Post-Conviction Proceedings

Defendant's Rights at Post-Conviction Proceedings

A conviction may feel like the end of the line, but in fact, there are several post conviction proceedings that could shorten or even eliminate a sentence. A defendant's constitutional right to counsel applies to some, but not all of the proceedings discussed in this article. For a review of your right to an attorney, and other rights, after a plea deal or a jury trial conviction, read on.

A Defendant Is Entitled to an Attorney for Procedures Affecting Their Constitutional Rights

A defendant is entitled to court-appointed counsel for proceedings that affect their fundamental rights, such as:

  • Sentencing: In general, sentencing is the procedure in which the court decides what a defendant's punishment should be. Since it's considered a "critical stage" of the prosecution, the defendant is entitled to a defense attorney;
  • The First Appeal of Right: Some states give criminal defendants the right to an appeal when a judge rules against them on certain motions during trial. In these states, a defendant is entitled to have an attorney on the appeal;
  • Review of the Effectiveness of Defense Counsel: The Sixth Amendment gives criminal defendants the right to a competent attorney. If a defendant claims his attorney was not competent or effective, he'll be appointed a different attorney to help them with the review.

An appellate attorney reviews the transcripts of these proceedings to see that counsel objected when necessary, forwarded necessary evidence, and otherwise did everything reasonably possible to secure an acquittal or a favorable plea agreement. The appellate attorney also check that the judge made no plain legal errors and did not abuse their discretion.

Non-Essential Proceedings

Unlike proceedings that affect a defendant's constitutional rights, the following proceedings do not necessitate counsel:

  • Discretionary Appeals and Petitions for the Supreme Court: Defendants in states that don't recognize the right to an appeal may still seek to have their case reviewed for errors. However, defendants usually must hire their own attorneys for such appeals; and
  • Retrial: If the trial court made a very serious error that affected the trial's outcome, a defendant may request a new trial. Technically, defendants in such circumstances aren't entitled to an attorney to help them with the filing, but attorneys will typically file this petition at the end of every trial; and
  • Habeas Corpus Proceedings: A petition for habeas corpus is a claim that the reason for incarceration is unconstitutional. For this proceeding, a prisoner must hire his own attorney or represent himself; and
  • Parole Hearings: In parole hearings, a panel of judges may decide to let a prisoner out on parole, revoke parole, or shorten parole. Prisoners may have an attorney present, but are not entitled to one; and
  • Clemency, Pardon, or Commutation Proceedings: These proceedings can allow a convicted person's sentence to be shortened or even erased entirely; and
  • Expungement: In expungement proceedings, a convicted person who served her entire sentence can get her record erased and her civil rights restored. Convicts aren't entitled to an attorney when pursuing expungement.

See FindLaw's section on Criminal Rights and Criminal Procedure for more information about your right to effective counsel at these proceedings. Also note that, just because a defendant was alone at a hearing does not mean the judge, parole agent or jury felt special empathy for a defendant and so followed the law. An experienced criminal defense attorney reviews the transcripts of these proceedings to ensure your rights were protected, especially regarding admission of false confessions and inauthentic evidence.

Get Legal Help with Your Post-Conviction Proceedings

As you can see, you may not be entitled to an attorney for certain post-conviction proceedings. However, that just applies to a court-appointed attorney. You still have the option to consult with a well-qualified criminal defense attorney near you for help with any post-conviction proceedings.

Next Steps

Contact a qualified criminal lawyer to make sure your rights are protected.

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