute not knowing, voluntary, and intelligent, but when you read the transcript you can sometimes tell that the defendant is extremely confused, and really doesn’t know what he is doing, or that the trial court was very quick in going over the rights that the defendant was forfeiting by pleading guilty. These become good cases for an appeal of a guilty plea.

If the defendant was promised a particular sentence, and through no fault of his own but trial courts imposed a harsher sentence, the appellate courts will afford a remedy. It’s important to remember this has to be through no fault of the defendant. If the defendant does not show up for sentencing, if he was out on bail, or if the defendant does not cooperate with probation, or if the defendant commits a new crime and the judge imposes a more harsh sentence, then it’s not necessarily going to be a case where the appellate lawyer will obtain a remedy in the appellate court. A remedy will only follow if the harsher sentence is through no fault of the defendant.

If any of those other things happen, either a new arrest, or a failure to show up, or a failure to cooperate, we have to look closely to the plea proceedings. If the defendant was warned that these events would result in a harsher sentence, then the defendant cannot complain when he receives a harsher sentence because of these events.

Often, the client will tell appellate counsel of the things he was advised of by trial counsel, or other matters that do not appear on the trial record. By example the client will tell appellate counsel of promises made off the record by trial counsel. When the promise does not occur, the client request some remedy. Unfortunately if it did not occur on the record, it is difficult to enforce and to obtain a remedy from the appellate court.

However, there is still another remedy. One could prepare affidavits about these promises, or these other things that may have taken place off the record, and then file a motion before the trial court for the purposes of having a hearing. If the trial courts find the information to be credible, if the defense lawyer admits he made the promise but he was got the law wrong and wasn’t able to deliver on that promise, then the defendant may have a remedy. It wouldn’t be an appellate remedy, but it would be a remedy after the conviction anyway. However, those things that come off the record need to be treated differently.

What Is The Timeframe That Someone Has To File An Appeal?

One must file the notice of appeal within 30 days of conviction. This notice is usually one sheet of paper, and isn’t complicated. It simply tells the courts and the opposing attorneys that one intends to appeal this case. After the notice is filed, the process differs depending upon what court a defendant is appealing from, and what court the defendant is appealing to. Further it differs depending upon whether the appeal is “of right” or “of permission” to the appellate courts. The cases that require permission are appeals from non-final orders and from motions to set aside a verdict handed down by the trial court.

The important thing to remember is that the notice of appeal has to be filed within 30 days, or else one can lose the right to appeal. After that, given that there are so many different variables, it’s hard to give a general timeframe. The appellate counsel has to look at the statutes, and the court rules of the various courts you are appealing to and from, to get the timeframes. The things that have to be done are the creation of that record, and sometimes that can be a very lengthy process. I’ve had appeals that have taken well over a year to resolve, because it just took a very long time to get the transcripts, and you cannot go forward on the appeal without the transcripts. There are timeframes, but I have found that the appellate courts are usually fairly liberal in extending those timeframes, as long as counsel explains why. The absence of a transcript is a generally very understood reason for that, and they extend it fairly routinely, but the first thing, which is filing the notice of appeal, has to be done within 30 days. It’s fatal to not do that, but everything else is generally forgivable.

For more information on Appealing A Guilty Plea In New York, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (845) 794-1303 today.

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