Majors v. State, 052120 OKCRI, F-2018-230
|Opinion Judge:||DAVID B. LEWIS, PRESIDING JUDGE|
|Party Name:||STANLEY VERNON MAJORS, Appellant v. THE STATE OF OKLAHOMA, Appellee.|
|Judge Panel:||DANA KUEHN, Vice Presiding Judge GARY L. LUMPKIN, Judge, ROBERT L. HUDSON, Judge SCOTT ROWLAND, Judge KUEHN, V.P.J., Dissenting: HUDSON, J., SPECIALLY CONCURS|
|Case Date:||May 21, 2020|
|Court:||Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma|
ORDER DENYING REQUEST TO ABATE APPEAL AND REMANDING CAUSE FOR FURTHER PROCEEDINGS
DAVID B. LEWIS, PRESIDING JUDGE
¶1 On May 18, 2018, Appellant Majors, by and through counsel, filed a Petition in Error appealing his conviction in Tulsa County District Court Case No. CF-2016-4516. Majors was found guilty by a jury of Count 1, Murder in the First Degree; Count 2, Possession of a Firearm after Felony Conviction; Count 3, Malicious Intimidation/Harassment; and Count 4, Threatening an Act of Violence. The District Court of Tulsa County, the Honorable Sharon Holmes, District Judge, sentenced Majors to consecutive terms of life imprisonment without the possibility of parole for Count 1; ten (10) years imprisonment for Count 2; one (1) year in jail for Count 3; and six (6) months in jail for Count 4. Majors' Brief-in-Chief, under a final extension of time, was due for filing no later than October 16, 2018.
¶2 On October 1, 2018, counsel for Majors, Richard Couch, Assistant Public Defender, filed a "Motion to Abate [Appeal] Due to Death of Appellant" in the above-referenced matter. Counsel alleged that Majors died on September 12, 2018, while an inmate at the Oklahoma State Penitentiary. Attached to the abatement motion was an affidavit from counsel indicating that he was advised of Majors' death on September 27, 2018, by the Oklahoma Attorney General's office. Counsel's motion seeks abatement of Majors' appeal.
¶3 On October 17, 2018, this Court issued an order directing a response. The parties were to address current Oklahoma practice, law and procedure governing abatement, as well as the procedures currently utilized by other jurisdictions. The parties were also instructed to address the following questions: 1. Upon the death of a defendant should the Court proceed with the appeal and render a final opinion addressing the merits of the appeal?
2. If the Court does abate the appeal, should the abatement be limited to the appellate proceeding, or should the underlying conviction be abated as well?
Briefs were subsequently filed with this Court. Majors' motion to abate appeal is DENIED.
¶4 It has long been the practice of this Court that when an appellant died pending the determination of an appeal, the appeal and the underlying conviction were abated. This is referred to as abatement ab initio. The cause was remanded to the trial court with directions to abate the underlying judgment and sentence and to enter an order documenting that the appeal had been dismissed. See Oklahoma v. Felts, 1937 OK CR 181, 74 P.2d 125; Nott v. State, 1950 OK CR 63, 218 P.2d 389; Wilson v. State, 1947 OK CR 98, 184 P.2d 634. Oklahoma's current use of abatement ab initio mirrors the procedure adopted by nearly all federal courts. 1
Durham v. United States, 401 U.S. 481 (1971). 2 Since Oklahoma confers a right of appeal via statute, a criminal conviction is not final until the conclusion of the direct appeal. Benham v. Plotner, 1990 OK 64, ¶ 5, 795 P.2d 510, 512.
¶5 While the majority of States abate appeals ab initio, some States abate only the pending appeal, leaving the underlying conviction intact. Other States allow the appeal to proceed, each according to its individual rules, practices and procedures. Alabama requires a deceased appellant's pending appeal to be dismissed. The trial court is then ordered to enter a notation in the trial court record acknowledging that while the conviction removed the defendant's presumption of innocence, the conviction was neither affirmed nor reversed because the defendant died while the appeal was pending. 3 Colorado abates the entire case ab initio unless the underlying conviction was the result of a guilty plea.  Several jurisdictions allow either the State or a personal representative to file a motion to substitute the personal...
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