Utah State Criminal Appeals ‐ Making a case for reversal in your darkest hour

Considering a criminal appeal in a Utah appellate court? Trial attorneys may not be enough. Appellate law is a unique legal arena, requiring a specialized approach. At Lotus Appellate Law, we focus exclusively on navigating the complexities of Utah criminal appeals with precision, skill, and a commitment to achieving justice for you.

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Understanding the Criminal Appeals process

Navigating the Complex Appellate Process in Utah

The criminal appellate process in Utah is complex, with distinct rules and procedures that differ significantly from trial courts rules. Discover why partnering with an experienced appellate firm like Lotus Appellate Law is crucial to successfully navigating your criminal appeal.

a large white building with a dome and a flag on the front with Utah State Capitol in the background — East Entrance of the Utah State Capitol Building in Salt Lake City, Utah, USA

pencil drawing of a court of appeals hearing a criminal case — Court of appeals judges sit in session.

How do I get my Conviction reversed?

Getting a criminal conviction reversed is no easy task. Appeals are costly, and up to 90+% of criminal appeals in Utah are not ultimately reversed. But in serious cases where your freedom and good name are on the line, it may be worth it to try.

After a trial, many families have very little fight left in them. To stay in the game, you will need an appellate attorney who has the expertise to guide your team, to take the lead, and to push that rock up that hill for you.

We can help. In the appellate arena, trial expertise is not enough. Our attorneys are some of the most experienced criminal appellate attorneys in the state. And you need experience. Appellate law is a unique legal arena requiring a special understanding of all of the appellate procedural rules–as well as criminal law. At Lotus Appellate Law, we focus on navigating the complexities of Utah criminal appeals with precision, empathy, and a commitment to justice.

Why experience matters

The appellate process in Utah is intricate, involving different rules and procedures than those used in district courts. At Lotus Appellate Law, we understand that appealing a case can be exhausting and overwhelming, and the likelihood of success for your appeal often hinges on expertise in the nuances of appellate procedure and spotting issues that are reversible. It is crucial to work with a firm that specializes in appeals and understands the process forward and backward.

Choosing Lotus Appellate Law means placing your trust in a team that dedicates its practice exclusively to appellate cases. Our focus allows us to stay up-to-date on the latest developments in Utah appellate and criminal law. We have the insight to identify potential issues and leverage those to your advantage, increasing your chances of a favorable outcome.

Keep in mind that an appellate court will not review the record in your case. Appellate records frequently span anywhere from 900 to 2,000 pages. These records are simply too long for appellate judges to read front to back. So reading the record and identifying areas for judicial review is your appellate attorney’s job. Without your appellate attorney’s keen insight into what issues are even possible to raise before the appellate court and how to raise them persuasively, your appeal might not stand a chance. You need someone you can trust to do the heavy lifting and deep thinking–making it easy for the judges to rule in your favor.

Understanding the complexity of appeals

Okay, so what exactly is an appeal?

It is important to understand that an appeal is not a redo of your trial; it’s an entirely different stage of litigation that focuses on reviewing legal errors made in the trial court. Unlike district courts, which assess evidence and witness credibility, appellate courts review the trial court’s judgments for mistakes in its application of the law as it stands to the facts of the case.

This shift in focus means the rules of engagement change significantly. For example, on appeal you cannot bring new evidence to light, and you cannot make arguments you failed to make in the district court. As well, an appellate court may affirm for any reason apparent on the record, including if a party fails to attack every rationale for a district court’s holding.

In Utah, the state appellate courts have their own set of procedural rules that differ from the district courts. The requirements for filing a notice of appeal, preparing briefs, and presenting oral arguments are governed by these unique rules. The Utah Court of Appeals and the Utah Supreme Court have strict timelines and technical requirements that must be met to avoid having your appeal dismissed. A failure to meet deadlines can be a jurisdictional bar to filing your appeal.

a statue of a woman holding a scale and a staff

lawyers working around a table — Lawyers working on an appellate case.

Why Appellate Attorneys are Necessary to Appeals

The role of an appellate attorney is vastly different from that of a trial attorney. Appellate attorneys should be expert legal researchers as well as expert legal writers. They must possess a deep knowledge of appellate procedure and the underlying substantive law of the case, be skilled in persuasive legal writing, and have the wisdom to craft 50-60 page legal documents without exhausting the judges who read them.

Identifying and arguing these points effectively requires an appellate attorney who knows what to look for and how to present these errors persuasively in briefs and during oral arguments. Appellate clerkships train appellate attorneys to think like a judge, write like a judge, and reason like a judge. There is no substitute for that experience.

