This is a guide for trial attorneys on how to perfect an appeal of a felony conviction in Colorado.
1. The duties of trial counsel relating to an appeal of the conviction.
A trial attorney's representation of a criminal defendant does not necessarily end when the sentence is imposed. Under some circumstances, trial counsel may have duties to the defendant relating to an appeal of the conviction and sentence.
(a) The duty to advise of the deadline to file an appeal.
Once the sentence has been imposed, the trial court is required to advise the defendant of his right to appeal and the deadline to file an appeal. See Crim. P. 32(c). Trial counsel should give this advice to the defendant if the trial court fails to do so.
(b) The duty to perfect an appeal.
If the defendant asks his attorney to appeal his conviction, the attorney must perfect the appeal. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). The attorney does not have to represent the defendant on appeal. He is just required to perfect the appeal by filing a Notice of Appeal and Designation of Record. Id. The attorney may then withdraw from the case pursuant to Crim. P. 44(e).
(c) The duty to consult about an appeal.
If the defendant does not directly ask his attorney to appeal his conviction, but, instead, reasonably demonstrates that he is interested in an appeal, the attorney must consult with the defendant about an appeal. Flores-Ortega, 528 U.S. at 478. This consultation should include advising the defendant about the advantages and disadvantages of an appeal and making a reasonable effort to discover the defendant's wishes. Id. If the defendant then asks his attorney to appeal the conviction, the attorney must perfect an appeal. Id.
2. Perfecting the appeal.
To perfect an appeal of a felony conviction in Colorado, a Notice of Appeal and Designation of Record must be filed in the Colorado Court of Appeals and in the trial court.
(a) The Notice of Appeal.
The Notice of Appeal must be filed within forty-five days of the entry of the judgment or order appealed. C.A.R. 4(b)(1). Judgment is entered in a criminal case when the sentence is imposed. Crim. P. 32(b)(3).
The Notice of Appeal must include: a general statement of the nature of the case; the charges upon which defendant was tried; the charges for which defendant was convicted; the date judgment of conviction was entered; the date the sentence was imposed; the sentence; a statement indicating the basis for the appellate court's jurisdiction; whether an appeal bond was granted and, if so, the amount of the bond; an advisory listing of the issues to be raised on appeal; whether a transcript is necessary; and the names of counsel for the parties, and their addresses, telephone numbers, and bar registration numbers. C.A.R. 3(g).
A copy of the judgment of conviction or the order appealed must be attached to the Notice of Appeal together with a copy of the trial court's order granting or denying the defendant's motion to proceed in forma pauperis if the defendant is filing without payment of the docket fee. C.A.R. 3(g)(7).
(b) The Designation of Record.
Within ten days of filing the Notice of Appeal, a Designation of Record must be filed. C.A.R. 10(b). The original is filed in the district court, and a copy is filed in the Court of Appeals.
The Designation of Record must set forth the portions of the record to be included in the record on appeal and all dates of proceedings for which transcripts are requested and the names of the court reporters who reported the proceedings that are to be included in the record. C.A.R. 10(b). A copy of the Designation of Record should be sent to the court reporters.
(c) Indigent defendants.
If the defendant is indigent, he may be entitled to representation on appeal by the Public Defender. If the Public Defender has a conflict of interest, the defendant may be entitled to representation on appeal by the Office of Alternate Defense Counsel.
Counsel should obtain an order from the district court appointing appellate counsel and send it together with an Appellate Transmittal Sheet to the Public Defender or the Office of Alternate Defense Counsel. If the Appellate Transmittal Form is timely submitted, the Public Defender or the Office of Alternate Defense Counsel will perfect the appeal.