What are my options after I have been convicted of a crime?

There are several ways to challenge a conviction.

Withdrawing a Plea Before Sentencing

One method that is best used before sentencing is withdrawing a plea. Ohio Criminal Rule 32.1 states, “A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.” What does that mean?

This method is only available if you have pled guilty or no contest to an offense. This is not available if you went to trial and were found guilty by the judge or a jury. This allows you to withdraw your guilty or contest plea before being sentenced. Judges typically allow these fairly liberally before sentencing, but there may be some circumstances where it is still not allowed. In most situations, your attorney will need to articulate a reason why you want to withdraw your plea - perhaps some change in your life circumstance has occurred that makes you unable to proceed to sentencing (like learning about consequences of a professional license), or new facts emerged about the alleged crime that you didn't know about before.

Withdrawing a Plea After Sentencing

The second half of the rule discusses when you can withdraw a plea after being sentenced. This is much more challenging to achieve, as the rule only allows the conviction to be set aside and the plea withdrawn “to correct manifest injustice.” Manifest injustice is a very high standard - there has to be some fundamental unfairness in the process that affects a Constitutional right. Most often, this is due to a misunderstanding or failure to notify you of your rights during the plea colloquy itself. For example, a judge is required to provide a warning about immigration consequences to non-United States citizens during their plea hearing. If the judge fails to do so, that is grounds to vacate the conviction and withdraw the plea.

However, the ability to withdraw a plea is very limited. Examples that would not qualify for withdrawal of the plea include changing your mind, getting a harsher sentence than you expected (so long as it is within the sentencing range of the crime committed), failing to realize it would affect your professional license, or even in some instances discovering new evidence.

Filing a Motion for a New Trial

If you have been convicted at trial, you can file a motion for a new trial. Ohio Criminal Rule 33 states, “A new trial may be granted on motion of the defendant for any of the following causes affecting materially the defendant’s substantial rights:

1. Irregularity in the proceedings, or in any order or ruling of the court, or abuse of discretion by the court, because of which the defendant was prevented from having a fair trial;
2. Misconduct of the jury, prosecuting attorney, or the witnesses for the state;
3. Accident or surprise which ordinary prudence could not have guarded against;
4. That the verdict is contrary to law;
5. Error of law occurring at the trial;
6. When new evidence material to the defense is discovered that the defendant could not with reasonable diligence have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as is reasonable under all the circumstances of the case. The prosecuting attorney may produce affidavits or other evidence to impeach the affidavits of such witnesses.

Conclusion

As you can see, the motion for a new trial has very specific instances when this is allowed. Importantly, except in the instance of new material evidence, you only have 14 days from the trial to file your motion for a new trial. Even in that case, you only have 120 days to file a request for a new trial based on new evidence. This is another reason why it is important to contact an appellate attorney before your trial to ensure any motion is timely filed after a conviction.

Attorney Schreiber’s extensive experience in criminal law as both a prosecutor and defense attorney can help you determine which is the best path forward to challenge your conviction. Contact her before you need her, and protect your rights.

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