CRIMINAL APPEALS, PART II

Earlier this week, I talked about evidentiary issues as a frequent ground for criminal appeals.  Another frequent ground for criminal appeals, when the conviction itself may not be open to a non-frivolous trip to the appellate courts, concerns the severity of the sentence.

Take a federal case for example.  Ever since the Supreme Court held that Congress could make sentencing guidelines, but that it could not go farther and make mandatory guidelines (admittedly a contradiction in terms), the sentencing process has been somewhat convoluted.  Each sentencing starts by calculating the putative sentence under the guidelines.  And while it may sometimes be appropriate for a Court to deviate from that presumptive sentence, it must explain why it is doing so on the record.  Even then, any deviation is subject to appeal, though the appellate courts will only step in if the trial court abused its discretion, taking all the circumstances of the case into consideration.

One can easily see then how virtually every deviation will lead to a putative appeal.  Most will fail, assuming the trial judge wrote a thoughtful, reasoned opinion explaining why he deviated from the guidelines, but a great many defendants in that situation will understandably try anyway.

And new wrinkles are introduced on a regular basis.  The latest word from the Supreme Court is that when guidelines change, the guideline in force at the time of the crime, not at the time of sentencing, applies – at least when the one effective at the time of the crime is more lenient.