Chmurny v. State
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In the Circu it Court for H oward C ounty Case No. 13-K-00-039426 IN THE COURT OF APPEALS OF MARYLAND No. 77 September Term, 2005 ______________________________________ ALAN BRUCE CHMURNY v. STATE OF MARYLAND ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. Bell , C.J., join s in th e jud gme nt on ly. ______________________________________ Filed: April 13, 2006 In a consolidated Opinion in Surland v . State and Bell v. State, ____ Md. ____, ____ A.2d ____ (20 06) (S.T. 20 05, Nos. 8 and 45), w e held that, when a defendant in a criminal case dies after be ing convic ted in Circu it Court and while a properly filed a ppeal of rig ht is pending in the Court of Special Appeals or this Court, (1) the appeal may proceed if a substituted party, appointed in conformance with Maryland Rules 1-203(d), 2-241, and 8401, elects to have it proceed, (2) if the appeal proceeds, the fate of the judgment will depend on the result of the appea l, but (3) if, with in the time allo tted, no subs tituted party elects to have the appeal proceed, it will be dismissed and the judgment will remain intact, as with any other d ismisse d appe al. In this case, the question is what happens when the defendant dies after a verdict of guilty is rendered but before sentence is imposed and any appeal can properly be taken. Unf ortunate ly, the question is presented in an untimely and unauthorized appeal whic h, conseq uently, mu st be dism issed. BACKGROUND In an eight-count indictment, Alan Chmurny, was charged in the Circuit Court for Howard County with first and second degree assault (Counts 1 and 2), three counts of reckless endange rment (Counts 3, 4, and 5), stalking (Count 6), malicious destruction of property (Count 7), and hara ssment (Count 8 ). Prior to trial, Counts 6 and 8 were severed. On September 12, 2001, after a five day trial, a jury found Chmurn y guilty on Counts 1 through 5 and not guilty on Count 7. Sentencing was scheduled for November 15, 2001. We are inform ed that, contemporane ously with the return of the verdicts and the scheduling of sentencing, Chmurny, while still in the courtroom, ingested cyanide poison, from which he died the n ext d ay. 1 Six d ays later, the State filed a Line requesting that the untried Counts 6 and 8 be scheduled for an abatement by death. On September 24, 2001, defense counsel moved that this matter be dismissed by suggestion of death. That was supplemented by a second, more specific motion filed October 12, 2001, to dismiss Counts 1 through 5 and 7. Citing Jones v. Sta te, 302 Md. 153, 486 A.2d 184 (1985) and Russell v. State, 310 Md. 96, 527 A.2d 34 (1987), counsel contended that, when a defendant dies prior to sentencing, the case must be dismissed. On October 12, 2001, the court held a hearing on the motions, although the proceeding, presum ably limite d to arg umen t of cou nsel, w as not tra nscribe d. The court abated Counts 6 and 8, as requested by the State, but declined to dismiss the verdicts on the remaining counts, as u rged by defe nse coun sel. Those ru lings were contemp oraneou sly recorded on a Criminal Hearing Sheet that was placed in the record and in docket entries made by the clerk. On November 8, 2001, counsel moved for reconsideration of the denial of his motion to dismiss the counts on which verdicts had been rendered. Although, with the lack of a transcript and the omission of any explanation noted either on the Criminal Hearing 1 No transcript was ever prepared of what occurred in the courtroom, although such a transcript may have provided some helpful information. It is only from an undisputed statement in the State s brief, referencing two articles in the Washington Post, that we lear n of the im mediate, dra matic, and u ltimately success ful, suicide atte mpt. -2- Sheet or in the docket entries, there is no indication of why the court ruled as it did, counsel asserted in his motion to reconsider and the State has never denied the assertion that the court had based its decision on the premise that there was no mechanism or procedure for the dism issal of th e Co unts which re sulte d in a jury verdict, but did not pro ceed to senten cing. In response, counsel arg ued that, because C hmurny s death precluded him from exercising his app ellate righ ts, Jones and Russell did, indeed, mandate that the entire criminal proceeding be abated. The court denied the motion the next day, without a hearing. No appeal was taken from the court s ruling. Indeed, nothing more was done for nearly four years. The case rema ined offic ially open, with guilty verdicts recorded on five counts, a not guilty verdict on one count, no disposition on the guilty verdicts and no disposition possible on those verdicts, and thus no judgmen t entered on any of the six c ounts on which verdicts had been rendered. On June 24, 2005, defense counsel in the case filed a new motion, ne arly identical to the motion filed in Octobe r, 2001, to dismiss Counts 1 through 5 and 7. The motion is stated to be that of the Defendant, ALAN BRUCE CHM URN Y, by an d throu gh his a ttorney. The State opposed the motion, stressing the point apparently of concern to the court earlier, that there was no mechanism for dism issin g or a batin g verdicts returne d by a jury. Neither Jones nor Russell, the prosecutor claimed, was on