Surland v. State
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In the Circu it Court for A nne Aru ndel Cou nty IN THE COURT OF APPEALS OF MARYLAND No. 8 September Term, 2005 _______________________________________ CARL SURLAND v. STATE OF MARYLAND _______________________________________ No. 45 September Term, 2005 _______________________________________ STEFAN TYSON BELL v. STATE OF MARYLAND ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. Bell, C.J., Cathell and Greene, JJ., dissent ______________________________________ Filed: April 11, 2006 We are asked in these two cases to revisit what the appropriate response should be when a defendant, convicted in a Circuit Court of a criminal offense, notes a timely appeal to the Court o f Special A ppeals (or, in a death pe nalty case, to this C ourt) but dies before the appea l is decid ed. The law througho ut the coun try seems clear, an d by now m ostly undispute d, that, if the defendant s conviction has already been affirmed on direct appeal and the dea th occurs while the case is pending further discretionary review by a higher court, such as on certiorari, the proper c ourse is to dismiss the discretionary appellate proceeding and leave the existing judgment, as affirmed, intact. The Supreme Court has adopted that view, and so have w e. See Dove v. United States, 423 U.S. 325, 96 S . Ct. 579, 46 L. Ed.2d 5 31 (1976), overru ling, in th at regar d, Durham v. United States, 401 U.S. 481, 483, 91 S. Ct. 858, 860, 28 L. Ed.2d 200, 203 (1971); Jones v. Sta te, 302 Md. 153, 158, 486 A .2d 184, 187 (198 5). There is no such consensus when the death occurs during the pendency of an appeal of right, however. From the case law around the country, there seem to b e several ba sic choices on the menu of options : (1) Dismiss the appeal as moot and direct as well that the entire criminal proceeding, from th e charg ing doc umen t throug h the tria l court s judgm ent, be a bated (v oided) . (2) Dismiss the appeal as moot an d either expressly leave the trial court s judgment intact or say nothing about the continuing vitality of that judgm ent (which presuma bly will either leave the judgmen t intact or reserve the issue for future litigation). (3) Dismiss the appeal as moot, abate the conviction and any purely punitive part of the judgment but allow one or mo re adjunctive aspects of the judgment, such as an order of restitution and possibly court costs and fines that have already been paid, to remain inta ct. (4) Resolve th e pending appeal, no twithstandin g the death of the appellant, and let the fate of the trial court s judg ment be d etermined by the result of th e appeal. A variant of th is approach, and perhaps that of (3), is to allow the appeal to continue only if, by reason of an order of restitution or a fine, the appellant s estate has a financial interest in resolving the validity of the judgment and wishes the appeal to continue. A variant of that is to allow the appeal to continue in any case in which a s ubstituted pa rty is appointed and elects to continue the app eal, or co unsel o f record elects to continu e it. (5) Dismiss the appeal as moot and direct that a note be placed in the record that the judgment of convic tion remov ed the presu mption of the defen dant s inno cence, that an appeal was note d, and that, be cause of th e death of the defendant, the appeal was dismissed and the judgm ent wa s neithe r affirm ed nor r everse d. Each of these options attempts to balance competing public policies, and advantages and disadvantages, justifications and non-justifications, have been offered as to each of them. The Federal courts have mostly adopted the first approach, although some, including the Court of App eals for the F ourth Circu it, have opted for the third, to leave in effect restitution orders, and, in some of the decisions, fines that already have been paid have not been disturbe d. A slight majority of the States th at have ruled upon the matter also favor the first -2- approach, although some that would ordinarily abate the entire proceeding have opted to leave restitution orders in place and thus are really in the third ca tegory. Abou t twelve Sta te courts have adopted the second option, of either expressly leaving the judgment of conviction intact or dismissing the appea l and saying no thing abou t that judgm ent. Appro ximately seven States have chosen to proceed w ith the appe al if a substitute d party elects to do so, and Alabama, so far alone, has chosen the fifth approach, which also leaves th e judgme nt intact. A few cou rts that have leaned toward the first approach have at least considered whether that approach should be follow ed if the death w as due to su icide wh ether a def endant sh ould get the advantage of a full abatement if he or she effectively frustrated the appeal and thus created the proble m. Mo st of tho se cour ts have ended up rejec ting the d istinction . See United States v. Ob erlin, 718 F.2d 894, 89 6 (9 th Cir. 1983); also Joseph Sauder, How a Criminal Defendant s Death Pending Direct Appeal Affects the Victim s Right to Restitution Under the Abatement Ab Initio Doctrine, 71 Temple L. Rev. 347 (199 8). Maryland , at this point, is wi th the ma jority, although, as we shall explain, this Cou rt has yet really to explore and evaluate the competing public policy considerations and has not expressly determined what to do abo ut restitut ion ord ers. BACKGROUND Surland We have consolidated two cases Surland and Bell. In May, 2004, Surland was -3- convicted in the Circu it Court for A nne Aru ndel Cou nty of theft of p roperty under $500, for which he was sentenced to one year in jail, all but ten weekends of which was suspended. The offense arose from a shoplifting stealing about $65 worth of razor blades from a drug store. Surland n oted an ap peal to the Court of Special Appeals, complaining that (1) the trial court erred in admitting evidence that, in attempting to leave the store, he assaulted two store detectives, and (2) the State failed to prove corporate owne rship of the stolen items. Bef ore the intermediate appellate court could resolve the appeal, we granted certiorari, principally to cons ider the f irst issue. Just prior to scheduled oral argument, Surland died, and defense counsel moved that we vacate his conviction and remand the case with instructions to d ismiss the ind ictment. Counsel advised that, because the trial court had not ordered restitution, no victim s rights would be affected by such a ruling. The State opposed the motion, urging that we do no more than dismiss the a ppeal. Bell In August, 2003, Bell was convicted in the C ircuit Court f or Anne Arunde l County of first degree m urder and conspiracy to c ommit first degree murder, for which he was sentenced to consecutive terms of life imprisonment, the imprisonment for the murder being without the possibility of paro le. Althoug h the murd er victim s pa rents apparently followed the case closely, no order o f restitutio n was entered . -4- Bell noted