Public Defender Appeals Resources

Contact the Appeals Unit

Appeal Referral Form (download prior to submitting)

Preserving Error at Trial

Guide to Interlocutory Appeals

Sample Pleadings and Memoranda

What to do if your client is convicted at trial:

1. File a notice of appeal immediately after sentencing.
   • If you file the notice of appeal after conviction but before sentencing, you must file a second notice of appeal after sentencing in order for your client to get appellate review of any potential sentencing issues.
   • If for some reason you fail to file the notice of appeal within 30 days of sentencing, please contact the Appeals Unit immediately so that we can help make sure your client’s right to appeal is protected.
   • You should file the notice of appeal even if you believe there are no potential issues to raise on appeal.  There is rarely a reason not to appeal, and that decision belongs to the client and is best made with the advice of an appellate attorney who has reviewed the trial transcript.
2. Complete an Appeal Referral Form when you get back to the office.
   • You are counsel of record until the Appeals Unit receives the appeal referral form and assigns appellate counsel. Without the appeal referral form, we do not know that your client has been convicted and needs appellate representation.  It is therefore very important that you submit the Appeal Referral Form as soon as possible
   • Please download the appeal referral form and email it to [email protected]. DO NOT USE THE SUBMIT BUTTON. We are working on making an online form available, but the submit button is not currently functional so should not be used.
3. Make sure transcripts are promptly ordered.
   • Transcript production takes an inordinate amount of time in Massachusetts.  Every day that goes by before the transcript is ordered is a day that the client will have to wait for the appeal to be heard, so please make sure this is done as soon as possible.
   • You can order the transcript using this form: OTS – Transcript Order Form – Intellistack. You do not need to file a motion for funds to order a transcript for a direct appeal. Make sure that you indicate that you are a “CPCS staff attorney” when you are completing the form (if you check “CPCS assigned counsel,” it will ask for a NAC number, which staff attorneys do not have).
4. Let your client know that you have filed the notice of appeal and that an appellate attorney will be appointed and will be in touch.
   • If your client is not in custody, make sure that you have good contact information to pass on to the appellate attorney.
   • Unfortunately, there is currently a backlog of appellate assignments, and it may take six months or more before an appellate attorney is assigned to the case. You can always call the Appeals Unit to check on the status of the assignment of appellate counsel if your client has any concerns or questions.
5. Consider whether your client is a good candidate for a stay of execution of sentence.
   • If you are able to identify a possible issue for appeal, you may be able to move to stay your client’s sentence pending appeal pursuant to Mass. R. Crim. P. 31. Clients who were released on bail or personal recognizance prior to trial are particularly good candidates for a stay. The legal standards for a stay of sentence are explained in Commonwealth v. Nash, 486 Mass. 394 (2020).

What to do if your client is found in violation of probation following a contested final surrender hearing:

• The advice above on what to do if your client is convicted after trial generally applies as well when your client is found in violation of probation following a contested surrender hearing.  File a notice of appeal, send an Appeal Referral Form to the Appeals Unit, make sure the transcript is ordered, and fill your client in.
• Note: if your client stipulates to the probation violation, there is no right to appeal except as to legal errors in sentencing.
• You should also be aware of Commonwealth v. Milot, 462 Mass. 197, 201-202 (2012): if your client is appealing  a violation finding where the violation is a new crime, that appeal will be mooted if the client subsequently pleads guilty to the new charges.  Of course, sentencing considerations might make pleading guilty a desirable option, but it is important to inform the client of this consequence of the guilty plea and to update the Appeals Unit if this occurs.

As always, please call the Appeals Unit with any questions.  We are here to help!  617-482-6212.