Steve Palmer [00:00:00]:

Steve Palmer here. Lawyer talk. What's the appeal? You get it sort of a pun. What's the appeal? So what am I doing here with lawyer talk? What's the appeal? I do a ton of appellate work in my real life, my real life being my law practice, Palmer Legal Defense. Check us out. But I get all sorts of questions in the realm of my appellate practice. And I realize that we use lots of terms and words that don't make sense to real people. And I say real people because lawyers aren't real people.

Steve Palmer [00:00:26]:

We're just lawyers reprogrammed, ruined forever. At any rate, what's the appeal? Today I'm going to talk about a question I got in my appellate practice and that is I get this a lot actually. But this came up twice in the last two weeks where people are calling me and they want to appeal and their convictions and I say, okay, so tell me when the trial was. And I get sort of a quiet response. And my almost always follow up question, because I've done this a time or two is, did he plead guilty? And the answer is yes. Which brings up the next question, can I appeal my conviction after a guilty plea? So first we need to talk about what happens when you plead guilty. When you plead guilty, it is a complete, total and utter admission of guilt of all the facts on whatever charges are you're pleading guilty to. So you were saying, judge, I am guilty.

Steve Palmer [00:01:14]:

Now, that doesn't necessarily count for what happens all the time in courts where people plead guilty and they could have fought the case at trial, but they're scared or they don't have the money or they're worried about it being worse if they lose at trial. But nonetheless, if you plead guilty, the law says you're guilty, you're going to be treated like you're guilty, the court's going to act like you're guilty, everybody's going to assume you're guilty, factually, legally and otherwise. So once you've pled guilty, you can imagine it changes your appellate rights. I've already done an episode on with trying to withdraw your guilty plea. But now the question is, can I appeal the sentence after my guilty plea or what can I appeal after a guilty plea? I didn't bury the lead. In fact, I put the lead out too, for you can appeal the sentence sometimes. In other words, I plead guilty to an offense. Let's just pick one.

Steve Palmer [00:02:02]:

Say felonious assault. Here in Ohio, that means you assaulted somebody and caused serious physical harm. There's other ways to do it. But for our Purposes, that's good enough. And the judge gave me eight years in prison. And I thought, holy crap, that is a really stiff sentence. Can I appeal that? So you call up Palmer Legal Defense and you get me on the phone and I say, listen, sometimes, yes, you can appeal that in Ohio for a couple of reasons in that one particular, because that is what we would consider a maximum sentence. And you always have a right to appeal a maximum sentence.

Steve Palmer [00:02:33]:

And by a right to appeal, then the court would appoint a lawyer to represent you. But the chances of success get really, really slim. I call this the magic words approach. Courts have to say certain magic words on the record to justify their sentence. And I'm not going to go into what Ohio says in detail, but generally speaking, they have to say that. They have to explain why they're imposing a maximum sentence. Now, if there's multiple charges and they want to run them in the vernacular, run them wild, which means back to back. So if it's two counts and they say you're doing eight years on both, for a total of 16, that's consecutive sentencing.

Steve Palmer [00:03:10]:

Again, courts have to say certain things on the record to justify that. And they might say things like, look, this person has a lengthy prior record. We think that the version of this offense that this defendant committed is far worse because he tortured this person over six hours of time. Or it wasn't just one punch, it was multiple punches, and he kept punching after the guy was down. He may talk about the danger or other circumstances of the offense. There's all sorts of factors you would consider that might lead the judge to say, this person would do it again. So there's a risk of recidivism. And recidivism means they're going to likely to reoffend.

Steve Palmer [00:03:52]:

So there's just a bunch of factors like that. And if the judge says those things on the record, then that usually is enough to support the sentence. Now what if it's not? So I get a transcript of the sentencing hearing because somebody's hired me to do the appeal. I order the transcript, I look at the pleadings, and I find that the judge didn't use all the magic words. I say, okay, well, we can appeal that. So I appeal that to the court of appeals, and the court of appeals agrees and says, you're right, the judge did not use all the magic words. We are going to agree. We're going to grant your appeal and we're going to remand or send this back down to the trial court and tell them to do it right.

Steve Palmer [00:04:28]:

And you can guess what you think is going to happen next. We're going to go back to the trial court for a new sentencing hearing and the judge is going to use the magic words and give you the same sentence. Not always, but that happens a lot. Sometimes we appeal because it's a really harsh sentence and we think maybe, just maybe, we can present facts and circumstances differently at a new sentencing hearing and maybe get a better sentence. But often you end up in the same boat that you started. And so it's a pyrrhic victory. Look it up. It's interesting.

Steve Palmer [00:04:57]:

It's a Pyrrhic victory, meaning you didn't win. You won, but you didn't really win anything and you haven't gained anything. Other times, though, maybe, maybe the sentence is just on its face unlawful, so the judge couldn't ever justify back to back sentencing so you can save somebody a significant period of time. So look, here's the, here's the takeaway back. I don't think if you've already been sentenced and you want to appeal that if you win, you're going to somehow get out of it or beat it or withdraw your plea. It's not that the court's going to look at the sentencing and determine if it was done correctly and then force the trial court to do it correctly, whatever that is. So you can win, but maybe not much, or maybe you can win but maybe a little bit more. It's not always a home run.

Steve Palmer [00:05:46]:

So if you plead guilty, you need to go into it knowing that that's likely it, that whatever sentence you get is probably going to be the sentence you're stuck with. It is very difficult to appeal and change a sentence. By difficult, I mean statistically, doesn't happen very often that you can actually lower your sentence. And I say this because a lot of people say, I'll plead guilty, get a sentence, I'll just appeal. Not so fast. Talk to your attorney before you go in. Get some advice on what happens if you get a max sentence and then make the decision knowingly, intelligently and voluntarily. Those are the real magic words that you need to understand.

Steve Palmer [00:06:27]:

All right, what's the appeal? Appealing sentences right here on Lawyer Talk, off the record, on the air.