What is the Key to a Successful Criminal Appeal in Virginia?

Criminal appeals in Virginia offer an important opportunity to challenge a conviction or sentence. The appeal process varies depending on the court of original jurisdiction, with different procedures for misdemeanors and felonies. Appeals must be based on specific legal grounds, such as procedural errors or violations of rights, rather than mere dissatisfaction with the verdict. The appeal process is essential for navigating the complexities of challenging a criminal conviction in Virginia.

What is the Goal of a Criminal Appeal?

The primary goal of a criminal appeal is to demonstrate that a significant legal error occurred during your trial or pre-trial proceedings that prejudiced your case – meaning the error likely affected the outcome. The appellate court isn’t there to decide if you’re factually innocent or guilty; it’s there to ensure the trial was conducted fairly and according to the law.

Who Can Appeal?

Generally, any person convicted of a crime in a Virginia court has the right to appeal the conviction or the sentence. This right is enshrined in Virginia law.

Where are Appeals Heard in Virginia?

Virginia has a tiered court system. Most criminal appeals begin in the Court of Appeals of Virginia. This court reviews decisions made by the Circuit Courts (where most felony trials take place). In some limited circumstances, appeals may go directly to the Supreme Court of Virginia, the highest court in the state. For example, cases involving the death penalty go directly to the Supreme Court.

Time Limits to File an Appeal in Virginia

This is critical: Virginia has strict deadlines for filing a Notice of Appeal. You must file this notice with the trial court within 30 days of the entry of the final judgment (usually the sentencing order). Missing this deadline is almost always fatal to your appeal, meaning you lose the right to appeal altogether. Prompt action is therefore essential.

The Process of a Criminal Appeal in Virginia

Here are the main procedural steps for a Virginia criminal appeal: 

Notice of Appeal: As mentioned, this is the first and most time-sensitive step. It must be filed with the trial court within 30 days of the final judgment.

Ordering and Preparing the Record: The “record” includes all the documents filed in the trial court, the exhibits admitted into evidence, and, crucially, the transcript of the trial proceedings. Obtaining a complete and accurate transcript is essential, as it forms the basis of the appellate court’s review.

Petition for Appeal: Your attorney will draft a Petition for Appeal to the Court of Appeals of Virginia (or, in some cases, directly to the Supreme Court). This petition is a critical document. It must clearly and concisely identify the specific legal errors that occurred at trial (called “assignments of error”) and explain why those errors require reversal or a new trial.

Briefing: If the Court of Appeals grants your petition (meaning they agree to hear the appeal), a briefing schedule is set. Both sides – your attorney (the appellant) and the Commonwealth’s Attorney (the appellee) – will file detailed legal briefs. These briefs present the legal arguments, supported by citations to case law (prior court decisions) and statutes.

Oral Argument (Optional): The Court of Appeals may schedule oral arguments. This is an opportunity for your attorney to present your case directly to a panel of judges and answer their questions. Oral argument is not always granted; it depends on the complexity of the case and the court’s discretion.

Appellate Court Decision: After reviewing the briefs and, if applicable, hearing oral arguments, the Court of Appeals will issue a written opinion. The court can:

• Affirm the trial court’s decision (uphold the conviction).
• Reverse the trial court’s decision (overturn the conviction).
• Remand the case back to the trial court for further proceedings (e.g., a new trial, re-sentencing).

Petition for Rehearing/Further Appeal: If you lose in the Court of Appeals, you can petition for a rehearing by the same panel of judges. You can also petition the Supreme Court of Virginia for review. However, the Supreme Court has the discretion to choose which cases it hears, and it grants review in a relatively small percentage of cases.

What Makes an Appeal “Successful”? Defining Success and Realistic Expectations

It’s important to have realistic expectations about what constitutes a “successful” appeal in Virginia. It’s not always a complete victory.

• Reversal of Conviction: This is the best possible outcome, where the appellate court completely overturns your conviction. This is relatively rare.
• Remand for a New Trial: This is a more common outcome. The appellate court finds a significant legal error and sends the case back to the trial court for a new trial, often with instructions to correct the error (e.g., exclude certain evidence, and give different jury instructions).
• Sentence Reduction: In some cases, the appeal might focus solely on the sentence imposed. If the appellate court finds the sentence was illegal or an abuse of discretion, it can reduce the sentence.

The Importance of Experienced Appellate Counsel: The skills required for successful appellate advocacy are distinct from those needed at trial. Appellate work focuses heavily on legal research, writing, and oral advocacy before a panel of judges. It requires a deep understanding of Virginia appellate procedure, case law, and the specific tendencies of the Virginia appellate courts. 

Keys to Increasing Your Chances of Success in a Virginia Criminal Appeal 

While there are no guarantees in the legal system, there are steps you can take to significantly improve your chances of success on appeal in Virginia:

• Early Consultation with an Appellate Attorney: Time is of the essence. The 30-day deadline to file a Notice of Appeal is strict. Contact a qualified Virginia appellate attorney immediately after a conviction to discuss your options.
• Thorough Review of the Trial Record: Your attorney must meticulously examine the entire trial record – transcripts, exhibits, motions, and rulings – to identify all potential legal errors. This is a painstaking but essential process.
• Strong Legal Arguments and Persuasive Briefs: The Petition for Appeal and the subsequent briefs are the heart of your appeal. They must be well-researched, clearly written, and persuasively argue your case, citing relevant Virginia statutes and case law.
• Focus on Clear and Reversible Legal Errors: Not all errors are created equal. Focus on the errors that are most likely to have prejudiced your case and that have a strong basis in Virginia law. Avoid a “kitchen sink” approach to raising every possible issue.
• Understanding the Virginia Appellate Courts and their Precedents: Virginia appellate courts have their own unique procedures and body of case law. Your attorney must be intimately familiar with these to present the most effective arguments.

Common Challenges and Why Appeals are Difficult in Virginia

It’s important to acknowledge the inherent difficulties of winning a criminal appeal in Virginia:

• High Standard of Review: Appellate courts give significant deference to the decisions of the trial court, especially on factual findings. They apply different “standards of review” depending on the type of error alleged. Some errors are reviewed “de novo” (meaning the appellate court makes a fresh decision), but others are reviewed with deference (e.g., “abuse of discretion”).
• “Harmless Error” Doctrine: Even if a legal error occurred, the appellate court may find it was “harmless,” meaning it did not affect the outcome of the trial. The prosecution often argues that any error was harmless.
• Presumption of Correctness of Trial Court Rulings: The appellate process starts with the assumption that the trial court acted correctly. The burden is on the appellant (you) to demonstrate that a reversible error occurred.
• Limited Scope of Appellate Review: As emphasized, appeals are not re-trials. The appellate court generally cannot consider new evidence or re-weigh the credibility of witnesses.

Pack Law Group: Experienced Virginia Criminal Defense Attorneys

A criminal conviction in Virginia is a serious matter, but it’s not necessarily the end of the legal fight. The right to appeal is a vital safeguard against injustice, and a well-prepared appeal, grounded in solid legal arguments, can offer a chance at a different outcome. If you or a loved one has been convicted of a crime in Bedford, Lynchburg, Roanoke, or anywhere else in Virginia, seeking legal counsel immediately is the most important step you can take to protect your rights and explore your options for appeal. 

At Pack Law Group, we have the experience and dedication to fight for you in the appellate courts throughout Virginia. Contact us today for a confidential consultation.