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Appellate and Post Conviction Division

 

The Appellate and Post-Conviction Division handles direct appeals, expungements, and other post-conviction matters on behalf of indigent clients. The division consists of nine attorneys and several support staff. While each attorney has a different background, all are experienced appellate litigators – several have more than 20 years of experience.


The Public Defender’s Appellate and Post-Conviction Division is supervised by Cullen Sweeney. Mr. Sweeney has worked in the Public Defender’s appellate division for nearly 15 years, has handled hundreds of cases in the Eighth District Court of Appeals, and has argued more than a dozen cases in the Ohio Supreme Court.


The Appellate and Post-Conviction Division is located at 310 Lakeside Avenue, Suite 200, Cleveland Ohio 44113. If you are a current client with questions, please contact your attorney. If you are seeking assistance with an appeal or a post-conviction matter, please contact Senior Paralegal Robi Kublin at (216) 443-7583 or rkublin@cuyahogacounty.us.


 

Appellate and Post-Conviction Division attorneys represent indigent clients in a variety of matters.


Direct Appeals


We handle direct appeals in criminal cases involving felonies and misdemeanors. We also represent juveniles in appeals from delinquency matters and represent parents challenging the termination of their parental rights.


Post-Sentencing Relief


We handle post-sentencing relief including expungement motions, jail credit motions, and judicial release motions. Some of these post-sentencing matters are also handled by felony division attorneys. If a defendant is entitled to jail credit, we will file a motion to get that credit. We do not, however, file judicial release motions in every case where the defendant is eligible; rather, we evaluate each individual request and file a motion if we believe that there is a reasonable likelihood of success.


Post-Conviction Challenges


A defendant does not have a constitutional right to appointed counsel in post-conviction cases. However, our office will reviews the merits of the potential claims and will handle post-conviction claims on a case by case basis. Such claims may be presented in a variety of ways including motions for new trial, post-conviction petitions, and motions to withdraw guilty pleas


Pro Se Resources

  • Click here for Pro Se Appeal Forms
  • Click here for Pro Se Post-conviction Forms

FAQs

An appeal is a request for a higher court to review a lower court’s decision. In Cuyahoga County, appeals from trial courts are filed with the Eighth District Court of Appeals. A panel of three judges is assigned to review each case. The appellant is the party challenging the lower court’s decision. The appellee is the party defending that decision.

 

In general, a defendant in a criminal case has to wait until the end of the case to file an appeal. A notice of appeal needs to be filed within 30 days of the judgment being appealed. In appeals from criminal convictions, the defendant must file the notice of appeal within 30 days of the sentencing judgment entry.


If a defendant in a criminal case misses the 30-day deadline, he or she may file a delayed appeal and ask the Court of Appeals permission to accept the appeal late. Unlike an appeal that is filed timely, the Court of Appeals does not have to accept an untimely appeal.

 

That depends. A criminal defendant, who cannot afford to hire an attorney, generally has the right to have counsel appointed to file an appeal from his or her criminal conviction to the Court of Appeals. A defendant does not have the right to appointed counsel on appeal in cases where a jail or prison sentence is not possible (e.g. minor misdemeanors). A defendant does not have the right to appointed counsel to file an appeal to the Ohio Supreme Court or to file subsequent appeals.

 

    Appellate proceedings are very different from trial court proceedings. They are focused on legal issues and involve more written advocacy and less time in court.


    Here are the steps of an appeal:


    1. Filing of the notice of appeal: This is a basic form document that is necessary to start the appellate process.

    2. Transmission of the record of the trial court proceedings: Once a notice of appeal is filed, the trial court sends its entire case file to the court of appeals. This includes a transcript (or written record) of any in-court proceedings.

    3. Review of the record: Once the transcript is filed, the defendant’s counsel reviews the entire record (including reading the transcript which can be 100s or 1000s of pages) to identify any errors that occurred in the trial court proceeding.

    4. Appellant’s brief: Once the record is reviewed, counsel for the appellant (usually the defendant in a criminal case) files a written document (called a “brief”) that alleges errors in the trial court proceeding.

    5. Appellee’s brief: After the appellant’s brief is filed, counsel for the appellee (usually the Government in a criminal case) responds with an appellee’s brief. The appellee can agree that an error occurred or, more commonly, argues that there was no error.

    6. Reply brief of appellant: Appellant’s counsel has the option to file a reply brief in support of his or her arguments. Reply briefs are not filed in every case.

    7. Oral argument: Once all the written briefing is complete, the case may be scheduled for oral argument before three appellate judges. The parties may also chose to waive oral argument and just submit the case to the Court on briefs.

