State v. Burrell

¶1DISSENT

¶2(dissenting).

¶3I respectfully dissent. In my view, the court’s adoption of the abatement ab initio rule that eliminates a criminal conviction in favor of a deceased defendant turns a blind eye to the rights of society and the victims of crimes, and ignores the trend in the law against this extreme result. Instead, the court should adopt the more rational rule of allowing the appellate court to substitute a successor in interest for the deceased defendant and consider the merits of the appeal. Therefore, I would reverse the court of appeals’ decision and remand the case to that court to allow Burrell’s successors in interest to move for substitution and a hearing on the merits of his appeal. To explain my dissent, I will set forth in detail both the reasons why the majority’s abatement ab initio rule lacks merit, and the advantages of the substitution rule that I propose.

¶4I.

¶5Burrell was convicted of two counts of aggravated forgery and appealed his convictions, alleging insufficient evidence of any intent to defraud, defective jury instructions, error in allowing an alternate juror to deliberate with the jurors, prose-cutorial misconduct, and error in the imposition of multiple sentences. The State joined Burrell in his request to vacate one of his sentences. Before the court of appeals could rule on the merits of Burrell’s appeal, however, Burrell died.

¶6The majority justifies adoption of an abatement ab initio rule that eliminates Burrell’s convictions on two grounds: (1) the defendant should not stand convicted without resolution of the merits of his appeal, and (2) the purpose of punishing the defendant can no longer be served because the defendant is deceased. The majority’s justifications for its new rule lack merit.

¶7It is true that a conviction is not final until “a judgment of conviction has been rendered” and “the availability of appeal exhausted.” Hutchinson v. State, 679 N.W.2d 160, 162 (Minn.2004) (citing State v. Lewis, 656 N.W.2d 535, 588 n. 2 (Minn.2003)). Indeed, “an appeal plays an integral part in the judicial system for a final adjudication of guilt or innocence.” State v. McDonald, 144 Wis.2d 531, 424 N.W.2d 411, 413 (1988). “[A] defendant who dies pending appeal,” therefore, “should not be deprived of the safeguards that an appeal provides.” Id.; see also City of Newark v. Pulverman, 12 N.J. 105, 95 A.2d 889, 894*471(1953) (holding that there is no mootness insofar as the family of a deceased defendant is concerned and his legal representative should have the opportunity to establish on appeal that the conviction was wrongful).

¶8But unless overturned by the appellate court, a defendant’s conviction remains presumptively valid and the State has a compelling interest in maintaining the judgment of conviction. See State ex rel. Rajala v. Rigg, 257 Minn. 372, 382, 101 N.W.2d 608, 614 (1960) (“The judgment of conviction ... is presumptively valid unless it appears affirmatively from the record that the court was without jurisdiction.”). And “because there are so very few instances in which the problem [of a deceased defendant] arises,” continuing the appeal to achieve these public policy goals “should create no appreciable burden for anyone.” Surland v. State, 392 Md. 17, 895 A.2d 1034, 1045 (2006). Because Burrell’s convictions have not been overturned by an appellate court, they remain presumptively valid, and the interests of justice favor not abating the convictions.

¶9Significantly, English common law recognized that the interests of justice favored allowing the defendant’s heirs the right to continue his appeal. See Bevel v. Commonwealth, 282 Va. 468, 717 S.E.2d 789, 795 (2011) (recognizing the defendant’s right to continue his appeal at common law where “an attainder of felony would not be affected by the death of the defendant, but that his executor or heirs could pursue a writ of error in his stead”); Marsh & his Wife, (1790) 78 Eng. Rep. 481 (Q.B.); Cro. Eliz. 225 (“An executor may bring a writ of error to reverse the outlawry for felony of his testator.”); 4 William Blackstone, Commentaries on the Laws of England 391-92 (1807); 2 William Hawkins, A Treatise of the Pleas of the Crown 654 (John Curwood, ed., 8th ed. 1824); Timothy A. Razel, Note, Dying to Get Away with It: How the Abatement Doctrine Thwarts Justice — And What Should Be Done Instead, 75 Fordham L.Rev. 2193, 2198 (2007) (stating that courts have only applied abatement ab initio since the late nineteenth century and noting that some states have never adopted the doctrine of abatement ab initio). The origins and justifications for abatement ab initio are, at best, murky, and therefore this court need not adopt the unsound doctrine of abatement ab initio. See Fleeger v. Wyeth, 771 N.W.2d 524, 529 (Minn.2009).

¶10The majority also argues that a judgment of conviction is primarily designed to punish the defendant, that the defendant is deceased, and therefore the purpose of the judgment of conviction can no longer be served. This argument ignores the broader purpose of the criminal justice system, which recognizes not only the constitutional rights of the defendant, but also the legitimate right of society and the victims of crimes to retribution. See Kennedy v. Louisiana, 554 U.S. 407, 420, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) (“[PJunishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution.”); see also Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 2028, 176 L.Ed.2d 825 (2010). Retribution serves the purpose of having a convicted defendant pay for the crime committed and the negative impact of that crime on society and the victims of the crime. In Grahamthe Supreme Court observed that “[s]ociety is entitled to impose severe sanctions ... to express its condemnation of the crime and to seek restoration of the moral imbalance caused by the offense.” Graham, 560 U.S. at -, 130 S.Ct. at 2028.

