If you have been wrongfully convicted of a crime or wrongly sentenced for a crime in Arizona, you may be able to file for post conviction relief. Too often, through no fault of the criminal defendant, things go wrong during the criminal justice process. Fortunately, when you or a loved one has been convicted or sentenced unfairly there are still avenues of relief available. Contact an experienced post conviction relief attorney at Feldman & Royle to see how we can help you or a loved one.
Post conviction relief is when a court gives relief to a person who has already been convicted of a crime. The purpose of post conviction relief is to allow a convicted person to raise issues that were unknown or unavailable at the time of trial, at the time they pleaded guilty, or at the time of sentencing. These issues must show that their conviction or sentence goes against fundamental fairness, which is essential to justice. Typically, the type of relief granted is either a new trial or sentencing hearing.
The types of issues that you can raise and the procedures you must follow when you seek post conviction relief are specifically set forth in the Arizona Rules of Criminal Procedure:
Filing a post conviction relief petition is a way that you can challenge the legality of your conviction or sentence. But these types of petitions are not supposed to be used as a second appeal. You cannot seek post conviction relief based on any issues that you can still raise on direct appeal or in a post-trial motion. You also cannot raise the same issues that were raised and decided in any appeal of your case.
A petition for post conviction relief and a direct appeal are similar in that they are both ways to challenge the legitimacy of a conviction or sentence. They both ultimately seek the same result of a new trial or sentencing hearing. However, the post conviction relief process is not the same as a direct appeal.
When you file a post conviction relief petition the court first determines whether you have raised what is called a “colorable claim.” A colorable claim is one that, if its allegations are true, might have changed the outcome of your case.
During an evidentiary hearing, you or your attorney present evidence to support your colorable claims. At the evidentiary hearing, you have burden of proving the facts of your claims by a preponderance of the evidence.
Usually within 10 days after the hearing (unless the issues are complex or there is a lot of evidence for the court to consider), the court will write a ruling on your claims. The court will either deny your claims or grant relief, typically by ordering a new trial or a new sentencing hearing.
Examples of the types of claims you can raise in a post conviction relief petition under Rule 32 (trials) or Rule 33 (guilty pleas) include the following:
The most common claims for post conviction relief are claims of ineffective assistance of counsel. These can be claims against your attorney who represented you during trial, plea negotiations, sentencing, direct appeal, or even your first post conviction relief proceeding.
This is when you receive a sentence that is not authorized by law or the plea agreement.
To start a post conviction relief proceeding, you must file a Notice Requesting Post Conviction Relief. This notice provides information about you, your sentence, and states generally which claims you are raising under either Rule 32 or Rule 33 of the Arizona Rules of Criminal Procedure.
The Petition for Post Conviction Relief is where you must provide facts, legal authorities, and documents to support your claims. The goal is to show the court that your claims are colorable claims and to give you an evidentiary where you can present further evidence to the court.
The attorneys at Feldman & Royle can help you navigate the complexities of seeking post conviction relief. Additionally, in rare situations, if you are granted a new trial or sentencing hearing, you may expose yourself to even more serious convictions or punishment. Therefore, it is important for you to have a post conviction relief attorney with the proper experience to assess whether you should move forward with a request for post conviction relief. If post conviction relief is the correct path, then you will also need an experienced post conviction relief attorney to conduct a post conviction investigation and file the appropriate records to best support your claims. Call us at Feldman & Royle to discuss your post conviction relief options.