A post conviction criminal proceeding allows a criminal defendant to challenge the outcome of their conviction or judgment against them that has otherwise become final. There are numerous different types of post conviction proceedings.
The majority of these proceedings require that a defendant prove some type of error was committed in the lower courts that affected the outcome of the ruling. The majority of states have statutes that govern post conviction proceedings or post conviction relief (PCR).
Some states, however, limit the scope of post conviction relief and the timeliness for filing the claim. For example, many states will not allow a post-conviction proceeding once 5 years have passed after the conviction.
If an individual is interested in filing for post conviction relief, it is important to consult with a post conviction attorney. An attorney can advise the individual regarding the requirements for the claim and the possible remedies.
What Are the Different Types of Post Conviction Criminal Proceedings?
There are many different categories of post conviction proceedings. Depending on the nature of the criminal proceedings, these following options may or may not be available to a defendant.
Examples of common forms of post-conviction relief include:
- Appeal: The right to an appeal will only be available when the court’s decision was based on some type of legal or procedural error, such as an improper jury instruction. In an appeal, no new evidence will be considered and the appellate court will only review the records and evidence from the trial court;
- Retrial: A criminal retrial will only be available if a very serious error occurred in the trial court. For example, if an attorney committed misconduct or if a juror tampered with evidence, a retrial may be necessary;
- A retrial is different from an appeal in that new evidence and a new jury may be used in the retrial;
- Writ of habeas corpus: Habeas corpus permits any individual who is detained to be released after challenging the constitutional basis of their incarceration. In a habeas corpus proceeding, the prosecution must show that the defendant should be incarcerated according to federal or state laws;
- Clemency: If granted, clemency allows the offender to be forgiven of their charges after conviction. Clemency usually involves the restoration of the inmate’s civil rights upon their release, for example, their right to vote or own a gun. It is typically filed with the state’s governor;
- Commutation: Commutation is similar to clemency with the exception that the individual’s civil rights may not be restored even if they are released from prison;
- Pardon: Persons incarcerated in a federal prison facility may petition for a pardon, which would absolve them from their legal charges. Pardons are fairly rare and difficult to obtain, as they require approval from the President of the United States; and
- Expungement: An individual who has fully served out their sentence may be able to apply for expungement or record sealing in the future. Expungement prevents access to the defendant’s criminal record and in some cases it is as if the crime never occurred. Certain crimes may not be eligible for expungement.
In addition, an individual who has been convicted of a crime may have several options available if they were granted parole or probation. Inmates eligible for post conviction release, depending on their compliance with probation requirements.
How Do I File a Post Conviction Criminal Proceedings or Post-Conviction Relief (PCR)?
Unlike a direct appeal, post conviction relief (PCR) is similar to a post-trial motion. Arguments for post conviction relief are filed with the trial court.
PCR is often used after a defendant loses a direct appeal. A PCR action should be filed in the court where the applicant’s conviction and sentence was rendered.
PCR is typically the last option that is available for an individual to challenge their conviction in state court. In many cases, an inmate who is seeking PCR can file the petition themselves and an attorney will be appointed to represent them.
One of the more common PCR claims is ineffective assistance of counsel, for example, when:
- The attorney did not make a proper:
- objection;
- motion; or
- argument;
- The court had no reason to rule on the issue; and
- In a direct appeal, the appellate court had no record on which to make a decision.
To prove an ineffective assistance claim, the PCR attorney is required to show:
- The trial attorney failed to provide reasonable effective assistance based on prevailing norms; and
- Prejudice resulted from the trial lawyer’s ineffective performance. In other words, it may have changed the outcome of the case.
Examples of this may include when a trial attorney fails to object to:
- Inadmissible evidence;
- Improper jury instructions; or
- Outrageous arguments by the prosecution.
A PCR claim may also be based on the trial attorney failing to independently investigate the case or to call essential witnesses. In addition, a PCR claim may be based on:
- The conviction was unconstitutional or violated a federal law;
- There was a mistake in the procedure that led to the conviction;
- The defendant did not have a fair trial;
- New evidence has come to light that could lead to an acquittal;
- A lack of subject matter jurisdiction;
- An illegal or expired sentence; or
- Prosecutorial misconduct, for example:
- If the prosecution or law enforcement withheld evidence that was exculpatory.
In certain cases, the potential grounds for a PCR claim will not be clear from the transcripts or discovery materials and may be only found by an independent investigation. If the original attorney did not conduct a thorough investigation prior to the plea or trial, there can be evidence or witnesses that may be uncovered which may provide grounds for post-conviction relief.
It is important to note that post conviction relief may not be available in all cases.
How Long Does a Post-Conviction Take?
A claim for post conviction relief may be filed at any time. There are, however, restrictions depending on the state in which the case is heard.
Some states have a time limit for filing a post conviction relief motion. Other states only permit defendants to file this type of motion if they are currently incarcerated or are on parole.
For example, in South Carolina, there is a statute of limitations of 1 year from the date of conviction or from the entry of the appellate court decision to file a PCR claim. Because of this, it is important to consult with an attorney who specializes in post conviction relief to determine the specific rules that apply in the case.
A successful appeal for post conviction relief may happen in as little as 2 to 3 months after filing the motion for a new trial. However, it may also take many years and go through various courts, even the U.S. Supreme Court without being successful.
What Are Post-Conviction Remedies?
Post conviction relief is a series of motions that can be filed to challenge a conviction or sentence. Different post conviction remedies may be available depending on the circumstances of the specific case and the relief requested.
Common examples of post conviction relief motions include:
- Motion for new trial
- Motion to vacate judgment; and
- Motion to set aside judgment.
Each one of these types of motions has a different purpose. An attorney can advise an individual which would be most important for their situation.
If post conviction is granted, it can mean that the individual’s conviction is overturned or the sentence is reduced. In some cases, it may also mean that the individual is released from incarceration.
Do I Need an Attorney for Post Conviction Criminal Proceedings?
Post conviction proceedings will depend on many factors that have to be carefully analyzed and weighed. If you believe you may be eligible for post conviction relief, it is important to consult with a criminal lawyer as soon as possible.
Your attorney can review your case, determine what type of post conviction motion should be filed and whether you may be entitled to post conviction relief.
