Navigating the Court of Appeals
When appealing against a criminal conviction, a thorough understanding of appellate law is necessary to ensure a chance of success.
Lawyer Monthly speaks with Felice Harris, an Ohio appellate attorney, to shed light on the fundamentals of the appeals process. She describes the ins and outs of appeals in her jurisdiction and shares a little of her own professional development to date.
What makes appellate law necessary?
Although there is no federal constitutional right to an appeal, in Ohio, a criminal defendant has both a constitutional and statutory right to direct review of a criminal conviction. Therefore, the first challenge to a court of common plea’s final order – in a criminal case, a sentencing entry; in a civil case, a judgment entry – is an ‘appeal’. Appellate law, which is comprised of rules, statutes and caselaw, is, therefore, necessary to govern the appellate process.
Ohio’s 88 counties are organised into 12 appellate districts. Hamilton, Cuyahoga, and Franklin counties each comprise their own districts (1st, 8th and 10th, respectively). The remaining districts include multiple counties.
What are the most common avenues used to attack a criminal conviction?
A criminal defendant may file an appeal (direct, delayed, and application to reopen); motion for new trial or motion to withdraw guilty plea; and petition for post-conviction relief. A civil defendant is more likely to file an appeal (direct) or motion for relief from judgment.
What does the typical appellate process look like? Are there any common factors that might shift the standard process?
The appellate process begins with the filing of a ‘notion of appeal’, praecipe, and docketing statement. The notice of appeal must be filed in the trial court within 30 days of the journalisation of the final entry. With limited exception, failure to file a timely notice of appeal deprives the appellate court of jurisdiction to hear the appeal so meeting the filing deadline is imperative.
If the appeal is docketed on the regular calendar, the court reporter has 40 days from the date the notice of appeal is filed to prepare and file the trial transcripts. When the transcripts and record are filed with the Clerk of Courts, notice is sent to appellate counsel. Counsel then has 20 days to read the transcripts, review the court filings, research potential errors and file the defendant-appellant’s merit brief. The merit brief raises the most egregious statutory and constitutional errors found after review of the record. The plaintiff-appellee has 20 days to counter defendant-appellant’s merit brief with its own brief. After the filing of the state’s brief, the defendant-appellant has 10 days to respond with a reply brief.
With limited exception, failure to file a timely notice of appeal deprives the appellate court of jurisdiction to hear the appeal so meeting the filing deadline is imperative.
Approximately 2-3 months after the writing is complete, appellate counsel will receive notice that oral argument has been scheduled. Oral argument is counsel’s opportunity to appear before a three-judge panel of the Court of Appeals to argue the issues raised in the briefs. Oral argument is limited to 15 minutes per side and the judges will often interrupt counsel’s presentation to clarify facts or a point of law. Oral argument is the final stage of the appellate process. In most cases, the appellate court will issue an opinion 2-4 months after argument. In total, the appellate process takes approximately 9-12 months. The process is shortened if the appeal is docketed to the ‘accelerated’ calendar. Each of the 12 Ohio appellate districts have rules governing the types of cases places on the accelerated calendar.
What are the options if the appellate decision is not favourable?
An application requesting the Court of Appeals reconsider its decision may be filed within 10 days of the appellate decision. In the alternative, an aggrieved party may further appeal by filing a notice of appeal and memorandum in support of jurisdiction in the Ohio Supreme Court within 45 days of the appellate decision. The Ohio Supreme Court is not required to accept jurisdiction and, in fact, will only accept appeals that are of ‘great public interest’ or raise a substantial constitutional question. Finally, if a criminal defendant has a claim of ineffective assistance of appellate counsel, s/he may file an application to reopen the appeal in the Court of Appeals within 90 days of the appellate decision.
What are the two key types of appeals and how do they vary from one another?
Criminal appeals and civil appeals are two types of appeals generally governed by the same set of appellate rules. However, certain Ohio rules of appellate procedure apply only to criminal appeals. For example, if a notice of appeal was not timely filed, pursuant to App.R. 5(A), a criminal defendant may move the court for leave to file a delayed appeal. In addition, within 90 days of journalisation of the appellate judgment, a defendant in a criminal case may file an application to reopen their appeal based upon ineffective assistance of counsel. This remedy is also not available in civil cases.
Another very important difference between criminal and civil appeals is that civil appeals are typically referred to mediation. Shortly after the notice of appeal is filed, a court mediator will reach out to counsel for both parties to explore mediation before the appeal continues. If both sides are amenable, the appeal is stayed while the parties mediate the case. If mediation is not successful, the briefing schedule is reinstated and the appeal proceeds.
About Felice Harris
What has your experience of prosecuting misdemeanor offenses taught you? How has the experience aided your career?
Working both sides of the aisle has made me well-rounded. I have the ability to evaluate cases like a prosecutor, see the weaknesses, and understand the state’s arguments. However, because of my experience as an Ohio public defender, I am well versed in protecting defendants’ statutory and constitutional rights. Having prosecuted misdemeanour offences and defended misdemeanour and felony offences, I understand the processes, from the filing of a complaint, to release on bond, to the Crim.R. 11 colloquy. This real-world knowledge in important when reviewing for trial errors.
In 2009, you opened your first solo practice. What challenges did you face and what advice do you have for anyone looking to do the same?
Most solo practitioners join court-appointed lists when they are first starting out because it is a way to obtain clients. I did the same thing in 2009 and, as a result, my practice focused primarily on trial-level work. But I have always enjoyed the research and writing of appellate practice and, quite frankly, I missed it in those early years. Now, I concentrate my energy on appeals and post-trial motions. I would advise anyone thinking about a solo practice to think about what they enjoy and concentrate on doing that. The clients will eventually come.
What part of your job do you find most rewarding?
Helping people. Most days, I answer questions and provide procedural information and legal advice about a loved one’s criminal case. On really good days, I tell a client his or her conviction was reversed.
Felice Harris, Founder
6480 E. Main St., Suite E, Reynoldsburg, OH 43068
Tel: +1 614-887-9858
Felice Harris began her journey into law as an appellate attorney with the Office of the Ohio Public Defender. After navigating the complexities of post-conviction practice, she prosecuted misdemeanour offences with the Columbus City Attorney. She is well-trained and educated in her field and was awarded the CUNY Graduate Center Presidential MAGNET Fellowship (2003-2007) while pursuing a PhD in Criminal Justice.
Felice founded Harris Law Firm LLC in 2009 and today handles delinquency, criminal and appellate matters. She focuses solely on appeals and post-trial motions.