DocketNumber: No. 1 CA-CR 17-0620
Citation Numbers: 435 P.3d 1044, 246 Ariz. 138
Judges: Thumma
Filed Date: 1/22/2019
Status: Precedential
Modified Date: 7/19/2022
¶1 Defendant Richard Allen Reed died while this appeal of a criminal restitution order entered against him was pending. The State then sought dismissal of his appeal pursuant to Arizona Revised Statutes (A.R.S.) section 13-106(A) (2018),
FACTS AND PROCEDURAL HISTORY
¶2 The State charged Reed with voyeurism, a Class 5 felony, committed in January 2015. The victim hired an attorney to assist her during the criminal proceedings. The jury found Reed guilty; he was placed on probation and this court affirmed in a prior appeal. See State v. Reed , 1 CA-CR 16-0269,
¶3 Meanwhile, the State filed a motion requesting restitution, including the victim's attorneys' fees. After an evidentiary hearing, the superior court awarded the victim attorneys' fees and granted in part and denied in part other requested restitution. Reed timely filed this second appeal challenging that restitution order. See State v. French ,
¶4 When Reed died while this appeal was pending, the State sought dismissal pursuant to A.R.S. § 13-106(A). Reed's counsel objected, claiming the statute was unconstitutional. The court allowed Reed's counsel, the State and others to file briefs on the constitutionality of Section 13-106 and the availability of any other forum to challenge a restitution order.
DISCUSSION
I. A.R.S. § 13-106.
¶ 5 Enacted effective July 24, 2014, A.R.S. § 13-106 states:
A. On a convicted defendant's death, the court shall dismiss any pending appeal or postconviction proceeding.
B. A convicted defendant's death does not abate the defendant's criminal conviction or sentence of imprisonment or any restitution, *1047fine or assessment imposed by the sentencing court.
A legislative fact sheet states the statute was a response to: (1) State v. Griffin ,
II. The Rule Of Abatement.
¶6 The rule of abatement, sometimes called "abatement ab initio ," is based on the common law principle that "all private criminal injuries or wrongs, as well as all public crimes, are buried with the offender." United States v. Daniel , 47 U.S. (6 How.) 11, 14,
¶7 Four Arizona state court opinions have addressed abatement in criminal matters. The first, decided in 1976, dismissed an appeal when the defendant died, noting "[t]he generally conceded grounds for mootness are that in the event the judgment of conviction is affirmed, it is impossible of execution, and if the judgment is reversed, the accused is unavailable for a new trial." State v. Richards ,
¶8 Three years later, the Arizona Supreme Court held that a criminal defendant's "death pending appeal abates the appeal and the conviction" and remanded "with directions to dismiss the indictment." Griffin ,
¶9 Twenty years later, Glassel held that abatement did "not apply when a defendant dies after his conviction is affirmed, but while postconviction relief proceedings are pending."
*1048¶10 Given Reed's death while this appeal was pending, Section 13-106 directs that the appeal be dismissed and that his death "does not abate" his conviction, sentence "or any restitution, fine or assessment imposed by the sentencing court." A.R.S. § 13-106(A) & (B). Reed's counsel makes no argument to the contrary, arguing instead that Section 13-106 is unconstitutional for various reasons. Before addressing those arguments, the State's standing argument must be resolved.
III. Standing.
¶11 The State argues Reed's right to appeal ended when he died and that his counsel "and third parties - including the personal representative of Reed's estate" lack standing to challenge the constitutionality of Section 13-106. In essence, the State argues that no one would ever have standing to challenge Section 13-106. The State concedes, however, that "standing is not a constitutional jurisdictional requirement in the state courts of Arizona." State v. B Bar Enters., Inc. ,
¶12 Prudential standing under Arizona law requires "a distinct and palpable injury," which "sharpens the legal issues presented by ensuring that true adversaries are before the court and thereby assures that our courts do not issue mere advisory opinions." Sears v. Hull ,
¶13 In Glassel and Griffin , the Arizona Supreme Court tacitly found appeals involving abatement are just such "exceptional circumstances" where standing is waived. See Glassel ,
IV. Challenges To The Application Of A.R.S. § 13-106.
¶14 Reed's counsel argues Section 13-106 (1) abrogates a criminal defendant's appeal rights under the Arizona Constitution; (2) violates separation of powers principles; (3) violates due process and (4) is an improper bill of attainder. "When a state statute conflicts with Arizona's Constitution, the constitution must prevail." Dobson v. State ex rel. Comm'n on Appellate Court Appointments ,
A. The Right To Appeal.
¶15 Reed's counsel argues that Section 13-106"directly conflicts with the constitutional right to appeal by removing that right." Arizona's Constitution provides that, "[i]n criminal prosecutions, the accused shall have ... the right to appeal in all cases." Ariz. Const. art. 2, § 24 ; accord A.R.S. § 13-4031 ("Right of appeal"); A.R.S. § 13-4033 ("Appeal by defendant"); Ariz. R. Crim. P. 31 ("Appeals"). The argument that Reed was denied this right to appeal fails for several reasons.
¶16 Reed's counsel suggests that the right to appeal is, in essence, the right to a specific process or result on appeal. Not so. The right to appeal is not a right to a specific result or even a decision on the merits. See, e.g. , A.R.S. §§ 13-4036(A) (on appeal from conviction, court may "make any order which is *1049consistent with ... justice and the rights of the state and the defendant"); 13-4039 ("If the appellant fails to prosecute the appeal, the appellate court shall dismiss the appeal."). Reed's counsel does not assert that Arizona's rule of abatement, in place before the enactment of Section 13-106, denied the right to appeal. Yet when applying that rule, Griffin declined to order reimbursement of restitution and fines paid before the appellant died.