a timely appeal to the Court of Special Appeals, but, prior to resolution of the appeal, he died. His attorney moved to dismiss the appeal and the indictment. The appellate court denied the motion, without prejudice to renewing it upon a showing that no victims rights would be prejudiced by the granting of the motion and that any victim whose rights would be affected was served with the renewed motion. In April, 2005, counsel filed a renewed motion, seeking the same relief and contending that he was unaware of any victim s right that would be relevant and that there was no requirement in any event to notify victims or victims representatives. The State filed a respon se, noting that the murder victim s parents had been close ly involved in the trial proceedings and that they had been informed by the State of counsel s motion to dismiss. The State agreed that the appeal should be dismissed but urged that the convictions should stand and that the indictment should not be ordered dismissed. Although clearly not parties to the case, at either the trial or appella te level, the victim s parents, through the Maryland Crime Victims Resource Center (MCVRC), also filed a response in opposition to the motion. They urged that the court not direct the eradication of the conviction or indictment but should instead adopt the view taken by courts in Idaho and Alaba ma tha t such a policy w ould be unfair t o crime victims . The Court of Special Appeals found potential merit in those responses. By action of its Chief Judge, it entered an order granting the motion to dismiss the appeal but remanded the case to the Circuit Court with instructions to hold a hearing at which all parties, -5- including the victim s parents, are represented, to determine in the first instance whether [the indictm ent] sho uld be d ismisse d. Bell, obviously through coun sel, filed a petition for certiorari, seeking review of whether the intermediate appellate cou rt erred in disregarding the prece dents of this Court requiring that when an Appellant dies before resolution of his direct appeal, both the appeal and the indictment be dismissed, and whether the Chief Judge of the Court of Special Appea ls was auth orized to ac t alone in remandin g the case f or a hearing in the Circu it Court. The State answered the petition, arguing that (1) the order of th e Court of Special A ppeals was correct, (2) certiorari was premature in any event, be cause the o nly issue in real disp ute whether the indictme nt should b e dismissed had no t yet been resolv ed, but wa s simply remanded for a hearing, and (3) if the Chief Judge was without authority to act alone, the proper relief would be a remand to the C ourt of Special Ap peals for a hearing bef ore a panel of that cou rt. The parents, through MCVR C, also filed an answer to the petition and a conditional cross-petition of their own. We granted Bell s petition and denied the parents crosspetition.1 1 Notwithstanding the denial of their cross-petition, the parents, through MCVRC, filed an Appellee s brief in this Court and asked for permission to present oral argument, which we denied. Neither the parents nor MCVRC have any standing or authority to file an answer to the petition, a cross-petition, or a brief, or to present argument, either in this Court or in the Court of Special Appeals. They were not parties in the Circuit Court and they are not parties in the appellate courts. Although in some (contin ued...) -6- DISCUSSION Mootness of the Appeal As noted, most of the courts, whatever their view as to abating all or part of the judgmen t, seem to agree that, upon the death of the defen dant, the pendin g appellate proceeding should be dismissed as moot. Few, if any, of them discuss why the a ppellate proceeding is moot; they just hold that it is, usually for no articulated reason other than that other courts have said so. A few courts have concluded, without much discussion, that they 1 (...continued) legal systems crime victims are treated as parties to a criminal proceeding and may participate actively in the proceeding, that is not the case throughout most of the United States, a nd it is cle arly not the case in M aryland. See Lop ez-Sanch ez v. State, 388 Md. 214, 224 , 879 A.2d 695, 701 (2005); Cianos v . State, 338 Md. 406, 410-11, 659 A.2d 291, 29 3 (199 5). The direction in Art. 47 of the Maryland Declaration of Rights that crime victims be treated with dignity, respect, and sensitivity during all phases of the criminal justice process, though important, does not suffice to give victims party status in criminal cases or, except to the extent ex pressly provide d by statutes ena cted by the G eneral As sembly or Rules adopted by this Court, the right to act as though they were parties. Maryland Rule 8-111 defines the parties to an appellate proceeding as being the party first appealing the decision o f the trial court (appellant) and the adv erse party (appellee). In criminal cases, absent a special intervention for such limited purposes as enforcing a right of public access (see New s Americ an v. State, 294 Md. 30, 40-41, 447 A.2d 1264, 126970 (1982 ); Baltimore Sun v. Colbert, 323 Md. 290, 593 A.2d 224 (1991)), those parties would be the State and the defendant. The Rule does not afford persons who were not parties in the trial court party status in the appellate court. Maryland Rules 8-302(c) and 8-303(d) make clear that only a party may file a petition for certiorari or an answ er to such a pe tition. The pro per proced ure to be fo llowed by a n on-party wh o wishes to present a point of view to an appellate court is to seek permission to file an amicus curiae brief pursuant to Maryland Rule 8-511. The Court of Special Appeals should have stricken the M CVR C s respo nse to Bell s renewed motion to d ismiss. We shall strike its answer, cross-petition, and appellee s brief. -7- lose jurisdiction wh en the d efend ant dies . See State v. Kriechbaum, 253 N.W. 110, 113 (Iowa 1934). We shall reserve comment on the mootness issue for our discussion of the fourth option. The Rationales Two principal ration ales have b een offe red to support the view that, when a defendant dies during the pendency of an appeal of right, the entire criminal proceeding should be abated ab initio. The first and predominant one rests on the notion that, when a conviction is appealed , it loses finality until the appeal is resolved and should not be permitted to stand when the defen dant s death prevents the appellate court from adjudicating the validity of the conviction. Courts ha ve expres sed this ration ale in differe nt ways, but all to the same e ffect. 