A defendant who wishes to appeal a criminal conviction must inform the court of his intention by filing a notice of appeal. The notice of appeal sets into motion deadlines for various other events, leading up to the deadline to file the appellate brief. While this deadline may be extended as necessary (for more information on extending the deadline to file the appellant’s brief, read our post, How Can I Get an Extension of Time to Appeal?), in some cases defendants or their attorneys allow it to lapse.
The good news is there are options through which a defendant can attempt to seek appellate relief after the time for filing an appellate brief has expired. This post discusses three of these options.
Motion to Extend Time to File Post-Conviction Motion or Appeal
Both Wisconsin and Colorado allow defendants to seek a motion to extend the deadline to file an appeal, even after this deadline has expired. In these states, defendants must submit a motion under either Wis. Stat. § 809.82(2)(a) or C.A.R. 26(b), respectively, and the motion must state good cause for the requested extension. The threshold for good cause is higher where the motion is filed after the relevant deadline has expired. The result of a successful motion for extension is the reinstatement of a defendant’s direct appellate rights.
State Collateral Attack
Through a state collateral attack, a defendant can challenge a conviction after the time for a direct appeal has expired. In Wisconsin, collateral attacks are governed under Wis. Stat. §974.06, which provides that a defendant may pursue a collateral attack where he is in “custody” as defined by the statute, and argues that: (1) the sentence violates of the state or federal constitution, (2) the court lacked jurisdiction to impose the sentence, or (3) the sentence exceeds the maximum legal sentence.
In Colorado, collateral attacks are governed under C.R.S. §16-5-402. This statute imposes important deadlines on the filing of a collateral attack, depending on the type of conviction the defendant is attacking:
- Class 1 felonies: No limit
- All other felonies: Three years from the date of conviction
- Misdemeanor offenses: Eighteen months from the date of conviction
- Petty offenses: Six months from the date of conviction
As with Wisconsin collateral attacks, a Colorado defendant must allege that his conviction is in violation of the state or federal constitution.
Motion for Federal Habeas Corpus
A third option for post-conviction relief following the expiration of a defendant’s direct appeal rights is filing a motion for federal habeas corpus pursuant to 28 U.S.C. § 2254.
28 U.S.C. § 2254(a) requires that a federal habeas corpus petition allege that the defendant is in custody in violation of the Constitution, laws, or treaties of the United States. Additionally, a defendant may not file a petition for federal habeas relief unless he has either previously exhausted all state remedies available to him, or shows that the state corrective process is either ineffective or non-existent. 28 U.S.C. § 2254(b).
In most cases, it is best to attempt to reinstate your direct appeal rights before pursuing an alternative option. To speak with a knowledgeable attorney about your post-conviction options, contact the Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).
Due to the public nature of most criminal court records, a single bad decision can result in a permanent, detrimental mark on a person’s record. Some states make these records more readily available than others. For example, individuals can search and view Wisconsin criminal records online, for free, through “Wisconsin Court System Circuit Court Access.” Colorado does not have a similar free database, however interested persons can search Colorado records online through paid vendors. In any state, individuals can also go to the clerk of court and request to view or copy a criminal record.
What is Expungement?
Due the detrimental nature of having a public criminal record, most States offer a procedure for having certain records expunged. Through engagement, a criminal case file is sealed, and cannot be viewed without a court order.
Am I Eligible for Expungement?
Wisconsin law allows expungement in two main situations:
1) Youthful offenders – Wis. Stat. §973.015
At the time of sentencing, a court may order that a record be expunged upon successful completion of the sentence where: (1) the offender is under the age of 25 at the time of the commission of the offense, (2) the offense carries a maximum imprisonment of 6 years or less, and (3) the court determines that the offender will benefit and society will not be harmed by the expungement.
If the offender was placed on probation or sentenced to serve jail or prison time, the clerk will automatically have the record expunged following successful completion of the sentence. Conversely, if the offender was only sentenced to pay a fine or restitution, the offender must request expumgement, upon successful completion of the sentence, using form CR-266.
2) Juvenile offenders under age 17 – Wis. Stat. §938.355(4m)
Upon turning 17, an offender who has been adjudged delinquent as a juvenile may petition the court for expungement of the juvenile adjudication where: (1) he has complied with the conditions of the dispositional order, and (2) the court determines that the juvenile will benefit from, and society will not be harmed by, the expungement.
To request expungement under this circumstance, an individual must file form JD-1780.
