Filing a criminal appeal under Ohio law.

Donald Michael Gallick

Written by  Pro

Appeals Lawyer - Akron, OH

Contributor Level 16

Posted over 3 years ago. Applies to Ohio, 2 helpful votes

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1

Quick Action - a very short deadline.

All appeals begin with the filing of a "Notice of Appeal" with the clerk of trial court. This Notice of Appeal must, as a general rule, be filed within 30 days of the sentence was filed. Some criminal defendants -- and some attorneys -- file a notice of appeal immediately after a guilty verdict. The appeal is not "ripe" for review until sentencing, so the appeal might be dismissed by the court of appeals. After the sentence is filed (meaning time-stamped with the clerk of courts, which may be the same day as the sentencing hearing, or might be delayed a day or two) then the 30 day clock starts ticking. The Notice of Appeal should be filed well-within 30 days from the sentencing to make sure the appeal is not dismissed. Filing a notice of appeal more than 30 days after sentencing is a guaranteed way to have your appeal dismissed -- unless you request "leave of court" to file a delay appeal beyond 30 days, but you must have a very good reason for missing the deadline.

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Initial Documents

Besides filing a Notice of Appeal, most Ohio Courts of Appeal require the filing of a "Docketing Statement." The Docketing Statement form will likely be found on the website of the court of appeals. Most courts want a copy of the "final order," normally the sentencing journal entry, attached to the docketing statement, although some courts of appeal say that it can be stapled to the Notice of Appeal. Check your local court of appeals in advance to make sure the appeal is not defective. Another document that must normally be drafted is a "Praecipe," this is an order to the court reporter asking that the transcript be prepared and filed with the court. Unless you have an finding of indigency and all court costs & filing fees are waived, the court reporter must be paid for the transcript -- this is in addition to the filing fee for filing the Notice of Appeals. Appeals require payment up front, but there usually aren't any costs once the appeal is begun.

3

Preparing a Brief

Usually, a transcript will be essential to winning your appeal. You must cite to the transcript to show where the error occurred in the trial / hearing. Failure to cite inadmissible evidence, incorrect legal rulings by the judge, or some other mistake will render your appeal unwinnable. Transcripts can also be expensive if a lengthy trial occurred. In the event that the alleged mistake is completely noticeable from a journal entry, i.e. the trial court writes an order that clearly contradicts the law, obtaining/filing/citing the transcript is mandatory to win an appeal. In addition to citing a transcript, it is absolutely necessary to cite prior legal opinions "case law" or a rule or statute which shows that your argument, "assignments of errors" must succeed. Legal research is the most powerful tool for winning a criminal appeal. The majority of appeals are unsuccessful -- for a variety of reasons, but lack of legal research is a major cause for losing an appeal.

4

Finishing and Filing a Brief

Each of Ohio's 12 courts of appeal have different requirements for accepting a brief. Some courts require an original and 3 copies, or 4 copies, or possibly more. Some courts prefer particular fonts, require different documents attached to the brief, and insist on certain parts of the brief be organized in a certain way (and listed as such in the Table of Contents); as always, checking the individual court's local rules is a good way to make sure that you are presenting a legal document that the court will find acceptable. If your brief fails to comply with the court's local rule, the brief may be "stricken," i.e. it will not be considered by the court, but the court may -- or may not -- give you a second chance to do re-do the brief and re-file a complying document.

5

You Said, They Said

After the criminal appellant files a merit brief, the prosecutor will have an opportunity to file a Brief in Response. This brief usually explains that the criminal defendant does not deserve to win their appeal. The criminal appellant has an opportunity to have the last word by filing a Reply Brief, but be warned -- most courts require that a Reply Brief must be filed within 10 days -- a relatively short period -- after the Brief in Response. Reading opposing counsel's brief, conducting additional research, and drafting/filing a Reply Brief in 10 days is a lot of work that needs completed in a very short time.

6

After Briefing, Now What?

The best way to ensure that the appeal will be scheduled for oral argument is to specifically request oral argument. Again, checking the local rules to discovery how your particular court of appeals addresses oral argument is best. If you do not specifically request oral argument in the brief, or in a separate filing, it is possible that the appeal will not have oral argument -- the court will simply decide the appeal after reading all of the briefs. Oral argument is the last, best chance you have to convince the 3 judge panel that your appeal has merit. Answering any questions the judges might have after reading your brief(s) is the best way to make sure that there is no confusion and that your arguments are clearly understood.

7

Judgment Day

Whether there is oral argument or not, the court of appeals will issue an opinion. That opinion might affirm the trial court's ruling/sentence/order, or you might be successful and the court of appeals reverses the trial court's decision. If you lose the appeal, there are several other steps that might be available. If the opinion conflicts with another court of appeals in Ohio, you can ask the Court of Appeals to "certify" a conflict and send the case to the Ohio Supreme Court. If the opinion contradicts another opinion from that court of appeals, you can ask the court for an "en banc" decision of all the judges in that court. These options must be exercised within 10 days of the opinion -- again, a lot of legal research and writing must be done in a very short time. It best to have an attorney who is experienced in handling appellate law to navigate these difficult issues quickly. You can ask the Ohio Supreme Court to review the case; you have 45 days to do so.

Additional Resources

The Ohio Rules of Appellate Practice and the Rules of Practice for the Ohio Supreme Court can be found in a variety of places, including local libraries and the Ohio Supreme Court's website. Legal opinions from the Ohio Supreme Court and other appellate courts will be found on the Supreme Court's website as well.

Ohio Appeals

Attorney Donald Gallick

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