Jason D. Lamm Attorney at Law A Boutique Criminal Defense Firm Serving Phoenix

Is Post Conviction Relief a Second Bite of The Apple?

In Arizona, when someone pleads guilty, they give up their right to appeal, and limit themselves to post-conviction relief under Rule 32 of the Arizona Rules of Criminal Procedure. But is post-conviction relief a second bite of the apple?

What Is Post-Conviction Relief?

Post-conviction relief is the only means by which a defendant who pleads guilty to a crime, typically by plea agreement, can challenge their conviction. The most common grounds for post-conviction relief are:

  • Ineffective Assistance of Counsel
  • The Imposition of an Illegal Sentence
  • Failure by the Prosecutor to Disclose Brady (Exculpatory) Material

Generally speaking, if a judge following the terms of the plea agreement—that is sentences the defendant to or within the stipulated or agreed upon terms (3-5 years range and a 5 year sentence)—the sentence is legally valid and challenging it is a waste of time and money.

Ineffective assistance of counsel is the most common means through which a defendant in Arizona pursues post-conviction relief. An attorney doing a bad job, however, is simply not enough. In order to prove ineffective assistance, there must be a showing that 1) there was serious attorney error, and 2) that prejudice resulted. For example, if the attorney did not look for a witness who could testify that the defendant acted in self-defense in a murder or aggravated assault case and that witness would have testified that the defendant acted in self-defense, then this may constitute ineffective assistance of counsel and a basis from which to pursue post-conviction relief.

Will Post-Conviction Relief Result in a Dismissal of Charges?

No. A defendant who successfully pursues post-conviction relief may be entitled to get their guilty plea withdrawn. But it will not result in a dismissal of the charges. Effectively, you go back to square one and start all over again.

But if going back to square one means getting that witness to testify that you shot someone in self-defense and therefore did not commit a murder, your case is much stronger as you go forward a second time. The outcome could be very different as you have the right to go to trial on the original charges. With the new information in hand, prosecutors may handle the case very differently, and more favorably, particularly if evidence has been lost in the meantime or if witnesses have disappeared.

You Need an Honest, Experienced Attorney to Do Post-Conviction Relief

Let’s be honest, there are a lot of people who have taken pleas and then have buyer’s remorse. Whether it’s because they think they should have gotten a better deal or some other reason, the easiest thing to do is to blame their criminal defense attorney.

We know that there are a number of attorneys in the Phoenix area who will take each and every post-conviction relief case that comes their way. They will charge clients a lot of money and play off of their emotions. When the court finds that the petition that has been filed has no merit, they simply walk away with the client’s money in hand.

After 20 years of experience as a Phoenix criminal defense attorney, Jason Lamm can recognize a good petition for post-conviction relief from a bad one. He typically charges a flat fee to review a case and then offers an honest opinion if it’s worth it to go forward, as filing a full petition for post-conviction relief can be costly. Jason would rather tell a client that the odds of prevailing are low and not take a case as opposed to promising a client the world, taking all of their money up front, and then leaving the client disappointed when the petition is unsuccessful. To schedule a confidential and personal consultation with Jason to discuss your post-conviction relief case, call (602) 663-9100. Please be sure to bring all documents and records with you so that Jason can provide you with the most effective opinion and case review possible.