A substantial portion of Mr. Nieman’s criminal defense practice is focused on obtaining post-conviction relief for criminal defendants. Here are answers to some of the most common questions that defendants usually ask about the post-conviction process.
WHAT IS POST-CONVICTION?
Post-conviction relief is a unique civil remedy that is provided by Illinois’ Post-Conviction Hearing Act (PCHA), 725 ILCS 5/122-1, et seq. Though post-conviction proceedings are civil in nature, their purpose is to challenge constitutional errors that occurred at the trial court level and on appeal.
WHAT ARE THE REQUIREMENTS FOR FILING A POST-CONVICTION PETITION?
Post-conviction differs from direct appeal in the procedural requirements that must be met in order to have the case heard. Generally, convicted criminal defendants may appeal their convictions and sentences to the appellate court as a matter of right. A convicted defendant does not have the same right to challenge his conviction and sentence on post-conviction. There are certain unique procedural rules that a defendant must observe in order to have his or her petition heard by the trial court in which the defendant was convicted. If the defendant does not comply with these procedural rules, it is possible that the defendant’s petition will not be heard.
Unlike direct appeal, the PCHA requires that the defendant be “imprisoned” at the time of filing. Being imprisoned in a Department of Corrections prison or in a county jail would qualify as “imprisoned” under the plain meaning of the word. However, the appellate court has also held that being on probation or parole also qualifies as being “imprisoned” for purposes of the PCHA’s standing requirement. Broadly speaking, the defendant must still be serving some portion of his or her sentence in order to challenge a conviction or sentence on post-conviction. Serving a period of court supervision does not satisfy this requirement.
Even if the defendant satisfies the standing requirement, the post-conviction petition must still be filed in a timely manner. There are certain narrow caveats to this requirements, but, generally, a felony defendant’s post-conviction petition must be filed within six months after the denial of a defendant’s Petition for Leave to Appeal to the Illinois Supreme Court or, if the defendant did not file a direct appeal to the appellate court, the petition must be filed within three years following the conviction. There are several exceptions to this general rule, including rules pertaining to misdemeanor convictions, but a timeliness analysis must always begin by examining whether these basic filing requirements have been met.
Post-conviction petitions are generally limited to challenging constitutional error, which limits the arguments that a defendant can raise vis-a-vis those that can be raised on direct appeal.
HOW DOES POST-CONVICTION DIFFER FROM A TRIAL OR DIRECT APPEAL?
Post-conviction, as the name suggests, takes place after a conviction has entered. Post-conviction shares certain characteristics with both trials and appeals, but post-conviction proceedings are materially different from those stages of a criminal case.
The trial court level is the stage of a criminal case that most participants in the criminal justice system are familiar with. At this stage, the defendant can plead guilty to the charges, or proceed to a jury or bench trial, where either a jury or a judge renders a verdict and the judge thereafter imposes a sentence.
From the trial court level, defendants can appeal their convictions or sentences on direct appeal to Illinois’ appellate courts. Direct appeals to the appellate court are limited to issues contained in the trial court record—which is a collection of the transcripts of the court proceedings and any documents that were filed in connection with the case.
Post-conviction is in many ways the polar opposite of direct appeal. On direct appeal, a defendant is limited to alleging error that is apparent from the trial court record. If the error cannot be shown in the trial court record, it generally cannot be raised on direct appeal. The opposite is true with post-conviction. Post-conviction relief is intended to address errors occurring outside the trial court record.
A classic example of error occurring outside of the trial court record would be where the defendant’s trial counsel misadvised or failed to advise a defendant about the consequences of pleading guilty to a crime. The defendant in that situation pleads guilty based on that advice and later finds out that because of his attorney’s faulty advice, he did not receive the benefit of the bargain that he thought he was going to receive. This error would not be apparent from the trial court record because the advice was probably given in private and was not reported by the court reporter. Therefore, an ineffectiveness of counsel argument could not be raised on direct appeal. However, this argument could be raised on post-conviction because it is precisely the type of error that the PCHA is intended to remedy.
IS POST-CONVICTION APPROPRIATE FOR ME OR MY LOVED ONE?
Deciding whether to challenge your conviction or sentence on post-conviction requires a defendant to consider the PCHA’s unique procedural and substantive requirements, which are highly nuanced and always evolving. The information on this page is not intended to be legal advice or intended to establish an attorney-client relationship and should not be relied upon as such. Rather, the information on this page should be considered general information about Illinois’ post-conviction process. It is essential that a defendant considering post-conviction relief contact an attorney who regularly practices in this area of criminal defense before deciding whether it would be appropriate to pursue post-conviction relief.
Nate Nieman is an experienced post-conviction lawyer. Mr. Nieman has filed many successful post-conviction petitions resulting in new trials, substantial sentence reductions, and avoidance of collateral consequences like deportation/removal from the country. Mr. Nieman has achieved these victories for his clients through his obsessive attention to detail, extensive knowledge of criminal law, and willingness to leave no stone unturned. Mr. Nieman takes pride in taking on the cases that nobody else wants to take on and finding creative solutions that have previously been overlooked.
Mr. Nieman is an authority on Illinois post-conviction law, publishing the Illinois Post-conviction Blog and presenting at seminars on the subject. Contact Mr. Nieman to discuss your post-conviction case to see how Mr. Nieman can help you or your loved one get home sooner.
Mr. Nieman would be happy to discuss with you whether post-conviction relief would be appropriate for you or your loved one. He can be reached by phone at(309) 623-4831 or by email at firstname.lastname@example.org.
Have a question about post-conviction that is not covered here? Let us know below.