What is a Post-Conviction Motion?

The criminal justice system is usually set in motion once an offence is committed, and prosecution ensues. But while the law does its best to guide the conduct of criminal trials, human and cognitive error are almost inevitable.

Courts of first instance especially face an arduous job and decisions may not always be the best possible in the circumstances. As a result, the post-conviction motion allows a defendant who is dissatisfied with the decision of the court file an application to have the decision voided.

Here at National Legal Professional Associates (NLPA), we firmly believe that a defendant continues to have several options open even when conviction has occurred and appeals have been exhausted. The post-conviction motion is one of these options available to a defendant.

With our extensive knowledge of criminal trials and appeals in the US, we have successfully assisted defendants and their lawyers find positive resolution to their trial. And on several occasions, we have been able to put mechanisms such as the post-conviction motion to work on their behalf.

In this article, we will explain what the post-conviction motion is and how a defendant can utilize it to obtain relief in the US criminal justice system.

The post-conviction motion in the US

The post-conviction motion is one of the post-conviction reliefs available to a person who has been convicted of a crime in state court. In Alabama, the motion is also called a Rule 32 motion. It can apply where a defendant has exhausted the standard appeal process of the law or where the defendant wants to challenge their conviction in a trial court.

The petition is usually filed at the trial court and heard by the judge who presided over the trial or did the sentencing, in plea cases. A post-conviction motion gives the trial court an avenue to remedy a conviction if it is unjust. It helps to address unfair or wrongful convictions and prevents a situation where innocent or unfairly convicted people end up in prison.

Summarily, the post-conviction motion operates to void a conviction. Where successful, there are two reliefs obtainable:

  • A voidable conviction is voided. Where, for instance, the court lacked jurisdiction to even try the offence or to convict the defendant, a rule 32 carefully exploited will win freedom.
  • A conviction obtained in violation of due process is set aside, and the defendant is given a new trial.

Where the post-conviction motion applies

To seek out a post-conviction motion, the defendant must ordinarily show that there was some vitiating factor that renders the conviction voidable. This may include proof of any one of the following:

  • That due to the provisions of the US constitution or the relevant state, there should be a new trial, new sentencing proceeding or a new relief. The constitutional claims raised should be supported with specific facts.
  • That the court did not have the jurisdiction to try the case or punish the defendant.
  • There are material facts which have just been discovered and which would operate to vacate the sentence. This may be the case where the new facts were unknown to the defendant or their attorney during sentencing or at the time of filing post-trial motions. In any case, it should be clear that even through the exercise of reasonable diligence, the facts would not have been discoverable at those periods. In addition, the facts must not be mere addition to other known facts. Lastly, it must be shown that had the facts been known during trial or sentencing, there would have been a different outcome.
  • The sentence imposed exceeds the minimum authorized by law, or is otherwise not authorized by law.
  • The petitioner is being held in custody after their sentence has expired.
  • The defendant did not exercise their right of appeal within the time allowed by law and the failure did not arise out of fault.

In Jason Sharp v. State of Alabama (2014), the defendant filed a petition for relief from judgment under Rule 32 of the Alabama Rules of Criminal Procedure. He sought relief from his unconstitutionally obtained conviction and death sentence for the offenses of capital murder during rape in the first degree. The grounds supporting the petition for relief were that the defendant was denied effective assistance of counsel throughout his capital murder trial. Specifically, his lawyer did not investigate or challenge the State’s case nor adequately investigate or present mitigation evidence. The lawyer also failed to develop reasonable defense and mitigation theories or adequately present a case for the imposition of a verdict of life without the possibility of parole. The court held that the motion could be filed.

How is the post-conviction motion filed?

Only a defendant can file a post-conviction petition. You should know that there are strict limits to filing the petition and getting it right often requires expert knowledge. The petition must be filed:

  • Within 1 year of the issuance of the certificate of judgment by the Court of Criminal Appeals; or
  • Where the case is not a conviction appealed to the Criminal Court of Appeals, within 1 year of the last date on which the time for filing an appeal would have elapsed.