    8. Written decision: The Court of Appeals issues its decisions in written opinions. To prevail in most cases, the appellant needs at least two of the three judges to rule in his or her favor. Appellate court decisions from the Eighth District are posted every Thursday. A list of the cases decided can be found here and the opinions can be found here.

The amount of time an appeal takes varies widely on the type and complexity of the case. In general, however, an appeal takes approximately 10 to 14 months from the filing of the notice to the decision by the Court of Appeals.

 

On appeal, a criminal defendant is limited to challenging issues that were presented in or were a part of the record of the proceedings in the trial court. For instance, a defendant can challenge, on appeal, a trial court’s decision to permit certain testimony or evidence. A defendant generally cannot challenge, on appeal, his attorney’s failure to call a witness or present certain evidence – unless there is some record of what that witness would have said or the evidence would have been.


If a defendant wants to raise an issue that is not part of the record of the proceedings in the trial court, he or she would need to file something different such as a motion to withdraw a guilty plea, a motion for a new trial, or a post-conviction petition. A defendant does not have the right to have counsel appointed to pursue any of these post-conviction possibilities.


Please click here for information on representing yourself in a post-conviction petition.

 

When a defendant pleads guilty, he or she is admitting to have committed the crime and gives up his or her ability to raise most issues. Any appeal is generally limited to whether or not the plea was correctly entered and/or whether the sentence was proper.

 

Ohio Rule of Appellate Procedure 26(B) provides a procedure for arguing that your appellate attorney was ineffective because he or she failed to raise an important or meritorious issue. A 26(B) application to reopen your appeal must be filed within 90 days of the appellate court decision and is filed with the court that issued that decision.


You are not entitled to appointed counsel to file an application to reopen your appeal under 26(B). Our office will, however, occasionally file a 26(B) application. We do not file these frequently and only do so if, based on our review of the case, we believe that such an application has merit.


Please click here for information on representing yourself in filing an application to reopen your appeal.

 

If you disagree with the decision of the Court of Appeals, you can file an appeal with the Ohio Supreme Court. Unlike the Court of Appeals which is required to hear most cases, the Ohio Supreme Court generally gets to choose which cases it wants to decide. In a criminal appeal (not involving the death penalty), the first step in an appeal to the Ohio Supreme Court involves filing an Memorandum in Support of Jurisdiction explaining why the Court should accept your case.


You are not entitled to appointed counsel to file an appeal with the Ohio Supreme Court. If our Office handled the case in the Court of Appeals, we will file an appeal with the Supreme Court if we believe the case presents an issue that is both likely to be accepted for review and has merit. We will also review requests to file appeals to the Ohio Supreme Court in cases that we did not handle in the Court of Appeals.


Please click here for information on representing yourself in an appeal to the Ohio Supreme Court.

 

In most cases, you only have the right to appeal a decision one time to the Court of Appeals and the Ohio Supreme Court. If you are dissatisfied with the result of your appeal in those courts, you cannot just file a new appeal.

 

    A trial court does not have the ability to simply change a defendant’s sentence once it has been imposed. However, the trial court may grant early release (called a “judicial release”) under R.C. 2929.20 if the defendant is eligible.


    While a defendant is serving a mandatory prison sentence, he or she is not eligible for judicial release. If a sentence or a portion of a sentence is mandatory, that means that the defendant must serve the entire sentence and it cannot be shortened by judicial release. Only certain offenses and specifications require the imposition of a mandatory sentence.


    The eligibility of a defendant, serving a nonmandatory prison sentence, depends on the length of the nonmandatory prison sentence imposed:


    • If the defendant received a nonmandatory sentence of less than two years, the defendant is eligible at any time after arriving at the state institution/prision (or after completion of the mandatory sentence);

    • If the defendant received a nonmandatory sentence of at least two years but less than five years, the defendant is eligible 180 days after arriving at the state institution/prison (or after completion of the mandatory sentence);

    • If the defendant received a nonmandatory sentence of five years, the defendant is eligible after serving 4 years of that nonmandatory sentence;

    • If the defendant received a nonmandatory sentence of more than five years but less than ten years, the defendant is eligible after serving 5 years of that nonmandatory sentence;

    • If the defendant received a nonmandatory sentence of ten years or more, the defendant is eligible after serving one half of that nonmandatory sentence;
    • Even if eligible, a defendant is not entitled to early release; it is up to the trial court. A defendant is not entitled to appointed counsel to file a judicial release motion. Our office will file judicial release motions on a case-by-case basis where, based upon our review, we believe there is a strong likelihood that it will be granted by the court.

      Please click here for information on representing yourself in a judicial release motion.