9-d-2 Appealing Your Sentence

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

9-D-2. Appealing Your Sentence

You can appeal your sentence on the ground that the sentence is either:

(1) unlawful or

(2) unduly harsh or excessive.¹⁷²

(a) Unlawful Sentence

A sentence is invalid as a matter of law when its terms are not authorized by statute or when the sentencing court considers inappropriate factors, like whether you decided to exercise certain rights. For example, a sentence of thirty years for first-degree assault, a class B violent felony, is unlawful, since the maximum penalty allowed for a class B violent felony is twenty-five years.¹⁷³ A sentence may also be unlawful if it is based on an incorrect determination that you had a prior conviction,¹⁷⁴ or if your sentences were improperly ordered to run consecutively (one after the other), instead of concurrently (at the same time).¹⁷⁵ A sentence is also illegal if it constitutes "cruel and unusual" punishment.¹⁷⁶

(b) Unduly Harsh or Excessive Sentence

A sentence is excessive if the law allows the sentence, but is unfair based on the facts of your case.¹⁷⁷ An appellate court may take into account, for example, the circumstances of your crime, the probability of your rehabilitation, your background, and your criminal record.¹⁷⁸ You may appeal your sentence as unduly harsh if anything over the minimum legal sentence was imposed. A court may also consider whether the sentences you received are to run consecutively (one after the other) or concurrently (at the same time). Even if the appellate court rejects all of your arguments regarding errors that occurred during your trial, it may use its "in the interest of justice" discretion to order your sentences to run concurrently instead of consecutively.¹⁷⁹

An intermediate appellate court may substitute its own discretion for that of the trial court in reviewing and modifying your sentence.¹⁸⁰ If an intermediate appellate court decides to change your sentence because it is unduly harsh or excessive, then the court itself must impose some lawful lesser sentence.¹⁸¹ If this happens, the court changes only your sentence and the rest of the judgment (your conviction) is otherwise affirmed.¹⁸²

In a death sentence appeal, the Court of Appeals must focus upon the individual circumstances of your case in determining whether your sentence is unjust.¹⁸³ Under...