The defendant starts the process by filing a notice of post-conviction relief at the trial court and indicates whether they want counsel appointed. Within 60 days, the appointed counsel, or the defendant, files the petition for post-conviction relief. An incomplete petition will be returned to the defendant by the court with instructions as to how the petition is insufficient.

A defendant has 30 days after that to refile the petition and upon failure to refile, the petition will be summarily dismissed by the court. After that, the state must respond to the petition within 45 days. The defendant may file a Reply within 15 days after receipt of the response.

However, there have been exceptions to this time limit. In Maples v. Thomas, 565 U. S. (2012), although the defendant filed his post-conviction motion out of time, the US Supreme Court held that he was not at fault because his attorneys had withdrawn from the case and he did not know of that fact. It was the opinion of the court that the attorneys had “abandoned” Maples.

In Canyon v. State of Alabama (2015), the defendant filed a Rule 32 petition against his convictions for burglary, theft, and possession of a forged instrument and the 20-year sentence imposed by the court. He argued that he had suffered double jeopardy since the charge against him for theft in the first and second degree were based on the same set of facts. As such, one of the convictions should be voided.

He based his plea on the ground that his constitutional rights had been violated, specifically his right against multiple conviction for the same offense. However, while the court conceded that his claims could have been raised at trial, it found that his appeal was barred by for exceeding the 1-year time limit. On appeal though, the Alabama Court of Criminal Appeals held that he could still file. This was because the issues concerned double jeopardy and jurisdiction, which could be reviewed at any time.

We can help with your post-conviction motion

The case law shows clearly that the post-conviction motion can often involve complex rules of procedure and numerous exceptions. To be certain that you have the best chance of finding relief under the rule, it makes sense to work with very skilled professionals.

At NLPA, we can assist you and your counsel with the research you need for a successful motion. Contact us today to speak with our consultants.

Will The Coronavirus Interfere with My Trial?

The Coronavirus, COVID-19 has continued to ravage the world as it spreads at prodigious speeds. With some form of civil lockdown or the other happening in countries and states around the world, it has become clear that the world is facing a public health crisis.

The effect of the pandemic is not lost on the justice system as courts have had to modify how they operate or close down entirely. In light of this, persons with pending matters before the courts have legitimate concerns about how their cases will proceed.

Will the coronavirus affect your trial? To what extent can you expect to proceed in light of these events? This article discusses some of these questions and what the implication may mean for you.

What is the risk and impact of COVID-19 on the court system?

With the constant need for administration of justice, the courts are always heavy with traffic. Attorneys, judges, court officials, jurors and defendants always have one business or the other in court. With the current COVID-19 outbreak however, this is a situation that must evolve in line with new public health standards.

The impact of COVID-19 on the court system is a potentially crippling one. As the virus cuts across people in different occupations and from all walks of life, the stewards of justice are not exempted. Law enforcement officials say that people should prepare themselves for two major disruptions: delays in response to 911 calls and an inability to get speedy trials.

As police officers, jurors, attorneys, judges and defendants are equally at risk of the virus, the justice system may not function as well as before.

In some counties, the police department has been forced to convert unused jail cells to stores for respirators, surgical masks and protective suits. The police are also making plans to quarantine their officers if needed and deciding how to retain essential services despite that.

Courts are forced to automatically exempt people over the age of 60, pregnant or with underlying medical conditions from jury duty. There is an increased risk of having a skewed jury or jurors not showing up as a result of infection or self-isolation.

Courts are considering alternative ways to continue with ongoing trials. This includes making use of video calls and teleconferencing. Courts are conducting bail hearings over video links to reduce the rate at which people congregate in court. Criminal and civil trials are being postponed. Plea negotiations are being concluded at record rates. There is an increase in the rate at which plead deals are negotiated.

Some courthouses have entirely adjourned trials for a few weeks. The Supreme Court, in the most dramatic move yet, closed its building to the public.

Instances of adjourned cases and trials

The trial of the Russian company charged with using a social media campaign to interfere with the 2016 presidential elections was scheduled for April 6. However, U.S District Judge Dabney L. Friedrich, in a conference call, told the lawyers for both sides that the trial would be delayed for at least two months. Judge Friedrich said that the reason for this was the growing reluctance amongst potential jurors to serve amid the COVID-19 pandemic.

