Post Conviction Relief

There are a number of procedures a convicted individual can follow to seek relief after conviction. A person can file an appeal, which must be done within 45 days. If the appeal is unsuccessful, the person can then file for post-conviction relief, otherwise known as filing a PCR.

If your criminal appeal is denied or the time limit for filing an appeal has passed, you may still have the opportunity to file for post conviction relief (PCR). There is generally a five-year time limit for filing a PCR following your conviction, but there are exceptions if you allege excusable neglect and that there is a reasonable probability that if the defendant’s factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice.

A PCR is the equivalent of a federal habeas corpus petition. Your assertion is that you were wrongfully convicted and that your constitutional rights were violated. The violation could have occurred at any phase of the criminal proceeding against you including during the investigation, arrest, pre-trial, plea hearing, trial and sentencing.

The grounds upon which the PCR is based, however, must have been asserted at trial or in a prior proceeding such as in a pre-trial motion or the court will not allow the claim to be made. For example, your attorney must have timely objected to the introduction of evidence either verbally and on the record or by a motion. There are exceptions found in Rule 3:22-4 (Bar of Grounds Not Raised in Prior Proceedings):

If the grounds for relief could not have reasonably been raised in a prior proceeding (an example would be the failure of the prosecution to provide evidence that could be construed as exculpatory); or,

The enforcement of the bar, including one for ineffective assistance of counsel, would result in a fundamental injustice; or,

Denial of relief would be contrary to a new rule of constitutional law under the federal or state constitutions.

Conditions for Filing a PCR

You must allege any of the following in a motion for post conviction relief:

  • Some significant denial of a constitutional right either under the federal constitution or the constitution or statutes of New Jersey;
  • The court lacked the jurisdiction to sentence you;
  • Your sentence was excessive and did not adhere to the law under which sentence was imposed;
  • Any other grounds for a collateral attack upon your conviction by habeas corpus or any other common-law or statutory remedy.

Often the denial of a constitutional right constitutes grounds for a PCR. Some examples include:

  • Prosecutorial misconduct--failure to provide your criminal defense attorney with evidence that is considered exculpatory.
  • Juror misconduct--a juror failed to reveal he or she knew you, was biased against you, or lied about his or her own criminal record, or conducted an independent investigation.
  • Your attorney failed to advise you of a substantial conflict of interest in representing you.
  • Ineffective assistance of counsel--Your attorney handled your defense in a particularly egregious fashion.

Examples of Cases Where PCR Can Be Granted

If you are a non-citizen, and your attorney fails to advise you of the possibility of deportation or the deportation consequences of a plea that results in a conviction. New Jersey attorneys are obligated to advise their clients of the possibility of deportation in discussing a plea negotiation.

The failure of a trial court to inform you of the possibility of permanent or lifelong commitment under the Sexually Violent Predator’s Act. The charges must involve a crime that would expose you to the act, such as sexual assault or sexual contact with a minor.

The trial attorney’s conduct at trial, or his or her trial strategy, was so egregious or flawed that it denied your right to a fair trial. This can include allegations that your attorney was intoxicated or under the influence of drugs at trial, or failed to conduct any investigation of your case that would have uncovered exculpatory evidence.

Your English is poor and you were not provided an interpreter.

During interrogation, coercive tactics were used. Or in the case of minors, their parent was denied attendance while the minor was being questioned, or the police did not conduct themselves fairly and coerced the youth into a confession.

The trial court did not fully advise you of the rights you were waiving when you entered a guilty plea.

Criminal Appeal

You only have 45 days to appeal a criminal conviction or you will have to make a motion for post conviction relief. A criminal appeal must be based on assertions made at trial or at any other pre-trial proceeding such as a motion to dismiss or one challenging the use of evidence your attorney felt would be unduly prejudicial to your case. Examples include:

  • Invalid lineup identification
  • Ineffective assistance of counsel
  • Juror prejudice or misconduct
  • Inadmissible evidence that was allowed to be introduced
  • Discriminatory jury challenges
  • Violation of a motion in limine, or pre-trial motion, limiting use of evidence
  • Improper jury instructions
  • Prosecutorial misconduct

Retain a Criminal Defense Attorney

Motions for post-conviction relief are complicated procedures and require the skills of an experienced criminal defense lawyer. If you are no longer able to file an appeal of your conviction or it was denied, you need to consult with a criminal defense attorney to explore the possibilities of a motion for post conviction relief and if grounds exist for possible relief.

Contact the Law Offices of Stephen S. Weinstein, P.C.
for your free personal consultation today.

Violent Crimes
White Collar
Property Crimes
Public Officials/Employees
Sex Offenses
Drug Offenses
Domestic Violence
False Swearing
Post Sentencing