A direct appeal is the most direct form of post‑conviction challenge to the validity of a criminal conviction or sentence.  It can take from one to two years to complete a direct appeal from a felony conviction, and from three to six months, occasionally more, to complete a misdemeanor appeal.  For a description of felony and misdemeanor appeals, as well as the procedure for attempting to file a late notice of appeal, see Chapter 5, supra.[170] 

 

            While in some jurisdictions an appeal from a conviction based on a plea of guilty or no contest cannot be maintained unless the court has issued a certificate of probable cause to appeal,[171] it is not necessary to obtain a CPC to take an appeal from the sentence after a plea, since where the sentence was entered after plea and the appeal does not challenge the validity of the plea.[172]  The notice of appeal of a sentence must explain that it is so limited and that therefore no CPC is required.[173] 

 

            A successful appeal can result in the complete vacating of the trial court's judgment, and thus eliminate a conviction of any kind for immigration purposes.  The same holds true for sentences.  A sentence that is reversed or vacated on direct appeal has no adverse immigration effects. 

 

            Additionally, during its pendency, a direct appeal prevents a conviction from being considered a final judgment of conviction, and thus it does not yet exist for immigration purposes.[174]  A direct appeal from the sentence should be considered as keeping the sentence from being sufficiently final to serve as a basis for removal or denial of immigration benefits.  

 

            The immigration authorities sometimes examine appeals to determine whether the appeal is from the sentence only (in which case the immigration authorities may argue the appeal does not delay finality of the conviction) or from the conviction as a whole.  Nonetheless, an appeal from a sentence should be sufficient to delay finality of the judgment insofar as the sentence triggers adverse immigration consequences.  Moreover, since the sentence is not final, there is no final order constituting “restraint” on liberty, flowing from the plea, and therefore no conviction under the statutory definition of conviction.  See § 5.23, supra.

[170] See also D. Fischer, Criminal Appeals in California State Courts, in D. Fischer, L. Jay, J. Scott & R. Wiebe, Appeals and Writs in Criminal Cases, Chap. 1 (California Continuing Education of the Bar, 2d ed., 2000).

[171] See California Penal Code § 1237.5.  An appeal from the denial of a motion to suppress evidence, however, may be maintained without a certificate even if it follows a plea of guilty or no contest. D. Fischer, et al., Appeals and Writs in Criminal Cases § 1.57, p. 60; Cal. Rules of Court 31(d). 

[172] Ibid. 

[173] Ibid.; but see People v. Lloyd, 17 Cal.App.4th 658, 665, 72 Cal.Rptr.2d 224 (1998) (appeal from sentence operative even though notice of appeal did not expressly cite Rule 31(d) as a basis).

[174] Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988); Matter of Jadusingh, No. A29 847 544 (BIA 1998) (guilty plea conviction on appeal not sufficiently final to permit underlying facts to be used to establish inadmissibility for reason to believe noncitizen had been a drug trafficker).  An immigration regulation provides that for a conviction to exist, all direct appeal rights must have been exhausted or waived, or the appeal period must have elapsed.  See 8 C.F.R. § 242(b) defining conviction for purposes of the mandate to expeditiously deport convicted aliens, INA § 242(i), 8 U.S.C. § 1252(i).  See also Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998) (en banc), separate opinion of Board Member Rosenberg concurring and dissenting, for a comprehensive discussion of the finality requirement.

Ninth Circuit

POST CON RELIEF - SENTENCE - PARTIAL REMAND
United States v. Fifield, ___ F.3d ___, 2005 WL 3556912 (9th Cir. Dec. 30, 2005) (sentences for being a felon in possession of a firearm and an unlawful user of a controlled substance in possession of a firearm remanded to determine whether the district court would have imposed a different sentence if it had known that the sentencing guidelines were advisory).
http://caselaw.lp.findlaw.com/data2/circs/9th/0430299p.pdf

POST CON - APPEAL - FEDERAL -- WAIVER OF RIGHT TO APPEAL SENTENCE
United States v. Smith, ___ F.3d ___ (9th Cir. Nov. 23, 2004) (waiver of appeal valid where waiver was knowingly and voluntarily made).
http://caselaw.lp.findlaw.com/data2/circs/9th/0450046p.pdf