Can he file an appeal for an attempted sexual assault that has no evidence? 23 Answers as of May 22, 2013

My son was sentenced to eight years for a crime he could have proven wrongly accused of. He feels he was pressured into taking the plea bargain, which he had to plead guilty. He is facing criminal charges that will affect his background when he is released. He was charged with attempted sexual assault and I, as his mother, would like more information as to what and how could I help in getting an attorney that can help appeal his case on this matter. I don’t have very much capital or many resources to hire an attorney. Is there any other help that I can turn to? Thank You.

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Steven Alpers | Steven Alpers
Here it is.
Answer Applies to: California
Replied: 9/27/2012
Law Offices of John Carney
Law Offices of John Carney | John Carney
I would have to know a lot more about the case in order to advise you of your options. Many defendants try to tell their friends and family that they are innocent, even if they have confessed. Often they will initially lie to their lawyers or change their story. Eventually they are offered a plea and take it because they know they are guilty and that they will be convicted at trial and get even more jail time or they would never agree to accept a long prison term. No one pleads guilty to 8 years in prison and admits to a judge on the record that they committed the crime, they are satisfied with their lawyer, and that no one pressured them to take the plea unless it is all true. They must say all of that and much more on the record under oath in order to take a plea and that is because the judge knows that after they go to prison they will claim that their lawyer lied to them or forced them to take the plea, or that they were innocent but only took the plea because their lawyer told them to. That is very unfair to the lawyer since they are being accused of violation the law, the rules of professional ethics, and being slandered by a defendant who is hurting his reputation and making false accusations just to look better to his friends, family, and cell mates. If your son was innocent he would have told his lawyer to go to trial. If he could have proved he was innocent he would have told you what evidence there was instead of just saying he was innocent. I was not there and I do not know if he was innocent or not, but I do know that it is very unlikely that he plead to such a serious charge and agreed to 8 years in prison and a lifetime as a registered sex offender unless he was guilty. As far as an appeal of a plea, it is very hard to prove that the lawyer pressured him to take a plea to a crime that he was innocent of since that is covered in the plea on the record and the lawyer has no motive to pressure a client to lie and say he committed a crime that-he says he is innocent of. It is much more likely that your son blaming the lawyer and trying to claim he is innocent just so he does not have to admit to his mother that he is guilty of a very serious crime. Child molesters, rapists, pedophiles, and others who are accused of crimes that require registration as sex offenders are the most likely to deny their guilt despite all the evidence and their confessions and admissions because it is easy simply say, "My lawyer pressured me to plead guilty", which implies that the lawyer is making an innocent man plead guilty and go to prison because he is either lazy, dishonest, or working with the prosecution against his own client. That is unfair, untrue, and only an idiot would believe it...of course your case could be different, perhaps he is innocent and perhaps he should have gone to trial. Perhaps his lawyer did not believe he was innocent and told him to take the plea or he would get more than 8 years. In that case your son would simply be foolish to take bad advice and I don't think anyone would take 8 years for a crime they did not commit. I tell you this because I want to help you to understand the truth. Save the $10,000-$20,000 you would give to a lawyer for an appeal and have Legal Aid do it for free since he will almost certainly not prevail and since the only way he will learn how to act in society is to follow the law, respect others, and take responsibility for his actions. He should apologize to the person he violated, admit that he committed a crime, apologize to his lawyer and stop slandering him and ruining his reputation, and he should apologize to you for causing you all this pain and embarrassment. I do not blame you for how he was raised or what he did, but do not blame his lawyer or anyone else for his crimes or his sentence.
Answer Applies to: New York
Replied: 9/25/2012
Dennis P. Mikko Attorney at Law | Dennis P. Mikko
If your son cannot afford an attorney, he can ask the court to appoint an attorney to represent him in an appeal. Since he entered a guilty plea, his right to appeal are limited but he should have the matter reviewed by an attorney if he thinks there was an error.
Answer Applies to: Michigan
Replied: 9/22/2012
Law Office of James A Schoenberger
Law Office of James A Schoenberger | James A Schoenberger
It is very difficult to withdraw a plea but it can be done. He can also file a personal restraint petition (PRP) within one year if he has evidence of his actual innocence.
Answer Applies to: Washington
Replied: 9/22/2012
Michael Breczinski
Michael Breczinski | Michael Breczinski
You need to find an attorney that does criminal appeals. This is the best way to go.
Answer Applies to: Michigan
Replied: 9/22/2012
    Law Office of Richard Williams
    Law Office of Richard Williams | Richard Williams
    If he plead guilty based on a recommendation he will have a most difficult time in getting his plea set aside. Additionally after a period of time the court will lose jurisdiction to set aside a plea or modify any sentence. Seek an attorney who specializes in post conviction remedies.
    Answer Applies to: Alabama
    Replied: 9/22/2012
    Hamblin Law Office | Sally Hamblin
    Call the Michigan Defenders Office in Lansing as a start.
    Answer Applies to: Michigan
    Replied: 9/22/2012
    Mace J. Yampolsky, LTD
    Mace J. Yampolsky, LTD | Mace Yampolsky
    Call the State bar Pro Bono project.
    Answer Applies to: Nevada
    Replied: 9/22/2012
    Lawrence Lewis
    Lawrence Lewis | Lawrence Lewis, PC
    Your question makes absolutely no sense. If your son could have.
    Answer Applies to: Georgia
    Replied: 9/22/2012
    Palumbo and Kosofsky
    Palumbo and Kosofsky | Michael Palumbo
    Yes.
