H. Michael Steinberg has 38+ years of experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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Factoring In An Appeal In A Colorado Criminal Case

Factoring In An Appeal In A Colorado Criminal Case By H. Michael Steinberg Colorado Criminal Defense Lawyer

Introduction – The Words Quietly Spoken By Criminal Defendants Going To Trial

“If I lose at trial, I can always appeal.”

The decision to go to trial in a Colorado criminal case is always a difficult one. A key variable in that decision may be the mistaken belief that if there is bad result, such as a verdict of guilty, an appeal of that conviction is the cure for that risk.

The truth, based upon the evidence, is exactly the opposite.

Some call the belief in the “cure all” promise of the appeal following the loss at trial, the “appeal syndrome” and this area of criminal law is filled with misconceptions.

This article is intended to explore this complex and emotional area of criminal law.

The “Appeal Syndrome” The Feeling Of Hope … Is Very Real

The decision to enter a guilty plea is one of the few fundamental choices that must be decided by the defendant alone with the advice of his or her lawyer.

It is “human nature for defendants to wonder what would have happened if they had put the Government to its proof and later to rue their decisions to plead guilty.

But, defendants are not allowed, absent coercion or mistake, to “renege on plea agreements on the basis that they have miscalculated their risks and benefits or have belatedly discovered a new defense.”

                                                          United States v. Allard, 926 F.2d 1237, 1243 (1st Cir.1991),

I engage in many consultations with people calling me after they have entered a plea agreement which has been signed, the guilty plea accepted, and the sentence imposed. Many of these calls reflect the regret that they should never have plea bargained and should have gone to trial and their lawyer “forced them to plead out.”

In reaching a plea bargain, a defendant assesses, with their lawyer’s advice, the likelihood of conviction. The defendant must balance the relative severity of the anticipated sentence pursuant to the plea agreement against the sentence which could be imposed upon conviction.

In many cases, that process results in a compromise reflecting a conscious decision to relinquish a perceived defenses waived in the plea agreement to the known terms of the plea agreement.

To summarize, the risks of trial must be calculated in the decision to “take an offer.” One of the components in the calculation of risk includes the real chances of success on appeal if the verdict goes against the defendant.

A Key Factor In Deciding to Plea Bargain Versus Taking A Case To Trial – The Potential For Success On Appeal

As noted above, making the decision to plea bargain must fully encompass the important variable of possibly losing the trial … but winning the appeal. Relying on the success of an appeal in the decision to take a case to trial may be “wrong thinking”   Why? …. almost all criminal appeals fail.

Many criminal defendants believe they will succeed for some, or all, of the following reasons:

Belief in Their Innocence: Many defendants genuinely believe even after a guilty verdict is rendered by the jury that, because they are innocent and that the jury’s judgment was wrong and the jury’s decision can, and will be, reversed on appeal.

Advice Of Their Trial Lawyer: The defense lawyer, following a guilty verdict, routinely searches for reasons to change that verdict by introducing a kind of hope for the future by trying to identify potential legal errors made during the trial that would be a basis for a successful appeal.

Misunderstanding of the Appeal Process: Because defendants may not fully understand the appeal process, they may believe the appeal will present a real opportunity to retry the case and to present new evidence, … never realizing that the primary focus of an appeal is to correct only the most serious legal errors of law and/or procedure that may have occurred at trial – not a reexamination of the evidence that would lead to a reversal the verdict.

Emotional Factors: The appeal process provides hope and a sense of control in a difficult situation where a person believes they have been the victim of an unfair conviction and otherwise “wronged” by the criminal justice system. The reverse side of the coin is that an appeal is often brought on false hope and extends the uncertainty in the lives of a now convicted defendant and may actually prevent much needed “closure.”

Desire for a Lesser Sentence: Even in cases where a defendant may not expect a full reversal of their conviction, they may believe an appeal might lead to a reduction in their sentence.

Why Do Most Criminal Appeals Fail?

One of the primary reasons for “appeal syndrome” is the mistaken belief that appellate courts give the convicted party another “bite of the apple” …that these courts review the evidence as would a judge or jury at trial. While it is true that the Colorado Courts of Appeal can review the evidence adduced at trial for sufficiency, the primary task of an appellate court is to make certain that major legal procedural errors did not happen during the trial.

