When it comes to post-conviction relief and to appeal a criminal conviction, there are many elements involved. This article explains in detail what each of these terms mean and how your defense attorney at Colburn Hintze Maletta can help you appeal a courts decision and overturn a conviction.
There are four ways to undo a guilty plea in the Arizona state court system. The first way is to simply withdraw the plea. This can be done prior to the court accepting the plea. The second method is to file a Motion to Withdraw the Plea to Avoid a Manifest Injustice. The third is to file an appeal. And fourth is through Rule 33, Post-Conviction Relief (PCR).
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How to Overturn a Criminal Conviction in the Arizona Court System
Motion to Withdraw a Plea for Manifest Injustice
A motion to withdraw a plea may be filed to avoid a manifest injustice. The court then has discretion to let the defendant out of the plea to avoid that manifest injustice. A manifest injustice would be an outcome that is obviously unjust.
An involuntary plea, such as a coerced plea, would be an example of a manifest injustice.
The odds of undoing the plea are better prior to sentencing. However, it is still possible to undue the plea after sentencing. This motion is filed with the same judge and court that accepted the plea.
Overturning a Plea by Filing an Appeal
After a person has been convicted pursuant to a trial, an appeal is the next course of action to overturn the conviction. An appeal cannot be filed after a plea of guilty because a plea of guilty waives appellate rights.
The avenue for overturning a conviction after a guilty or no contest plea is a Petition for Post-Conviction Relief (PCR).
An appeal, on the other hand, allows the defense to challenge any mistakes made on the record. The record consists of transcripts, motions, and legal rulings. Any matters outside of the record cannot be appealed and must be challenged via PCR.
Step 1:
The first step in an appeal is to order the complete record. The transcript will be voluminous and will likely consist of several hundred to several thousand pages, depending on the length of the trial.
Step 2:
The second step is to talk to trial counsel and ask what issues he or she thought there were in the trial that would be appropriate for an appeal. It is a prudent idea to have another lawyer, rather than the trial attorney, do the appeal so that a fresh set of eyes are on the case. A different attorney may discover an issue that was overlooked by the original trial counsel.
Step 3:
The third step is to go through the record in detail, which is a difficult and time-consuming process. It must be read with great attention to detail to spot any legal issues for appeal. We are looking for errors such as: mistakes in jury selection, mistakes in ruling on legal pre-trial legal motions, or mistakes in trial rulings.
An unskilled trial attorney can do a great deal of damage to an appellate case. A trial lawyer’s failure to object or raise legal issues during trial will waive them for appellate purposes, unless they are fundamental errors. Colburn Hintze Maletta has an impeccable record of knowing when to spot issues with the prosecution.
If the trial lawyer failed to object or raise legal issues, a rule 33 PCR for ineffective assistance of counsel will need to be filed after the appeal is completed. It is imperative that the appellate attorney is experienced in appeals. An inexperienced appellate attorney may fail to identify legal issues in a case because he or she may not know those issues can be overturned on appeal.
Step 4:
The fourth step in an appeal of a criminal conviction is to research the applicable case law for every legal issue that was spotted in the transcript. This applicable case law is what is known as “precedent.” If there is no relevant precedent in Arizona, we will have to look to other states’ cases or Federal cases. Out-of-state and Federal cases are not binding precedent for Arizona state court cases; they are only considered persuasive.
Step 5:
The fifth step of an appeal is to write the appellate opening brief and ask for an oral argument. The prosecutor will draft an answering brief and then the defense will file a reply brief.
An appeal from a City or Justice Court should be filed in the Superior Court Lower Court of Appeals. The Lower Court of Appeals will consist of a single judge, who will review the appeal. An appeal from Superior Court should be filed in the Court of Appeals Division I or II, depending on the jurisdiction of the Superior Court. The Court of Appeals will consist of a three-judge panel.
Rule 33 Post Conviction Relief – Formerly Referred to as Rule 32
A Rule 32 / Rule 33 post-conviction relief, or PCR for short, is a brief that can undue a conviction for ineffective assistance of counsel, an involuntary plea, unconstitutional or illegal sentence, constitutional violations, lack of jurisdiction, newly discovered evidence, and for several other reasons. A Rule 33 PCR would be filed after all appellate rights were exhausted. In other words, after an appeal was lost. A PCR, unlike an appeal, can also be filed after entering a plea agreement.
