Notice to new members intending to register - from January 9th 2012

VinnysGirl · #1 06-28-2008, 10:17 AM

My Honey is currently at intake at coffee creek right now. He hired a lawyer, and does not feel he had very good representation. His lawyer rushed him into taking a plea, because we did not have any more money. He never wanted to take the plea, he feels he was scared into it. Can we still fight this? What are the steps we need to take to file an appeal? Who do we talk to? Even if they deny us, at least we tried. Please give me some advice!

grannyG · #2 06-28-2008, 06:54 PM

Just wanted you to know someone was reading your question. I don't have any answers, though. This is out of my scope of experience. I refused many years ago to help my brother file an appeal. And, I still have not had any dealings with this. My "thoughts", though, are that if he took a plea, he might have forfieted his rights to an appeal. I very likely could be wrong. There will be someone along with more knowledge in this area. Hang in there. I hope for your sake that I am wrong.

km_111 · #3 06-28-2008, 08:08 PM

You can try to appeal. If you hire an attorney they will tell you what grounds you have or your husband can apply for a court appointed attorney. There again they may say you have a case or not. If they say you can't appeal and you still think that he was not represented appropriately then you can file a PCR (Post conviction relief). The best thing would be for him to talk to talk to some of the guys he's in with that are appealing.

My husband's lawyer did such a crappy job at his trial the lawyer told me after the trial to appeal and just say that his lawyer did a bad job. How lame is that. The lawyer did such a poor job, didn't object when he could have, didn't follow up on lines of testimony that would have proven what my husband said happened, etc... When we appealed the attorney we got said that the trial lawyer didn't object so there was no appeal chance. The thing is that wasn't true, the lawyer had objected. So we moved on to a PCR, which they get a lawyer from the county they are in. This lawyer can't believe the stuff that has been done with my husband's case. When he filed the PCR he had about 2 inches of paperwork. Now my husband has a hearing for it late this fall. Finally things are moving.

I would think if you contacted the Court of Appeals they could head you in the right direction. You only have a certain amount of time after the judgement to file an appeal.

Oregon Court of Appeals
1163 State Street
Salem, OR 97301-2563

Phone: 503.986.5555

I found this...it might be helpful too.

"After conviction and sentencing, you have the opportunity to file an appeal of your sentence. If you were convicted based on a guilty plea, you may need to ask for "leave" or permission to appeal your conviction. If you were convicted after a trial, you have an absolute right to appeal. An appeal is not a retrial of the case, but it is an examination of the trial record to ensure that the proceedings were conducted in a fair manner. This process varies depending upon the crime, but there are always time deadlines by which you must file an appeal.

There are numerous reasons for an appeal from a guilty verdict in a criminal case, including what's called "legal error." Legal error may include:

Allowing inadmissible evidence during the criminal process, including evidence that was obtained in violation of your constitutional rights
Lack of sufficient evidence to support a verdict of guilty
Mistakes in the judge's instructions to the jury regarding your case

You may also appeal due to misconduct on behalf of the jurors, or you may appeal if there is newly discovered evidence to exonerate you."

This goes to the Oregon Department of Justice website and some info they have.
http://www.doj.state.or.us/divisions...te_index.shtml

Zelda50 · #4 06-28-2008, 10:24 PM

A Notice of Appeal has to be filed within 30 days of being sentenced. He either asks his original lawyer to file the Notice of Appeal or he asks his newly hired lawyer to file the Notice with the Court of Appeals. If his previous lawyer was court-appointed, that lawyer will send notice to the State Public Defender's Office to file the Notice of Appeal and an appeal lawyer will be appointed to represent him, if he qualifies financially. That appeal lawyer will get in touch with him to fill out the proper forms. As said in the first sentence, the Notice of Appeal has to be filed within 30 days!!

Otherwise, he'll will have to file a Petition for Post-Conviction Relief and there is a timeline on that too - I think it's 2 years but not certain.

VinnysGirl · #5 06-29-2008, 01:40 AM

he took a plea..so I am thinking he is screwed1 shit! That sucks!

Zelda50 · #6 06-30-2008, 05:55 PM

What did he want to appeal? Did he get a sentence he wasn't expecting or wasn't legal? Lose a pretrial motion before taking a plea? Just because someone pleads guilty narrows the issues for appeal but it doesn't knock out all of them. He can always file a Notice of Appeal to preserve his rights, ask for an attorney to be appointed, and then that attorney will take a look and see if he has any grounds for appeal. If it was just a straight up plea and he was sentenced within the Sentencing Guidelines and there were no pretrial motions - then he probably is screwed.

psh4321 · #7 07-03-2008, 07:10 PM

Those timelines mentioned earlier are critical so he should move quickly to get a court appointed attorney to at least file the appeal. Are you in the same county he was convicted in? You can contact the Oregon State Bar for a referral and possible first free consultation and present the facts as you know them for his advice. He may be able to give you a direction to head. If it was legal malpractice (different than legal error) there may be a case too. And you can research tons of stuff on the internet or go to a local law library and read as much as you can about the appeal process. I wish you luck--I don't think this is easy but I sure wouldn't want to discourage you from taking every step you possibly can. (Sorry about all the "he's" a woman attorney would be every bit as capable!)

