Regardless of the title, this page is not limited to appeals; rather, it discusses all of the procedures used to attack or modify a judgment, conviction, or sentence, including appeals, post-conviction relief, habeas corpus, and a few others.
An ‘appeal’ is a very specific legal process; it addresses whether the trial judge made a mistake that affected the judgment issued after a trial. That’s all it is. (On rare occasions, an appeal occurs before a final judgment, but it is still about the mistakes of the trial judge.) An appeal is not about whether a witness lied, or the prosecutor did something unethical or improper, or about whether an attorney was competent, or even about whether the trial’s outcome was correct. None of those issues can be raised directly on appeal. Sometimes they can be raised indirectly if the matter was brought to the judge’s attention and the judge failed to address it correctly.
Injustices or illegalities that do not relate to the judge’s choices (incompetence of your attorney, misconduct by the police or prosecutors, an involuntary guilty or no-contest plea) are subject to other procedures, such as post-conviction relief or federal habeas corpus. Mistakes in calculating your sentence, or denial of medical care or other illegal treatment by prison authorities, can be addressed in state habeas corpus. Clerical or other errors in the judgment can be raised by asking the judge who issued the judgment to correct it.
All of the procedures discussed here are subject to time limitations. Some of them are short (if you don’t file a notice of appeal within the 30- 60- or 90-day limitation applying to that case, the right to appeal is probably lost forever) and some of them are confusing (the Oregon post-conviction statute of limitations is two years, but if you wait for the full two years to file, the one-year federal statute of limitations will already have run out, with possibly disastrous consequences.) Don’t guess about when the time period begins, when it stops running temporarily, or when it ends, because those issues are complex and mistakes can be impossible to fix. You need to talk to an attorney well in advance, so you have enough time to decide what you want to do and the attorney has enough time to prepare.
Oregon Supreme Court is now streaming and webcasting oral argument
On June 13, 2012, I argued State v. Phillips in the Oregon Supreme Court. The issue in Phillips is whether, when the defendant might have acted as both both the principal and an accomplice to the same crime, the jury has to agree on one or the other before returning a verdict of guilty. I think that the jury does have to agree, and I also think that result is compelled by prior Supreme Court cases, especially State v. Boots, 308 Or 371, 780 P2d 725 (1989). If I’m right, Mr. Phillips is entitled to a new trial because the jury was...
read moreIn State v. Phillips, Oregon Supreme Court accepts review to discuss different theories of criminal liability.
The Oregon Supreme Court has taken review of my case State v. Phillips. The Supreme Court only accepts review in a small percentage of appellate cases, usually only to resolve important and unanswered questions of Oregon law. The issue in Phillips is whether the jury must agree on a basis to convict when a criminal defendant is accused of both committing a crime and assisting another person to commit the crime. That issue could have far-reaching consequences, about how detailed an indictment must be, about how many crimes arise from related...
read moreIn Post-Conviction Relief appeal, Oregon Court of Appeals will consider actual-innocence claim
I represent in a post-conviction relief appeal a fellow who was convicted of sex offenses ten years ago. The victim of the offenses has since come forward to deny that my client committed the offenses; rather, she was persuaded to accuse my client by a relative who disliked my client. In the post-conviction trial court, the state moved to dismiss, arguing that post-conviction relief is not available for a claim of actual innocence. The trial court agreed and dismissed, and I appealed. In front of the Oregon Court of Appeals, the state sought...
read moreNine things to know about Oregon criminal appeals
1. Unlike a trial, an appeal is not about the facts At trial, the parties offer evidence to resolve issues of fact. In a jury trial, the jury listens to the evidence and decides whether to believe it. When evidence is in conflict (one witness says that the defendant was not provoked before hitting the victim, and one witness says that the victim hit the defendant first) the jury decides whether to believe one version, the other, or neither. The jury is told what law to apply, and it reaches a verdict by deciding the facts and...
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