A Rule 33 PCR, unlike an appeal, allows you to go outside of “the four corners of the page,” meaning an attorney can look for issues outside of what is physically in the record.
Affidavits, which are sworn, signed, and notarized statements, are allowed. Examples of what would go into an affidavit would be statements that the previous attorney failed to maintain contact with their client, did not convey the plea offer, or failed to explain the range of sentence that the accused was facing.
In certain circumstances, overturning a guilty plea can actually harm the client. In a case where the client received a favorable plea, overturning the plea can put them back on a trial track. If the client was facing 100 years if convicted at trial, overturning a two-year sentence that was obtained by a plea exposes them, once again, to the 100-year sentence.
Prior to filing a PCR in a case in which there was a favorable plea, the attorney and client need to be confident in their ability to win a pretrial motion, win at trial, or have a new, better plea worked out in advance of filing the PCR, such as time served.
The first step that an Arizona Rule 33, formerly Arizona Rule 32 Post-Conviction Relief attorney will take is ordering the complete record. This will be necessary if attempting to overturn the plea. If a PCR is being conducted after a case was resolved by a trial, however, the attorney would already have the transcript because it would have previously been ordered to complete the appeal.
The second step an Arizona PCR lawyer should take is to talk to the client. The client may have information that is not obtainable from reading the transcript. The attorney can summarize relevant client-provided information in an affidavit. The affidavit would then be filed with the PCR.
The third step of a PCR is to talk to trial counsel about potential issues (assuming that a trial was conducted in the case). In certain cases, trial counsel may admit that they made a mistake and “fall on their sword” for their client.
The fourth step of filing for Post-Conviction Relief in Arizona is to go through the transcript or affidavits in detail.
The fifth step is to research all of the applicable case law pertaining to every legal issue. An experienced Post-Conviction Relief lawyer will be able to sift through the case law to pick out the relevant precedent for a particular case.
The sixth step of a PCR is to write the brief and ask for an evidentiary hearing.
The seventh step of filing a Petition for Post-Conviction Relief is to present evidence at the evidentiary hearing. Not all PCRs will make it to an evidentiary hearing.
An evidentiary hearing in a PCR Rule 33 is distinguishable from an oral argument in an appeal. In an oral argument, no evidence is presented. It is simply an argument to persuade and inform the judges. In an evidentiary hearing, evidence is presented, and witnesses can testify and be cross examined.
A post-conviction relief is filed in the same PCR Court where the plea or trial took place. The judge will be the same judge that accepted the plea or conducted the trial.
Why Hire a Defense Attorney to Appeal a Conviction – Rule 32 PCR
The lawyers at Colburn Hintze Maletta, PLLC, have a great deal of experience in appeals and post-conviction relief. Attorney David Maletta is a former Assistant Arizona Attorney General appellate prosecutor. He has drafted and argued over 90 appeals and PCRs as both a prosecutor and a defense attorney. It is very unusual to meet a defense attorney who has done more than five appeals in his or her career.
Mr. Maletta has been published in appeals; meaning that when he won, he convinced the court that the binding precedent case law was wrong and needed to be changed in favor of his client. In that scenario, the appellate case then goes down in the case books as new precedent.
Very few attorneys have been published from an appellate case. Our attorneys have handled appeals in the Superior Court Lower Court of Appeals, the Arizona Court of Appeals Division I and II, and the Arizona Supreme Court.
Call our Phoenix appellate lawyers at (602) 825-2500 for a free attorney consultation to see how we can help you fight to undo your conviction.
Timothy Hintze is a well-respected and aggressive trial lawyer having represented clients in courts throughout the state of Arizona. He has litigated hundreds of criminal matters ranging from complex felony cases to misdemeanor offenses, as well as a dedicated advocate for family law clients. Tim was also awarded the distinction of being named a Super Lawyers Rising Star and selected by the National Trial Lawyers Association as a Top 40 Under 40 Attorney.
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