Given the complexity and highly specialized–and high stress, emotionally exhausting–nature of criminal appeals, it is crucial to have experience by your side. Our attorneys have filed, mooted, or helped draft literally hundreds of briefs in the Utah appellate courts.

Lotus Appellate Law’s attorneys focus exclusively on appellate work so there is no guessing involved. We know the procedural traps that can derail an appeal–for example, inadequate briefing, arguing the wrong standard of review, or leaving alternative reasons for affirmance on the table–so we know how to avoid them. We can navigate the process for you so you don’t have to.

Can I Appeal My Case

Most likely. When you appeal your case, the Utah Court of Appeals agrees to consider the trial court’s proceedings for legal errors that may have impacted the outcome of your case. It’s important to understand that not every unfavorable ruling qualifies as a strong appellate issue.

In a strong appellate issue, there must be a basis for arguing that a legal mistake occurred at trial. But while legal errors abound at trial, reversible errors are more difficult to find. Showing that an error occurred simply isn’t enough. You also have to show that the error made a difference. In the law, we call this “harm” or “prejudice.”

In most cases, the burden to show harm is on the defendant. In other words, the defendant must show that absent that error, there is a reasonable likelihood of a different result. But in some instances, the burden of showing of harm is actually reversed. For example, if the issue is a preserved constitutional issue, then the State has the burden of showing that the error did not prejudice the defendant.

Appellate Standards of Review

Appellate courts review each issue under a different “standard of review.” Standards of review assign a certain amount of deference to each issue. Was the issue presented to the district court? Did the court have a chance to rule on it? If so, the standard of review will either be correctness or abuse of discretion. If the issue was not presented to the district court, then the court of appeals may still consider it. But it will only consider those issues under special standards of review that require special showings.

a building with a flag on the front — Scott Matheson Third District Courthouse in Salt Lake City – Utah, USA

Abuse of Discretion

Certain issues–like sentencing issues and evidentiary issues–are reviewed for an abuse of discretion. When an appellate court reviews an issue for an abuse of discretion, it will only reverse the conviction if the court concludes that no other district court judge would have made the same decision. This is a highly deferential standard of review–which means that in the majority of cases, the appellate court will defer to the trial court’s judgment.

Correctness

Preserved legal issues are reviewed for correctness. This means that no matter what the district court ruled, the court of appeals has the chance to correct it. Sometimes legal holdings can be embedded in evidentiary issues, which are usually reviewed for abuse of discretion. But if you can argue that what the court has is an embedded legal issue–and not an evidentiary call–then you can get the court to review the issue under the less deferential “correctness” standard.

a building with columns on the side — Byron White United States Courthouse 10^th Circuit, in downtown Denver, CO, USA

Unpreserved issues can sometimes be reversible in criminal appeals

In civil appeals, you may only raise preserved issues or issues that are reversible under plain error review. But in criminal appeals, you may sometimes raise an unpreserved issue if you can properly identify an exception to the preservation rule.

Plain Error

A claim of plain error points the finger at the trial court, saying “hey, you should have known better. This mistake should have been obvious.”

When you raise an issue under plain error, you have to show three things: First, that there was an error; second, that the error should have been obvious to the trial court; and third, that absent the error, there is a reasonable likelihood of a different result. Under this standard of review, you have to show that the error should have been so obvious to the trial court and that it impacted the outcome with such great force that the appellate court should order a new trial.

This standard of review is one of the most difficult to show, because of the “obviousness” showing you must make.

Ineffective Assistance of Counsel: the Sixth Amendment’s protections

The Sixth Amendment to the United States Constitution guarantees the effective assistance of trial counsel in criminal cases–even when you cannot afford an attorney. On appeal, when you raise an issue under ineffective assistance, you are claiming that your trial counsel’s representation fell below certain standards.

When you claim ineffective assistance of counsel, you must show three things: First, that trial counsel’s performance fell below an objectively reasonable standard, and second, that absent the error, there is a reasonable likelihood of a different result. These errors don’t have to be obvious, but they do have to surpass a significant hurdle: if there was any way that objectively reasonable trial counsel could have chosen to overlook the alleged “error,” then the appellate court won’t second-guess trial counsel’s alleged “strategy.”

This standard of review is also difficult to surpass, because the appellate court will often credit trial counsel’s erroneous conduct with trial strategy.