2 2 See, for exa mple, People v. Valdez, 911 P.2d 703, 704 (Colo. App. 1996) ( an appeal is an integral part o f our system o f adjudica ting guilt or inn ocence a nd defen dants who die before the conclusion of their appellate review have not obtained a final adjudication of guilt or inn ocence ); United States v. Moehlenkamp, 557 F.2d 126, 128 (7 th Cir. 1977) (same); State v. Ho xsie, 570 N.W .2d 379, 38 2 (S.D. 19 97); Howell v. United States, 455 A.2d 1371, 1372 (D.C. 1983) ( A judgment of conviction is not considered final until any appeal of right which is filed has been resolved because the possibility of reve rsal endure s until that poin t ); State v. Ca mpbell, 193 N.W.2d 571, 572 (Neb. 19 72) (same ); State v. Ma rzilli, 303 A.2d 367, 368 (R.I. 1973) (same); State v. Morris, 328 So.2 d 65, 67 (L a. 1976) (inte rest of defe ndant s sur viving fam ily in preserving reputation of d eceased defend ant is of sufficient legal significanc e to require that a judgment of conviction not be permitted to become a final and definitive judgment of record when its validity or correctness has not been finally determined because the defenda nt s death h as caused a pending appeal to b e dismissed ); United Sta tes v. Estate of Parsons, 367 F.3d 409, 41 4 (5 th Cir. 2004) (appeal tests previously unforeseen weaknesses in the state s case or outright errors at trial and [u]nder this rationale, (contin ued...) -8- The second rationale, as articulated in United States v. Estate of Parsons, 367 F.3d 409, 414 (5 th Cir. 2004), focuses o n the precept that the criminal ju stice system exists primarily to punish and cannot effectively punish one who has died. M any of the co urts adopting the full abatement approach note tha t justifica tion as w ell. See Car ver v. State, 398 S.W.2d 719, 72 0 (Tenn. 1966): One of the cardinal principles and reasons for the existence of criminal law is to punish the guilty for acts c ontrary to the laws adopted by society. The defendant in this case hav ing died is relieved of all punishment by human hands and the determination of his guilt or innocence is now assumed by the ultimate arbiter o f all hum an aff airs. See also People v. Valdez, 911 P.2d 703, 704 (Colo. A pp. 1996 ); State v. Holland, 955 P.2d 1360, 1361 (M ont. 1998). A slight majority and an increasingly smaller ma jority of the courts that have considered the matter adopt this full abatement approach. Some of the courts allude to one or both of the se rationales f or their decision; others give no reason other than to follow what other courts have done. Two rationales have also been offered for the opposite view, of dismissing the appeal but leaving either the entire judgment or at least non-punitive aspects of it, such as compensatory restitution orders, intact (Options 2, 3, and 5). The first responds to the view of the courts favoring the full abatement approach that a conviction is not final until the 2 (...continued) neither the state nor affected p arties should enjoy the fruits of an un tested conviction ). -9- appeal is resolved. It stresses that (1) a conviction erases the presumption of innocence, and (2) trial court judgments are presumed to be regular and valid. After conviction, a defendant is no longer presumed innoce nt but, in deed, is presum ed guilty. See McCoy v. Court of Appeals of Wiscon sin, 486 U.S. 429, 436, 108 S. Ct. 1895, 1900, 100 L. Ed.2d 440, 451 (1988) ( After a judgment of conviction has been entered, however, the defendant is no longer protected by the presumption of innocenc e. ); Herrera v. Collins, 506 U.S. 390, 399, 113 S. Ct. 853, 859, 122 L. Ed.2d 203, 216 (1993). Convictions therefore do have significance and shou ld not be treated as inconsequential simply because the defendant has died. As noted in Whitehou se v. State, 364 N.E.2d 10 15, 1016 (Ind. 197 7): The presumption of innocence falls with a guilty verdict. At that point in time, although preserving all of the rights of the defendant to appellate review, for good and sufficient reasons we presume the judgm ent to be va lid, until the con trary is shown. To wipe out such a judgment, for any reason other than a showing of error, w ould benefit neither party to the litigation and appears to us likely to produce undesirable results in the area of survivor s rights in more instances tha[n ] it would avert an injus tice. See also Whe at v. State, 907 So.2d 461, 462 (Ala. 2005) ( A conviction in the c ircuit court removes the presumption of innocence, and the pendency of an appeal does not restore that presumption ); People v. Peters, 537 N.W.2d 160, 163 (Mich. 1995) ( The conviction of a criminal defendant destroys the presumption of innocence regardless of the existence of an appeal of right. W e therefore find it inapp ropriate to ab ate a criminal co nviction ); State v. Clemen ts, 668 So.2d 980, 981-82 (Fla. 1996) ( [A] judgment of conviction comes for review -10- with a presum ption in favor of its regularity or correctness . . . We therefore conclude . . . that the death of the defendant does not extinguish a presumably correct conviction and restore the presumption of innocence w hich the conviction ov ercame ). Although rarely articulated, that view tacitly takes into accou nt and give s credence to two underlying precepts: first, that to obtain the conviction under review, the State was obliged to prove, an d presum ptively did prove, each element of the offense, including criminal agenc y, beyond a reasonable doubt, either to an impartial jury selected in accordance with the legal requirements or to a judge who is pre sumed to know th e law; and second, tha t, at least where the defen dant was represented by presumab ly competent counsel, every challengeable aspect of the State s case was subjected to scrutiny and challenge. A second concern expressed by courts in this camp arises from the collateral consequences of abating the judgm ent in its entirety principally the eradication of restitution orders ente red to com pensate vic tims but also, in some instances, court costs, fines, and limitations on inheritance. That rationale was explicated in State v. Korsen, 111 P.3d 130 (Idaho 200 5), where the court observed that, in light of recent legislation requiring that criminals bear the economic burden of their criminal activity, including restitution to compen sate their victims, a criminal conviction and any attendant order requiring payment of court costs and fees, restitution or other sums to the victim, or other similar charges, are not abated, bu t remain intac t ); United States v. Dudley, 739 F.2d 175 (4 th Cir. 1984); Matter of Estate of V igliotto, 870 P.2d 1163 , 1165 (Ariz. App . 