State v. Reed

• Decision Date: 24 January 2020
• Docket Number: No. CR-19-0059-PR,CR-19-0059-PR
• Citation: 248 Ariz. 72,456 P.3d 453
• Parties: STATE of Arizona, Appellee, v. Richard Allen REED, Appellant.
• Court: Arizona Supreme Court

248 Ariz. 72

456 P.3d 453

STATE of Arizona, Appellee,

v.Richard Allen REED, Appellant.

No. CR-19-0059-PR

Supreme Court of Arizona.

Filed January 24, 2020

Mark Brnovich, Arizona Attorney General, O.H. Skinner, Solicitor General, Joseph T. Maziarz, Chief Counsel, Jillian B. Francis (argued), Assistant Attorney General, Phoenix, Attorneys for State of Arizona

James J. Haas, Maricopa County Public Defender, Nicholas Podsiadlik (argued), Deputy Public Defender, Phoenix, Attorneys for Richard Allen Reed

Colleen Clase, Phoenix, Attorney for Amicus Curiae Arizona Voice for Crime Victims

Carol Lamoureux (argued), Law Office of Hernandez & Hamilton, PC, Tucson, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice

VICE CHIEF JUSTICE TIMMER authored the Opinion of the Court, in which CHIEF JUSTICE BRUTINEL, JUSTICES BOLICK, GOULD, and LOPEZ joined.^*

VICE CHIEF JUSTICE TIMMER, Opinion of the Court:

¶1 Richard Allen Reed died pending his appeal from a criminal restitution order. The court of appeals dismissed the appeal pursuant to A.R.S. § 13-106(A), leaving the restitution order intact and enforceable against Reed’s estate pursuant to § 13-106(B).

¶2 We here decide whether the legislature possessed authority to enact § 13-106, and, if so, whether § 13-106(A) nevertheless violates our state constitution by divesting defendants of their right to appeal. See Ariz. Const. art. 2, § 24. We conclude that the legislature lacked authority to require the court to dismiss a pending appeal upon a convicted defendant’s death ( § 13-106(A) ), but possessed authority to prohibit abatement of that defendant’s conviction and sentence ( § 13-106(B) ). We vacate the court of appeals’ opinion dismissing Reed’s appeal and remand to that court for further proceedings.

BACKGROUND

¶3 The trial court convicted Reed of one count of voyeurism, see A.R.S. § 13-1424, and the court of appeals affirmed. State v. Reed , 1 CA-CR 16-0269, 2017 WL 1325647, at *1 ¶ 1 (Ariz. App. Apr. 11, 2017) (mem. decision) (" Reed I "). Thereafter, the court ordered Reed to pay $17,949.50 as restitution to the victim, all but $40 of which consisted of the victim’s attorney fees. Reed again appealed, challenging the restitution amount. See A.R.S. § 13-4033(A)(3) (authorizing an appeal from a restitution order).

¶4 After the parties had fully briefed the appeal but pending a decision, Reed died. Reed’s wife, who serves as personal representative for his estate, moved to intervene or substitute as a party in the appeal. She claimed an interest in challenging the restitution order because it had been recorded as liens against her home and vehicle, both of which she had shared with Reed as community property. The court of appeals denied the motion because the wife did not cite any authority permitting intervention or substitution in a criminal case. State v. Reed , 246 Ariz. 138, 140 ¶ 4 n.2, 435 P.3d 1044, 1046 n.2 (App. 2019) (" Reed II ").

¶5 Over Reed’s counsel’s objection, the court of appeals dismissed the appeal pursuant to § 13-106(A). Id. ¶ 1. We accepted review of Reed’s petition because it involves the division of authority between this Court and the legislature, an issue of statewide importance.¹

DISCUSSION

I. Legislative authority to enact § 13-106

¶6 Arizona courts have traditionally applied the common law doctrine of abatement ab initio to discontinue an appeal and set aside a defendant’s conviction and sentence when the defendant dies pending appeal of the conviction and sentence. See State v. Glassel , 233 Ariz. 353, 353 ¶ 1, 312 P.3d 1119, 1119 (2013) ; State v. Griffin , 121 Ariz. 538, 539, 592 P.2d 372, 373 (1979) ; see also Commonwealth v. Hernandez , 481 Mass. 582, 118 N.E.3d 107, 116 (2019) (noting a plurality of state courts and the federal courts follow the abatement ab initio doctrine, although adherence is waning in state courts). We have held that abatement is justified because the defendant’s death satisfies the state’s interest in protecting society, the defendant can no longer be punished, and collecting fines and restitution and forfeiting property only serves to punish innocent third parties. Griffin , 121 Ariz. at 539, 592 P.2d at 373. After a defendant’s conviction and sentence have been affirmed, however, they do not abate if the defendant dies pending other actions, such as discretionary appeals and post-conviction relief proceedings. See Dove v. United States , 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976) ; Glassel , 233 Ariz. at 355 ¶ 11, 312 P.3d at 1121. In those circumstances, the pending matter is dismissed as moot. See Dove , 423 U.S. at 325, 96 S.Ct. 579.