At times, the evidence of ineffective assistance of counsel is not on the record. So how can you show evidence that your trial counsel did you wrong if you can’t admit extra-record evidence on appeal? The Utah Rules of Appellate Procedure allow a defendant to file a motion concurrently with the opening brief admitting evidence of ineffective assistance of counsel. If this motion is granted, then the appellate court will remand the case back to the trial court to hold an evidentiary hearing where trial counsel will have the opportunity to testify. After this evidentiary hearing, the case is transferred back to the court of appeals for a final determination.

What will happen to my case if I win?

The exact remedy available to the appellate court is always important to keep in mind when you raise any given issue. That is because certain issues will only get you entry of a lesser included offense, while other issues will get you a complete do-over. Likewise, some errors will have an impact on only one charge, while other errors will have a pervasive impact on the whole trial.

Inside a courtroom painted in watercolor — Inside a courtroom.

Is there any way to get a reversal without being retried? Yes, but, of course, that is a very tall order. In order to get a reversal without a retrial, you must show that the State failed to produce enough evidence to support a guilty verdict the first time around. When the appellate court looks at the evidence under this microscope, it will only reverse if the available inferences from evidence admitted do not support a conviction. In other words, if the jury could have inferred guilt based upon the testimony or other evidence, the court will not reverse. These types of issues are called “sufficiency” issues, and they are the holy grail of appellate issues.

Let us help you

Given these complexities, it’s crucial to consult with an experienced appellate attorney early in the process to evaluate whether your case is a good candidate for appeal. At Lotus Appellate Law, we thoroughly review the appellate record, identify all available issues, and which issues have the greatest likelihood of success, ensuring you have a realistic understanding of your options.

If you believe an error occurred in your trial and are considering an appeal, we would love to discuss your case with you and explore your options.

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What Our Clients Are Saying: “Trusted Expertise in Appellate Law”

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Should you Hire an Appellate Law Firm?

Trial Attorneys

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Broad understanding of district court rules
Limited understanding of appellate process
Oral advocacy style well suited to juries
Familiar with district court clerks
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Up-to-date trial court training

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Experts in appellate court rules
Deep understanding of appellate process
Oral advocacy style well suited to judges
Familiar with appellate court clerks
Persuasive brief writing
Attorneys have appellate clerkships
Great reputation with appellate judges
Efficient use of billable hours
A history of success in appellate courts
Up-to-date appellate court training

Frequently Asked Questions

Utah Appellate Process

An appeal is a process where a higher court takes a look at the decision of a lower court to see if any legal errors made below affected the outcome of the case. To successfully appeal your case, you need to identify both an error and articulate the prejudice associated with that issue. An appellate court will not reverse an error if the error did not prejudice the outcome of the case.

Most cases, including civil, criminal, and family law cases, can be appealed if there is a legal basis to challenge the lower court’s decision that your trial attorney preserved. You’ll want to make sure your appellate attorney conducts a thorough review of the final determination, the judgment or verdict, and any rulings made along the way.

Possibly. If you believe the trial court made a legal error that affected the outcome of your case, you should at least look into it. Our attorneys can review your case to determine if an appeal is appropriate. A good appellate attorney can sometimes make a good-faith argument that the governing law should change in your favor.

You begin the process by filing a Notice of Appeal in the district court. You must file that notice “within 30 days after the entry of the judgment or order” you are appealing from. This deadline is not optional, and if you do not file the notice of appeal within that 30-day window, the appellate court will lose jurisdiction to consider your case. Only after you file your notice of appeal will you begin the rest of the process.

This window can be shorter in certain circumstances. For example, for interlocutory review of a non-final decision, the appealing party must file a notice within 21 days. And under UPEPA, the appealing party must file a notice of appeal within 15 days.

If you miss the 30-day or 21-day or 15-day window, there is not much you can do. You may file a motion to reinstate an appeal, but in Utah that motion will not be granted merely because you missed your deadline. Instead, that motion will be granted only if you can show the court that it should reinstate your appeal for one of the enumerated reasons listed in Rule 23A of the Utah Rules of Appellate Procedure.

Yes. Your trial attorney can and should file a notice of appeal for you in the district court to preserve your right to appeal. This does not mean your trial attorney will represent you on appeal. It only means that he or she is preserving your right to appeal. A notice of appeal is a 1-page document that is easy to file. If you believe an appeal may be in your future, please ask your trial attorney to preserve your right to appeal by filing this notice right away.

An appeal generally takes about two years, from start to finish. There are some outliers that may take more time or less time, but the entire process is usually around two years.