¶11Our criminal justice system recognizes the rights of victims in criminal prosecutions. Morris v. Slappy, 461 U.S. 1, 14, *472103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (“[I]n the administration of criminal justice, courts may not ignore the concerns of victims.”); see also Douglas E. Beloof, Weighing Crime Victims’ Interests in Judicially Crafted Criminal Procedure, 56 Cath. U.L.Rev. 1135, 1152-53, 1158-63 (2007). Other courts have recognized that “[t]he interests of the victim ... in condemning the offender persist even after the defendant’s death.” State v. Carlin, 249 P.3d 752, 764 (Alaska 2011). Abating a defendant’s conviction denies victims “fairness, respect and dignity” and prevents “finality and closure.” State v. Korsen, 141 Idaho 445, 111 P.3d 130, 135 (2005). Crime victims are also entitled to “reeeiv[e] compensation for loss due to criminal activity” and “obtain[ ] retribution against the person who wronged them” by seeing the perpetrator justly convicted of the crime. Razel, supra, at 2209-10; see also People v. Peters, 449 Mich. 515, 537 N.W.2d 160, 164 (1995) (recognizing that crime victims “suffer[ ] significant losses as a result of [a] defendant’s criminal conduct”). Because the victim may be entitled to restitution, “a criminal appeal, even after the defendant has died, may remain ‘a present, live controversy’ ” with “consequences for the defendant’s estate.” Carlin, 249 P.3d at 764. Also, “collateral proceedings,” including any civil action brought by the victims, “may be affected by criminal proceedings.” McDonald, 424 N.W.2d at 414; see also State v. Jones, 220 Kan. 136, 551 P.2d 801, 804 (1976) (“Oftentimes rights other than those of an individual defendant are involved. The right to inherit, or to take by will ... may be affected. The family of the defendant and the public have an interest in the final determination of a criminal case.” (citation omitted)).

¶12The majority’s rule turns a blind eye to the interests of society and the victims of the crimes involved. A proposed rule allowing substitution for the deceased defendant and consideration of the merits of the appeal respects not only the constitutional rights of the defendant, but also the interests of society and the victims of the crime involved.

¶13II.

¶14I propose the court adopt a rule that allows substitution of the defendant’s successor in interest and continuation of the appeal. Substitution and continuation of the defendant’s appeal afford the defendant, through his successor in interest, the safeguards of an appeal. Additionally, substitution and continuation “preservef] both the presumptive validity of the judgment and the ability of the defendant, through a substituted party appointed for his or her benefit, to maintain the defendant’s challenge to it.” Surland v. State, 895 A.2d at 1034, 1045 (Md.2006). Finally, “no prejudice is suffered by the deceased or his interests in allowing the appeal to continue” when “[t]he [djefendant had an opportunity to participate fully in his appeal” prior to his death.1State v. Salazar, 123 N.M. 778, 945 P.2d 996, 1004 (1997). The virtues of continuing the defendant’s appeal have been recognized by the four*473teen states that now allow their appellate courts to consider the merits of a deceased criminal defendant’s appeal in most circumstances. State v. Carlin, 249 P.3d 752, 762 (Alaska 2011); State v. Clements, 668 So.2d 980, 982 (Fla.1996); State v. Makaila, 79 Hawai'i 40, 897 P.2d 967, 972 (1995); State v. Jones, 220 Kan. 136, 551 P.2d 801, 804 (1976); Surland v. State, 392 Md. 17, 895 A.2d 1034, 1045 (2006); Gollott v. State, 646 So.2d 1297, 1303-04 (Miss.1994); State v. Gartland, 149 N.J. 456, 694 A.2d 564, 569 (1997); State v. Salazar, 123 N.M. 778, 945 P.2d 996, 1004 (1997); State v. McGettrick, 31 Ohio St.3d 138, 509 N.E.2d 378, 382 (1987); Commonwealth v. Walker, 447 Pa. 146, 288 A.2d 741, 744 (1972); State v. Christensen, 866 P.2d 533, 536-37 (Utah 1993); Bevel v. Commonwealth, 282 Va. 468, 717 S.E.2d 789, 795-96 (2011); State v. Webb, 167 Wash.2d 470, 219 P.3d 695, 699 (2009); State v. McDonald, 144 Wis.2d 531, 424 N.W.2d 411, 414-15 (1988).

¶15As the Maryland Court of Appeals recognized in Surland, “the public generally” has an interest in criminal appeals that supports substitution and continuation of a deceased criminal defendant’s appeal. Surland, 895 A.2d at 1045. The continuation of the appeal is helpful because “our lawmakers and practitioners need to be made aware of errors committed at the trial court level. Leaving convictions intact without review by [an appellate court] potentially leaves errors uncorrected which will ultimately work to the detriment of our justice system.” Gollott, 646 So.2d at 1304; see also McGettrick, 509 N.E.2d at 382 (proceeding with the appeal “furthers the public policy of deciding cases on their merits”); McDonald, 424 N.W.2d at 414 (“[I]t is in the interest of society to have a complete review of the merits of the criminal proceedings.”).

¶16In sum, I dissent from the majority’s decision to abate ab initio Burrell’s convictions for two reasons. Abating a criminal conviction without consideration of the merits of the appeal ignores the legitimate rights of society and the victims of the crimes involved. My proposed rule allowing substitution of a successor in interest for a deceased defendant and consideration of the merits of the appeal is well grounded in the common law; and the rule respects the constitutional rights of the defendant, and the interests of society and the victims of the crimes. Consequently, I would remand this case to the court of appeals for consideration and resolution of the merits of the appeal, including the correction of any errors that may have occurred during trial.