When to File a PCR Petition. When to File an Appeal

“My lawyer didn’t do what I told him to, and I got convicted because he screwed up my defense!” must be raised by filing a Post-Conviction Relief Petition, not an Appeal.

If you are convicted or enter a guilty plea, you have the right to file an appeal if you believe that the Court made a mistake. If you believe that the lawyer made a mistake, that type of error must be raised by filing a Post Conviction Relief (PCR) Petition. If it’s a legal issue = file an Appeal; if it’s a representation issue = file a PCR petition.

Everyone makes mistakes. The best lawyer in the land still puts on his or her pants one leg at a time. Read any news source that you like and you will find supposedly informed people giving their opinion as to ‘who is responsible’ for ‘what happened’, and what the outcome should be. That does not make them right anymore than the partisan opinions offered by the talk shows, or the social media ravings of the public. What matters is what the law says, in black and white. What matters is how the defense lawyer argued the law or the facts, and what they did while representing the client. What matters is the interpretation of the law by the Courts. The first is the job of the legislature to write laws that are clear, and to explain their intent in the legislative history that explains what the law is intended to do. The second are the actions of the defense lawyer while defending the client. The third is the explanation of the Judge as to what law is being applied to the facts of the case.

Which type of challenge needs to be raised by a defendant depends on the posture (think stage) of the case, and the basis of the issue being raised. If it is an error of the Court, you must file an appeal. If it is an error by the defense counsel, you must file a PCR petition asserting the defect in how you were represented. The fact that ‘everyone says that the lawyer screwed up’ is meaningless. It is not sufficient to merely say that the lawyer made a mistake. You must show the mistake, and show that without the mistake the outcome would have been different.

What matters when arguing in a PCR Petition proceeding is that a lawyer’s level of representation fell below the minimum standard that a ‘reasonable lawyer’ confronting a similar situation would have handled in the same way. If the answer is NO, then the Court can hold an evidentiary hearing (one where testimony is taken from witnesses) to determine whether the Court should reverse the conviction, which if reversed puts the client back where they were before the deficient representation occurred. If the answer is YES, then the Court denies PCR relief and the defendant has the option of filing an appeal of the denial of relief.

My name is Howard Bailey, and I’m a NJ criminal defense lawyer, with more than 40 years of experience in the field of criminal law. My law practice, The Law Office of Howard W. Bailey, LLC, is located in Newark NJ and I devote all of my practice to defending clients charged with criminal offenses in the State and Municipal Courts of New Jersey. This blog is intended to address the serious issues that can impact the outcome of a criminal case, and at the same time inject a little humor to provide some relief from the seriousness of the problems facing those charged with criminal offenses. If you are under investigation or have been charged with a criminal offense in NJ, please contact me by phone for a free consultation, 973-982-1200