People v. Daly

• Decision Date: 09 June 2011
• Docket Number: No. 10CA0580.,10CA0580.
• Citation: 313 P.3d 571
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Markham G. DALY, Defendant–Appellant.
• Court: Colorado Court of Appeals

313 P.3d 571

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Markham G. DALY, Defendant–Appellant.

No. 10CA0580.

Colorado Court of Appeals,

Div. A.

June 9, 2011.

John W. Suthers, Attorney General, Catherine P. Adkisson, Deputy Solicitor General, Denver, Colorado, for Plaintiff–Appellee.

Springer and Steinberg, P.C., Harvey A. Steinberg, Ariel Z. Benjamin, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge BERNARD.

We address here the applicability of the doctrine of abatement ab initio—abatement “from the beginning”—in a criminal case. This is a court-created common law doctrine, see United States v. Estate of Parsons, 367 F.3d 409, 414 (5th Cir.2004), which requires criminal convictions to be vacated and charges to be dismissed when defendants die while their cases are pending.

In this case, defendant was convicted at trial of a felony, and he died while his direct appeal was pending. Citing authority from other jurisdictions, the Attorney General asks us to abandon the doctrine of abatement ab initio. Relying on Colorado precedent, we decline this invitation, and we conclude that this case should eventually be remanded to the trial court to abate defendant's conviction.

However, because defendant was ordered to pay restitution to the victim of his crime at the sentencing hearing, this case presents an additional issue of first impression in Colorado: should the doctrine of abatement ab initio be applied when its effect would be to erase the civil judgment created by a restitution order? We hold that this civil judgment should not be abated.

I. Background

Defendant, Markham G. Daly, was convicted of the class four felony of stalking on January 21, 2010. On March 8, 2010, the trial court sentenced him to serve a probationary sentence monitored by the intensive supervision program. The court also ordered him to pay restitution to the victim of his crime.

He filed his notice of appeal with this court on March 22, 2010. It stated that he intended to raise issues involving both his conviction and sentence.

On August 13, 2010, defendant's counsel filed a motion to dismiss this appeal. It stated that defendant had died on April 29, 2010, and a copy of his death certificate was attached.

We issued an order requiring the prosecution to show cause why, instead of dismissing the appeal, the case should not be remanded to the trial court to set aside defendant's conviction and dismiss the charges against him. The prosecution replied that (1) the doctrine of abatement ab initio is not constitutionally required; (2) courts from some jurisdictions do not follow it; and (3) abating a conviction in a case, such as this one, in which the defendant has been ordered to pay restitution undermines the rights of crime victims.

In response, defendant's counsel argued that the doctrine of abatement ab initio should be applied to all of defendant's case because (1) the doctrine has a long pedigree in Colorado; (2) permitting defendant's conviction and sentence to stand would deny him his appellate rights; (3) the prosecution's reliance on authority from other jurisdictions was misplaced; and (4) the victim could pursue a separate civil case against defendant's estate to obtain redress for her financial losses.

II. Analysis

A. General Principles

1. Statutory Construction

When construing a statute, we first look to the statutory language. We give words and phrases their plain and ordinary meanings. We read the statute as a whole, and we interpret it in a manner that gives all its parts plain and sensible effect. We avoid absurd constructions. If the statute is unambiguous, we need look no further, and we do not need to employ other tools of statutory construction. Seguna v. Maketa, 181 P.3d 399, 401 (Colo.App.2008). Our primary goal is to determine and give effect to the legislature's intent. Crandall v. City & County of Denver, 238 P.3d 659, 662 (Colo.2010).

2. The Present Status of the Doctrine of Abatement in Colorado Criminal Cases

The doctrine of abatement ab initio was first recognized in Colorado in Overland Cotton Mill Co. v. People, 32 Colo. 263, 265, 75 P. 924, 925 (1904). There, after a defendant in a criminal case died while his conviction was pending appeal, our supreme court held that “the proceedings [against him] are abated by operation of law.” Id. This was so because

[t]he purpose of enforcing a penal statute is to punish the person found guilty of violating its provisions. The representatives of [the] deceased are not responsible for the alleged violation of the statute by him during his lifetime. They cannot be required to satisfy the judgment rendered against him. It is only the person adjudged guilty who can be punished, and a judgment cannot be enforced when the only subject-matter upon which it can operate has ceased to exist.

Id. In reaching this result, the supreme court cited several cases from other jurisdictions. At least one, March v. State, 5 Tex.App. 450, 1879 WL 7380, at *4 (1879), clearly endorsed the doctrine of abatement ab initio.