The court may also expunge a criminal record where an offender committed a commercial sex act as a victim of human trafficking under Wis. Stat. §973.015(2m). Beyond thee three situations, a judge has no authority to expunge any other type of record.
Colorado law only allows expungement in two circumstances:
1) Juvenile records (Under the age of 18) – §19-1-306, C.R.S.
Juvenile records may be expunged unless: (1) the offender committed an offense involving unlawful sexual behavior, (2) the offender was adjudicated as an aggravated or violent juvenile offender, (3) the offender received an adult sentence, or (4) the offender failed to pay restitution stemming from a juvenile conviction.
If these circumstances are not present, a juvenile offender may request to have his record expunged by filing a Petition for Expungement of Record, form JDF-302, available here. Depending on the case, the offender may be able to file the petition immediately, or may have to wait up to five years. To determine when a petition can be filed in your case, review form JDF-301, available here.
2) Underage Drinking and Driving – §42-4-1715, C.R.S.
Underage drinking and driving records may be expunged where the offender: (1) had a BAC between 0.02 and 0.05, (2) is over age 21 at the time of the expungement request, (3) has not been convicted for any other DUI offense while under the age of 21, (4) has paid any fines and has completed any requirements of his conviction, (5) has never held a commercial driver’s license, and (6) was not operating a commercial motor vehicle at the time he committed the offense.
An eligible offender may request expungement by filing form JDF-305, available here.
If your conviction does not qualify for expungement, you may have the option of requesting that your case be sealed. To speak with a knowledgeable attorney about your expungement options, contact the Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).
This post considers the process of filing a petition for a writ of habeas corpus in state court. For an overview of federal habeas corpus, review our recent post, “Petitioning for Federal Relief Under 28 U.S.C. § 2254.”
In addition to being able to file a petition for a writ of federal habeas corpus relief, state prisoners also have the option to file a petition for a writ of state habeas corpus relief. The procedures and process of seeking state habeas corpus are governed by state statues, and vary by state.
There are several requirements that must be met in order to file a petition for state habeas corpus relief:
- The petitioner must be incarcerated,
- The petitioner must have no other state remedy available to him (either through exhaustion or expiration), and
- The petitioner must allege that he is entitled to immediate release.
A petition for a writ of habeas corpus asks the reviewing court to answer one question – is an incarceration legal. A petition for a writ of habeas corpus is not an opportunity for a court to reconsider the guilt or innocence of a prisoner. Rather, a reviewing court will evaluate the procedures used to convict and sentence a prisoner.
Prisoners do not have a constitutional right to the assistance of counsel for state habeas corpus proceedings. However, certain states including Colorado provide prisoners with the right to the assistance of counsel at certain habeas corpus hearings. In Wisconsin, petitioners can file a “Motion for Appointment of Counsel” to request appointed counsel for a habeas corpus proceeding, however there is no guarantee of appointment.
Everyone makes mistakes, even judges. If a trial court makes an error related to fact so substantial and critical that the outcome of the case would have been different, a party may seek a writ of error coram nobis. The kind of error which might result in such a writ is if the court made a mistake as to a victim’s age and imposed a conviction and judgment dependent upon that mistake (say, for example, if the court thought the victim was a minor and she was not).
A writ of error coram nobis is an extraordinary remedy of very limited scope. Jessen v. State, 95 Wis.2d 207, 213, 290 N.W.2d 685 (1980). It is addressed to the trial court, and provides the trial court the opportunity to correct its own record. In Wisconsin, a party seeking a writ of error coram nobis must establish three factors:
(1) that no other remedy is available,
(2) that the factual error he wishes to correct is crucial to the ultimate judgment, and
(3) the factual finding to which the alleged factual error is directed must not have been previously visited or passed on by the trial court.
See State v. Heimermann, 205 Wis. 2d 376, 384, 556 N.W.2d 756 (Ct. App. 1996). The Wisconsin Court of Appeals has interpreted the first factor to mean that people in custody cannot seek a writ of error coram nobis because, if they are, Wis. Stat. § 974.06 provides them a remedy. Id. Additionally, the requirement that the error has not previously been visited precludes most errors because attorneys are quick to bring important errors to the court’s attention through various avenues such as objections and post-conviction motions.
In Colorado, the writ of error coram nobis is perhaps even more rare. The Colorado Supreme Court once described this writ as “ancient . . . almost obsolete.” Hackett v. People, 406 P.2d 331, 158 Colo. 304 (Colo., 1965). The Hackett court explained that litigants should instead seek relief through a motion to set aside judgment.