point; Jones dealt with the defendant s death wh ile the case was pending on certiorari review in the Court of Appeals, and Russell dealt with a defendant who died while pending trial. No case, he claimed, and -3- no Rule or statute provided for the abatement of guilty verdicts th at had not rip ened into judgments. Once again, without any recorded explanation, the court, on July 1, 2005, denied the motion, whereupon, on July 11, 2005, the defendant, Alan Bruce Chmurny, by and through his attorneys, filed an appeal from the July 1, 2005 denial of the motion to dismiss. We granted certiorari prior to any disposition by the Court of Special Appeals to consider the issue in conjunction with Surland and Bell. DISCUSSION There are two equally dispositive defects with respect to this appeal. First, counsel had no author ity to file it, an d secon d, it was untime ly. As far back a s 1830, this C ourt declare d that an ap peal filed by an attorney for a p arty who had died prior to th e filing of an a ppeal was n ot a m ere ir regu larity, but a complete and radical defec t, requir ing dism issal of th e appe al. Owings v. Owings, 3 Gill & J. 1, 2, 4 (1830). The Court has confirmed that holding on a number of occasions. In Switkes v. John McSha in, 202 M d. 340, 3 48, 96 A .2d 617 , 621 (1953), our predecessors made clear, as a matter of basic agency law, that ordinarily the death of the principal revokes an agency and terminates the pow er of the ag ent to act and that [t]his rule includes the agency embodied in the relationship of client and attorney. In that case, we held that, where a claimant died after the Workers C ompensation C ommission den ied his claim for benefits, the claima nt s attorney had no authority to seek judicial review, even though the attorney claimed an interest -4- in a potential attorney s fee if the judicial action wa s successf ul. The jud gment of the Circuit Court dismissing the action in those days denoted as an appeal from the Commission was affirmed. More recently, in Brantley v. Fallston Hospital, 333 Md. 507, 511, 636 A.2d 444, 446 (1994), we expressly reaffirmed Switkes, holding that (1) [o]rdinarily, under wellestablished principles of agency law, an agent s authority terminates upon the death of the principal, (2) [t]he lawyer-client relationship is not excepted from this rule, and (3) an attorney has no authority to note an appeal on behalf of a client who ha s died. The appeal in Brantley, filed lon g after th e client h ad died , was o rdered dismiss ed. As a purely housekeeping measure and more as an officer of the court, counsel would be authorized to bring to the court s attention that the defendant has died, offer evidence of that fact, and move, as trial counsel did here, to d ismiss the co unts that pro ceeded to verdict. No financial or other detriment can accrue to the defe ndant s esta te or lingering reputation from such a motion, whether granted or denied, and, as we shall point out later, dismissal of those counts is appropriate as a matte r of pro per jud icial adm inistratio n. Filing an ap peal is another matter; that is not a hou sekeeping measure. A t the very least, court costs, printing costs incurred in preparing a transcript, brief, and reco rd extract, and attorneys fees may be assessed against the defendant s estate. Apart from the possible financial burden, it would be impossible to know whether the defe ndant would h ave wanted to risk a w ider disclosure of his or her convictions that an appeal might enta il. It is impermissible for an attorney who -5- no longer has a client, or any authority to act for an erstwhile client, to step into the shoes of the former client and take and pursue an appeal. When the attorney does that, the attorney in effect becomes the appellant, for there is no other principal in the matter, but the attorney has no legal standing to assume that status. On this basis, the appeal must be dismissed pursuant to Ma ryland Rule 8-602(a)(1) (app eal not allowed by law). Apart from counsel s lack of substantive authority or standing to file this appeal, the appeal must be dismissed as well because it is untimely (Md. Rule 8-602(a)(2) and (3)). The dispositive motions, w ith respect to the issue sought to be raised, were those filed by counsel on September 24 and October 12, 2001, which were denied October 12, 2001. Assuming, as appears to be the case (and is not disputed), that the court denied the motion on the ground that it had no au thority to grant it, that denial was a final disposition of the matter. The case, insofar as the court was concerned, was over; no further relief, in its view, was possible and none would ever be granted. That certainly was the situation when the motion for reconsideration was den ied on N ovembe r 9, 2001. A t that point, whether the court was right or wrong in its decision to le ave the ve rdicts as they w ere, the ruling was appealable. No further proceedings in or rulings by the court, on that or any other issue, were anticipated or rega rded as ne cess ary. With exception s that are of n o assistance to counse l/appellant, Maryland Rule 8202(a) requires that an appeal be noted within 30 days after the entry of the judgment or order from which the appeal is taken. In Houghton v. County Com m rs of Kent Co., 305 Md. -6- 407, 413, 504 A.2d 1145, 1148 (1986), we confirmed the view expressed in several