Information on Oklahoma Direct Appeals and Judicial Review by Tulsa Criminal Lawyer Kevin Adams

A LEGAL INFORMATION
PAMPHLET

DIRECT APPEALS

JUDICIAL REVIEWS

Authored by:

Kevin D. Adams

The information provided in this pamphlet is designed to provide the reader with basic legal information. This information is not intended to be legal advice and you are encouraged to consult an attorney regarding your specific legal needs.

DIRECT APPEALS
OVERVIEW

Those individuals convicted of a crime at a jury trial or a bench trial are entitled to appeal the conviction to the Oklahoma Court of Criminal Appeals. (COCA) The purpose of an appeal is not to challenge the jury’s factual determination but to ensure that the rights of the accused were not violated during the trial. In most cases the appellate attorney will raise issues that challenge legal rulings made by the trial judge. However, if appropriate the appellate attorney can raise propositions of error that do not necessarily involve rulings by the trial court such as newly discovered evidence, prosecutorial misconduct and ineffective assistance of trial counsel.

Most cases are affirmed on appeal. Successful appeals are typically those appeals that raise serious errors of law that significantly affect the rights of the accused. Errors committed in the trial which do not result in miscarriages of justice or constitute in substantial violations of constitutional of statutory rights are known as Harmless Error. When considering issues to raise on appeal one should keep the Harmless Error Doctrine in mind.

When the State seeks to convict one of its citizens of a crime and deprive that citizen of his or her life or liberty, the State should, at the very least, be required to follow the law. Quite appropriately, this Court applies the " harmless error" doctrine to errors which neither result in a miscarriage of justice nor constitute a substantial violation of a constitutional or statutory right. Thus, our law does not require perfection by the State in prosecuting a citizen. We can, and do, frequently deem harmless those errors which do not substantially violate an individual's rights. Flores v. State, 1995 OK CR 31.

THE PROCESS

Within 10 days of the formal sentencing a Notice of Intent to Appeal, Designation of the Record and Advisory Propositions of Error must be filed with the trial court. Before the Designation of Record is filed arraignments must be made with the Court Reporter to cover the costs of the transcripts. If the individual is without the funds to pay for the transcripts they are entitled to have the cost of the transcripts paid by the state. Since Appeals are generally restricted to issues that have been raised in the record, the designation of the appropriate portions of the record are an important step in the process.

Within 90 days of the Formal Sentencing a Petition of Error must be filed with the Court of Criminal Appeals. This is an important step and if not done within 90 days of the sentencing the appeal will be dismissed for lack of Jurisdiction.

Once the record for the appeal is completed the Court Clerk of the county of conviction will send a notice of completion to the Court of Criminal Appeals. Once the notice of completion is received by the Court of Criminal Appeals the court will send a notice to transmit the record.

The appellant’s brief is due 60 days after the Notice to Transmit the Record is filed. (the Appellant is the defendant). If the attorney for the appellant needs more time they can request additional time from the Court. Typically the Court will only grant two 30 day extensions, for a total of 60 days of additional time.

Within in 60 days of the filing of the appellant’s brief the state must respond by filing the Answer brief with the Court. Typically the Court will grant two 30 day extensions to the state, for a total of 60 days of additional time.

After the Answer brief is received the Appellant (The Defendant) may file a reply brief that responds to the issues raised in the Answer Brief. The Appellant may not raise new issues in the reply brief, in the brief the Appellant is only allowed to respond to the issues raised in the Answer Brief filed by the state.

After reviewing the record and the briefs the Court will issue a decision on the case. It could take the Court up to 6 months to issue that opinion. The entire process from the sentencing date to the decision by the Court of criminal Appeals could take anywhere from 10 to 18 months depending on how many extensions are issued in the case.

APPEALS AT
STATE EXPENSE

Individuals without the funds to hire an attorney to represent them on appeal are entitled to be represented on appeal at state expense. In order to be represented on appeal at state expense a defendant must file out a Pauper's Affidavit and based upon that affidavit the Trial Court will make a determination that the individual is “indigent” or without the funds to hire an attorney to represent them on appeal.