Zelda50 · #8 07-04-2008, 01:25 PM

A quicker way is for him to send a letter right away to the State Public Defender's Office in Salem and give them his case number and tell them he wants to appeal and the reason. They'll file the Notice and send him the form to fill out to qualify for a lawyer at no cost. If he wants to switch to a retained attorney, at least the Notice will have been filed within the deadline. Z.

ericbrian · #9 03-29-2010, 09:52 PM

did you try post conviction relief? that is something you can look into

Scott · #10 04-01-2010, 11:26 PM

Quote:

Originally Posted by VinnysGirl

My Honey is currently at intake at coffee creek right now. He hired a lawyer, and does not feel he had very good representation. His lawyer rushed him into taking a plea, because we did not have any more money. He never wanted to take the plea, he feels he was scared into it. Can we still fight this? What are the steps we need to take to file an appeal? Who do we talk to? Even if they deny us, at least we tried. Please give me some advice!

The process for reversing a plea is a complicated one - it basically means that you have to get the judge to agree that he had ineffective assistance of counsel and to reopen the case. I have a friend who's in his 10th year of trying to do this. (Don't mean to be that discouraging...

)

If you don't have the money for an attorney, his best bet is to hit the law library as soon as he lands some where and start looking up facts. The quality of assistance in the law library is very spotty - there are some people who are real gems and others who talk big, but are real flakes. When he lands someplace, post where he is and I'll try and fine out through my inmate connections who's the person to talk to. I have a pretty good collection of friends in all the major institutions. (Check out my photo albums, I'm currently in touch with about 45 inmates in the Oregon Prison system, all of whom are A-1 good dudes...)

For a variety of reasons, unless you are paying the bill, an attorney won't really work with you on his case. What you can do, if you are really familiar with the case, is start making notes of any and everything you feel the attorney did or didn't do which would have made a difference in one way or another. That will be helpful to your friend when he starts this process. Whenever you think of anything even remotely relevant - write it down!!!. You will be amazed at what might come out of that...

Best of luck with all of this....

Zelda50 · #11 04-12-2010, 06:03 PM

In a post-conviction case, there is a timeline for filing, which is 2 years after conviction, if no appeals filed; or 2 years after the judgment on appeal. Usually the prison law library will have the forms. The petition is filed with the Presiding Judge of the Circuit Court in the county in which the inmate is housed, I believe. The inmate can file his own petition and also request an attorney be appointed to represent him, if he is indigent. Once the attorney is appointed, the attorney can amend the petition so it's in its more proper form and can help identify/clarify the issues.

If the Court determines that petition for post-conviction relief is "frivolous," they can order the inmate to pay attorney fees up to $100 and take it out of their commissary account.

You can read more about the post-convicton relief statutes at: ORS 138.510 to 138.680.

Scott · #12 04-13-2010, 09:06 AM

Quote:

Originally Posted by Zelda50

In a post-conviction case, there is a timeline for filing, which is 2 years after conviction, if no appeals filed; or 2 years after the judgment on appeal. Usually the prison law library will have the forms. The petition is filed with the Presiding Judge of the Circuit Court in the county in which the inmate is housed, I believe. The inmate can file his own petition and also request an attorney be appointed to represent him, if he is indigent. Once the attorney is appointed, the attorney can amend the petition so it's in its more proper form and can help identify/clarify the issues.

If the Court determines that petition for post-conviction relief is "frivolous," they can order the inmate to pay attorney fees up to $100 and take it out of their commissary account.

You can read more about the post-convicton relief statutes at: ORS 138.510 to 138.680.

But note there is a difference between post conviction relief and appeals - and reversing a plea. In a plea, you have basically said "Yep - I'm guilty..." and that really changes some of your rights in terms of an appeal.

Any attorney's out there feel free to weigh in on this one. Again, I think this will take a little more than the usual post-conviction forms.

138.050 Appeal from sentence on plea of guilty or no contest. (1) Except as otherwise provided in ORS 135.335, a defendant who has pleaded guilty or no contest may take an appeal from a judgment or order described in ORS 138.053 only when the defendant makes a colorable showing that the disposition:
(a) Exceeds the maximum allowable by law; or
(b) Is unconstitutionally cruel and unusual.
(2) If the judgment or order described under ORS 138.053 is in the:
(a) Circuit court, the appeal shall be taken to the Court of Appeals.
(b) Justice court or municipal court, the appeal shall be taken to the circuit court for the county.
(3) On appeal under subsection (1) of this section, the appellate court shall consider only whether the disposition:
(a) Exceeds the maximum allowable by law; or
(b) Is unconstitutionally cruel and unusual.
(4) If the appellate court determines the disposition imposed does exceed the maximum allowable by law or is unconstitutionally cruel and unusual, the appellate court shall direct the court from which the appeal is taken to impose the disposition that should be imposed. [Amended by 1969 c.198 §63; 1973 c.836 §275a; 1975 c.611 §23; 1977 c.372 §14; 1985 c.342 §20; 1985 c.348 §2; 1989 c.849 §5; 1995 c.658 §78; 1999 c.134 §3; 1999 c.788 §47; 2001 c.644 §1]

Zelda50 · #13 04-13-2010, 10:05 PM

The original post asking about appeal was in 2008. Defendants only have 30 days to file a Notice of appeal after conviction. The 2010 post asked about post-conviction relief. So both are being discussed here.

With a plea, appeals are more difficult but people can appeal how the sentence was determined. They can appeal pre-trial motions that were denied. Etc. Best to talk with the original attorney about grounds for appeal - or have the attorney file the Notice, get an attorney appointed on the appeal and then discuss it with the attorney.