¶17 Reed invoked his right to appeal when, before he died, he timely filed his prior appeal and then this appeal. As a result, the cases cited by Reed's counsel addressing waiver of the right to file an appeal, or the improper conditioning of that right, miss the mark. See State v. Goldsmith ,
¶18 Reed's counsel cites cases addressing various common law approaches used in other jurisdictions when a criminal defendant dies while an appeal is pending. See, e.g., Brass v. State ,
¶19 Because Reed was not denied his right to appeal, application of Section 13-106 does not unconstitutionally deny him that right.
B. Separation Of Powers.
¶20 Reed's counsel argues Section 13-106 is "an attempt by the Legislature to enact a procedural rule and to adjudicate cases" and is "a judicial act outside the authority of the Legislature." Arizona's Constitution provides:
The powers of the government of the state of Arizona shall be divided into three separate departments, the legislative, the executive, and the judicial; and, except as provided in this constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.
Ariz. Const. art. 3. Although the Arizona Supreme Court has rulemaking power "relative to all procedural matters in any court,"
*1050Ariz. Const. art. 6 § 5, the Legislature has "the authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims," Ariz. Const. art. 2 § 2.1 (D).
¶21 Reed's counsel asserts that "[t]his issue is controlled by State ex rel. Napolitano v. Brown ,
¶22 The analysis in Hansen begins with addressing whether the provision is substantive or procedural.
¶23 Reed's counsel also argues Section 13-106 improperly "affirms trial court judgments" and means "that all trial court decisions that disfavor criminal defendants are valid." Application of the statute, however, does not affirm the judgment. Instead, upon the death of a defendant, any pending appeal is to be dismissed, a result that does not affirm the superior court judgment. Finally, Reed's counsel has not shown how Section 13-106"could be read to usurp the judiciary" by "remov[ing] jurisdiction from this Court." For these reasons, Section 13-106 does not violate separation of powers.
C. Due Process.
¶24 Reed's counsel argues Section 13-106 violates the due process clauses of the United States and Arizona Constitutions. To the extent this argument is based on the assertion that Reed was denied his right to appeal, it fails for the reasons discussed above. To the extent this argument asserts Section 13-106 means "[d]ue process has been removed" from restitution or gives the State a "right to fines or assessments without legal basis," the authority cited does not support that assertion. See Nelson v. Colorado , --- U.S. ----,
¶25 Reed's counsel correctly notes that crime victims have alternatives, other than seeking restitution in a criminal case, to seek recovery from a criminal defendant. See A.R.S. § 13-807 ("An order of restitution ... does not preclude ... bringing a separate civil action and proving in that action damages in excess of the amount of the restitution *1051order."); see also §§ 14-3801 to -3816 (procedures for creditors' claims against an estate). Those alternatives, however, were available before the enactment of Section 13-106. Cf. Griffin ,
¶26 In the end, Reed's counsel asserts that Arizona's common law abatement rule, not Section 13-106, strikes a better balance. Absent a constitutional infirmity, however, it is for the Legislature to strike that balance. See Vo v. Superior Court ,
D. Bill Of Attainder.
¶27 Reed's counsel argues that Section 13-106 is a bill of attainder. See Ariz. Const. art. 2 § 25 ("No bill of attainder ... shall ever be enacted."). A bill of attainder, however, is a "trial by legislature" that "inflict[s] punishment without a judicial trial." State v. Allie ,
V. Enforcement Of, And Third-Party Challenges To, The Restitution Order.
¶28 Apart from these constitutional arguments, Reed's counsel argues that a dismissal under Section 13-106 would not provide an "outcome of [the] appeal" under A.R.S. § 13-804(D), meaning the restitution order would "never become final and cannot be enforced." By statute, restitution payments "shall not be stayed" pending appeal, but "may be held by the court pending the outcome of an appeal." A.R.S. § 13-804(D). A dismissal under Section 13-106 provides "the outcome of" the appeal. Reed's counsel has not shown how a dismissal under Section 13-106 would mean that the restitution order would "never become final" and enforceable. Even under Arizona's common law rule of abatement, "a restitution order, albeit one that is an allocated portion of a fine, survives a defendant's death." Vigliotto ,
¶29 Reed's counsel also asserts that "[t]here does not appear, at this time, to be a forum where Mr. Reed's family or others with an interest in his reputation or estate could dispute the validity of the restitution order." By statute, "[a] criminal restitution order may be recorded and is enforceable as any civil judgment." A.R.S. § 13-805(E). Reed's counsel speculates that, in a civil action, the restitution order "could only be voidable, not void" and that Section 13-106 would mean the order is "not 'subject to reversal.' " Ruiz v. Lopez ,
¶30 This argument also is based on Arizona Rule of Civil Procedure 60, which governs relief from a final judgment or order in a civil case. This, however, is not a civil case. Accordingly, as noted in addressing an analogous argument in Griffin , "[w]hatever merit there may be in this contention, it should not be resolved in this case."
CONCLUSION
¶31 Having been informed of the death of appellant Richard Allen Reed, and having concluded that A.R.S. § 13-106 is constitutional, this appeal is dismissed.
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
Recognizing this opinion is based on the "legal issues advanced by the parties themselves," Ruiz v. Hull ,
For example, the majority in Durham vacated the conviction and remanded "with directions to dismiss the indictment,"
Nor are cases Reed's counsel cites regarding appellate resources dispositive here. See, e.g., Evitts v. Lucey ,