The Colorado appeals courts – the Colorado Court of Appeals and the Colorado Supreme Court – apply very strict review standards before will tamper with the result in the lower court’s cases. Appeals courts are not primarily concerned with whether the jury’s verdict was a correct read of the evidence, or lack of evidence, only whether the trial was conducted fairly. These courts do NOT substitute their judgement for that of the jury.

“Appellate review” primarily examines the decisions – the actions – of the trial court judge – not the actions of the parties – for example:

How was the evidence marshaled at trial, which evidence is admitted, which was not, and why?

Were the jury instructions correct under current law, were the objections made by the lawyers during the trial properly heard by the Court and properly decided?

The Judges in the Colorado Courts of Appeal will not determine which witnesses told the truth and which did not or which piece of evidence was persuasive and which was not.  If a legal error is uncovered it also must have been “prejudicial,” to the defendant …which means that the legal error made a difference in the outcome of the case.

Appeals Usually Fail – Low Success Rates – Under 10%

It is well understood to those inside the criminal justice system that most criminal appeals fail. The success rates of appeals in criminal cases are very low and fail to produce a reversal of the underlying trial court case at extremely high rates. The success rate for a significant reversal of the result in most criminal case appeals is less than 10%.

Review: A Colorado Criminal Appeal Is Not…

…. a retrial of the case. In an appeal, there is no jury, no witnesses, or the admission of new forms of evidence. An appeal reviews the way the trial court has applied the law in the case. Even a so called “successful appeal” appeal does not automatically mean a new trial will be ordered.

In an appeal, the trial is reviewed in the form of transcripts of the testimony presented at trial. The “record” that is provided to the Courts of Appeal by the parties contains all pre and post-trial motions, all of the evidence admitted to the court and the trial court’s rulings. The facts and evidence as presented at trial are reviewed for errors as argued by the appeals lawyers in their written briefs. These briefs are designed to “frame” the legal issues raised in the appeal.

The process may also include oral argument if requested by the Appeals Courts.

Some Practical Reasons That Make Criminal Appeals Difficult

A few of the practical concerns in the decision to plea bargain rather than try a case and then rely the potential success on appeal include:

Length of Time for the Process: An appeal can take up to a year to several years or more from to a decision.

The Cost Of A Private Appeal: Appeals are very costly. Lawyers who practice in this area can be very expensive. If the appeal is not filed by the Colorado Public Defender’s Office (the agency tasked with filing almost ALL Colorado criminal appeals) the trial transcripts and filing fees alone can run into the thousands of dollars.

The costs of a criminal appeal in Colorado are almost always higher to those of the trial proceedings.  The required exhaustive review of the trial transcripts and the legal research surrounding the designated errors made at trial by the lawyers filing the appeal as well as the possible need for additional investigation, …. all contribute to the total costs for the appeal.  On the other hand, the state has almost endless resources to combat an appeal.

Outcomes Not Satisfactory (Even When You Win It Probably Means A Second Trial): A “win” on appeal rarely means a reversal of the verdict and an end to the case. A “win” to appellate lawyers, in most cases, means a “remand for a new trial” with instructions from the Appeals Courts to the trial court judge to retry the case as explained in their written decision.

Burden of Proof: In the context of a criminal appeal, it is the appellant who bears the burden of proof. This means that the party appealing a court decision is required to provide substantial persuasive arguments in order to establish that a constitutional or legal mistake occurred during the trial.

As previously mentioned, attaining this level of expectation poses a significant challenge, as individuals seeking appeal may lack the means or legal acumen required to effectively present a persuasive argument to meet the burden of proof.

Sidebar: The Appeals Process (Excerpted from the Colorado Court Of Appeals Website – The Mechanics Of An Appeal)

The process of appealing a criminal conviction begins with filing a notice of appeal in the trial court. This notice must be submitted within a specified time frame following the conviction, usually within 30 days.

The appealing party, known as the appellant, must then prepare an appellate brief that outlines the legal errors they believe occurred during the trial and presents arguments supporting why the trial court’s decision should be reversed.

The appellant’s brief is then submitted to the appellate court and the opposing party, known as the appellee, who has the opportunity to respond with their own brief. This response typically defends the trial court’s decision and refutes the appellant’s arguments.

