After offenders are convicted of crimes and sentenced, they can choose to appeal. When they do, the Attorney General’s Office represents the state to uphold the conviction and sentence to keep the offenders in jail or prison. The Attorney General’s Appellate Victim Notification Program works to keep victims and their families informed throughout the appellate process and provides them with resources and referrals to other victim service providers.
The Appeals Process
Frequently Asked Questions
Understanding the Appeals Process
The appeals stage in a criminal case includes all legal proceedings during which an offender tries to overturn a conviction. The offender’s goal is to gain freedom, a new trial, or a reduced sentence. The appellate process can be lengthy and complex because several courts may need to review the case. With nearly 2,500 criminal and civil appeals filed with the appellate courts every year, the entire process can take years to complete.
An appeal is a review of the trial proceedings and record. In an appeal, the offender seeks to prove that legal errors were made that are substantial enough to justify a reversal of the conviction or a reduction of the sentence. The appellate court will not reweigh the evidence or try the facts of the case again but it will limit its review to legal issues.
The Steps of the Appeals Process
- Initiating the Appeal - A direct appeal is started by filing a “Notice of Appeal” in the trial court within 30 days of sentencing. A direct appeal is generally the first appellate review of the case. Cases involving a sentence of death or life without parole go directly to the Supreme Court of Indiana. All other cases are taken to the Court of Appeals. Court rules allow 45 days for the record of the trial to be prepared and filed, but it may take additional time.
- Briefs - After the transcript and other parts of the court record are completed and filed, the appellant (generally the criminal offender, by way of an attorney) files the “Brief of Appellant.” The appellee (generally the state) then responds by filing a “Brief of Appellee.” The State’s briefs are prepared and filed by the Attorney General’s Appeals Division.
- Oral Argument - In all capital cases (cases in which the death penalty has been imposed) and in a limited number of other cases, the appellate court may require the parties to appear before the court. The court may ask questions of the attorneys during the presentations. However, no evidence is taken and only the attorneys are permitted to address the court.
- Decision - Following the filing of the parties’ briefs and after any oral arguments, the case awaits the decision of the appellate court. The court will decide the case by issuing an “opinion,” which is a discussion of the legal issues raised by the parties and the court’s resolution of those issues. On the basis of those issues, the appellate court will decide whether to “affirm” or “reverse” the judgment of the trial court. If the court affirms the trial court’s judgment, the conviction is upheld. If the appellate court reverses the trial court, then the conviction may be overturned, and the case is remanded (meaning the trial court must release, retry, or resentence the offender, or revise the conviction). Depending on the separate legal issues, the appellate court may modify the conviction or sentence.
- Petition to Rehearing/Transfer - If the appeal was first heard by the Court of Appeals, the losing party may petition the Court of Appeals to rehear the case, pointing out errors in the opinion. This is known as a “Petition for Rehearing.” A party who loses the rehearing may ask the Supreme Court to take the case if specific grounds are present. This is known as a “Petition to Transfer.” The Supreme Court’s decision on transfer, either by denying, or taking and deciding the case, is final. The Supreme Court takes very few cases on transfer from the Court of Appeals. Once the Supreme Court has decided on a case, by refusing to hear the case or issuing an opinion on the legal issues, this stage of the appellate process is complete.
Additional types of reviews and appeals
Interlocutory Appeal: Most appeals are initiated by criminal offenders and occur after a conviction and sentence are rendered. However, a legal issue may arise that needs to be addressed before the actual trial of a case begins. These are known as interlocutory appeals.
Post-Conviction Relief Hearing: After the direct appeal stage is completed, or if a direct appeal was not pursued, offenders may have convictions and sentences reviewed a second time. This is known as a “Petition for Post Conviction Relief” or “PCR Petition.” A PCR Petition is filed in the court that originally convicted and sentenced the offender.
Post-Conviction Relief Appeal: If the PCR Petition is denied, offenders may appeal that denial to the Court of Appeals/Supreme Court. This appeal follows the same timeline as a direct appeal.
Frequently Asked Questions
- Why does the offender have the right to appeal?
The Constitution of Indiana gives offenders the right to appeal. Federal and state laws give offenders the additional right to have their convictions and/or sentences reviewed by state post-conviction and federal habeas corpus petitions.
- Why wasn’t I contacted about the appeal?
Once an offender initiates an appeal, the Attorney General’s Victim Notification Advocates request victim contact information from county victim advocates. Therefore, it is important that victims keep their local victim advocate (usually a member of the local prosecutor’s office) informed of their current contact information.
- Can I give a victim’s statement on appeal?
Unfortunately, no. An appellate court will examine only the trial record and sentence for legal errors. No new evidence or information may be submitted.
- Can I attend the hearing?