1993). -11- The courts impressed with this second rationale, of giving eff ect to legislative efforts mandating compen sation to victims throu gh restitution o rders, may diff er as to whether the entire judgment should be left intact or only essentially non-punitive comp ensatory aspects of the judgm ent, but they are u nited in opp osing the au tomatic full a batement approach. When joined by those courts that pe rmit the appeal to proceed, which, at least to some ex tent, is also antithetical to an automatic abatement approach, they may, indeed, represent an equally well-es tablished vie w disfav oring autom atic full abatem ent. At least seven States have concluded that the only fair and practical way to resolve the competing concerns or policies is to permit the appeal to procee d, despite the defendan t s death, and allow the fate of the judgment to hinge on the result. The courts adopting that approach accept the view of the abatement courts that an appeal of righ t is an integral part of a defend ant s right to a final determination of the merits of the case bu t also observ e that, because of colla teral eff ects of t he con viction, i ncluding restitution orders, society too has an interest in having a complete review of the merits, once an a ppeal is note d. This w as well explained in Gollott v. Sta te, 646 So.2d 1297,1304 (Miss. 1994), where, after reviewing the competing points of view and its own prior decisions, the Mississippi court observed: Full review is the only way to preserve the presumption that the conviction is valid until overturned on app eal, while simultaneo usly preserving the vested rig ht of the criminal defendant to his appea l. This rule also protects society, third parties, and the decedent s estate from being subjected to the force of a hollow conviction one that remains a presumption for hav ing not been f ully adjud icated. -12- See also State v. Ma kaila, 897 P.2d 967 (H aw. 1995); State v. Jones, 551 P.2d 801 (K an. 1976); State v. Salazar, 945 P .2d 996 (N.M . 1997); State v. McGettrick, 509 N.E.2d 378, 381 (Ohio 1987) ( It is in the interest of the defendant, the defendant s estate and society that any challenge initiated by a defendant to the regularity of a criminal proceeding be fully reviewed and decided b y the appellate p rocess ); Commonwealth v. Walker, 288 A .2d 741 , 742, n.1 (Pa. 1972); Commonw ealth v. Bizzaro, 535 A.2d 1130 (Pa . Super. 198 7); State v. Mc Donald , 424 N.W .2d 411, 414 (W is. 1988). Obv ious ly, those courts do not accept the assumed but unexplained, blanket notion that the appea l automatically becomes moot upon the defendant s death and must, for that reason , be dism issed. There are at least two possible reasons to consider the appeal as moot when th e defendant-appellant dies. One is that there is no one to pursue it. That is more obviously the case, of course , in the extremely rare circumstance, at least in Maryland, where the appellant is appearing pro se. Even, as is almost always the case in the Maryland appellate courts, the defendant is represented by counsel, the defendant s death, as a matter of agency law , would ordinarily terminate the lawyer-client relationsh ip and, with that terminatio n, the autho rity of the erstwh ile agent to co ntinue to act for th e defe ndant. See Brantley v. Fallston Hospital, 333 Md. 507, 511, 636 A.2d 444, 446 (199 4); Switkes v. Jo hn McS hain, 202 Md. 340, 348, 96 A.2d 617, 621 (1953). In Brantley, quoting, in part from Switkes, we observed: Or dina rily, under well-established principles of agency law, an agent s author ity termina tes upo n the de ath of th e princip al. . . -13- The lawyer-client rela tionship is not excepted from this rule. . . Thus, we have specifically held that an attorney has no authority to note a n appe al on be half of a client w ho has died. If, because of the termination of the agency relationship, th e lawyer has n o authority to note an ap peal on be half of a c lient who h as died, that term ination would presum ably abrogate as well any authority, which exists solely by virtu e of the ag ency relationsh ip, to continue an appeal already noted. That conclusion, which ordinarily would follow from the straightforward application of principles of agency law, does not fit so well in this co ntext, however, for, if we were faithfully to apply that notion, counsel in these cases would have had no authority to move for dismissal of the appeal (and certainly no authority, in Bell s case, to file a petition for certiorari) or to presen t written or ora l argumen t on behalf of their dead clients. Although we have never applied the Rule in this context, we do note Maryland Rule 1-331: Unless otherwise expressly provided and when permitted by law, a party s attorney may perform any act required or permitted by the se ru les to be perfo rmed by that party. When any notice is to be given by or to a party, the notice may be given b y or to the a ttorney fo r that par ty. We shall not address here whether, if counsel s authority to file motions and petitions and appear an d present ar gument o n behalf o f a dead c lient rests on R ule 1-331 , that Rule may also provid e authority as w ell to pursue o n the client s b ehalf an appea l previously noted -14- by the client. 3 In civil cases, if a party dies during the pendency of an appeal, the Rules provide for the appointment or na ming of a sub stitute pa rty, usually a personal representative, to carry on the appea l. See Maryland Rules 8-401 and 2-241. Rule 1-203(d) complements that right by automatically suspending all time requirements applicable to the deceased party from the date of death to the earlier of s ixty days after death or fifteen days after the appointment of a perso nal repr esentati ve by a co urt of co mpete nt jurisd iction. Although there are some distinctions in this regard between civil and criminal appeals, Rule 1-203(d) a pplies to civil and criminal proceedings, in both the trial and appellate courts, and most of the courts that have opted to allow a criminal appeal to continue have invoked their analogues to Rules 8-401 and 2-241 and permitted a personal representative or other proper person to stand in the sh oes of the app ellant. See Sta te v. McG ettrick, supra, 509 N.E.2d 378; Gollott v. State, supra, 646 So.2d 12 97; State v. Maka ila supra, 897 P.2d 967. In State v. Salazar, supra, 945 P.2d 996, the court appointed defense counsel as the 3 As a practical matter, the role that the client plays in criminal ap peals is very limited. The defendant-appellant can always choose to dismiss the appeal, of course, but that seldom , if ever, happ ens, and if it d oes, the judg ment will re main intact. In the early stages of an appeal, the defendant may be able to assist his or her attorney in selecting the issues to raise, and occasionally, but rarely, represented defendants will file a pro se brief in the Cou rt of Specia l Appeals . Once the briefs are file d, howe ver, the def endant s ro le is a minuscule one. The defendant is rarely in court when the case is argued, and, in the Court of Special Appeals, many of the criminal appeals are submitted on brief in any event; there is no oral argument. Other than electing to dismiss the appeal, once the briefs have been filed, there is little or nothing that the defendant can do to influence the decisio n. -15- substituted party for p urpose s of pu rsuing th e appe al. The McGettrick and Gollott courts (Ohio and Mississippi) did not opt for an automatic continuance of the appeal but instead allowed some time to determine whether either the defendant s estate or the State desired to have the appeal continue and, if so, to designate a personal representative as a substituted party. Under their approach, if a substituted party is not named within the time allowed, the