Following the exchange of briefs, the appellate court reviews the arguments, the trial court record, and applicable laws to make a determination. The court may also schedule oral arguments, where lawyers from both sides present their cases and answer questions from the judges.

Appeal Steps:

Step 1: Notice of Appeal – Start of the appeal.
Step 2: Designation of Transcripts – Packing list of documents.
Step 3: Record on Appeal – Case file, exhibits and transcripts.
Step 4: Opening Brief – Your written arguments.
Step 5: Answer Brief – Government’s response.
Step 6: Reply Brief – Your reply to the government’s response.
Step 7: Opinion – The Court of Appeals’ decision.

For an excellent summary of the appeals process – link to an article by Colin Bresee  my esteemed colleague and Colorado criminal defense lawyer.

Common Grounds For A Criminal Appeal

To briefly summarize: Colorado Courts of Appeal are requested by the appellant – the side bringing the appeal, to review legal errors made during a trial. These courts apply very strict and, in most cases, well established standards of review require very significant legal or procedural errors at the trial of the case before action modifying the result at the trial court will occur.

Furthermore, even if appellate courts find error, the error must of such kind and of such nature that action must be taken to change the result at the trial level.

Criminal Appeal Based on Plain Error

A plain error refers to a mistake or flaw that significantly impacts the fundamental rights of the defendant, while not being raised by the parties before the trial judge. Certainly, it is possible for certain clear flaws or deficiencies that significantly impact fundamental rights to be identified, even though they were not raised as timely objections before the court. Errors in legal proceedings can serve as grounds for a successful appeal of a criminal conviction, as well as for the reversal of various court verdicts and rulings.

Insufficient Grounds for Appeal

An appeal must have legal reasons to challenge the conviction or sentence. If the appellant’s lawyers fail to identify and/or argue these grounds, the appeal will fail.

Procedural Errors:

There are times when trial procedural flaws affected fairness of a trial. If the errors do not materially affect the defendant’s fundamental rights, the appeal may fail.

Insufficiency – Weight Of The Evidence

Among the issues that the defense may raise on appeal is the quality of the evidence adduced at trial. Two related but distinct issues may be raised:

1. That the trial evidence was legally insufficient and, or

2. That the verdict of conviction was against the weight of the evidence.

Sufficiency Of The Evidence

Here the argument is that the evidence presented at a trial and resulting in a judgment was not legally sufficient to establish the defendant’s guilt of an offense for which he was convicted… With sufficiency of the evidence, the appellate court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law that satisfies the proof and burden requirements for every element of the crime charged.

The evidence must be viewed in the light most favorable to the people.

Weight of the Evidence

This appellate review is very close to the sufficiency of the evidence.  Here reversal or modification includes a determination that a verdict of conviction resulting in a judgment was, in whole or in part, against the weight of the evidence.

Even if all the elements and necessary findings are supported by some credible evidence, the court must examine the evidence further.

If based on all the credible evidence a different finding would not have been unreasonable, then the appellate court must, like the trier of fact below, weigh the relative probative force of conflicting testimony and relative strength of conflicting inferences that may be drawn from the testimony.

Put a little differently, sufficiency of the evidence refers to the adequacy of evidence to meet the burden of proof for a certain claim or charge. In other words, sufficiency of the evidence is a question of whether there is enough evidence to support a verdict or a judgment as a matter of law. Weight of the evidence, on the other hand, refers to the believability or persuasiveness of evidence in terms of its probative value, not the quantity or amount of evidence. In other words, weight of the evidence is a question of whether the evidence is convincing enough to justify a verdict or a judgment as a matter of fact.

Jury Issues

If a defendant hold a reasonable belief that a jury engaged in inappropriate conduct during the trial or deliberations, it is possible to appeal a conviction resulting from a jury trial. Jury misconduct encompasses several forms of inappropriate behavior, such as engaging in experiments, using drugs or alcohol during deliberations or trial proceedings, and engaging in improper communications with witnesses or legal counsel.

Ineffective Assistance Of Counsel

Convicted defendants often appeal their cases when they feel that they were not provided with adequate representation. To succeed in an ineffective assistance of counsel claim, a defendants must  prove that but for their counsel’s actions, the outcome of the case would have been different.