¶7 Our courts, however, have not decided whether a restitution order abates if, after the conviction and sentence have been affirmed, a defendant dies pending a separate appeal from the restitution order. (Whether Reed’s conviction and sentence should be abated is not at issue because they were affirmed in Reed I before his death.) Although the court of appeals concluded in Matter of Estate of Vigliotto , 178 Ariz. 67, 69–70, 870 P.2d 1163, 1165–66 (App. 1993), that a restitution order survives a defendant’s death, that restitution order was not then pending appeal.

¶8 In 2014, the legislature enacted § 13-106, eliminating the abatement ab initio doctrine but requiring the court to dismiss a pending appeal or post-conviction relief proceeding upon a convicted defendant’s death:

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, fine or assessment imposed by the sentencing court.

Section 13-106 is consistent with the courts’ disposition of post-conviction relief proceedings when a convicted defendant dies pending resolution. See Glassel , 233 Ariz. at 355 ¶ 11, 312 P.3d at 1121. But the statute irreconcilably conflicts with our courts’ adherence to the abatement ab initio doctrine when a convicted defendant dies pending appeal of the conviction and sentence. See Griffin , 121 Ariz. at 539, 592 P.2d at 373. ¶9 Reed argues the legislature infringed upon this Court’s appellate jurisdiction and usurped its constitutionally granted rulemaking authority by enacting § 13-106, thereby violating separation-of-powers principles and rendering the provision unconstitutional. See Ariz. Const. art. 3 (providing that except as provided in the constitution, the three departments of government "shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others"); State ex rel. Napolitano v. Brown , 194 Ariz. 340, 342 ¶ 6, 982 P.2d 815, 817 (1999) ("[U]nder the traditional separation of powers doctrine, the legislature lacks authority to enact a statute if it conflicts with or tends to engulf this court’s constitutionally vested rulemaking authority." (citation omitted) (internal quotation marks omitted)).

¶10 The Arizona Constitution vests this Court with appellate jurisdiction and grants it "[p]ower to make rules relative to all procedural matters in any court." Ariz. Const. art. 6, § 5 (3), (5). The legislature possesses authority to enact substantive laws, see State v. Hansen , 215 Ariz. 287, 289 ¶¶ 9–10, 160 P.3d 166, 168 (2007), but may also enact "procedural laws to define, implement, preserve and protect the rights guaranteed to victims" by the Victim’s Bill of Rights, Ariz. Const. art. 2, § 2.1 ("VBR"). VBR § 2.1(D). Also, we will recognize "reasonable and workable" procedural laws if they supplement rather than conflict with court procedures. See Seisinger v. Siebel , 220 Ariz. 85, 89 ¶ 8, 203 P.3d 483, 487 (2009) (citation omitted); see also State v. Forde , 233 Ariz. 543, 576 ¶ 146, 315 P.3d 1200, 1233 (2014) (acknowledging that court procedures emanate from court rules and caselaw). In the event of a conflict, the court procedure prevails. See Seisinger , 220 Ariz. at 89 ¶ 8, 203 P.3d at 487.

¶11 As previously mentioned, § 13-106 is consistent with the courts’ disposition of post-conviction relief proceedings pending at the time a convicted defendant dies. See Glassel , 233 Ariz. at 355 ¶ 11, 312 P.3d at 1121. Thus, even if the statute is procedural and not authorized by the VBR, it remains valid to the extent it concerns post-conviction relief proceedings. See Seisinger , 220 Ariz. at 89 ¶ 8, 203 P.3d at 487. But because § 13-106 is inconsistent with how courts process appeals upon a convicted defendant’s death, we must decide whether the legislature possessed authority to enact § 13-106 as it concerns appeals. Resolution of this issue depends on whether the provision is a procedural or substantive law and, if the former, whether the legislature was nevertheless authorized to enact it under the VBR.

¶12 We review Reed’s challenge to § 13-106 de novo as an issue of law, see State v. Acuna Valenzuela , 245 Ariz. 197, 211 ¶ 34, 426 P.3d 1176, 1190 (2018), and start with the strong presumption the statute is constitutional, see State v. Tocco , 156 Ariz. 116, 119, 750 P.2d 874, 877 (1988). Reed bears the burden of showing that the legislature infringed this Court’s rulemaking authority by enacting § 13-106. See State v. Casey , 205 Ariz. 359, 362 ¶ 11, 71 P.3d 351, 354 (2003).

A. Substantive law vs. procedural rule

¶13 "[T]he precise dividing line between substance and procedure has proven elusive." Seisinger , 220 Ariz. at 92 ¶ 29, 203 P.3d at 490 (citation omitted) (internal quotation marks omitted). We draw that line by applying these definitions:

Uniformly, the substantive law is that part of the law which creates, defines and regulates rights; whereas the adjective, remedial or procedural law is that which prescribes the method of enforcing the right or obtaining redress for its invasion. It is often said the adjective law pertains to and prescribes the practice, method, procedure or legal machinery by which the

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