appeal is dismissed and all proceedings are abated ab initio. Abatement is regarded as a defa ult. A second reason why the appellate proceeding may be regarded as moot when the appellant dies is because there is often, though not always, no effective relief that the appellate court can provide. If there is no collectible fine, judgment for court costs, or restitution order and no inheritance rights are affected by the conviction, neither affirmance nor reversal (nor modification) of the judgment will have any practical effect. If affirmed, the judgment cannot be executed; a dead defendant obviously cannot be imprisoned or made to satisfy conditions of probation. If reversed, there can be no retrial a nd no pra ctical benef it to the defendant. Only where the appellate decision may affect the prospect of collecting from the defendant s estate or property a fine, costs, or restitution or nullify some impediment to inheritance can there be said to be possible effective relief that the court could provide. If, in a given case, the appellate decision could affect the continuing vitality of that aspect of the judgment, the appellate proceeding may not be m oot for w ant of an a bility to provide effective relief. -16- Existing Maryland Law The question o f what to do when a defendant in a criminal case dies while an appeal of right is pending has been before this Court on a number of occasions . It first surfaced in Frank v. State, 189 Md. 591, 596, 56 A.2d 810, 812 (1948), where two defend ants were convicted of bookmaking and appealed. One of the defendants, Frank, died while the appeal was pendin g. The Court found error in the admission of unlawfully seized evidence and, as to the other defendant, reversed and awarded a new trial. As to Frank, the Court said only his case abates and [h]is appeal will therefore be dismissed. The mandate was Judgment reversed a s to David Mazor, and a new trial awarded. Appeal dismissed as to Ben Frank . In that case, of course , there could be no retrial o f Frank in any event, so abatement was simply a recog nition of rea lity. In announc ing that result, the Court cited List v. Pennsylv ania, 131 U.S. 396, 9 S. Ct. 794, 33 L. Ed. 222 (1888) and Menke n v. Atlanta , 131 U.S. 405, 9 S. Ct. 794, 33 L. Ed. 221 (1889), both criminal cases in which the appellant died while appeals were pending before the Supreme Court on writ of erro r, in which th e Court, when apprised of the death, stated that the cause has abated and dismissed the writ of error. The issue arose again in Porter v. Sta te, 293 Md. 330, 444 A.2d 50 (1982) and Thomas v. State, 294 Md. 625, 451 A.2d 929 (1982). In both cases, the appellant died after his conviction had been affirmed by the Court o f Special A ppeals and while the matter was pending in this Court following the grant of certiorari. On consent motions, in one case filed by the State and in the other by defense counsel, in which both sides stipulated that the -17- convictions should be vacated an d the indictm ents dismisse d as moo t, this Court granted that relief. In Jones v. State, 302 Md. 153, 486 A.2d 184 (1985), however, where that issue was contested, we declin ed to follow Porter and Thomas and instead adopted the Supreme Court s view in Dove v. United States, supra, 423 U.S. 325, 96 S. Ct. 579, 46 L. Ed.2d 531, that, when the death occurs following an affirmance of the conviction and while the matter is pending discretionary review, the proper response is simply to dismiss the a ppellate proceeding as moot and allow the trial court judgment, as affirmed, to stand. When Jones was decided, the clear majority rule, in both the Federal and State courts, was that, when death occurs during the pendency of an appeal of right, the entire c riminal proc eeding sh ould be abated. Many of the cases departing from that view had not yet been decided; only two, State v. Morris, supra, 328 So.2d 65, and Whitehouse v. State, s upra, 364 N.E.2d 1 015, were even mentioned, in a footnote, 302 Md. at 157, n.1, 486 A.2d at 186, n.1. After reviewing the cases distinguishing appeals of right from cases pending discretionary review, the Court announced its agreement with that distinction and observed: Where the deceased criminal defendant has not had the one appeal to which h e is statutorily entitled, it may not be fair to let his conviction stand. But, on the other hand, where the right of appeal has been accord ed and the Cou rt of Special Appeals has decided that there was no reversible error, no unfairness results in leaving the conviction intact even though an application for further review h as not been resolved w hen the defendant dies. The mere pos sibility that this Cou rt might have reversed the conviction is not sufficie nt ground to order dism issal of the entire in dictme nt. -18- Id. at 158, 486 A.2d at 187. In Russell v. Sta te, 310 Md. 96, 527 A.2d 34 (1987), the issue arose in a different context. After a verdict of guilty was returned, the trial court granted the defen dant s motion for new trial. The defendant then moved to dismiss the indictment, contending that the grant of a new trial amounted to a determination that the evidence presented at the first trial was legally insufficient and a retrial would constitute placing him in double jeopardy. That motion was denied, an appeal was taken, the Court of Special Appeals affirm ed, this Court granted certiorari, and the defendant died while the case was pending here. Distinguishing Jones, we concluded that there had never been a judgment of conviction and that, when Russell died, his status was that of a def endant a waiting trial. With out c iting any au thority, the Court stated that [w]here the accused dies while awaiting prosecution or while a direct appeal is pending, the prosecution will abate, and if there has been a conviction it will be abated . (Emphasis added). The italicized language is, of course, relevant in these appeals, altho ugh it wa s obv ious ly dicta in Russell. The case that clea rly places Ma ryland in the abatement camp is Trindle v. Sta te, 326 Md. 25, 602 A.2d 1 232 (1 992). Trindle was convicted in Circuit Court and appealed to the Court of Special Appeals. As is the case with Surland, we granted certiorari prior to any decision by the intermediate appellate court and Trindle died while the case was pending here. Noting that fact and citin g only Jones, which was not directly on point, we held that all issues [Trindle] had raised are moot and that, as he had not had the one appeal to which -19- he was entitled, his convictions and sentences shall be vacated, and the cases rem anded w ith directions to dismiss the criminal informations filed against him as moot. Id. at 30, 602 A.2d at 1234. The question now before us is whethe r to overrule that aspect of Trindle and adopt a different approach. Conclusion Although the holding in Trindle is certainly preceden t, this is the first time th at this Court has really examined the different approaches and competing policies in the light of the current landscape, a