In Los Angeles, the trial of Robert Durst has also been delayed until April. Robert Durst, 76 was charged with the murder of his girlfriend, Susan Berman. Susan Berman was found dead in lying face down in her Los Angeles home with a gunshot wound to the back of her head.

The U.S. Supreme Court has adjourned all oral arguments for the next two weeks. This includes its plans to hear President Donald Trump’s case of attempting to block his tax returns.

In Connecticut and Massachusetts, all jury trials were postponed to late April. Michigan state courts recommended halting all trials unless the defendant was already in custody. The courts also recommended halting hearings if the defendants were in the category of vulnerable people, such as those over 60 years old.

In Los Angeles, the County Superior Court announced that new criminal and civil trials would be put off for at least 30 days. Judges were encouraged to make use of teleconferencing. This is to reduce the amount of traffic in the region’s courthouses. For trials already underway, it was left to the discretion of the individual judges on whether to postpone proceedings or declare a mistrial.

The shareholder dispute case against Tesla Inc. in Delaware Chancery Court has also been affected by the ongoing pandemic. It is not clear when the trial will conclude at this rate.

While all this may be troubling, it is an entirely different proposition for inmates in jailhouses awaiting trial. As courthouses are shutting their doors and postponing trials, this group of people is one of the most affected. Apart from the high risk of being infected with the virus in jail, they also have to deal with the fact that one of their basic rights is being denied.

Under the Sixth Amendment of the constitution, every defendant has a right to a speedy and public trial. However, with the great threat to public safety and health, this is not an option for inmates and detainees. They will have no choice but to accept the postponement of their trials.

However, there is a bit of silver lining. According to the Chief Judge of Massachusetts, defendants can appeal to be excluded from the order.

Effects of the COVID-19 outbreak on arrests, prosecution and corrections

As a result of the increasingly serious nature of the COVID-19 pandemic, legitimate concerns have arisen about the safety of prisoners in state and federal corrections facilities. Due to the high risk of transmission, state governments are moving to lower the population of prisons and de-prioritize prosecution for certain offenses.

In Baltimore for instance, the State’s Attorney recently instructed staff to dismiss charges currently pending for selected offenses. These include charges for drug possession, attempted distribution, trespassing, minor traffic offenses and urinating in public. Similarly, in Brooklyn, the District Attorney’s Office will stop prosecuting “low-level offenses” while in Philadelphia, the Police Commissioner has ordered a delay in arrests for less serious offenses such as narcotics activity.

The outlook from all these states is to reduce the number of people already in the system and prevent more than necessary from entering into the system. In San Francisco, the DA instructed prosecutors of his office to leave motions to release pretrial detainees unopposed where the charge concerns misdemeanor offenses or drug-related felonies where the offender does not pose a threat to the public. New York City is also planning to effect the release of “vulnerable inmates” from jails in the city to prevent spread of the pandemic into local facilities.

As a result of these measures, thousands of inmates are being released to house arrest, community treatment centers and time served for non-violent offenses. Even options such as home confinement are available under the First Step Act and current inmates may file a Motion for Compassionate Release on grounds of vulnerability to COVID-19.

Just as these measures are being implemented at the state level, steps are already being taken to encourage similar measures at the Federal level. The Federal Public & Community Defenders and Legislative Community recently wrote to the US Attorney General in this regard.

What does this mean for your trial?

If you were awaiting the commencement of continuing of your criminal or civil trial when the outbreak started, you may be affected. The ongoing measures being implemented will mean that your case may be delayed for a few weeks at the very least, and this may stretch into months. But as a result of current measures to depopulate prisons and detention centers, you may be able to receive an expedited release.

Also, depending on your state of incarceration, if you are currently an inmate, you may have a chance at securing a release. This may be on grounds of compassionate release or due to the low-level nature of the offense.