Only after you file your notice of appeal will you begin the rest of the process. That process includes ordering transcripts of the proceedings, compiling a copy of the record, getting the briefing schedule from the appellate court, and having an appellate attorney review the record. After you have discussed any appealable issues with your appellate attorney, your attorney will draft and file your Appellant’s Opening Brief, and a briefing exchange ensues. If you are appellee in this process, you will only respond to the opening brief with an Appellee’s Responsive Brief. If you are appellant, you will file both an opening brief and an Appellant’s Reply Brief.

After briefing is completed, your case could be called for oral augment. An appellate court does not hear oral argument in every case; sometimes it issues a written order or opinion without argument. You may ask your attorney to request oral argument, but that request is not always granted. In the months after argument or after briefing, your case will be decided by a panel of judges who will then begin to draft the opinion. Once the opinion has been reviewed and edited by all of the judges on the panel, it is reviewed and edited by the appellate court clerks, and then it is published and made available to the public.

Generally, no. On appeal, the trial or pre-trial record is the entire factual universe that the appellate court will consider. An appeal is not a “second bite at the apple.” You should never count on making arguments or presenting evidence on appeal that you failed to present to the trial court. In fact, appeals are regularly denied when a party relies on evidence outside the record.

The one exception to this rule is found in criminal cases and is available in accordance with Rule 23B of the Utah Rules of Appellate Procedure. Under this rule, criminal defendants may try to admit evidence that their trial counsel provided unconstitutionally ineffective assistance at their trial. Under rule 23B, a motion is filed concurrently with the Appellant’s Opening Brief. That motion has attached to it any missing evidence that the trial court should have considered, along with affidavits attesting the evidence’s accuracy. If a prima facie showing of ineffective assistance of counsel is made in this motion, then the appellate court will remand the case back to the district court to admit the missing evidence. The missing evidence is admitted during an evidentiary hearing. Oftentimes trial counsel has the opportunity to testify and explain his or her strategy, or lack of strategy. The case is then sent back to the court of appeals for a final determination of ineffective assistance.

The number of issues you raise is not limited by rule, but in Utah your attorney must file an opening brief with 14,000 words or fewer. That is 1,000 words more than the United States Supreme Court allows. That is room for about three to four well argued issues. For that reason, which issues you raise will be strategically determined in conference with your appellate attorney. You should consider raising only your strongest issues.

To get a reversal on appeal, you must show not only that there was a legal error, but also that the error prejudiced the outcome. So the strongest issues on appeal are those issues that impacted the outcome of your case in a demonstrable way. That prejudice should be articulable from the record itself. It cannot be speculative or imaginary. It must truly undermine the court’s confidence in the final outcome.

Appeals usually cost less than trials, but, like trials, there are a lot of variables that factor in to cost. Some of those variables include how long the proceedings lasted, how many issues you raise, whether you file a reply brief, and whether the court hears oral argument. Another consideration in criminal cases is raises extra issues in 23B motions. Those issues can include extra-record investigations or missing expert testimony.

The answer to the attorney fee question depends on a number of things. First, you have to have a legal basis–in contract or statute–to collect attorney fees. Second, you can only collect attorney fees on appeal if you litigated attorney fees below. And third, you must be deemed the “prevailing party” in your matter. The question of who the prevailing party is is somewhat unclear. Some caselaw suggests that the amount you ultimately collect at the end of the day might make you the prevailing party, and some caselaw suggests that the number of issues you ultimately win on might make you the prevailing party.

The remedy depends on the issue won. In some instances, you will get a new trial. In some instances, the case will be remanded back to the trial court for the trial judge to reconsider things under a new lens. In some criminal matters, the entire case could be thrown out. Whether your case is remanded for reconsideration or thrown out entirely will entirely depend upon the particular mistake or legal error that the court considers.

If you win, you might. Some winning parties choose to settle with the opposing party. But in many cases, an issue is remanded back to the trial court for a determination consistent with the court’s opinion. So you might end up back at trial for a limited purpose.

Yes. There are a variety of post-trial motions you may file to encourage the district court judge to reconsider the outcome of your case. An appellate attorney can you help decide if any of these motions are appropriate in your case. But you must file them even more quickly than you must file a notice of appeal. So act fast.

Lotus Appellate Law handles appeals throughout Utah, serving clients in all counties and courts across the state. We frequently represent clients in major population centers, including Salt Lake County (Salt Lake City), Utah County (Provo), Davis County (Layton), Weber County (Ogden), and Washington County (St. George), but our appellate practice extends statewide. No matter where your case originates in Utah, we are prepared to provide experienced and strategic appellate advocacy.