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Post-Conviction Proceedings

Created by FindLaw's team of legal writers and editors.

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. It's important to note, however, that a defendant's constitutional right to counsel applies to some, but not all proceedings after a conviction. Read on to learn about the different types of post-conviction proceedings and which ones entitle a defendant to an attorney.

Post-Conviction Proceedings: When a Defendant Is Entitled to an Attorney

A defendant is entitled to court-appointed counsel for proceedings that affect their fundamental rights. Proceedings that effect a defendant's constitutional rights include:

  • 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 didn't abuse their discretion.

Post-Conviction Proceedings: When a Defendant Isn't Entitled to an Attorney

There are post-conviction proceedings that aren't seen as affecting a defendant's constitutional rights. As such, these types of proceedings don't entitle a defendant to an attorney. Proceedings that don't necessitate counsel include:

  • 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.
  • 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.
  • 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 their own attorney or represent themselves.
  • 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 aren't entitled to one.
  • Clemency, Pardon, or Commutation Proceedings: These proceedings can allow a convicted person's sentence to be shortened or even erased entirely.
  • Expungement: In expungement proceedings, a convicted person who served her entire sentence can get their record erased and civil rights restored. Convicts aren't entitled to an attorney when pursuing expungement.

Also note, just because a defendant was alone at a hearing doesn't mean the judge, parole agent or jury felt special empathy for a defendant. An experienced criminal defense attorney reviews the transcripts of these proceedings to ensure their rights were protected, especially regarding admission of false confessions or 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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