Due to the limited scope of a writ of error coram nobis, this remedy is extremely rare. In most cases, an alternative post-conviction remedy will better serve a persons needs. To speak with a knowledgeable attorney about your post-conviction options, contact the Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).
Many incarcerated people share the same goal: to have their sentence reduced. While filing an appeal can eventually have this result, Wis. Stat.§ 973.19(1)(a) provides a fast track for incarcerated persons to request a sentence modification before engaging in more timely litigation.
Wis. Stat.§ 973.19(1)(a) provides that, after being sentenced, a person may move the court to modify his sentence where two factors are met:
(1) he has not yet ordered case transcripts, and
(2) he files his request within 90 days after the sentence or order is entered.
See Wis. Stat. § 973.19(1)(a). The benefit of filing a motion for sentence reduction under this statute is that, because the procedure does not constitute a “full blown appeal,” the person will likely obtain a faster decision from the trial court. However, it is important to consider that, by proceeding under Wis. Stat.§ 973.19(1)(a), a forfeits his opportunity to take a “full blown appeal” wherein he can challenge the issues as well as request a sentence modification.
Because it requires the forfeiture of such a substantial right, a sentence reduction under Wis. Stat. § 973.19(1)(a) is only appropriate where the sole claim for postconviction relief relates to the severity of the sentence. In all other instances, an appeal will likely be more appropriate.
To speak with a knowledgeable attorney about the possibility of a sentence modification, contact the Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).
Where a prisoner believes that his incarceration violates federal law, he may petition for a writ of federal habeas corpus, pursuant to 28 U.S.C. § 2254. Federal habeas petitions are often filed as a lest resort after a prisoner has exhausted all other potential remedies.
In order to be considered, a federal habeas petition must allege very specific grounds. According to 28 U.S.C. § 2254(a), the petition must allege that the prisoner is in custody in violation of the Constitution, laws, or treaties of the United States. Additionally, a prisoner may not file a petition for federal habeas relief unless he has either previously exhausted all state remedies available to him, or shows either that the state corrective process is ineffective or non-existent. 28 U.S.C. § 2254(b).
Because such a petition initiates a federal proceeding, state prisoners must allege a violation of the US Constitution. Examples of common constitutional violations include:
- Violation of a defendant’s Fifth and Sixth Amendment rights to counsel due to ineffective assistance of counsel;
- Violation of a defendant’s Fourteenth Amendment due process rights due to an improperly obtained confession; and
- Violation of a defendant’s Sixth Amendment right to a jury trial by a fair and impartial jury due to a biased juror, unconstitutional jury instructions, or insufficient evidence to sustain the jury’s verdict.
Alternatively, federal prisoners may petition for federal habeas relief based on violations of the Constitution, or various other federal laws. A successful federal habeas petition may result in a new trial, new sentencing hearing, or even the prisoner’s immediate release.
To speak with a knowledgeable attorney about the possibility of federal habeas relief, contact the Alderman Law Firm today for your free consultation at (855) 973-4169.
This article was authored by our managing attorney Kimberly Alderman-Penix and recently published in the Bi-Weekly Newsletter of the State Bar of Wisconsin. To read the full article including endnotes, click here.
The majority of requests for review to the Wisconsin Supreme Court take the form of a petition for review, filed shortly after the final disposition of a case in the Wisconsin Court of Appeals. However, there are three additional, less used vehicles through which the supreme court may exercise jurisdiction over a case: 1) petition for bypass, 2) certification by the court of appeals, and 3) original jurisdiction. This article provides a primer on the four paths cases may take to get to the supreme court, each of which is available in limited situations.
Petitions for Review
The most common way for a case to get before the supreme court is through a petition for review following a loss in the court of appeals. Petitions for review ask the supreme court to exercise its discretionary review on a particular case.
Importantly, the supreme court will not take a case simply because the matter was incorrectly decided or justice was not done in the lower courts. Rather, the supreme court will consider whether:
“(a) A real and significant question of federal or state constitutional law is presented.
(b) The petition for review demonstrates a need for the supreme court to consider establishing, implementing or changing a policy within its authority.
(c) A decision by the supreme court will help develop, clarify or harmonize the law, and
a. The case calls for the application of a new doctrine rather than merely the application of well-settled principles to the factual situation; or
b. The question presented is a novel one, the resolution of which will have statewide impact; or
c. The question presented is not factual in nature but rather is a question of law of the type that is likely to recur unless resolved by the supreme court.
