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.  See generally Chapter 6, supra.  For the requirements for felony and misdemeanor appeals, as well as the procedure and relief for filing a late notice of appeal, see Chapter 6, supra.[104] 

 

            While 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 (CPC) to appeal,[105] (see Penal Code § 1237.5), it is not necessary to obtain a CPC to take an appeal from the sentence after a plea, since the sentence was entered after plea and the appeal does not challenge the validity of the plea.[106]  The notice of appeal of a sentence only must explain that it is so limited and that therefore no certificate of probable cause is required.[107] 

 

            A successful appeal can result in the complete vacating of the judgment of the trial court, 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.

 

            A direct appeal prevents a conviction from being a final judgment and it thus does not yet exist for immigration purposes.[108]  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 DHS is reportedly examining appeals to determine whether the appeal is from the sentence only (in which case the DHS argues 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.

[104] 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., 2008).

[105] 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). 

[106] E.g., Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005)(most recent sentence governs regardless of reason sentence was changed); Matter of Corso, No. A18 079 714 (BIA December 29, 1999)(district court order vacating judgment and imposing a new sentence of 10 months in custody, citing “unique family circumstances warranting a downward departure” eliminated former one-year sentence and thus eliminated aggravated felony conviction); United States v. Ko, 1999 U.S. Dist. LEXIS 19369 (S.D.N.Y. 1999)(granting coram nobis to reduce federal sentence expressly to avoid aggravated felony conviction).

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

[108] 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 DHS 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, Int. Dec. 3364 (BIA 1998)(en banc), separate opinion of Board Member Rosenberg concurring and dissenting, for a comprehensive discussion of the finality requirement.

Fourth Circuit

VEHICLES " APPEAL -- PEOPLE HAVE STANDING TO APPEAL WHEN CHALLENGING A SENTENCE
People v. Labora (4th Dist., Dec. 8, 2010) 90 Cal.App.4th 907, 118 Cal.Rptr.3d 606 (the prosecution has standing to appeal when challenging the legality of a sentence).

VEHICLES " APPEAL -- PEOPLE HAVE STANDING TO APPEAL WHEN CHALLENGING A SENTENCE
People v. Labora (4th Dist., Dec. 8, 2010) 90 Cal.App.4th 907, 118 Cal.Rptr.3d 606 (the prosecution has standing to appeal when challenging the legality of a sentence).