earlier cases that the 30-day requirement is jurisdictional; if the requirement is not met, the appellate court acquires no jurisdiction and the appeal must be dismissed. We iterated that view even more recently in Ruby v. S tate, 353 Md. 100 , 113, 724 A.2d 6 73, 679 (1999). The issue sought to be raised in this appeal is precisely the same as that raised in the October, 2001 motion, and on the very same record. No new relevant factual or legal event has occurred between the denial of the 2001 motion and the denial of the 2005 motion that would make this appeal any different than an appeal that could have been taken in 2001; the issue is the same and the factual and legal basis for the appeal is the same. When the denial of a motion c onstitutes a fin al, appealab le judgment, one cannot allow the time for noting an appeal from that judgment to lapse and escape the jurisdictional bar by filing another, identical motion or a motion to reconsider the earlier ruling months or years later and then appealing the denial of that second motion. Rarely, but occasionally, this Court will address an issue in a case that is legally moot where the urgenc y of establishing a rule of fu ture condu ct in matters o f importan t public concern is both imperative and manifest. State v. Ficker, 266 Md. 500, 507, 295 A.2d 231, 235 (1972); Attorney Gen. v. A.A. Co. School Bus, 286 Md. 324, 327, 407 A.2d 749, 752 (1979); Hammen v. Baltimore Police, 373 Md. 440, 450, 818 A.2d 1125, 1131 (2003); Matthews v. Park & Planning, 368 Md. 71, 96-97 , 792 A.2d 288, 303 (2002). Th is appeal is not moot; it is barred for other reasons. Nonetheless, it raises an issue that transcends any -7- interest of Mr. Chmurny, that is of significant importance to the public gen erally and to the Judiciary in particular, and that creates the urgency for a rule of future con duct by the co urts that is both imperative a nd manif est. The sa me impe rative that allow s the Cou rt to address an issue in a case that is moot necessarily must permit the C ourt, in the eq ually rare case, to address an issue in an appeal that must be dismissed for other reasons. Cases particularly criminal cases have a beginnin g and they m ust, at some po int, have an end . C.f. Frase v. Barnhart, 379 Md. 10 0, 126, 840 A.2d 114, 121 (2003 ). It is not in the public interest and it is not proper judicial administration or procedure to have criminal cases permanently in limbo, without even the prospect of a judgment ever being entered. Chmurny was found guilty on five counts, but, because he is dead, he cannot be sentenced. He cannot allocute or even be p resent, which, absent a waiver that cannot be given, are legal prerequisites to impo sition of senten ce. See Maryland Rule 4-342(f); Harris v. State, 306 Md. 344, 509 A.2d 12 0 (1986); Tweed y v. State, 380 Md. 475, 492, 845 A.2d 1215, 1225 (2004). A conviction does not occur in a criminal cas e until senten ce is imposed on a verdict of guilty. That is w hen judgm ent is entered . See Tweedy v. State, supra, 380 Md. at 496, 845 A.2d at 12 27; Greco v . State, 347 M d. 423, 4 33, 701 A.2d 4 19, 423 (1997); Whack v. State, 338 M d. 665, 659 A.2d 13 47 (1995 ); Myers v . State, 303 Md. 639, 645, 496 A.2d 312, 315 (1985). A verdict of g uilty alone constitutes neither a conviction nor a sentence and do[es] not constitute a source of relevant legal authority. Goldsbo rough v. S tate, 12 Md. -8- App. 346, 358, 278 A.2d 623, 630 (1971). No appeal lies from a verdic t. Jones v. State, 298 Md. 634, 637, 471 A.2d 1055, 1057 (1984). U ntil sentence, a nd with it a ju dgment, is entered, the presumption of innoce nce contin ues to exist; it is the judgment that rebuts and erases that pres umptio n. See McCoy v. Court of A ppeals of W isconsin Dist. 1, 486 U.S. 429, 436, 108 S. Ct. 1895, 1900, 100 L. E d.2d 440, 451 (19 88) ( After a judgment of conviction has been entered, however, the defendant is no longer protected by the presumption of innoce nce ). Thus, as the case now stands, there is no conviction and no judgment, and, under the court s ruling, there n ever will be a convictio n or judgm ent; the case w ill remain perm anently open and incom plete on the d ocket. See Jones v. State, supra, 298 Md. at 637, 471 A.2d at 1057 ( [O]rdinarily a criminal case is not complete a nd the case is not dispos ed of until sentence has been pronoun ced ); Langw orthy v. State , 284 Md. 588, 596, 399 A.2d 578, 583 (1979), cert. denied, 450 U.S. 960, 101 S. Ct. 1419 , 67 L.Ed.2 d 384 (19 81). Ma ryland Rule 4-331(b) permits a circuit court, on a motion filed within 90 days after imposition of sentence, to set aside an unjust or improper verdict. Because sentence can never be imposed, the 90-day period would never start to run, and the court, theoretically, would have revisory powe r to set as ide the v erdict fo rever. Because the case ca n never m ove forw ard to judgm ent, the only way to bring closure to the case is to abate the proceeding ab initio to vacate the verdicts a nd the indic tment. That is what must be do ne in these rare cases, and that is what should be done, as a matter -9- of course , when, up on dismiss al of this app eal, the case re turns to the C ircuit Court. APPEAL DISMISSE D; COST S TO BE PAID BY HOWARD COUNTY. Chief Ju dge Bell joins in th e jud gme nt on ly. -10-
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