The supreme court followed Overland in Crowley v. People, 122 Colo. 466, 468, 223 P.2d 387, 387–88 (1950). The supreme court concluded that the defendant's death, “following the perfection of his appeal to the county court ... put an end to an infliction or enforcement of the punishment imposed.” Id. at 468, 223 P.2d at 388.

Crowley leaned heavily on a federal case, United States v. Mitchell, 163 F. 1014, 1017 (C.C.D.Or.1908), aff'd sub nom. United States v. Dunne, 173 F. 254 (9th Cir.1909). Crowley, 122 Colo. at 468, 223 P.2d at 388. The court in Mitchell employed the doctrine of abatement ab initio, concluding that, when a defendant dies while his appeal is pending, “the entire cause is abated.” Id. at 1017. The quotation employed by the supreme court in Crowley echoed this concept: “[B]y the death of [the defendant], the cause abated entirely, so that no enforcement of the payment of the fine imposed can be made out of his estate.” Crowley, 122 Colo. at 468, 223 P.2d at 388 (quoting Mitchell, 163 F. at 1017).

In People v. Lipira, 621 P.2d 1389, 1390 (Colo.App.1980), a division of this court concluded that the term “abate,” as used in Overland, means that a defendant's death renders the whole proceeding a nullity. This means that “there should be no determination of the issues on appeal and that the judgment of conviction should be set aside and the indictment dismissed.” Id. Because the division cited Crowley and Mitchell, we hold that this conclusion was a product of, and mandated by, Crowley.

Lipira was analyzed in People v. Valdez, 911 P.2d 703, 703–04 (Colo.App.1996). The division noted that appeals of right in criminal cases play an important role in the criminal justice system.

[A]n appeal is an integral part of our system of adjudicating guilt or innocence and defendants who die before the conclusion of their appellate review have not obtained a final adjudication of guilt or innocence. Ordinarily, the interests of justice require that defendants not stand convicted without resolution of an appeal.

Id. at 704. Further, the division noted that, once a defendant dies, “the state's interest in protecting society has been satisfied and there is no further interest in punishing the wrongdoer.” Id.

These justifications for the doctrine of abatement establish its boundaries. For example, if a defendant dies after a direct appeal has affirmed a conviction—for example while awaiting a decision on a petition for a writ of certiorari, or during an appeal of postconviction proceedings initiated under Crim. P. 35(c)—the conviction should not be abated. The “sole action that we take” in such circumstances is to dismiss the appeal as moot. Id. at 704. This is so because the defendant has already been afforded the protections of a direct appeal, and the interests of justice would not be served by abating the conviction. Id.

A division of this court further refined the parameters of the doctrine of abatement ab initio in People v. Rickstrew, 961 P.2d 1139, 1140–41 (Colo.App.1998). There, the division held that “when a criminal defendant dies during the pendency of an appeal directed only at a sentence entered after a guilty plea, abatement of the underlying conviction is not warranted.” Id. at 1141. The rationale underlying this conclusion was that, once a defendant pleads guilty, the presumption of innocence disappears, and the issue of the defendant's guilt no longer needs to be resolved. In such cases, the proper remedy is to dismiss the appeal.

According to Surland v. State, 392 Md. 17, 19–20, 895 A.2d 1034, 1035–36 (2006), the doctrine of abatement ab initio is applied in several ways by appellate courts across the country. See also Tim A. Thomas, Annotation, Abatement of State Criminal Case by Accused's Death Pending Appeal of Conviction—Modern Cases, 80 A.L.R.4th 189 (1990); John H. Derrick, Annotation, Abatement Effects of Accused's Death Before Appellate Review of Federal Criminal Conviction, 80 A.L.R. Fed. 446 (1986). Generally, a majority of appellate courts, including Colorado and federal circuit courts, dismisses the appeal as moot and orders that the entire criminal conviction be abated.

No Colorado appellate court has decided whether a civil judgment created by a restitution order should be abated ab initio. We turn next to that issue, recognizing that we write on a clean slate.

3. The Effect of Abatement Ab Initio on Restitution Orders

We begin this portion of the analysis by observing that restitution is not the equivalent of a fine. “A fine is solely a monetary penalty, while restitution serves to make the victim whole.” People v. Stafford, 93 P.3d 572, 574 (Colo.App.2004); see also People v. Cardenas, 262 P.3d 913, 914 (Colo.App.2011). A fine is paid to the government; restitution is paid to the victim. See State v. DeAngelis, 329 N.J.Super. 178, 190, 747 A.2d 289, 296 (2000). Therefore, Overland and Crowley do not resolve the...