(d) The court of appeals’ decision is in conflict with controlling opinions of the United States Supreme Court or the supreme court or other court of appeals’ decisions.
(e) The court of appeals’ decision is in accord with opinions of the supreme court or the court of appeals but due to the passage of time or changing circumstances, such opinions are ripe for reexamination.”
A petition for review must be filed within 30 days of the adverse decision in the court of appeals. This deadline cannot be extended. If the opposing party wishes to respond to the petition for review, it has 14 days (plus three days for mailing) from the date that the petition was filed to do so. The time it takes for the supreme court to issue a decision granting or denying review will vary depending on the supreme court’s schedule.
Petition for Bypass
In limited circumstances, a party may petition the supreme court for direct review of a matter already briefed in, but not yet decided by, the court of appeals. A matter is appropriate for bypass when it meets one or more of the criteria for review outlined in Wis. Stat. section 809.62 , as reproduced above. Additionally, the supreme court must determine that the issue is one it would have selected for review regardless of the outcome in the court of appeals. Finally, petitions for bypass may be granted when the supreme court determines that there is a need to hasten the appellate process.
A petition for bypass must contain a statement of reasons for bypassing the court of appeals. It must be filed no later than 14 days following the filing of the respondent’s brief. The opposing party may file a response to the petition to bypass within 14 days after the service of the petition.
The filing of the petition for bypass stays proceedings in the court of appeals, preventing that court from taking under submission the appeal. If the petition is denied, the original appeal to the court of appeals will continue as though the petition to bypass had never been filed.
Certification by the Court of Appeals
If the court of appeals believes that a particular case presents a question of law that belongs before the supreme court, it may certify an appeal to the supreme court. Certification means the court of appeals, instead of issuing its own ruling, asks the supreme court to take the case directly because the case presents a question of law that belongs before the highest state court.
A recent example of certification by the court of appeals occurred in Madison Teachers Inc. v. Scott Walker (appeal no. 2012-AP-2067). In this case, the court of appeals certified an appeal to the supreme court “because of its sweeping statewide effect on public employers, public employees, and taxpayers and because of the need to clarify and develop law relating to associational rights and the home-rule authority of municipalities.”
A certification by the court of appeals will be considered using the same criteria as a petition for review or bypass. Importantly, bypass will be attractive to the supreme court when there is a demonstrated need to quicken the appellate process, existing precedent on the issue is scant or conflicting, or the justices determine they will want to consider the issue, regardless of how the court of appeals ultimately rules. For the supreme court to consider an issue on certification, at least four justices must agree to hear it.
Finally, a party may move to commence an original action in front of the supreme court under original jurisdiction. “The concept of original jurisdiction allows cases involving matters of great public importance to be commenced in the supreme court in the first instance.”
Importantly, the supreme court is not a fact-finding body. Therefore, it will not take cases that involve disputes of fact. Rather, all parties to the action must agree on the facts that the court will consider.
A petition for the supreme court to take jurisdiction of an original action must include:
“(a) A statement of the issues presented by the controversy.
(b) A statement of the facts necessary to an understanding of the issues.
(c) A statement of the relief sought.
(d) A statement of the reasons why the court should take jurisdiction.”
A recent example of an action for original jurisdiction in the supreme court occurred in State ex rel. Ismael R. Ozanne v. Fitzgerald. In this case, the supreme court exercised original jurisdiction in order to determine whether the Wisconsin Legislature acted unconstitutionally when it enacted 2011 Wisconsin Act 10. The court granted the petition for original jurisdiction after determining that a lower court “usurped the legislative power which the Wisconsin Constitution grants exclusively to the legislature.”
To exercise original jurisdiction, at least four justices must agree to hear the case. In contrast to petitions for bypass and certifications, the criteria for granting original jurisdiction are not statutory, and are less clearly defined.
If the supreme court does not deny the petition outright, it may order the respondent to file a responsive brief. The response will be due within 14 days of service of the order (rather than service of the petition). Additionally, the court may require an oral argument on the issue of taking original jurisdiction. Should the court decide to take original jurisdiction, it will establish a briefing schedule, and may or may not request oral argument on the issue to be decided.
Considerations for Appellate Attorneys
The Wisconsin Supreme Court hears very few cases regardless of which of these jurisdictional paths is pursued. The cases it does hear tend to be those that trigger its institutional responsibilities, rather than those in which justice may not have been done in a lower court. With a working knowledge of the four ways by which a case can come before this state’s highest court, an appellate attorney can quickly identify cases appropriate for high court review and more effectively advise clients on appellate options.
