Criminal Appeals

If you are convicted of a crime, your rights have not yet been exhausted. Every person convicted of a crime in Indiana has the right to an appeal. Most appeals go from the trial court to the Indiana Court of Appeals. A few go straight from the trial court to the Indiana Supreme Court, but in the following discussion we’ll assume the case goes first to the Court of Appeals.

Either way, you lawyer will file a notice of appeal with the trial court and Court of Appeals and ask for the trial record to be prepared. The trial record, which includes the transcript of the trial itself along with other documents, is printed and bound into volumes of 250 pages each. While most trial records have fewer than 8-10 volumes, the record of a lengthy complicated trial can be dozens of volumes.

Your attorney will then scour the record for mistakes that were made at the trial level and write the defendant’s brief describing the errors that were made and why the trial court’s result should be reversed. No new evidence is introduced in an appeal; it is based entirely on the trial record. For example, the appellate court will not consider any evidence that you discover after that trial that would have been favorable to you if you had known about it earlier. (The way to address that situation is in a petition for post-conviction relief.) Your lawyer will be looking for issues such as errors in admitting or not admitting evidence, errors in the trial court’s jury instructions, prosecutorial misconduct, sentencing decisions in which the judge failed to consider relevant mitigating factors or considered improper aggravating factors. Your lawyer will also research the case law, i.e., prior decisions of Indiana and federal appellate courts, to determine the law and how to frame the arguments to maximize your chances of success.

Once the defendant’s brief is submitted, the State (represented now not by the local prosecutor by the Indiana Attorney General’s office) prepares and submits its brief, arguing that the trial court’s decision should be affirmed. The State will respond to each allegation of error in the defendant’s brief, either by explaining why the trial court did not err or, sometimes, by acknowledging that the trial court made a mistake but arguing that the mistake was harmless.

The defendant may then file a reply brief responding to the State’s arguments. Sometimes, however, there is nothing that needs to be added to the defendant’s original brief, and defendant won’t file a reply brief.

There is the possibility that the Court of Appeals will hear oral arguments on the case, either because one or both sides request oral argument or because the Court of Appeals orders oral argument on its own initiative. An oral argument is a hearing before a panel of three judges of the Court of Appeals in which each side has a limited amount of time, typically 30 minutes, to present its arguments to the judges and for the judges to ask questions. The appellant’s lawyer goes first and often reserves a few minutes of time to be used in rebuttal after the appellee’s lawyer speaks. Typically, the lawyer does not get very far into his or her planned presentation before a judge interrupts with a question. After that, the oral argument often consists of a back-and-forth discussion of the case between the judges and the lawyer. Then the process is repeated with argument by the appellee’s lawyer and a short rebuttal by appellant’s lawyer.

The Court of Appeals will then issue a written decision. The losing side can ask the Court of Appeals for a “rehearing” which is not another oral argument but rather a process conducted on paper in which the losing side tries to persuade the Court of Appeal that it made a mistake in its decision.

Regardless of whether the Court of Appeals grants a motion for rehearing, the next step is for the losing side to file with the Indiana Supreme Court a petition to transfer. “Transfer” is a process in the Indiana Supreme Court that is similar to a writ of certiorari in the U.S Supreme Court. The side requesting transfer files a brief, and then the other side files a brief. The Supreme Court’s decision technically takes place in two steps. First, the petition to transfer is granted, which means the Supreme Court assumes jurisdiction over the case, removing it from the Court of Appeals, and that the decision of the Court of Appeal is vacated, or set aside as if it never happened. Then the Supreme Court issues its own decision, which may be consistent with the decision of the Court of Appeals or not. The Supreme Court may hear oral arguments on the case, either before deciding whether to grant transfer or after granting transfer but before Court issues its decision. A petition for rehearing is also available in the Supreme Court.

There can be several different results come out of an appeal. The trial court’s decision can be affirmed. The trial court’s decision can be reversed, and the case sent back for a new trial. Or the trial court’s decision can be reversed, and the case sent back with an order for the trial court to take a specific action, such as to enter a judgment of acquittal for the defendant.

There are some other types of appeals relevant to criminal defense. An interlocutory appeal occurs when the trial court makes some sort of ruling – for example the granting or denial of a motion to suppress evidence – and then places its own proceedings on hold while the parties appeal that specific decision. Sometimes, particularly with guilty pleas, a defendant will appeal only the sentence that was imposed by the trial court, not the conviction itself. Finally, a decision regarding a petition for post-conviction relief can also be appealed. All of them follow the same general process described above.

Our criminal defense lawyers have been handling appeals for decades, having handled more than 130 appeals. If you wish to talk to one of them about handling an appeal for you, please call us at (317) 964-6000 or contact us using the form on this page.