Criminal Appeals and Post-conviction Services
If you’ve found yourself on this webpage, odds are you’ve been through the wringer. You or a loved one has been convicted of a crime, whether after a trial or after accepting a plea deal. The prospect of jail or prison time is looming. You want to know—is this it? Is there anything else we can do?
In Michigan, in most criminal cases, you have an opportunity to appeal. What exactly that appeal will look like depends on the specifics of your case. For the time being, let’s confine our discussion to felony appeals from a circuit court to the Michigan Court of Appeals, which is the kind of appeal we most commonly see. We’ll address misdemeanor appeals and appeals to the Michigan Supreme Court a little later.
Before founding Grabel & Associates, Scott Grabel started his legal career as a prehearing attorney with the Michigan Court of Appeals. So did lead appellate attorney Tim Doman. We know how cases are reviewed by Michigan’s appellate courts. We know what wins appeals and what doesn’t. We doubt there’s another criminal defense firm in the state with our experience and our record.
Grabel & Associates has enjoyed unparalleled success when it comes to appeals. Over the past 20 years, we’ve had convictions overturned at both the Michigan Court of Appeals and Michigan Supreme Court. In 2017, we won two cases at the Michigan Supreme Court. In one of those cases, the client is now on the National Registry of Exonerations.
If you were found guilty of a felony after a trial, you have what we call an “appeal by right” or “appeal as of right.” In other words, you have an automatic right to an appeal. You get to take your case to the Court of Appeals and, no matter what, they have to hear you out on whatever issues you believe entitle you to either a new trial or a reduced sentence. Maybe you feel your trial attorney didn’t represent you well enough. Or maybe you feel the trial court judge was biased against you. Whatever the specifics, the Court of Appeals has to consider your case and issue a written decision.
So how do you get the ball rolling on an appeal by right? Act fast. You have 42 days after sentencing to file a “claim of appeal” with the Court of Appeals. A claim of appeal is basically a form stating that you’ll be appealing your case. As part of filing the claim of appeal, you also need to order the transcripts of all the circuit court proceedings in your case—trial, sentencing, any pretrial hearings, etc. Contrary to what some people believe, a transcript is not simultaneously being produced during trial or any other court proceeding. Only once you file a claim of appeal and order the transcripts will a court reporter begin to type up the transcripts. If you retain an attorney or have one appointed for you, all of this will be taken care of for you.
In most cases, it takes about three months for the court reporter to prepare the transcripts. After that, we have 56 days to prepare your “brief on appeal,” the meat and potatoes of the appeal. A brief on appeal is essentially an essay that tells the Court of Appeals what happened in your case and why we believe you’re entitled to have your convictions reversed or your sentence reduced. After that, the prosecutor is entitled to submit their own brief on appeal to respond to our brief. We are then entitled to submit a response to their response, or what’s called a “reply brief.” This gives us the last word in the appeal.
After all the briefs have been filed, your case will then be submitted to a panel of three judges at the Court of Appeals. In most cases, we’ll have the opportunity for “oral argument,” a chance to appear before the three judges and argue the case on your behalf. After oral argument, the Court of Appeals usually issues a decision within a month.
It’s a long process. From the filing of the claim of appeal to the ultimate decision, you can usually expect to wait 15 to 18 months. In appropriate cases, we have been able to persuade the Court of Appeals to expedite our client’s appeal.
If you accepted a plea deal in a felony case, you’re facing a somewhat tougher road. Instead of having an appeal by right, you’ll need to file an “application for leave to appeal” in the Court of Appeals. In this situation, the Court of Appeals gets to make an initial determination whether they want to consider your appeal at all. The Court of Appeals sees a lot of applications for leave to appeal, and very few are granted. You need to persuade the Court that your case deserves their attention and their resources.
Like an appeal by right, it’s best to act fast. After sentencing, you only have 21 days to file a timely application for leave to appeal in the Court of Appeals. That said, if you miss that 21-day window, you still have the option of filing a “delayed” application for leave to appeal within six months of sentencing. In practice, we find that timely applications and delayed applications are largely treated the same by the Court of Appeals. So even if you are past the 21-day point, it may still be worth pursuing an appeal.
Ordinarily, the Court of Appeals decides whether it will grant or deny your application within one to three months. If your application is granted, your case will proceed essentially like an appeal by right—briefing, oral argument, written decision.
Regardless of whether your case went to the Court of Appeals as an appeal by right or an application for leave to appeal, if you didn’t win, you can take your case to the Michigan Supreme Court. The Michigan Supreme Court—much like the United States Supreme Court—gets to pick and choose what cases they hear. You’ll need to file an application for leave to appeal within 56 days of the Court of Appeals’ decision in your case. The Michigan Supreme Court only hears about two percent of the cases that come before it. In general, you need to persuade the Court that your case has significant implications for the state’s jurisprudence.
You can expect the Michigan Supreme Court to make a decision on your application within about six months in most cases. If your application is granted, the Court will order additional briefs from both parties as well as oral argument, where we get to appear before the seven justices on the Court and argue your case. After that, the Court will issue a written decision in your case, often several months after oral argument. From having an application granted to getting a decision, it can often take the better part of a year.
What if you’ve been through appeals to the Court of Appeals and Supreme Court already with no success? Is your case over? It doesn’t have to be. Even if you haven’t appealed in several years, you still may have options. Depending on your case, you may be able to file a motion for postconviction relief, also called a “6.500 motion.” A postconviction motion gives you the ability to raise issues that weren’t raised in your first round of appeals or to present new evidence in your case. Generally speaking, postconviction motions are very difficult to win. You need to be able to show good cause why the issues you’re raising were not raised either at trial or during your initial round of appeals. In practice, postconviction motions are generally granted only when new evidence in the case is discovered that convincingly establishes your innocence.
Most of what’s been said here deals with appeals from circuit court to the Court of Appeals. But we also handle appeals from district court to circuit court in misdemeanor cases. The process is very similar, although the timelines are a lot shorter.
If you lost a trial, you have an appeal by right, and you need to file a claim of appeal in the local circuit court within 21 days after sentencing. As part of filing the claim of appeal, you’ll need to order the transcripts of all the proceedings that took place in district court. After the transcripts have been produced, we have 28 days to file your brief on appeal. The prosecutor also has the opportunity to file a brief on appeal, and we then have the opportunity to file a reply brief. After that, oral argument is held in most cases, and then the circuit court judge will issue a written or oral decision. The big difference here is that unlike an appeal in the Court of Appeals, which is heard by three judges, an appeal in circuit court is heard by only one judge.
If you took a plea deal, you have 21 days after sentencing to file an application for leave to appeal in the local circuit court. A circuit court judge will make an initial determination whether he or she wants to hear your appeal. If your application is granted, your case will proceed like an appeal by right—briefing, oral argument, decision.
If you didn’t file a timely claim of appeal or application for leave to appeal, you can still file a delayed application for leave to appeal in the circuit court within six months of sentencing.
Appeals are complicated. We’ve tried to cover the basics here, but if you have more specific questions, don’t be afraid to contact us.
Appealing a conviction is never easy. To have any chance, you need a knowledgeable, skilled, and seasoned team of attorneys. That’s why you need us. Contact us online or call us at our 24/7 defense hotline at 1-800-342-7896.