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In summary, a defendant enjoys at least three important constitutional rights during the sentencing process: (1) the right not to be put twice in jeopardy; (2) the right to a sentence that conforms with the Eighth Amendment’s proscription against cruel and unusual punishment; and (3) the right to counsel at sentencing-related hearings, regardless of his or her ability to afford representation. APPEALS and HABEAS CORPUS 1:APPEALS An appeal occurs when an appellate court, such as one of the federal courts of appeal, examines a lower court’s decision in order to determine whether the proper procedure was followed or the correct law was applied. In other words, when a defendant appeals, he or she is claiming that the court made an error. Thus, the appeal guarantees that a defendant who is found guilty can challenge his or her conviction. Further, the appeal442443guarantees that another judge or panel of judges, disconnected from the initial trial, will make the relevant decision. Although appealing convictions is an important part of the criminal process, the Supreme Court has never held that doing so is constitutionally permissible. That is, nowhere does the U.S. Constitution specify that a certain number of appeals will be granted to each convicted criminal. InMcKane v. Durston (153 U.S. 684 [1894]), the Supreme Court stated, “A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law, and is not now, a necessary element of due process of law” (p. 687). Most appeals are posttrial in nature and filed by the defense, which is why this topic is being discussed at the end of this book. However, in some situations, the defense appeals a court’s decision, such as on a motion to suppress evidence, during the trial. And in some instances, the prosecution can even file an appeal. Thus, this chapter will consider three types of appeals: (1) appeals by the defense prior to adjudication; (2) appeals by the defense after adjudication; and (3) appeals by the prosecution. First, however, it is important to review the common types of appeals and their consequences and the important Supreme Court cases dealing with the appellate process (i.e., the procedures courts are required to follow).■ Types and Effects of Appeals Despite the Supreme Court’s view that appealing one’s conviction is not constitutionally guaranteed, every state and the federal government each has rules providing a certain number of appeals to a convicted criminal. At both the state and federal levels, a convicted criminal is usually granted at least one appeal of right, also known as a direct appeal, and at least one discretionary appeal. An appeal of right, or a direct appeal, is automatically granted to the defendant by law. That is, an appeal of right must be heard by an appellate court. It is not up to the appellate court to decide whether to hear such an appeal. By contrast, the appellate .
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