Generally, there is no hearing on an appeal. An appeal is conducted mostly in writing. The appellate court then makes its decision by issuing a written opinion discussing and deciding the legal issues raised by the attorneys in their written briefs. In all death penalty cases, but rarely in other cases, the appellate court will hold an oral argument where the attorneys present their cases to the appellate court. While the oral argument is open to the public, only attorneys are permitted to make presentations to the court. Offenders not incarcerated at the time of the oral argument may also attend.
- Will the offender be released from jail or prison during the appeal?
Not generally. The offender usually remains in jail or prison during the appeal process. However, in rare cases, an offender may be released on bond pending the appeal. Permission for release must be granted by the Trial Court or the Court of Appeals.
- Where is the offender located in prison?
A victim may learn of the offender’s location by calling the Department of Correction Victim/Witness Services at 866.891.0330 or by searching online at Victim Services.
- Why does it take so long for a final decision?
There are nearly 2,500 criminal and civil appeals filed with the appellate courts every year. The Court of Appeals must accept and provide a written opinion for every appeal that is filed. The Court of Appeals decision is final unless a review is granted by the Indiana Supreme Court. If an offender is unsuccessful at this stage they may appeal to the Supreme Court of the United States, which would complete the direct appeal phase. There are several additional avenues that an offender may pursue during the appellate process which lengthens the overall process.
- What is the difference between the county victim advocate program and the Attorney General’s Appellate Victim Notification Program?
The county victim advocate works with victims at the trial level. The Attorney General’s program serves victims during the criminal appeal process. The office reviews each case on appeal requests victim information from the county victim advocates once an offender has filed an appeal, and notifies the victim of the appeal. A representative from the office also attends court proceedings on the state and federal levels on an as-needed basis.
- How can I file for violent crime compensation funds?
The crime must have taken place in Indiana and been reported to the police within 48 hours. Victims or survivors must have been cooperative in the investigation and prosecution of the crime, have out-of-pocket expenses of a least $100, and an application for benefits must have been filed with the Violent Crime Compensation Office no later than 180 days for sex crimes and two (2) years for all other violent crime. Local county victim advocates should provide and assist victims in completing and filing the application. If there is no advocate in your county, contact the Violent Crime Compensation Office at 317.232.1233 or 800.353.1484 (this service is provided for victims only). For information on the Violent Crime Victim Compensation Fund click here.
Affirm: When a court on appeal approves the decision of the trial court.
Appeal: The process by which either the offender or the prosecution asks a higher, appeals court to review the decision of the trial court.
Appellant (Petitioner): The party which starts or takes an appeal.
Appellee (Respondent): The party that does not start or take an appeal, but responds to the other party’s (appellant or petitioner’s) claims of error.
Brief: The written legal arguments or positions of the appellant and an appellee that are filed with the appeals court.
Credit Time: When a sentence is served at a correctional institution (prison), a prisoner is entitled to credit time, or time off for good behavior.
Habeas Corpus: After the state appeals process is concluded (which consists usually of a direct appeal and a post-conviction review), a criminal Offender can ask a federal district court to review the case for violations of federal constitutional law.
Interlocutory Appeals: An appeal that occurs in the middle of a case to resolve a legal matter that may affect the trial before a final judgment is entered.
Opinion: The document by which an appeals court decides an appeal.
Oral argument: After all the briefs have been submitted, the appeals court can order the case to be “heard” before them.
Order: A decision or ruling by a court, often in response to a motion by one of the parties.
Post - Conviction Relief: After an Offender has appealed his conviction and/or sentence to the Court of Appeals (and Supreme Court, if accepted), the Offender may return to the trial court and file a post-conviction relief petition that raises legal issues which were unknown at the time of the appeal, or for some legal reason, could not be raised at that time.
Rehearing: When an appeals court has issued its decision by opinion, the parties may ask the court to reconsider its decision; that process is known as a rehearing.
Remand: A remand is an order by the appeals court to send the case back to the trial court for a specific reason.
Re-sentence: When an Offender is given a new sentence by the original sentencing court, often as a result of an appeal.
Reversed: When an appeals court overturns a conviction, the original judgment or conviction has been reversed.
Sentence: The penalty imposed following a conviction, and can be comprised of combinations of incarceration (imprisonment), fine, restitution, restraining orders, community service, home detention, etc. Certain terms describe the type of incarceration imposed:
- Aggregate sentence: The total time an Offender must serve after the consecutive and concurrent sentences are calculated.
- Concurrent sentence: When two or more sentences are imposed, but the court orders all to be served at the same time, or simultaneously. The total time in prison will be equal to the longest individual sentence.
- Consecutive sentence: When two or more sentences are imposed, but the court orders the individual sentences to be served one-after-the-other, or sequentially. The total time is the sum of all the individual sentences.
Transfer: After the Court of Appeals has decided a case, the losing party (state or Offender), may ask the Supreme Court of Indiana to hear the case. This is known as a transfer because if the Supreme Court accepts the case, the case is transferred to the Supreme Court as if it started there – and the prior decision by the Court of Appeals is vacated, or canceled.
Vacate: To cancel a decision or ruling of a court.