You should immediately speak with your attorney to get a clearer picture of things and figure out if you can take advantage of the alternatives currently available. If you would like to understand better if you or a loved one can benefit from these alternatives, contact NLPA at 513-247-0082 to speak with a consultant today.

Found Guilty: A Discussion of Appeals and Sentence Reductions

Although things can seem very different, getting tried and being found guilty of an offense
constitutes only a part of the criminal justice process. After conviction and sentencing, there
remains a wide variety of procedures through which the conviction or sentence may be challenged.

The conviction and sentence may be challenged on appeal on grounds of being illegal,
unconstitutional or unreasonably excessive. However, succeeding in such appeals will depend on
clearly showing that there were serious errors in the trial that led to a wrong finding of guilt or
inappropriate sentence.

Apart from this, there are several special rules and procedures that must be adhered to, if the
appeals process will be successful. Due to the technical nature of appeals, defendants usually
choose to work with a skilled criminal appeals attorney. But in many instances, an appeal is made
stronger when counsel work with specialist researchers.

At National Legal Professional Associates, we have assisted hundreds of lawyers and their clients
with crucial legal research for successful appeals. We have helped analyze the law and likely issues
and assisted with preparing legal briefs to supplement the defense provided by skilled legal counsel.
This has enabled hundreds of clients’ secure better outcomes.

In our more than 25-year experience doing this, we have gained considerable knowledge and
expertise about criminal appeals in the US. In this article, we will provide an overview of the appeals
process and sentence reduction under US law.

Appeals and sentence reductions under US law
Generally, a lawful conviction and sentence cannot be appealed. Although the defendant, through
their lawyer, may take steps to dispute the trial judge’s decision, these will most likely turn out

This is because appeals are usually reserved for instances where some “error” has led to injustice
against the defendant. If the situation was such that, had the error been spotted or avoided, the
defendant’s circumstances would have been different, then there may be a case for an appeal.

However, it is usually required that whatever issue is raised by the defendant on appeal must be one
that is borne out by the evidence produced during trial. This means that appeals are not a stage for
a defendant’s attorney to “take another bite at the cherry”. It is not a retrial of the case and no new
issues can be raised on appeal.

Rather, the appellate court will only be looking into the record or transcript of the case to make sure
that the verdict was correct based upon evidence. It will look to ascertain that the trial was fair and
that there was no violation of the defendant’s rights to due process.

Depending on the circumstances of the case and the issues being raised on appeal, a defendant may
request a reduction of the sentence imposed or even reversal of the verdict. Although, the court
may choose to:

  • Affirm the conviction or sentence or both;
  • Reverse the conviction and remand the case for a new trial;
  • Review the sentence imposed by the trial court; or
  • Remand the case to the trial court for additional proceedings

The criminal appeals process
The appeals process usually begins with filing a notice of appeal. In certain cases, the defendant
must ask the court for permission to file the notice before going ahead. The notice of appeal is
usually accompanied by an appellate brief that contains the defendant’s arguments on why the
appeal should succeed.

Typically, these notices are filed to a state or the US Court of Appeals or to the State or US Supreme
Court. However, the right to request a review by a higher court is subject to abiding by statutory
time limits for requesting an appeal. The time limits vary from state to state, sometimes spanning
days or months.

The notice of appeal will typically contain grounds upon which the appeal is founded. These may
include any one of the following:

  • Improper denial of continuance: Being given adequate time to prepare a defense is part of the right to a fair trial. If the trial judge improperly refused a continuance during the trial, it may be a ground of appeal.
  • The improper imposition of a sentence: Where the sentence was enhanced due to facts that were not proved beyond a reasonable doubt, the sentence may be challenged. This would also be the case where the sentence was partially based on invalid reasons or was not preceded by a proper waiver of the right to counsel.
  • Improper or erroneous departures or failure to depart when it was reasonable to do so: Although courts follow sentencing guidelines in imposing sentences, a judge may depart from these guidelines where discretion is permitted. However, if there was an upward departure in relation to an offense where there was no discretion, the sentence may be challenged. Likewise, if the legislation permitted a downward departure and facts bore this possibility, the sentence may be challenged on the basis that the court made a mistake about its authority to depart from the guidelines.
  • Disproportionate sentence: In some states, a defendant may challenge a sentence on appeal it was potentially “disproportionate” to the crime. Here, the defendant argues that the strict punishment imposed by the court was not borne out by the circumstances. For instance, the US Supreme Court in Solem v. Helm held that a life sentence was disproportionate for a man who issued a bad check, despite his criminal history.