There are many reasons why a person may miss a deadline. Especially when proceeding ‘pro se’ (without an attorney), there are many deadlines and rules that can be difficult to keep track of. It is therefore important to know which deadlines can be extended, and which cannot. In the context of an appeal, one very important deadline is the deadline to file the pleading that informs the courts that you will be appealing an order in the trial level court. In most jurisdictions, this document is referred to as the Notice of Appeal.
Each state has its own statute governing the motion to extend the deadline for filing a notice of appeal. In Wisconsin, for instance, it is Wis. Stat. § 809.82(2)(a). This statute provides that the court may extend this deadline “upon good cause shown.” Importantly, the good cause must be related to the delay in filing the Notice of Appeal, rather than the merits of the case itself. See State v. Evans, 2004 WI 84, 273 Wis.2d 192, 682 N.W.2d 784 (Wis., 2004). There is no deadline for filing a motion under this statue, however the earlier it is filed, the better chance it will be granted.
In Colorado, C.A.R. 4(a) governs when a Notice of Appeal may be filed after the time to do so has expired. This statute provides that such a motion will only be granted upon a showing of “excusable neglect.” Excusable neglect exists where a litigant can show that a reasonably prudent person under the same circumstances would have missed the same deadline. If a party is successful in showing excusable neglect, the time for filing a notice of appeal will be extended by no more than 35 days.
Although it is possible to ask the court to extend the deadline to file a Notice of Appeal after the deadline has passed, this is the exception, not the rule. The court has complete discretion to grant or deny such a motion, and these decisions are rarely overturned on appeal. To avoid these risks, it is best to file your Notice of Appeal on time.
Restraining (or civil protection) orders are temporary orders issued by judges in order to protect a particular person or entity. If you believe that a person has unnecessarily obtained a restraining order against you, you may be able to appeal (or otherwise fight) the order. Importantly, no matter how frivolous you believe a restraining order may be, make absolutely certain you abide by all its terms. Any violation, however slight, may result in arrest, fines, or even jail time.
Because the chances of success on appeal are always statistically low, it may be advisable to exhaust any alternative options before pursuing an appeal. One such option is a motion for reconsideration. A motion for reconsideration asks the trial court to review and amend its findings and conclusions. This is a good option where there is newly discovered evidence, or where the trial court misapplied existing law.
If a motion for reconsideration is inappropriate or unsuccessful, it may be time to file an appeal. In Wisconsin, for example, a party can file an ‘appeal by right’ asking the Wisconsin Court of Appeals to review the final decision granting the restraining order. Wis. Stat. § 808.03. Importantly, most issues must be preserved before they can be appealed. This means that, at the hearings in the trial court, a party or attorney must raise any objections to potential errors. If you plan to file an appeal of a restraining order, be sure to keep track of applicable deadlines. For example, in Colorado, the appealing party must file his notice of appeal within 49 days of the entry of the restraining order. C.A.R. 4(a).
Under normal circumstances, the pathway to a supreme court involves stops at a trial level court, and then an appellate level court. Because supreme court review is discretionary, many cases travel through the trial and appellate level courts, only to never achieve supreme court review.
In a very limited number of cases, however, an action may commence immediately in the supreme court. The ability of a state or federal supreme court to hear a case without the case moving through the trial or appellate level courts is through original jurisdiction.
In respect to the United States Supreme Court, original jurisdiction is governed by 28 U.S.C. § 1251. Under this statute, the United States Supreme Court has original and exclusive jurisdiction over controversies between two or more States. Additionally, this statute provides the United States Supreme Court with original, nonexclusive jurisdiction over the following types of cases:
(1) Actions in which one of the parties is an ambassador, other public minister, consuls, or vice consul of foreign states;
(2) Actions between the United States and a State;
(3) Actions by a State against the citizens of another State
Original jurisdiction also exists in state supreme courts. In state supreme courts, the procedure for utilizing original jurisdiction is determined by state statute. In Wisconsin, for example, a party who wishes to utilize original jurisdiction must file a motion to commence an original action in front of the Wisconsin Supreme Court. Then, a minimum of four justices must agree to hear the case. Similar to in the United States Supreme Court, the criteria for granting original jurisdiction in the Wisconsin Supreme Court are statutory.
It is important to remember that original jurisdiction is the exception, not the rule. To speak with a knowledgeable attorney about original jurisdiction, or the best way to get your case in front of the supreme court, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).