The Register-Herald, Beckley, West Virginia

Local News

July 13, 2014

Final installment of Court Conversations: An appeal is the last phase of a criminal case

— Raleigh County Circuit Court Judge H.L. Kirkpatrick III has discussed with The Register-Herald readers a variety of court topics over the previous weeks to better explain the often confusing procedures.

In this 12th and final conversation, he will review the last phase of a criminal case — the appeal.

An appeal is the removal of a case from a trial court to an appellate court for the purpose of review of the case.

Every state provides a system of appellate review of criminal convictions, and in West Virginia, criminal cases decided by the circuit court will be reviewed by the West Virginia Supreme Court of Appeals.

“We enjoy a robust right to appeal in the West Virginia court system,” Kirkpatrick said.

He said the goal of the appeal is to secure a reversal of the conviction and have a retrial; a defendant who believes that a mistake or error has occurred during the course of his or her criminal case would ordinarily appeal an unfavorable outcome.

Five judges, called justices, sit on the West Virginia Supreme Court of Appeals; they constitute a court of review to ensure that the appealed case was properly handled in the circuit court.

“What this means for litigants is that each properly prepared appeal is fully decided on the merits of the case,” Kirkpatrick said.


The convicted defendant’s chances of a successful appeal are quite low, though.

“You may see disgruntled defendants and defense lawyers exiting the courtroom, vowing to ‘set things straight’ on appeal, but statistics show that very few of the convictions across the state are overturned.”

He said occasionally, a reversal of a criminal conviction will be granted and a new trial will be set, but that outcome has to be viewed in the context of all the many criminal convictions that are affirmed. Circuit judges try to follow the law, Kirkpatrick said, and frankly don’t like their rulings reversed.

As a general rule, the state has no right to appeal in a criminal case — particularly, the state cannot appeal the acquittal of a defendant.

“An idea deeply engrained in our system of justice is that the state should not be allowed to make repeated attempts to convict a defendant for an alleged offense. Double jeopardy principles protect against the prosecution of the same offense either after an acquittal or a conviction of that offense and against multiple punishments for the same offense.”


Can a defendant appeal during the middle of their case if he or she is dissatisfied with the way the case is going?

Kirkpatrick said with few exceptions, the defendant can only appeal from a final order adverse against him or her, such as a conviction.

“In other words, in the usual situation, the jury trial will be over, and the defendant will be appealing his or her conviction.”

Defendants typically cannot appeal a conviction entered by way of a guilty plea, Kirkpatrick said.

However, in very limited circumstances, such as when the judge may have exceeded the provisions of the applicable sentencing statute, or when the defendant is somehow significantly misinformed of the consequences of the plea, that can occur.

“Again, circuit judges will try very hard to make certain that defendants fully understand the ramifications of the guilty plea before accepting that plea at the plea hearing. Usually the rub comes at sentencing, and the defendant may feel that the sentence imposed was harsher than the one expected.”

He said most defendants will hold out hope for an alternative sentence to incarceration, such as probation or home confinement.

At the plea hearing, however, Kirkpatrick said circuit judges will ordinarily take great pains to explain the very real risk of exposure to jail or prison, so that there will be no unpleasant surprises at the disposition of the case.  

In a previous article, Kirkpatrick said circuit judges have wide discretion in sentencing defendants, as long as the imposed sentence is within the statutory framework.  

“Unless the sentence is grossly disproportionate to the offense committed, or otherwise outside the limitations of the sentencing statute, the defendant may have a very difficult time successfully appealing a guilty plea on a sentencing issue.”


Strict timelines are in place for a criminal appellant to follow, and failure to adhere to those timelines will usually be fatal to the appeal.

A “notice of appeal”  preme Court clerk within 30 days. This notice describes the claimed errors committed by the circuit court.

The petitioner, or defendant, will ordinarily make arrangements with the court reporter at the trial to have a transcript of the trial prepared for the Supreme Court to review.

After a timely “notice of appeal” is filed, the Supreme Court will enter a scheduling order which will establish a variety of deadlines for the state and the defendant to follow.

The statutory deadline for perfecting the appeal is four months for criminal cases, Kirkpatrick said, and written statements of fact and argument, called briefs, will be prepared by the state and defense counsel, which will be submitted in accordance with the scheduling order.

Kirkpatrick said most of the cases will be decided on the briefs, but about 20 percent of the time, the Supreme Court will ask the lawyers to present oral arguments.

Oral arguments can be a rather tense time for attorneys, he said, as each side is given a brief opportunity to speak and argue the case before the five justices of the Supreme Court.

The justices will question the lawyers to clarify the issues and to debate the application of the law to the facts of the specific case. The lawyers are expected to know the case and to be well-versed in the applicable law.


The Supreme Court will not consider matters that were not discussed before the trial court, as the Supreme Court of Appeals is a “court of review.”

“That means that this appellate court cannot consider any new evidence or testimony — it is restricted to the record made by the lower court.”

Kirkpatrick said an appeal is not a do-over, just a review of the record in a specific trial. The “record” consists of all the papers and exhibits filed in the proceedings in the Circuit Court, including the official transcript.

The “record on appeal” is an abbreviated version of the record made in the lower court, containing just the pertinent or relevant parts of the record that the Supreme Court will want to consider in rendering a decision.


The Supreme Court announces its decision by way of a written opinion in every single case that is properly filed.

That opinion, arising from a criminal trial, usually will either affirm the conviction or set it aside and order a new trial, Kirkpatrick said.

If the latter occurs, then the trial process will start over in terms of pre-trial motions and a jury trial.

Also, the West Virginia Supreme Court of Appeals maintains a website where the decisions are posted for public review and arguments are usually streamed live over the Internet and viewers can actually watch the proceedings in real time on a computer.

If a convicted defendant loses his or her appeal before the West Virginia Supreme Court of Appeals, what’s next?

“For all practical purposes, the case is over. The West Virginia Supreme Court of Appeals is called ‘The Court of Last Resort,’ and that is not a misnomer.”

If the case is very unique and has important constitutional or federal law implications, the defendant might try to appeal the matter to the U.S. Supreme Court, but Kirkpatrick said realistically, the chances of success would be very slim.


Kirkpatrick said, “Finally, to close out this series, I’d like to quote TV attorney Lionel Hutz of ‘The Simpsons,’ who remarked to his client: ‘And as for your case, don’t you worry. I’ve argued in front of every judge in the state. Often as a lawyer.’”

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