landscape that is not entirely the same as it was when Jones and Trindle were decided. We are convince d that neither o f the two rig id polar app roaches automatic abatement of the entire criminal proceeding ab initio or dismissing the appea l and leavin g the judgment intact without any prospect of critical review constitutes a proper balance of equally important concerns. The former disregards entirely the presumptive validity of the conviction, which, for the reasons already noted, should not be so casually ignored.4 On the other hand, whether or not a conviction should be regarded as non-final once an appeal i s 4 The presumption of validity, which is a legal precept, is consistently confirmed empirically. The most recent Annual Reports of the Maryland Judiciary (FY 2001 through 2004) sh ow that only nine to fourteen percent of the criminal ap peals to the Court of Special Appeals result in reversals, either in whole or in part that 64% to 67% of the judgmen ts are affirm ed, 13% to 18% of the app eals are dism issed, and 4 % to 9% result in some other disposition. The success rate in appeals of right is quite low. Indeed, ironically, the reversal rate is much higher in this Court on certiorari review between 38% an d 60% in the same four-year perio d yet, if the def endant die s while the c ase is pending in this Court, the judgmen t will remain intact. -20- filed, as the abatemen t ab initio courts seem to assume , it certainly is subject to r eversal, vacation, or modification if the appellate court finds merit in any of the challenges made by the appellant, and, despite the low rate of actual success on direct appe al, the court sh ould not dism iss that p ossibility ou t of han d. Because, in Maryland , fines and c osts are part o f the crimin al judgme nt, as is restitution (see Grey v. Allstate, 363 Md. 445, 769 A.2d 891 (2001)), we can find no justifiable basis in Maryland law for the third approach, of parsing the judgment of conviction, vacating certain parts but not othe rs. If either of the rationales for abatemen t ab initio are to prevail, the entire judgment must be vacated. We concur, in part, with those courts that permit the appeal to continue, if the defendant s estate wishes it to continue. We do not agree that the State should be empowered to have a substituted party appointed for the defendant, however, and, by that device, cause the defendant s appeal to continue when the defendant s estate d oes not wish it so. In furtherance of that view, w e do not ag ree that abate ment ab initio should be the defau lt. That, in our view, is not at all the proper balance; indeed, there would be little or no incentive for the defendant s estate to opt to continue the appeal if, by no t doing so, the re will be a full abatemen t. The pres umption th at the judgm ent of convic tion is valid sho uld permit it to remain in effect unless, at the defendant s election, exercised by a substituted party appointed by the defendant s estate for the defendant s benefit, the appeal continues and results in a reversa l, vacatio n, or mo dificatio n of the judgm ent. -21- We opt for the f ollowing : Upon notice of the death o f the appe llant and in conformance with Md. Rule 1-203(d), all time requirements applicable to the deceased defendant and the setting of the case for argument (if that has not already occurred) will be automatica lly suspended in order to allow a substituted party (1) to be appointed by the defendant s estate, and (2) to e lect wheth er to pursue the appea l. If a substituted party is appointed and elects to continue the appeal, counsel of record will remain in the case, unless the substituted party, contemporaneously with the election, obtains other counsel. If no substituted party comes forth within the time allotted by Rule 1-203(d) and elects to continue the appeal, it will be dismissed, not for moo tness but fo r want of prosecutio n, and, as w ith any appe al that is d ismisse d, the jud gmen t will rem ain intac t. Although none of th e various ap proaches is perfect, this one, it seems to us, comes the closest. It preserves both the presumptive validity of the judgment and the ability of the defenda nt, through a substituted party appointed for his or her benefit, to maintain the defendant s challenge to it. It protects the interests of both parties a nd of the p ublic gene rally and, because th ere are so v ery few instan ces in which the problem arises, should create no appreciable burden for anyone.5 No matter which approach is taken, the defendant, who is dead, can suffer no further punishment and reap no further reward, whether the judgment 5 Although a substituted party obviously cannot be subjected personally to any punitive or m onetary aspec t of the judg ment of c onviction re ndered ag ainst the def endant, that party may become liable for appellate court costs, as the defendant would have, if the judgment is affirmed and the appellate court asses ses costs in the normal m anner. -22- is vacated or not. If the defendant s survivors wish to pursue the appeal, to preserve the defendant s estate agains t a claim for some fine, costs, or restitution, to clear the defendant s record and reputation, or to vindicate some legal principle that was important to the defenda nt, they should be free to do so in place of the defendant, who would have maintained the appeal had he or she sur vived. If no substituted party wishes to proceed, no one is hurt if the appeal is dismissed and the jud gment re mains inta ct, as it would with any dismissal. Because counsel, whether private counsel or the Public Defender, is usually already in the case and, but for the appellant s death, would be obliged to see it through, we see no reason why, unless a substituted party obtains other counsel, counsel already of record should not continu e to pro secute th e appe al, as they w ere em ployed o r appoi nted to d o. IN SURLAND, NO. 8, MOTION TO VACATE CONVICTION AND SENTENCE AND REMAND FOR DISMISSAL OF INDICTMENT DENIED; CASE TO BE CONTINUED FOR 60 DAYS; IF WITH IN THAT PERIOD SUBSTITUTED PARTY IS DULY APPOINTED AND ELECTS TO PROCEED WITH APPEAL, CASE WILL BE RE-SET FOR ARGUMENT ON THE MERITS; OTHERWISE, APPEAL W ILL BE DISMISSED AS OF COURSE, COSTS TO BE PAID BY PUBLIC DEFENDER. IN BELL, NO. 45, JUDGMENT OF COURT OF SPECIAL APPEALS VACATED; CASE REMANDED TO THAT COURT WITH INSTRUC TIONS TO CON TINUE CASE F O R 60 DAY S; IF WITH IN THA T PERIO D SUBSTITUTED PARTY IS DULY APPOINTED AND ELECTS TO PROCEED WITH APPEAL, CASE SHALL BE SET FOR ARG UMENT O N THE ME RITS; OTHERWISE, APPEAL TO BE DISMISSED, COSTS TO BE PAID BY PUBLIC DEFENDER. -23- IN THE COURT OF APPEALS OF MARYLAND No. 8 September Term, 2005 _______________________________________ CARL SURLAND v. STATE OF MARYLAND _______________________________________ No. 45 September Term, 2005 _______________________________________ STEFAN TYSON BELL v. STATE OF MARYLAND ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Dissen ting Op inion b y Green e, J., wh ich Be ll, C.J., and Cath ell, J., Join ______________________________________ Filed: April 11, 2006 Respectf ully, I dissent: The majority seems to acknowledge that, for mo re than fifty-sev en years, the law in Maryland has been that if the a defendant dies during the pendency of an appeal of right, as opposed to a discretion ary appeal, the a ppeal is dismissed as moot, the conviction is vacated and the underlying indictmen t, as well, is dismissed a s moot. Trindel v. State, 326 Md. 25, 602 A.2d 12 32 (1992 ); Jones v. Sta te, 302 Md. 153, 158, 486 A.2d 184, 187 (1985) (noting that it is unfair to let a conviction stand [w]here the deceased criminal defendant has not had the one appeal to which h e is statutorily entitled . . . ); Russell v. Sta te, 310 Md. 96, 527 A.2d 34 (1987); Frank v. S tate, 189 M d. 591, 56 A .2d 810 (1 948). Furth er, the majority po ints out that, because the defendant s appeal is dismissed as moot, it may not be fair and in the interest o f justice to let his c onvictio n stand . The rule followed by the majority of state and federal jurisdictions is that when a criminal defendant files an appeal of right and dies pending the appeal of his or her conviction, the appeal is dismissed and the prosecution abates ab initio. See Tim A. Thomas, Abatement of State Criminal Case by Accused s Death Pending Appeal of Conviction Modern Cases, 80 A.L.R.4th 189 (1990) (fo r a collection o f the states fo llowing this majority rule). See also United States v. Moehlenkamp, 557 F.2d 126, 12 8 (7 th Cir. 1977) (explaining that the interests of justice require that the conviction not stand without determination of the merits o f an ap peal). In my view, be cause petitioners, Surland and B ell, filed appeals of right that were undecided at the time of their deaths, their convictions were not entitled to any degree of finality as a matter o f law. Pur suant to M aryland statutory law, both defend ants were entitled, as a m atter of right, to appeal their convictions. See Md. Code (1 974, 200 2 Repl. Vol.), ยง 12-301 of the Courts and Judicial Proceedings Article. In the interests of justice their convictions should not stand without a resolution of the merits of their appeals and any resolution is impossible by virtue of their deaths. See People v. Matteson, 551 N.E.2d 91, 92 (N.Y. 1989) (holding that a defendant s suicide while his appeal of right was pending abates the appeal and all proceedings in the prosecution from its inception because [t]he death places a defendant beyond the court s power to enforce or reverse the judgment of conviction, thereby preventing effective appellate review of the validity of the convic tion )(c itations o mitted). A majority of the federal courts of appeal have concluded that an appea l of right is an in tegral part of the system for adjudicating guilt or innocence, and if a defendant dies before appellate review is completed, the defendant has not obtained final adjudication of the appeal. See United Sta te v. Pogue, 19 F.3d 663, 665 (D.C.Cir.1994) (recognizing the holdings of the Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits aff irming that a batemen t ab initio is the law). The univ ersal rationale for holding that death abates all proceedings in the prosecution from its inception seems to be that the interests of justice ordinarily require that . . . [a defendant] not stand convicted without resolution of the me rits of his appeal, which is an integral part of [our] system for finally adjudic ating [h is] guilt o r innoc ence. U.S. Machlenkamp, 557 F.2d 126, 128 (7th Cir. 1977) (citing Griffin v. Illinois, 351 U.S. 12, 18, 76 S. Ct. 585, 590, 100 L.Ed. 891 (1956 )). Rec ently, the Supreme Court of Alabama applied the abatement rule to a case -2- involving the death of a criminal defendant occurring during the course of an appeal of right. The court held th at the defen dant s con viction abated upon h is death . Ex parte Estate of Cook, 848 So.2d 91 6 (Ala. 2002). 1 The Supreme Court of Alabama acknowledged that states have provided various policy reasons in support of the abatement rule: Our review o f the jurispru dence of other states shows th at a majority follow this same rule , and some have provided compelling policy rea sons in suppo rt thereo f. See People v. Robinson, 719 N.E.2d 662, 663 (Ill. 1999) ( the purpose of criminal prosecutions is to punish the defendant; continuing criminal proceedings when the defendant is dead is a useless act ); State v. Holland, 955 P.2d 1360, 1362 (Mont. 1998) (adopting rationale for abating criminal proceeding upon defendant s death set forth by the Arizona Supreme Court that the interests of the state in protecting society have been satisfied, 1 In Cook, the defend ant died w hile in the cou rse of his ap peal de novo to the circuit court. Subsequently, in Wheat v. S tate, 907 So.2d 461 (Ala. 2005) the Alabama Supreme Court distinguished the facts in Cook and held that where the defendant died, while an appeal was pen ding in the appellate court, death a bates the appeal. On re mand, the court in Wheat directed the trial court to note in the record the fact of the defend ant s convic tion, and that the c onvictio n was appea led, but it was n either af firmed nor rev ersed. In Wheat, the court applied Ala. Rule 43(a), which was not applicable in Cook, to resolve the issue of abatemen t on a case b y case basis. Ru le 43(a) pro vides that w hen the de ath of a party has been suggested, the proceeding shall not ab ate, but shall continue or be disposed of as the appellate court may direct. Wheat, 907 So.2d at 464 (Harwood, J. concu rring). -3- the imposition of punishment is impossible, and further collection of fines or forfeiture would result in punishing innocent third parties ); State v. Ho xsie. 570 N .W.2d 379, 382 (S.D. 1997) ( M ere dismissa l of the appeal, without abatement of the proceedings ab initio, would permit a judgment to stand that is not final. ); Gollott v. Sta te, 646 So.2d 1297, 1300 (Miss. 1994) ( What is obvious is that society needs no protection from the deceased . . . . Moreover, other potential criminals will be no less deterred from committing crimes. In the abatement ab initio scheme, the judgmen t is vacated and the indictment is dismissed, but only because the convic ted defen dant died. S urely this wou ld not give peace of mind to the criminally inclined . ); State v. McClow, 395 S o.2d 757, 7 58 (La. 19 81) (abatem ent has as its purpose serving the interest of the surviving fam ily in preserving, unstained, the memory of the deceased defendant or his reputation ); State v. Griffin , 592 P.2d 372 (Ariz. 1979) (rational adopted in State v. Holland, supra); State v. Carter, 299 A.2d 891, 895 (Me. 1973) ( By such principle of abatem ent, ab initio, there is avoided, likewise, danger of any potential collateral carry-over to affect personal or property rights of survivors of the decea sed defendant o r other persons. ). Ex parte Cook, 848 So.2d at 918-1 9 (parallel citations omitted) (footnote om itted). Pres uma bly, because an appeal is an integral