Once the Court has made a determination of indigency the Court will appoint that individual an attorney at state expense or and order the transcripts prepared at state expense. Just because a defendant had a private attorney representing them at trial does not mean that they are not entitled to be represented on appeal at state expense. The determination must be made on a case by case basis based on the Pauper’s Affidavit.

FACTORS TO CONSIDER
IN HIRING AN ATTORNEY

If you or your family have access to the internet, the Oklahoma Bar Association has a web page that may assist you in making this decision. To go directly to that page go to:

www.okbar.org/public/brochures/lawyerbroc.htm

FINDING A LAWYER

The Oklahoma Bar Association has a service that is free to the public and may assist a individuals in finding an attorney. This service allows for an individual to find a lawyer who practices in a specific area of law in a particular county in Oklahoma. That service is located on the internet at:

www.OklahomaFindALawyer.com.

While the bar association’s web site may assist you in finding a lawyer the service will not give you any indication of that lawyers ethics, ability or reputation. However, Martindale–Hubbell is a legal directory that has been in existence for over a century. Martindale-Hubbell offers a peer review rating service that is free to the public. Not all of the lawyers listed on Martindale-Hubbell are rated, but those who are have been rated have been given a rating through the use of confidential surveys sent to lawyers in the community that the lawyer practices in. It is a great way for those who do not know who to hire to receive a non-biased opinion on a lawyer they are considering hiring.

www.Martindale.com

JUDICIAL REVIEWS

The judge who imposes a sentence or enters an order revoking probation can modify that sentence for a period of 12 months. The request for the modification of the sentence is commonly known as a “judicial review”.

Not everyone qualifies for a judicial review. The statute specifically excludes convicted felons who have been in confinement in any state prison system for any previous felony conviction for a period of 10 years prior to the imposition of the sentence they are seeking to modify. The statute does not specifically exclude individuals who have been incarcerated in the federal prison system.

In order to obtain a judicial review a motion must be filed with the sentencing court requesting a modification of the sentence. (Sometimes at sentencing a court will set a judicial review without a motion being filed.) If a defendant is concerned that a judge may deny his or her request for judicial review at the time of sentencing the defendant may want to wait until he or she has had an opportunity to establish a positive record in the Department of Corrections before making the request. If the court agrees to consider a modification, the court will set the matter for a hearing. After the court sets the matter for a hearing the Department of Corrections will be notified, DOC will prepare a report outlining that individual’s record since being incarcerated and making a recommendation to the judge as to whether the modification should be granted or denied. The judge is not bound by the recommendation.

A judicial review can be sought whether the individual entered a plea of guilty or was convicted at a trial.

Motions requesting judicial reviews may include; positive evaluations by DOC staff, certificates of any programs completed, letters from family members or responsible members of the community, offers of employment if the modification is granted and any other information that may persuade the sentencing judge to consider a judicial review. It is important to include such information in the motion requesting the review and not wait for DOC to include the information in the report it prepares for the Court. The reason it is important to include such information in the initial filing is that the DOC report is only prepared if the Court agrees to consider the modification. If the Court is not persuaded to consider the modification by the motion requesting the modification than the Court will never see a DOC report or their recommendation.

The judge has broad powers to modify the sentence if the Court is “satisfied the best interests of the public will not be jeopardized.” The statutory basis for judicial reviews is Title 22 O.S. § 982 (a).

Copyright ©2006 Kevin D. Adams

Disclaimer: Kevin D. Adams only provides legal advice after having entered into an attorney client relationship, which this website specifically does not create. Only after having entered into a representation agreement with Kevin D. Adams will an attorney-client relationship have been created. It is imperative that any action taken by you should be done on advice of legal counsel.* Because every case is different, the descriptions of outcomes and cases previously handled are not meant to be a guarantee of success.

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