If you or a loved one has been wrongfully convicted, you need to find a way to get the courts to reconsider your case. In many cases, your conviction was caused by ineffective assistance from the attorney you trusted to help you.
At The Law Offices of Lemarr E. Carver, the focus is on helping people who have been wrongly convicted either because the court made an error, or the original attorney was not competent. The legal system is complicated enough and when you hire someone to represent you on your case, you deserve the help you asked for.
What is Post-Conviction Relief?
Post-Conviction relief (PCR) is the main way someone can challenge a conviction or the proceedings that led up to a conviction. Often it is the only way that a defendant can seek help to correct an injustice which can’t be seen by looking at the court records.
A PCR may be filed when there are no other methods available. For instance, in an appeal, there are specific rules that may have been broken. In those cases, a higher court can rule that those rules were broken and grant the convicted person relief. With a PCR, you have more options to explain to the court what went wrong.
When you are charged with a criminal offense, you have several criminal and civil rights which are guaranteed to you by the Constitution. You don’t have to testify against yourself, so you cannot be required to give a statement. The Eighth Amendment protects you from excessive bail and cruel and unusual punishment.
The Sixth Amendment also guarantees the right to counsel. Because it is a Constitutional right, the courts say that it means that you have the right to effective, competent counsel. If you were convicted because your attorney was not competent, you may be able to prevail in an action for Post-Conviction Relief.
The Court chose a standard to let you know how to prove that your counsel was inadequate. They said that in order for you to win you must prove two things: (1) the performance by counsel was deficient in some way, and (2) that but for the deficiency, the outcome of the Defendant’s case would have been different.
On the one hand, you and every other Defendant have the right to the counsel of your choosing. But the legal profession is highly regulated, and held to strict standards. No lawyer is allowed to practice in an area in which he or she is not competent.
It may be difficult to prove either of these elements without the assistance of an attorney who is well-versed in post-conviction laws and procedures. You cannot win the PCR by simply stating that you wouldn’t have lost if your counsel had been adequate, because anyone who was convicted could say that.
How to get Help
Post-Conviction Relief is the process of identifying defects in your trial counsel’s performance which resulted in your unlawful conviction. You need experienced, well prepared counsel to successfully guide you through this process. Specifically, you need help from someone who has the experience to navigate through the Post-Conviction Relief process and the skills to convince the Court that your case should succeed.
How is a PCR Different from an Appeal?
Post-Conviction Relief is different from a regular appeal. An appeal asks a higher court to reconsider a judgment made by a lower court. During a direct appeal, no new evidence can be presented. The higher court is only allowed to consider issues of law, such as whether the lower court was wrong on an issue of law and you objected during your trial.
The defense attorney who did not live up to the proper standards may have helped you in the trial court, or in the original direct appeal process. Either way, you need a different attorney to represent you in the PCR proceedings. You don’t want to deal with the mistakes made the first time.
The PCR Timeline
Once the original judgment is final, there are two years in which to file (the federal Anti-terrorism and Death Penalty Act allows one year)
- Counsel and client will prepare and review the case.
- Petitioner files affidavit for relief.
- State has 30 days to respond to each filing, and vice versa.
- Possible deposition and hearing.
- PCR hearing.
- Findings of fact and conclusions of law.
- Appeal or petition for review.
The PCR Hearing
PCR proceedings are open to the public, as the original trial and proceedings were. The victim may choose to attend. You as the Petitioner may ask the victim to attend, but these kinds of requests must be authorized by a judge so they are likely to be denied.
The evidence presented during a PCR proceeding usually consists of affidavits, such as sworn statements by witnesses, or documentary exhibits, like the transcripts from the original court proceedings or other evidence that was presented. The attorneys are able to get this evidence on the record by testifying to its relevance to the proceedings.
The PCR hearing will probably last about 30 minutes and take place in a courtroom with a presiding judge. If the petitioner is incarcerated, he or she will be present by telephone or video conference. Unlike during a trial or direct appeal, the petitioner may address the court during a PCR hearing. The victim has the right to speak and may wish to either testify or provide a written statement in writing to avoid actually having to appear.
After the PCR Hearing
Once the court makes a decision, it will address the Petitioner’s claims in writing. The decision may be quick if the issues are simple, but if the issues are complex the Petitioner may be waiting longer. Every case is looked at on its own merits, but there are two basic outcomes of a PCR proceeding: 1. The court will deny the petition entirely and uphold the conviction and sentence or 2. The petition will be granted and the judge will grant some form of relief to the Petitioner.
When the judge sides with the Petitioner, there are several options. The court may order a new trial, so that you can defend yourself again with a competent counsel of your choosing. Your sentence could be modified, and changed to a more fair and just sentence. Or there may be other relief that the judge can order specific to your case which is fair in the circumstances. After the Court has issued a written ruling, either you as the Petitioner or the State is free to appeal that decision. Read a blog post on the case of Cartrette v. Nooth to learn more.
The Standard of Legal Work for Appeals
When you are filing this kind of appeal, the court considers it technical legal work. If you try to do this yourself, you will be held to the same standards as if you were an attorney. Inmate litigation is allowed if you pay the filing fee for the PCR or file through an attorney.
When filing a PCR, the court wants you to take note of the Oregon Revised Statutes and the Oregon Rules of Appellate Procedure. There are special rules in the higher court the guide the process in the appellate court.
If your conviction was the result of gross negligence or willful and wanton misconduct, you may be eligible to file a tort claim. You could recover the injuries that you suffered because of your wrongful conviction. The attorney who caused you grief could end up paying for your suffering.
A writ of habeas corpus is a judicial mandate to a prison official which orders that an inmate be brought to court so the court can determine if the person is imprisoned lawfully. If the court determines he is not, that person will be released from custody. A Writ of Habeas Corpus is a last resort, when other methods won’t work, but it can be the only way to get help.
The writ of habeas corpus can be filed in a state or federal court, under certain conditions. The court will want clear and convincing evidence to support the writ, and it is unusual for them to be granted.
Post-Conviction Relief Help
At The Law Offices of Lemarr E. Carver, I want to help people like you who have been treated unfairly. I treat every client like they are my most important client, and your problems like my problems.
I will meet with you early and often, taking in every detail of your case and never losing sight of the goal. I will meticulously prepare your defense and present you with options. I pride myself on my clients being the best informed and most prepared clients, whose cases are stronger because of their own input.
If you are need help with a claim for Post-Conviction Relief, call The Law Offices of Lemarr E. Carver. You will know that you are getting Effective, High Quality Legal Representation in your difficult time.