Criminal Appellate Attorney

The term "criminal appeal" generically describes several different pretrial and post-conviction challenges to trial court decisions. An interlocutory appeal challenges a pretrial decision. A motion for a new trial and direct appeal challenge the trial judgment. Post-conviction challenges include such topics as an attempt to withdraw a guilty plea and a collateral attack on the conviction after direct appeal.

Attorney Driscoll represents clients throughout Massachusetts, and nationwide. He pursues appellate matters in Massachusetts Appeals Court, the Massachusetts Supreme Judicial Court (SJC), and to the U.S. Supreme Court.

A criminal conviction is far reaching. Besides incarceration, parole, or probation there is the impact upon other rights such as present or future housing, employment, immigration, and government benefits. A subsequent arrest can be treated more harshly (e.g., bail) and a subsequent conviction can result in harsher sentencing, particularly in federal court.

A criminal appeal challenges whether what occurred in the trial court was fair, whether the evidence was legally sufficient to justify the outcome, and whether the law was correctly interpreted and applied in the trial court. There are many mistakes, errors, and oversights that can occur during a criminal prosecution. For example, a trial judge may incorrectly decide a critical motion, improperly admit or exclude trial evidence, allow the jury to proceed where there is insufficient evidence to support a conviction, or improperly instruct the jury on the law.

Criminal appeals are sensitive to procedure and time deadlines. Identifying viable issues for appeal and properly arguing your case to the appellate court is a task requiring appellate experience. If your conviction is worth the time, stress, and expense of a direct appeal then it is worth engaging experienced appellate counsel.

Interlocutory Criminal Appeal

An interlocutory appeal challenges a court decision made before a trial conviction. Either the defendant or the Commonwealth may pursue a criminal interlocutory appeal, such as challenging the granting or denial of a motion to suppress evidence. Litigation is halted while the appeal is ongoing in the appellate court.

Direct Criminal Appeal

A direct appeal challenges one or more convictions after trial. A criminal direct appeal is initiated with the timely filing of a notice of appeal in the trial court, a technical legal issue that must be satisfied before an appellate court may hear the case on appeal. The issues being challenged on appeal can arise anytime during the criminal "case", which can range back to before arrest.

There are several phases of a direct appeal that provide an opportunity for relief. A motion to revise or revoke sentence can be pursued. If the issue(s) for appeal are strong, and the condemned does not have a poor record, then a motion to stay sentence pending appeal can be pursued. If suitable cause permits, or there is a claim that trial counsel was Constitutionally ineffective, then a motion for a new trial can be pursued. A denied motion for a new trial provides additional issue(s) for the direct appeal.

Ultimately a direct criminal appeal is prepared and presented in the Massachusetts appellate court. Most direct appeals are heard by the Massachusetts Appeals Court. The higher state appellate court, the Massachusetts Supreme Judicial Court (SJC), hears direct appeals for all first degree murder convictions as well as those cases the SJC selects to hear.

When a direct criminal appeal is decided in the Massachusetts Appeals Court then an application for further appellate review in the Massachusetts Supreme Judicial Court (SJC) must be sought in order to exhaust all state court recourses. There are two reasons for exhausting all state court appellate recourses. First, it is to seek habeas corpus relief in the federal court system. Second, it is to seek direct appellate review in the United States Supreme Court.

If a federal issue is raised in the last Massachusetts appellate court deciding the case on the merits then further appellate review can be sought in the Supreme Court of the United States. The United States Supreme Court is the court of last resort, the highest appellate court in the country. For example, Attorney Driscoll pursued United States Supreme Court review by filing a Petition for Writ of Certiorari questioning whether a passenger's federal Constitutional rights were violated when the police stopped the motor vehicle for the sole reason of verifying a passenger's firearm license status.

Collateral Post-Conviction Appeal

After direct appellate rights are exhausted, collateral post-conviction relief exists. The most common avenue pursued is the motion for a new trial. That motion can assert many different claims for relief.

First, a motion for a new trial can be used to withdraw a guilty plea. If successful, the guilty plea is set aside and the Commonwealth may proceed to trial. This avenue is particularly important when a sentence is enhanced by the habitual offender statute. If one of the three "strikes" can be reversed then the harsh habitual offender sentence can be reduced.

Second, a motion for a new trial can be used to collaterally attack the underlying conviction. For example, relief can be sought due to ineffective assistance of counsel or newly discovered evidence. Commonly discussed relief is DNA evidence used to exonerate the innocent in cases decided before DNA was available.

A motion for a new trial is pursued in the trial court that decided the underlying conviction. If the motion is granted then the case could be dismissed or the Commonwealth can be granted the right to a retrial. If the motion is denied then relief can be sought as in any other direct appeal to the Massachusetts appellate court.