My brother accepted a plea bargin and was sentenced to 12 years minimum for indecent liberities with a minor. Because of his remorse he confessed and even initiated his own arrest! He is 50yrs old and a first time offender. Now he wants to know if this information could have changed the outcome of his case at a trial.
--He asked for a lawyer but didn't get one.
--The victims mother worked in the courthouse and visibly, in the courtroom spoke to the judge at the time of his sentencing.
--His house was searched without a warrant.
All of this can be proved. Can any of these circumstances make a difference now. He has served 1.5 yrs in N.Carolina prisons.
Dear ?,
No one can here can tell you whether those circumstances make a difference without examining all of the records of the case. So you need to have a good criminal appeals lawyer who is familiar with North Carolina law review his case.
The previous counsel's answer saying most plea bargains include waiving the right to appeal is simply not correct. I've been doing appeals in 2 different states for the past 30 years and I've never heard of a case where the prosecutor insisted on waiving the right to appeal as part of the bargain although I'm aware it does happen in some states and also more often in federal court.
Your brother's time limit for an appeal expired long ago, but if he was not properly informed of his right to appeal so as to be able to exercise it, counsel may be able to revive it for him. If this is not a possibility, then depending on state law in your state, he may still have the opportunity to do either a postconviction motion or common law habeas corpus.
Whether these are options or not can only be determined by an experienced criminal appeals counsel in your state. You should be able to find one right here on .com but if not call your local county Bar Association for help finding counsel.
Yours sincerely,
Tim Provis
Cal. Bar No. 104800
Wis. Bar No. 1020123
Most often during the plea, to accept a shorter sentence the rights to appeal are waived.
A criminal defendant's right to an attorney is found in the Sixth Amendment to the U.S. Constitution, which requires the "assistance of counsel" for the accused "in all criminal prosecutions." This means that a criminal defendant has a constitutional right to be represented by a lawyer during trial.
Sixth Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
Assistance of Counsel
A criminal defendant's right to an attorney also means that if the defendant cannot afford an attorney, in almost all instances the government will appoint one to handle the case, at no cost to the defendant. Gideon v. Wainwright, 372 U.S. 335 (1963), is the decision of our United States Supreme Court in which the Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants unable to afford their own attorneys.
Effective Counsel
The Sixth Amendment "assistance of counsel" clause has been interpreted to mean that the right is to have effective counsel (i.e. "adequate assistance from persons trained in the law." Bounds v. Smith, 430 U.S. 817, 828 (1977)).
Speedy Trial
This speedy trial clause in the Sixth Amendment is intended to ensure that criminal defendants are not in custody awaiting an outcome to the charges against them an unreasonably lengthy time prior to a fair trial. Our Supreme Court has not determined a specific length of time that is too long as an automatic Sixth Amendment violation of the guarantee to a speedy trial. Rather, the Court has adopted the case-by-case approach whereby it will look at each situation and rule on the specific circumstances in each case.
Access to Courts
The Supreme Court has held that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Bounds v. Smith, 430 U.S. 817, 828 (1977). Nevertheless, Bounds "did not create an abstract, freestanding right to a law library." Lewis v. Casey, 518 U.S. 343, 351 (1996). Instead, prison officials must provide inmates with "meaningful access to the courts," Bounds, 430 U.S. at 824. Providing a law library in prison is one way to comply with this obligation. Bounds says if the person was represented by counsel, that complies with the obligation, too.
Refusal of Counsel
If the person refuses court-appointed counsel in the government's attempt satisfy the Sixth Amendment right to counsel that person has no alternative and is not able to argue denial of the right to access to the courts. Wilson v. Blankenship, 163 F.3d 1284, 1290-91.