    Answer Applies to: New York
    Replied: 5/22/2013
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    Anybody can file an appeal, if timely. Winning is an entirely different question, especially when he specifically waived his appeal rights in the plea bargain. He doesn't get a do over because he changed his mind about the plea bargain. In general, appeals are extremely expensive unless you can find some non-profit pro bono type group willing to even review the court file and transcripts to see if they can find legal grounds to allow an appeal, such as support for claim of ineffective counsel. Search for prisoner appeal rights assistance and words like that.
    Answer Applies to: California
    Replied: 9/21/2012
    R. Jason de Groot, P.A
    R. Jason de Groot, P.A | R. Jason de Groot
    He plead and so an appeal may not be available. He should probably move to set aside the plea, if that is possible. You simply cannot get an aggressive criminal defense attorney to work for nothing. There are plenty who give free initial consultations, like me.
    Answer Applies to: Florida
    Replied: 9/21/2012
    Freeborn Law Offices, P.S.
    Freeborn Law Offices, P.S. | Steve Freeborn
    I hear this argument a lot, after everything is said and done. Sometimes its true, most of the time it is not. As a judge, I always go over the sentencing order with the defendant in great detail. I always ask the defendant if he/she has any questions of either the attorney, or of me as the judge. Before imposing any sentence, I am convinced that the defendant is making a knowing and intelligent plea. From what you told me, it sounds like your husband was dealing with serious charges. If you are still convinced that he didn't understand, the only way to verify is to listen to the taped transcript of the sentencing. I will suspect that the tapes will bear out that he knew what was going on.
    Answer Applies to: Washington
    Replied: 9/21/2012
    Jonathan S. Willett Attorney at Law
    Jonathan S. Willett Attorney at Law | Jonathan S. Willett
    If your sone is appealing his sentence only, his attorney should have filed an appeal to the Colorado Court of Appeals in which the public defender would have likely been appointed. If he wants to challenge the entire conviction, which includes the guilty plea, he can file a motion for post conviction relief pursuant to Criminal Procedure Rule 35 (c). That motion should very completely state his grounds for relief. If he states grounds, the court would likely appoint a lawyer for him. The 35(c) motion must be filed within 3 years of his sentencing hearing.
    Answer Applies to: Colorado
    Replied: 9/21/2012
    James M. Osak, P.C.
    James M. Osak, P.C. | James M. Osak
    He took the plea bargain. He has to take the consequences now. If he was innocent. He should have said so and rejected any/all deals. With no money you'll not get any appeals attorneys. See if SADO (State Appellate Defenders Office) can help you [Detroit and Lansing, MI]. Never plead out to something you did not to. It doesn't take an attorney to figure that one out.
    Answer Applies to: Michigan
    Replied: 9/19/2012
    Miller & Harrison, LLC
    Miller & Harrison, LLC | David Harrison
    Once a person pleads guilty to an offense it is very difficult to re-open the case. Without knowing exactly why he decided to take the plea deal, etc. it is hard for you to make any decisions for your son. You should leave it up to him. That being said, there are private lawyers that will examine the situation and decide if there is any chance of undoing the case and starting again, but it is expensive and time consuming. Your son might be able to file a motion himself to withdraw the plea and ask for a court appointed lawyer, but that would be hard to get.
    Answer Applies to: Colorado
    Replied: 9/19/2012
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    If there was no evidence he would not have been convicted. And remember, an appeal isn't a re-trial of the facts. An appellate Judge simply looks at whether there were legal error(s).
    Answer Applies to: California
    Replied: 9/19/2012
    Law Office of Phillip Weiser
    Law Office of Phillip Weiser | Phillip L. Weiser
    If a person takes a plea bargain and is sentenced according to the law, there is no appeal rights. The only appealable issue is to make the judge give a legal sentence if one was sentenced outside the sentencing boundaries.
    Answer Applies to: Kansas
    Replied: 9/19/2012
    Douglas M. Philpott, P.C. | Peter J. Philpott
    Yes.
    Answer Applies to: Michigan
    Replied: 5/22/2013
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    First of all, there is a strict time limit to appeal. Your son must file an appeal within thirty (30) days of his sentencing hearing. If he misses that deadline, he must file a Personal Restraint petition within one year of his sentencing hearing. He should contact the Washington Appellate Defenders Association. They are public appellate defenders. Your son could also file a motion to withdraw his guilty plea. Once again, there is a strict time limit on that. He faces a high burden though. He stood in open court and assured a judge that he was making a knowing, voluntary plea. Your son would essentially be saying he lied to the judge when he plead guilty. Unless someone actually threatened your son to make him plead guilty, the court will assume he is an adult who made a knowing and voluntary plea.
    Answer Applies to: Washington
    Replied: 9/19/2012
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    If he has plead guilty he has very, very limited appeal rights. You should seek counsel and provide all of the details.
    Answer Applies to: Michigan
    Replied: 9/19/2012
    Leonard A. Kaanta, P.C. | Leonard A. Kaanta
    You can appeal for effective counsel.
    Answer Applies to: Michigan
    Replied: 9/19/2012
    Mary W Craig P.C. | Mary W Craig
    If your son pled guilty and had the counsel and advice of an attorney, then when he pled guilty, he waived his right to appeal unless you can show that the lawyer lied to him, or was somehow so incompetent that your son was misled in to pleading guilty. If his lawyer was incompetent, then he can try to set aside his guilty plea based on ineffective assistance of counsel. Otherwise, he will not be able to appeal a guilty plea.
    Answer Applies to: Alabama
    Replied: 9/19/2012
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