Work with Published Ninth Circuit Court of Appeals Attorney Robert J. McWhirter
While conviction might feel like the end of your criminal case, that is not actually the case. In Arizona, every convicted felony has the right to appeal their case, and defendants sentenced to death even have an appeal automatically filed on their behalf.
With over 30 years of experience, Attorney Robert J. McWhirter has served as lead attorney in over 40 jury trials and has extensive experience in the Ninth Circuit Court of Appeals, having argued 4-5 cases per year, some of which have been published. He is also the first chair qualified to defend capital cases by the Arizona Supreme Court and a certified specialist in Criminal Law with the State Bar of Arizona. With numerous qualifications, achievements, and certifications to his name, Attorney McWhirter can confidently and skillfully strategize your petition for appeal in Maricopa County.
Call (480) 690-9097 or contact the Law Offices of Robert J. McWhirter online to discuss your case today.
The Appeals Process in Arizona
Legally speaking, an appeal is a request to have a higher court reverse a trial court’s decision after a final judgment or other legal ruling has been entered. After the lower court judgment is entered, the losing party, or the appellant, may file a Notice of Appeal and request transcripts or other records of the trial court. The appellant may then file a brief with the appeals court citing specific legal reasons for reversing the trial court's ruling. Be aware that no new evidence is admitted on appeal. The arguments relevant in an appeal are only those related to the defendant’s rights during the prosecution of the case, rather than arguments about the actual crime.
Note that the apparent victims of the crime are entitled, upon request, to be notified of the status and outcome of an appeals case.
As opposed to those in the trial process, the majority of the arguments presented in the appeals process are made in writing rather than in open court. Additionally, a panel of judges, rather than a judge and jury, will consider and decide the case.
In Arizona, there are 3 methods of appeal available to convicted individuals – direct appeal, post-conviction relief (PCR) petition, and petition for Writ of Habeas Corpus.
The direct appeal process begins when a defendant files a Notice of Appeal within 20 days of being sentenced. The defense will then file an Opening Brief several months later, and a copy will be provided to the Attorney General and the Assistant Attorney General (AAG) assigned to the case. The AAG will:
- review the arguments;
- evaluate the official court record;
- and submit an Answering Brief (to which the defense may file a Reply Brief).
Subsequently, a panel of 3 judges from the Court of Appeals (or 5 judges from the Arizona Supreme Court in death penalty cases), will consider the briefs. The court may then schedule an Oral Argument, where the defendant is not usually present. The apparent victims may attend oral arguments, but they are not allowed to participate.
After the above evaluations, the court will issue a final written decision to affirm, modify, remand, or reverse the decision of the lower court. Note that this could take anywhere from 1 month to 1 year, depending on the situation.
Post-Conviction Relief Petitions
An alternative appeal option for a defendant is filing a Post-Conviction Relief (PCR) petition. This process takes place in the original trial court, and the judge who tried the case will typically be assigned to handle the petition. Also, the original prosecuting office will represent the State during PCR proceedings.
Like a direct appeal, the arguments presented for post-conviction relief will be made in writing by the defense, and the State will respond in writing and may schedule an Oral Argument. It may also schedule an Evidentiary Hearing, where witnesses may be called and the defendant may need to be present.
At the end of the process, the court may issue its decision on the PCR petition and affirm, modify, or reverse the original decision, though this could take up to 1 year or more.
Petitions for Writs of Habeas Corpus
The third method of appeal, petitioning for Writs of Habeas Corpus, may not be pursued until all other avenues of appeal at the state level have been attempted. Further, Federal Rules of Procedure specify the types of claims that can be raised in habeas petitions, the timeframes for filing, and the procedures to be followed by the court, the State, and the defense.
As with direct appeals and PCR petitions, the arguments presented for habeas relief will be made in writing by the defense, and the State will respond in writing and schedule an Oral Argument or Evidentiary Hearing. However, like most appeal processes, it may take months to years before the Federal District Court issues its written decision due to the many steps involved.
Call (480) 690-9097 to Get Started on Your Criminal Appeal Today
If you seek to appeal a criminal decision in Arizona, the first and most important step to take is to hire an experienced professional. The appeals process, regardless of whether you pursue a direct appeal, PCR petition, or habeas petition, can be complicated and technical. Attorney Robert J. McWhirter is a seasoned professional – both at the state level and the federal level – and can provide you the legal guidance you need to navigate a criminal appeal.
Contact the Law Offices of Robert J. McWhirter online or at (480) 690-9097 today.
- Over 30 Years of Legal Experience
- Personal, One-on-One Attention
- Certified Specialist in Criminal Law
- Former Federal Public Defender
Constitutional Lawyers in the Southwest