Appealing Your Criminal Conviction or Sentence in Colorado
Appeals can be completed in several ways in Colorado so take advantage of every option you have.
If you were convicted of a crime in Colorado, you may want to challenge your conviction, your sentence, or both. In Colorado, there are several options to do this, which I discuss below. First, however, it’s important to understand the following:
- There are important deadlines that must be followed for an appeal. If a deadline is missed, an appeal will not be heard.
- There are important processes and procedures that also must be followed. These also must be carefully followed, otherwise the right to an appeal can be lost.
- Your best bet in succeeding in an appeal will be through retaining an experienced appellate attorney. Appeals should be carefully crafted around the legal and factual issues and caselaw concerning why a lower court decision should be reversed or modified. It’s not sufficient just to claim that you don’t like the decision and you think it should be changed. You will need legally-persuasive reasons for seeking the desired outcome in order to prevail.
As a Colorado appellate lawyer with more than 14 years of experience in in criminal law, I work tenaciously to help clients to overturn their convictions, sentences, or both. I carefully analyze my clients cases, review their trial transcripts, and determine the grounds upon which an appeal may be based. After filing an appeal, I also represent my client in oral arguments when they are requested by the court.
A “direct” appeal is what is most commonly thought of when challenging convictions and sentences. Put simply, it is the course of appeal directly to the next higher court. For example, if you were charged in District Court, the direct appeal would be to the Colorado Court of Appeals. From there, the direct appeal would be to the Colorado Supreme Court. If you were charged in County Court, your direct appeal would be to District Court, and from there, immediately to the Colorado Supreme Court.
- First-Level Appeal
If you appeal a County Court conviction to the District Court, you must file your notice of appeal within 35 days of the entry of judgment in you case. If you appeal a District Court conviction to the Court of Appeals, you must file a notice of appeal within 49 days of the entry of judgment in your case. This “first-level” of appeal is an appeal “of right,” meaning the first-level appellate court must look at your case.
- Second-Level Appeal
If you lose your appeal at either the District Court or Court of Appeals, you can next appeal to the Colorado Supreme Court. To do this, you must file your notice of appeal within 42 days after the final judgment by the first-level appeals court. However, the Colorado Supreme Court is a court of discretionary review. This means the court gets to choose which cases it hears. Because the Colorado Supreme Court generally grants review of less than 10% of the cases filed, having an experienced appellate counsel on your side can be critical to improving your chances on appeal.
Other Appellate Options
While direct appellate review is a good start, there are other options which you should also consider. Specifically, Colorado Rule of Criminal Procedure (C.R.C.P.) 35, “Post-Conviction Remedies,” provides three more options you can take advantage of to challenge your conviction and sentence.
- C.R.C.P. 35(a)
First, C.R.C.P. 35(a), allows for the correction of an illegal sentence. Specifically, the Rule states that a “court may correct a sentence that was not authorized by law or that was imposed without jurisdiction at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.” So, if there is an argument that your sentence was illegal in some way, you may challenge it directly without having to go through the direct appeals process.
- C.R.C.P. 35(b)
C.R.C.P. 35(b) allows you to request a reduction in your sentence. This Rule states that the
court may reduce the sentence[,] provided that a motion for reduction of sentence is filed (1) within 126 days (18 weeks) after the sentence is imposed, or (2) within 126 days (18 weeks) after receipt by the court of a remittitur issued upon affirmance of the judgment or sentence or dismissal of the appeal, or (3) within 126 days (18 weeks) after entry of any order or judgment of the appellate court denying review or having the effect of upholding a judgment of conviction or sentence. The court may, after considering the motion and supporting documents, if any, deny the motion without a hearing. The court may reduce a sentence on its own initiative within any of the above periods of time.
What does this mean? Put simply, it means that you can argue for a reduction of your sentence within 126 days of any of the three events mentioned. It also allows you, in making your argument, to provide supporting documentation to the court.
- C.R.C.P. 35(c)
Finally, the broadest option is C.R.C.P. 35(c), “Other Remedies.” Put simply, whether you chose to not directly appeal your conviction, or even lost on appeal, C.R.C.P 35(c) states that “every person convicted of a crime is entitled as a matter of right to make application for postconviction review.” (Emphasis added). There are six categories of issues that can be reviewed under Article 35(c):
(1) the conviction or sentence imposed was in violation of the Constitution or laws of the United States or the constitution or laws of Colorado;
(2) you were convicted under a statute that is in violation of the Constitution of the United States or the constitution of Colorado, or that the conduct for which you were prosecuted is constitutionally protected;
(3) the court rendering judgment did not have jurisdiction over you or the subject matter of the case;
(4) there exist material facts, not previously presented and heard, which was not known and could not have reasonably been known by you or your attorney prior to the submission of the issues to the court or jury, and which requires vacation of the conviction or sentence in the interest of justice;
(5) the sentence imposed has been fully served or there has been unlawful revocation of parole, probation, or conditional release; or
(6) any other grounds otherwise properly the basis for collateral attack upon a criminal judgment.
As you can see, C.R.C.P. 35(c) provides a broad basis for review. However, unless you were charged with a Level 1 felony, it also comes with strict deadlines, absent some limited exceptions. Specifically, if you were charged with any felony other than a Level 1, you have 3 years from the date of conviction to file your Rule 35(c) motion. If you were charged with a misdemeanor, then you have 18 months from the date of your conviction to file the motion. And if it was a petty offense, then you only get 6 months.
Use Every Option to Appeal in Colorado That You Can
As you can see, being convicted in Colorado is not the end of the fight. There are many options for you and you should explore them all. But it is critical you not delay contacting an appellate attorney since, in most cases, if you miss the deadlines then your appeal options are over. If you’d like more information or would like to discuss your case, please give me a call for a free consultation.