Late AppealsNovember 15, 2014
Do late appeals get granted? Are late appeals denied because they are late? How does it work?
As we have discussed previously, there are three basic types of appeals in Pennsylvania. A direct appeal, a PCRA (Petition under the Post Conviction Relief Act), and a Habeas Petition in Federal Court. In general, you must follow the appellate rules and file on time. If you do not file on time, you can either file your notice and/or petition nunc pro tunc (now as if for then), you can attempt to get your original rights reinstated (reset the clock), or you can claim that you meet an exception to the timelines requirement.
First, there are other types of appeals in PA that are not the big three that I stated above. Folks file appeals of their preliminary hearings all the time. In some counties its called a quash and in other counties its call a habeas (not to be confused with the federal habeas I mentioned above). In those matters, you are supposed to file the quash within ten days of the preliminary hearing but almost all the Common Pleas Court judges allow you to file that up until the day of trial, so long as you tell everyone that you plan to file it and give some type of reason whey it wasn’t filed in advance. Judges are usually ok with late quashes for various reason: 1. the judge doesn’t want to go to trial on charges that shouldn’t be there; and 2. the judge doesn’t want to hear the quash if the case is going to be a plea. Accordingly late appeals in quashes are usually ok.
Next, traffic tickets are allowed to be filed late via a nunc pro tunc petition so long as there is a reasonable explanation. The courts are not here to jam up people on tickets, so if there is any legitimate reason, the judges let them through.
As far as the direct appeal goes, the best way to appeal late is to say that your own lawyer did not file when you told him to appeal and that you wanted to appeal. To do this, you file a PCRA petition with that statement. We have great successes in getting the direct appeal rights reinstated for the late appeals just for this reason.
For late appeals for PCRAs, the best way to be taken seriously is when you use an exception to the rule to have a right to file a new PCRA petition so the prosecutor can’t argue timeliness. For example, newly discovered evidence, an illegal sentence, or a new constitutional right. We have discussed one such example in a previous post on Allenye. However, the Allenye discussion is far more complicated.
Accordingly, late appeals can be filed and won, but you must know the way around the procedural pitfalls of appellate litigation and procedure in Pennsylvania