Appealing a Sentence

Criminal defendants may appeal a sentence based on whether or not it was lawfully imposed—most of the time.

Can You Appeal Your Sentence?

Criminal defendants generally can't appeal "lawful" sentences. But a defendant can appeal a sentence if it's illegal, unconstitutional, or unreasonably excessive. For example, if a judge imposes a sentence that exceeds the maximum punishment allowed for the crime in question, an appeals court would have the power to correct the sentence.

Other situations in which appeals courts may modify (or order trial courts to modify) sentences include when those sentences:

• are enhanced based on facts a jury didn't find true beyond a reasonable doubt
• are based on invalid reasons (for example, the defendant's failed polygraph)
• weren't preceded by a waiver of the right to counsel, or
• followed improper denial of a continuance.

In some states, however, if the defendant didn't notify the sentencing judge of an illegal sentence, the appellate court cannot review it. (The way the defense is supposed to notify the trial court—for example, by a petition for review of the sentence—depends on the jurisdiction.)

Example of Appealing a Sentence

A jury convicts Ken of simple battery, a misdemeanor in his state. A misdemeanor is punishable by no more than a one-year sentence, in jail or on probation. But the judge sentences Ken to six months in jail followed by one year of probation, for a total sentence of a year and a half. Because the trial court didn't have power to impose more than a year's punishment, the sentence is illegal. The appeals court overturns Ken's sentence, and the trial court reduces the probationary portion of his sentence to six months.

Appealing a Departure From the Sentencing Guidelines

Federal courts follow the Federal Sentencing Guidelines in imposing sentences. Some states have similar guidelines to inform sentencing decisions. These guidelines recommend a sentencing range based on the crime, defendant's criminal records, and other factors.

Occasionally, a judge departs from the recommended sentence and imposes a harsher sentence (called an upward or aggravated departure). An appeals court won't normally reverse the sentence unless the judge abused their discretion or imposed a sentence above the maximum allowed by law.

In some situations, a judge can also depart "downward" and impose a less severe sentence than the guidelines call for. If a judge refuses to depart downward in sentencing a defendant, the appeals court will review the sentence only if the trial court made a mistake about its authority, such as wrongly presuming that it didn't have the authority to depart from the guidelines.

Appealing Disproportional Sentences

Some states allow review of a sentence if it was potentially "disproportionate" to the crime even if it wasn't above the maximum allowed by law. In federal court, a review for proportionality is required for death and life without parole.

In setting the standard for reviewing a sentence for proportionality, the Supreme Court held that it was disproportionate to sentence a man to life in prison for issuing a bad check despite his criminal history. (Solem v. Helm, 463 U.S. 277 (1983).)

Appealing a Vindictive Sentence

The law also protects defendants from vindictive sentencing. Say a defendant succeeds on appeal and the case goes back to the judge for resentencing. That judge's new sentence is normally presumed to be vindictive if it's harsher than the original punishment and there isn't new information to justify it.

For example, Jackie successfully appealed a sentence of 10 years on a cocaine trafficking charge because the judge considered a prior arrest that she shouldn't have. If the judge then resentences Jackie to 20 years, the sentence is presumed vindictive; the state has to rebut that presumption with a showing that the judge considered new information that justified the harsher sentence. If there was no such information, Jackie could have her sentence overturned on appeal (again).

Do You Waive the Right to Appeal a Sentence in a Guilty Plea?

The terms of plea bargains often require defendants who plead guilty to waive the right to appeal the conviction or sentence. But if the sentence imposed by the court was beyond its authority, the waiver of appeal may not apply. Also, if the lawyer was deficient—for example, by failing to advise the client of the consequences of the plea—then the defendant may be able to attack the sentence. (For more on appealing after a guilty plea, see our article on conditional pleas.)

Consult an Attorney

If you've been convicted of a crime and are considering appealing the conviction or sentence, consult an experienced criminal defense attorney. Appellate criminal defense lawyers specialize in post-trial proceedings and can tell you more about the kinds of errors in your jurisdiction that can cause a court to reverse a conviction or alter a sentence.