There are several other grounds on which an appeal may be based. However, the error complained
of in the appeal must be substantial. Not every error alleged by the defendant merits consideration
by the appellate courts or reversal. This is why the courts held in Lutwak v. U.S that a defendant is
entitled to a fair trial, not an error-free one.

Making an appeal after a guilty plea
For conviction and sentences imposed after a plea agreement, the general rule is that the right to
appeal has been waived. The US Supreme Court has consistently upheld the principle that a
defendant may waive certain constitutional and statutory rights in a plea bargain (the U.S v. Allison).

However, the waiver of such rights is not all-encompassing. Since a plea bargain is essentially a
contract between the defendant and the prosecutor, the court will study the agreement to
determine the limits of the agreement.

For instance, it is taken as a given that where the plea bargain promised a two-level reduction in
liability in exchange for a guilty plea or assistance, the waiver only operates with respect to the two-
point reduction. If the actual sentence is an upward departure from the terms of the bargain, the
defendant will be entitled to challenge the sentence on appeal.

There are several other instances where a challenge may be brought. This includes when the plea
was based on incomplete facts or information supplied by the prosecutor. It was held in U.S v. Mezzanatto that a waiver of an important constitutional right must be known and voluntary.

In all circumstances, defendants who have access to the right resources can have an expert team
thoroughly study their case and determine what options are available to secure a better outcome on

We can assist with your appeal
At NLPA, the range of assistance we are able to provide defendants and their attorneys are made
possible by the depth of our knowledge of the US appeals process. Whether your aim is to withdraw
a guilty plea or challenge a conviction or sentence on other grounds, we can help. Contact us to speak with one of our consultants who can advise on the range of assistance we can provide.

How to Shorten Excessive Prison Sentences

A prison sentence often seems like the death knell in criminal defense.  Since sentencing occurs after conviction, the natural feeling is that you have made your case and lost it, therefore justifying the sentence.  This would be even more so in cases where appeals have been exhausted.

However, you should know that it is not all cases that a prison sentence is justified.  Even when conviction may have been rightly reached based on the available facts and evidence at the time, a prison sentence may be excessive and unjustified.  This may be due to the sentence being at odds with relevant sentencing guidelines or applicable laws.

Unfortunately, very few people recognize this or make any moves to take advantage.  Being faced with a guilty verdict or even a guilty plea does not necessarily finish your defense.  You may still have options and opportunities to improve your outlook and secure a better outcome.

With the professional assistance that we can provide at National Legal Professional Associates (NLPA), we can help you achieve a more positive resolution to your case.  For over 30 years, we have assisted individuals in your positions and their lawyers to find and utilize the options open to them under the sentencing laws.

Do not take your guilt and sentence as a given.  Under the right circumstances, you may be able to shorten or even overturn excessive sentences and secure a better outcome.  This article explains what options are available to shorten excessive prison sentences in the US.

The time within which a sentence reduction must be requested

Most states in the US stipulate a time frame within which an application to reduce a sentence can be made.  These applications are often referred to as motions, and they all fall within the category of post-trial motions.

Typically, the required time frame often varies.  The state may require these motions to be filed within days, weeks or months after the trial, or even a specific number of years.  For instance, under Florida’s Criminal Procedure Code Rule 3.800(c), a motion to reduce sentence must be filed within 60 days after the end of the trial.  In Ohio, a post-conviction petition must be filed within 180 days of the date on which the transcript of your case was filed for an appeal.  Or if you did not appeal, within 180 days of the last day, on which an appeal should have been filed.

It is important to keep in mind that there are several special remedies that might be available to convicted persons after sentencing.  However, exploiting these rules will depend on your case coming within the very specific rules and time limits they often have.