part of our criminal justice system, the majority appears motivated to overrule Trindle, and its progeny, and hold that a d efendant s appeal continues e ven after d eath. This approach has been criticized by at least one jurist as a court, appa rently, seeking to extend its grasp over criminal defendants beyond the grave, i.e., from here to eternity. State v. Mc Donald , 424 N.W.2d 411, 416 (Wis. 1988) (Day, J. dissenting) (recognizing that death ended the appellate court s jurisdiction over the criminal defendant and that allowing the appeal to continue after his death will not vindicate the defendant). In that case, a majority of the Supreme Court of Wisconsin held that the -4- appropriate remedy when a defendant dies while pursing postconviction relief is not to abate the criminal proceedings ab initio but to allow the appeal to continue regardless of the cause of the defendant s death because the defendant is entitled to a fin al resolution o f his appea l. McD onald, 424 N .W.2d at 414- 415. In support of its holding in the present case, the majority advances the following reasons to justify chang ing the law : it is in the interests of justice and protects the interests of the public to continue the appea l after the defendant s death; the decedent or those who survive him should have the opportunity for vindication by allowing the appeal to go forward; the conviction appealed from is pre sumptively va lid; abateme nt ab initio should not be the default; and the Court should not dismiss the possibility, out of hand, that the defendant s conviction on appeal might be reversed, vacated, or m odified. Y et, in the same context, the majority acknowledges that the defendant can suffer no further punishment and reap no rew ard, wh ether jud gmen t is vacat ed or no t, it is willing to pe rmit the def endant, through a substituted party appointed for his or h er benefit, to maintain the defe ndant s challenge to . . . [the judgment]. Maj. op. at 22, ___ A.2d at ___. It is not clear to me the specific soc ietal interests that th e majority deems are in need of protection. If the real intere sts that the ma jority seeks to protect are the interests of victims and witnesses, th en, in my view, the Legislature is better able to craft a rule than this Court to address the rights of all victims and witne sses. If, how ever, the m ajority is alluding to the public s trust a nd confid ence in the c riminal justice s ystem, it seems to me that the p ublic -5- would tend to have less confidence in a system that creates a fiction allowing the defendant to continue to pursue an appeal from the grave while not allowing victims of crimes to pursue any postm ortem r emed ies in the crimina l case. The reality is, and should be, that death terminates the appeal. Even if the conviction is upheld or reversed after the defendant s death, it is of no benefit or detriment to the defendant who is dead or to those who cherish his or her m emory. For ex ample, assu me it is determined on appeal that an error o ccurred in the trial warranting a n ew trial. Does that vindicate the de[fendant]? Hardly. There [will] not . . . be a determination that the de[fend ant] was not guilty. The issue will never be retried [,] and the deceased could never be vindicated or found not gui lty. McD onald, 424 N.W .2d. at 416 (D ay, J. dissenting). It is better for all concerned to recognize that the matter is moot because the defendant, upon death, can suffer no further punishment and reap no reward, whether judgment is vacated or not. In my view, there is no legitimate purpose to be served in permitting the appea l to continu e after th e defe ndant s death . In other words, when the defendant dies pending his appeal the appeal should be dismissed as moot because the defendant is no longer subject to the jurisdiction of the court. When a defendant dies, the State s interest in the protection of society ha[s] been satisfied, the imposition of punishment is impo ssible, and [the] collection of fines o r forfeiture [will] result in [the] punish[men t of] innocent third parties. Griffin, 592 P.2d at 373. Fu rther, [w]hen a financial p enalty is impose d upon a defenda nt, it is unfair to punish defendant s -6- family by making the family pay the defendant s fine by virtue of an assessment against the estate. MacD onald, 424 N.W.2d at 413 (discussing concurring opinion by J. Sundby in State v. Krysheski, 349 N.W .2d 729, 77 1 (Wis. 19 84)); Peop le v. Ma zzone, 383 N.E.2d 947, 949 (Ill. 1978) (holding that a fine imposed as punishment on the defendant, and there is a pending appeal, upon his d eath there is n o justice in pu nishing his survivors for his offense). An appeal automatically becomes moot upon the defendant s death because the defendant is not available to pursue the appeal and often there is no effective relief that the appellate court can provide. See Mazzone, 383 N.E.2d at 950. The court in Robinson, upholding Mazzone, reaffirmed that the purpose of criminal prosecutions is to punish th e defend ant; that to continue criminal proceedings when the defendant is dead is a usele ss act, Robinson, 719 N.E.2d at 663 (citing Mazzone, supra) and that [o]nce the defendant has ceased to be, an appeal cannot effectively confer vindication or impose punishment. Mazzone, 383 N.E.2d at 949. Further, the court in Robinson held that the interests of victims and w itnesses are immaterial to abatement ab initio unless th e Legis lature de ems oth erwise . See Robinson, 719 N.E.2d at 663-64. The circumstances surrounding the Bell and Surland a ppeals do not warra nt a modification of Maryland law. It serves no meaningful purpose to decide an appeal after the defendant s death in a criminal case. Substituting a party to act on behalf of the defendant will unneces sarily complicate the resolution of the case. The primary objectives of a criminal prosecution resulting in a conviction and pun ishment are : (1) to protect society and imprison -7- the guilty and dangerous defenda nt; (2) to deter th e criminal de fendant a nd potentia l criminals from performing similar conduct; (3) to rehabilitate the criminal defendant; and (4) to obtain retribution from the criminal defendant as a means of satisfying society s sense of revenge. Application of the rule o f abatem ent ab initio is consistent w ith these obje ctives; how ever to allow a substituted p arty, appointed a fter the defe ndant s de ath, to maintain the defendant s challenge to the judgment is remarkably inconsistent with the primary objectives of the criminal justice system and should not be allowe d. The refore, I dissent. I would reverse the judgment of the Court of Special Appeals in Bell and remand the case with instructions to abate the conviction ab initio. In addition, I would grant the motion in the Surland case and remand the matter with directions to abate the conviction ab initio. Chief Judge B ell and Judg e Cathell ha ve authorized me to say that they join in th is dissent. -8- -9-
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