Appeal, Post-Conviction Motions

How Do I Get a Public Defender to Appeal My Case?

If you are a current public defender client and wish to appeal a conviction, adjudication, sentence, restitution order, or other appealable order, the attorney in the regional office who handled your case in the trial court will either do the appeal or transfer the case to the appellate division.

The office that handles your appeal depends on the nature of the case and to which court the case is being appealed. Generally:

  • The appellate division handles appeals from convictions on felonies
  • Misdemeanor convictions and other mid-case appeals are typically handled by the trial offices

Appealing Cases Handled by Private Counsel

If you were represented by private counsel in the trial court, but are now financially eligible for representation by the public defender, you have the option of having the public defender handle your appeal. To request our assistance with an appeal in a felony case, the client or private trial counsel must ask the district court to appoint the public defender for appeal and should submit an appellate packet within 20 days of the sentencing date or of the order being appealed.

For misdemeanor cases, clients will need to apply for a public defender at the regional trial office that covers the county where the case was heard.

If the public defender determines that it has a conflict of interest in pursuing the appeal, the Office of Alternate Defense Counsel will be appointed to work on the appeal.

What Is an Appeal?

An appeal is a review of a lower court’s decision that occurs primarily in writing. One side (“the appellant”) requests that the higher court review the case to see if the lower court judge made a mistake. The parties are restricted by word limits so they lay out the most important facts and law related to the issue(s) they are raising in the appeal.

The appellant is responsible for ensuring the appellate court has all the relevant documents, transcripts, and exhibits from the trial court process. Typically, the appellant files a written argument called an opening brief first. Then the other side (“the appellee”) files an answer brief and the appellant may file a reply brief.

What If I Have not Decided Whether to Appeal My Case?

The notice of appeal must be filed with the appellate court within 49 days of sentencing for a district court conviction and within 35 days for a county court conviction. If the deadline is missed, the appeal can only be filed late if the appellate court authorizes it.

Because of the short deadlines, it is rarely possible to get transcripts of the trial court hearings and/or jury trial before the notice of appeal is due. Therefore, it is better to start an appeal on time and let the lawyer advise you on how to proceed as they get more information about the case. An appeal by a defendant can always be dismissed later, but if it was not started on time, you may lose the chance to file an appeal at all.

Post-Conviction Motions in State Court

There are multiple different types of post-conviction motions that can be filed in state court. The most common motions are filed under Colorado Criminal Procedure Rule 35, and these types of motions are commonly called “35(a),” “35(b)” and “35(c)” after different subsections of that rule.

35(a) Motion

A 35(a) motion argues that the sentence imposed violated Colorado statutes (not the constitutions).

The deadline for filing this motion depends on the nature of the claim:

  • A motion arguing that the sentence itself is illegal can be filed at any time
  • A motion arguing that the sentence was imposed in an illegal manner must be filed within 126 days of sentencing or the end of a direct appeal

If you win a 35(a) motion, the trial judge may grant or deny a resentencing hearing and may impose a new sentence. If the trial judge denies the motion, the 35(a) issues may be appealed.

Motion to Reconsider Sentence, 35(b)

A 35(b) motion asks the judge to impose a lesser or different sentence from what was imposed at the original sentencing hearing. It is due 126 days after sentencing or after the appeal is over.

If you win a 35(b) motion, the trial judge may impose a shorter sentence or probation if you are eligible. If the court denies a 35(b), that order usually cannot be appealed.

35(c) Motion

A 35(c) motion may include a range of arguments relating to a conviction or sentence. Potential issues that may be raised include constitutional claims, newly discovered evidence, and ineffective assistance of counsel. Some claims can only be raised on appeal and some can only be raised through a process like a 35(c). It is best to consult a lawyer for advice on how best to handle potential 35(c) claims.

Unlike the direct appeal, there is no constitutional right to court-appointed counsel on a 35(c). If you would like an appointed lawyer to assist you with a 35(c), you will need to request appointment of counsel from the trial court:

  • File a 35(c) using Form 4 and request the appointment of counsel. Make sure to include as much information as possible about why the court should grant you relief, because the court will look at that in deciding whether to appoint counsel.
  • If the Public Defender is appointed but there is a conflict of interest, a contract lawyer with the Office of Alternate Defense Counsel will be appointed. A conflict of interest might arise if a lawyer from the Public Defender’s Office handled the case at some point in the trial court or on appeal.

Post-Conviction Remedies in Federal Court

Once someone has met the legal requirements of exhausting all remedies in state court by losing in the Colorado courts, they may be able to go to the federal court system to seek relief. There are very short deadlines for the habeas corpus process. The State Public Defender cannot provide legal representation to people in federal court so most people hire a lawyer, work with pro bono counsel, appear pro se (when the defendant acts as the lawyer), or ask the federal judge to appoint a lawyer.

Other Kinds of Lawsuits

There are also civil lawsuits that people can file in Colorado and Federal Courts. For example, people can sue the Colorado Parole Board, Colorado Department of Corrections, or law enforcement agencies if they believe those agencies have violated certain laws or their civil rights. There is no right to court-appointed counsel, so the Public Defender cannot handle these kinds of lawsuits. It is best to consult with attorneys who specialize in these kinds of lawsuits for legal advice.