The consultants at NLPA, who were trained at some of the best law schools in the US, thoroughly understand these rules and their time limits.  We can advise you or your lawyer on what they entail and what to watch out for.

Types of post-trial motions that can be filed on your behalf

There are several specific remedies we can research and exploit on your behalf.  When you contact us, we will discuss with you and your lawyer to determine which of these best suits your case and provides the best chances of a positive outcome.

The remedies that may be utilized to reduce an excessive sentence include the following:

Withdrawal of a guilty plea

We can help you research and draft a motion to withdraw your initial guilty plea.  The motion can generally be filed in cases where you feel you were not treated fairly in regard to your plea.

Although courts tend to view this motion unfavorably, due to the possibilities of abuse, there are several circumstances where it would be justified.

  • If the initial plea of guilt was coerced either through physical, emotional, economic or psychological means, it may be withdrawn through a post-trial motion. In this case, we would be arguing that the initial plea was illegal and may be able to push for a new trial or acquittal.
  • A guilty plea may be withdrawn where the plea was obtained through deceit on the part of prosecutors. For instance, where you were provided incomplete information at the time of making the plea.
  • The motion may also be filed where the prosecutor failed to adhere to the terms of the plea agreement. This may be the case where the sentence sought was harsher than what was promised by the prosecutor in exchange for the plea.
  • Where the initial trial was conducted by a lawyer who did not provide competent advice befitting a criminal trial, we may also be able to file this motion.

Motion for a new trial

A motion for a new trial requests a trial judge to retry the case.  Usually, the motion is brought before the same judge who presided at the trial and is only granted for very specific reasons, including where:

  • New evidence that could be significant to the case has just been discovered
  • There was a significant error in handling the case in the initial trial
  • The trial was tainted by jury or prosecutorial misconduct. For instance, if there was outside contact with a jury member during the trial, the motion may be sought.

Keep in mind that there is usually a very short time within which this motion must be filed.  It is typically filed within days or weeks of the conclusion of the trial and until the motion is disposed of, no other motions may be filed.

Motion to reduce a sentence

Most states preserve the right of a convicted and sentenced defendant to request that the judge reconsider the sentence.  The motion is usually filed strictly for a reconsideration of the sentence that was imposed.  It does not dispute the guilty verdict reached by the court.

The motion may be filed in a number of circumstances including the following:

  • Where new sentencing reforms are introduced. For instance, after the Supreme Court in Atkins v.  Virginia barred the execution of the “intellectually disabled” in 2002, more than 83 individuals condemned to die had their sentences reduced over the next 11 years.
  • If some new factor is discovered that was not initially considered during trial and sentencing, a motion may be filed. However, the factor must be one that would have had an impact on the sentencing had it been considered at the time.

Cooperation or assistance with a case

A defendant may offer cooperation or assistance to the prosecution in regard to their own case or another.  When such assistance is provided, the defendant may be able to get their sentence reduced, provided the assistance they have given is “substantial”.

Under Rule 35 of the US Federal Rules of Criminal Procedure, the motion can only be brought by the government and it must be made within one year of sentencing.  However, the motion may be brought after one year of sentencing if:

  • The information provided by the defendant was not known until a year or more after sentencing;
  • The information was provided within one year of sentencing but did not become useful until much later; or
  • The defendant possessed the information much earlier but could not have anticipated its usefulness until much later, and the information was promptly provided after its usefulness became apparent.

Compassionate release

A defendant may also be released on a motion for compassionate release.  The motion is usually filed in cases where the defendant is aged or facing imminent death and is considered to pose no threat to the public.

Currently, all states in the US, except Iowa, have a framework for compassionate release.  However, the procedure is typically under-utilized due to the rigorous processes involved.

We can help you thoroughly research the state-specific procedures, isolate likely issues with regards to your case and how they may be resolved.

Take your future into your hands today

A prison sentence is not the end of the world or your defense.  Depending on the circumstances of your case, there are several specific remedies you may be able to utilize.  Contact us today and let us put our unique expertise to work for you and your lawyer.