The concept of ineffective assistance of counsel arises when legal representation provided by an attorney fails to meet the standard of competence that is typically expected in the legal profession.In the event that it is demonstrated that a criminal defense attorney in Colorado exhibited incompetence in the representation of their client, there exists the possibility of the case being overturned upon appeal.

The occurrence of ineffective assistance of counsel can manifest in several ways. One potential way in which a lawyer may fail to adequately fulfill their duty to professionally represent a client is by:

inadequate investigation of a case,
insufficient preparation of a case,
failure to raise or argue relevant motions,
inadequate objection to evidence or witness testimony,
neglecting to address concerns regarding prosecutorial or jury misconduct, and
failure to present evidence that supports the client’s innocence.

 Illegal Sentence Was Imposed

An incorrect interpretation or application of laws may lead to an illegal sentencing. (See also Rule 35(a) of the Colorado Rules of Criminal Procedure which provides: (a) Correction of Illegal Sentence. The court may correct a sentence that was not authorized by law or that was imposed without jurisdiction at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.)

A procedural error occurs when a judge erroneously calculates punishments subsequent to convictions. Mistakes in these mathematical expressions frequently result in appeal courts remanding cases to trial court judges for re-sentencing due to the identification of plain errors in the sentencing process.

Errors Of Law – Jury Instructions – Rulings On Objections – Admission Of Evidence

These are errors of law that encompass various issues such as improper jury instructions, evidence suppression, or erroneous interpretation of the law. In certain instances, it is possible for the judge to provide inaccurate information to the jury regarding the legal principles relevant to the current case resulting in an erroneous judgement. Another frequently raised legal error pertains to the unjustifiable suppression of evidence that could have potentially exerted a favorable influence on the verdict in favor of the defendant.

Understanding The Possible Outcomes Of A Criminal Appeal In Colorado

The most common outcomes for a criminal appeal fall into the following categories:

No Error: The Appeals Court finds no error and “affirms” the lower tribunal’s decision, judgment, or order, declaring it correct and standing.

Harmless Error: The Appeals Court finds error, but decides it was “harmless,” meaning it did not alter the case resolution. The trial court’s verdict is upheld.

Reversible Error: The Appeals Court finds error and “reverses” the trial court’s decision, which typically (but not always) results in “remanding,” or sending the matter back to the lower court with directions for a new trial or hearing.

Modification and Remand: The Appeals Court finds error and “modifies” the trial court’s ruling, which often (but not always) results in “remanding,” or sending the matter back, with orders for additional proceedings or may reverse “in part.”

Summary and Conclusion – – Factoring In An Appeal In A Colorado Criminal Case

Appellate courts are fundamental to protecting the constitutional rights of criminal defendants. These special courts attempt to make certain that the rights of those accused of crimes receive fair and just treatment  in every sense of that term in the lower courts.

The role played by the Colorado Courts of Appeal is waived when a defendant decides to plead guilty and accept a plea bargain. If there is no trial, in almost every case,* there is no appeal. Therefore the decision to accept a plea agreement must include a clear understanding that an accused is “waiving” their right to take the case to trial and, if they lose at trial, to appeal the verdict.

The appeal process itself and the real probability of success or failure on appeal must be understood on a case by case basis and must be factored into the decision to “take a plea”  or to  “go to trial.”

My hope is that this article serves to make that critical decision a more informed one.

(FN1 ) * Cconditional Pleas
While the Colorado Supreme Court has not “explicitly endorsed” conditional pleading nor has it explicitly rejected the practice. See People v. McMurtry, 122 P.3d 237, 243 (Colo.2005). In People v. Bachofer, 85 P.3d 615, 617 (Colo.App.2003), the Colorado Court of Appeals held that stipulation in a plea agreement can preserve a defendant’s right to appeal a ruling on a suppression motion, noting that there was no prohibition of conditional pleas in either the statutes or the Colorado Rules of Criminal Procedure and that such pleas are in the interest of judicial economy).

Colorado Criminal Law – Factoring In An Appeal In A Colorado Criminal Case

The reader is alerted to the fact that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

BEST-STANDING-CHOICE-200x300ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at: hmsteinberg@hotmail.com

A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

Putting more than 40 years of Colorado criminal defense experience to work for you.

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer. We encourage you to “vet” our firm. Over the last 40 years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice.

H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way.