## Criminal appeals in West Virginia After a conviction, defendants have a right to appeal to a higher court. Appeals are NOT a re-trial — they review legal errors made at trial. Limited but important. ## What appeals can do - Reverse conviction outright - Reverse + remand for new trial - Modify sentence - Affirm in part / reverse in part - Identify legal precedents ## What appeals CANNOT do - Re-try facts (jury's job) - Reweigh evidence - Hear new evidence (limited exceptions) - Substitute appellate judge's view of facts - Reconsider plea deals (limited) ## ${s.name} appeals court structure **Typical levels:** 1. **Trial court** (where convicted) 2. **${s.name} Court of Appeals** (intermediate appellate) 3. **${s.name} Supreme Court** (highest state) 4. **U.S. Supreme Court** (rare — federal questions only) Plus federal habeas (separate process — see post-conviction relief). ## Who can appeal **Right to appeal:** - Defendants convicted at trial - Some defendants who pled guilty (limited issues) - The government (limited grounds in most states) **Loss of right by:** - Plea deals waiving appeal - Failure to file timely notice - Voluntary dismissal ## Critical deadlines — DON'T MISS **Notice of appeal:** - Typically 10-30 days from sentencing - ${s.name} has specific deadline - File with TRIAL court (not appellate) - Strict — almost never extended - One missed deadline = appeal forfeited **Briefing schedule:** - Set after notice filed - Opening brief, response, reply - Extensions sometimes available - Court enforces strictly ## Issues raised on appeal **Common appellate issues:** - Improper jury instructions - Evidentiary rulings (admission / exclusion) - Constitutional violations (4th, 5th, 6th, 8th Am.) - Sufficiency of evidence - Sentencing errors - Prosecutorial misconduct - Improper jury argument - Defective indictment - Speedy trial violation - Double jeopardy **Critical concept — preservation:** - Issues must be "preserved" at trial - Objection must be made + on the record - Failure to preserve = "plain error" review (much higher standard) - Trial counsel's job at trial ## Standards of review **Different issues get different scrutiny:** - **De novo** (no deference) — pure legal questions - **Abuse of discretion** — many trial-court decisions - **Sufficient evidence** — substantial evidence in light most favorable to verdict - **Plain error** — unpreserved errors - **Harmless error** — most errors require showing of prejudice - **Structural error** — automatic reversal (very rare) **Most preserved errors require showing of prejudice = different result likely.** ## The appellate record **The court reviews:** - Trial transcripts - Pretrial transcripts - All exhibits - Jury instructions - Court file (motions, etc.) - Limited materials only **Cannot consider:** - New evidence (with rare exceptions) - Witness statements not in record - Trial counsel's claimed strategies (use post-conviction) - New legal arguments not raised below (with rare exceptions) ## Appellate brief — the heart of the appeal **Opening brief:** - Statement of case + facts - Statement of issues - Argument (50-150 pages typical) - Citations to record + cases - Specific relief requested - Polished + persuasive **Briefs win cases. Oral argument rarely changes results.** ## Oral argument **Discretionary in most cases:** - 15-30 minutes per side typical - Questions from judges dominate - Tests + clarifies briefs - Most courts don't grant in every case ## Timeline **Typical schedule:** - Notice: 10-30 days from sentencing - Record preparation: 30-90 days - Opening brief: 30-60 days from record - Response: 30-60 days - Reply: 14-21 days - Oral argument scheduled (if any) - Decision: 3-12 months after submission **Total: typically 1-3 years from conviction to decision.** ## Possible outcomes **Affirmed (most common, ~85-90%):** - Conviction stands - Further review possible (state supreme, US Supreme) - Post-conviction options remain **Reversed + remanded:** - Conviction vacated - New trial ordered - Or specific issue addressed - Government decides whether to retry **Modified:** - Sentence reduced - Conviction reduced (lesser included) - Specific terms changed **Reversed outright:** - Conviction vacated - No retrial (insufficient evidence) - Defendant freed ## Bail / release pending appeal **Generally HARDER than pre-trial:** - Discretionary (judge's choice) - Conviction creates presumption of guilt - Less common than pre-trial release - Often denied for serious offenses - ${s.name}-specific procedures ## After ${s.name} appellate court **${s.name} Supreme Court:** - Discretionary review - Petition for review / cert - 30-90 day window - Limited to specific issues **U.S. Supreme Court:** - Federal constitutional issues only - Cert petition (90 days) - Granted in <1% of petitions - Even if heard, usually narrow ruling **State post-conviction (collateral attack):** - Different proceeding - Different issues (IAC, new evidence, etc.) - See post-conviction-relief guide **Federal habeas:** - After exhausting state options - 1-year AEDPA deadline - Strict procedural rules ## Cost considerations **Public defender appeals:** - Free for indigent defendants - ${s.name} appellate public defender - Quality varies but often good **Private appellate counsel:** - $10K-$50K+ typical - Varies by complexity - Specialty practice (different from trial) **CJA (federal) panel:** - Federal-court appointed - Federally-funded ## Strategic considerations **Should you appeal?** **Pros:** - Possible reversal - Possible sentence reduction - Preserves federal habeas options - Sometimes reveals new issues **Cons:** - Time-consuming - Costs (if private counsel) - Re-traumatizes - Most lose - Sometimes draws attention to negative facts **Settlement options on appeal:** - Sometimes prosecutor stipulates remand for resentencing - Sometimes plea offers withdrawn - Rare but possible ## Different counsel for trial + appeal **Often beneficial:** - Fresh perspective - Trial counsel can't argue own ineffectiveness - Different skills + temperament - Specialty practice **But sometimes:** - Trial counsel knows record - Continuity - Cost considerations ## What you should do If you (or a loved one) was convicted in West Virginia: file notice of appeal IMMEDIATELY (10-30 day deadline) — do not wait. If indigent, request appointed appellate counsel. If retaining private counsel, look for criminal-appellate specialists. Many West Virginia criminal defense attorneys handle appeals; some specialize. Even if appeal seems weak, filing preserves federal habeas options. --- *This guide is general information about West Virginia law as of mid-2026 and is not legal advice. Appeals are technical + time-sensitive. Talk to a licensed West Virginia criminal defense / appellate attorney about your specific case.*