People v. Johnson

• Decision Date: 13 December 2021
• Docket Number: Supreme Court Case No. 20SC790
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Eddie Wayne JOHNSON, Respondent.
• Court: Colorado Supreme Court

499 P.3d 1045

The PEOPLE of the State of Colorado, Petitioner,

v.Eddie Wayne JOHNSON, Respondent.

Supreme Court Case No. 20SC790

Supreme Court of Colorado.

December 13, 2021

Attorneys for Petitioner: Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney General, Denver, CO

Attorneys for Respondent: Megan A. Ring, Public Defender, Chelsea E. Mowrer, Deputy Public Defender, Denver, CO

En Banc

JUSTICE HOOD delivered the Opinion of the Court.

¶1 Defendant, Eddie Wayne Johnson, died of natural causes before completing the direct appeal of his criminal convictions in this case. Under the common law doctrine of abatement ab initio,¹ when a criminal defendant dies under these circumstances, his convictions and all proceedings associated with them must be vacated. People v. Griffin, 2014 CO 48, ¶ 4, 328 P.3d 91, 92. A division of the court of appeals therefore applied this doctrine to vacate Johnson's underlying convictions and a large restitution order associated with them.

¶2 The prosecution claims that certain statutory changes and policy considerations should have allowed the district court's restitution order to survive Johnson's death. But because the General Assembly has not clearly abrogated the doctrine of abatement ab initio as to restitution, we affirm the court of appeals' decision in People v. Johnson, 2020 COA 124, 487 P.3d 1262, vacating the district court's restitution order.

I. Facts and Procedural History

¶3 In January 2017, a jury found Johnson guilty of multiple counts of securities fraud and theft. The district court also adjudicated Johnson a habitual criminal; sentenced him to forty-eight years in prison; and ordered him to pay approximately $220,000 in costs, fees, and restitution.

¶4 Johnson appealed. But while his direct appeal was pending, Johnson died from cancer

. Johnson's counsel filed a motion notifying the court of appeals of Johnson's death and requesting the abatement ab initio of the convictions and restitution order.

¶5 The prosecution objected. While conceding that non-restitution fees, fines, and costs abated, the prosecution argued that, per People v. Daly, 313 P.3d 571, 578 (Colo. App. 2011), and section 18-1.3-603(1), (4), C.R.S. (2021), the restitution order remained valid. Because restitution constitutes a separate civil judgment, the prosecution believed it should remain intact.

¶6 The division disagreed. It concluded that the doctrine extinguished Johnson's restitution order entered as part of his sentence and, accordingly, remanded to the district court with directions to vacate the order. Johnson, ¶ 20, 487 P.3d at 1266.

¶7 We granted certiorari to review whether the order of restitution imposed against Johnson survives his death.²

II. Analysis

¶8 We first identify the standard of review and then briefly examine the common law doctrine of abatement ab initio as it has emerged in Colorado. With that backdrop in mind, we consider whether the General Assembly has clearly abrogated the doctrine, such that a restitution order now survives a defendant who dies of natural causes³ during direct appeal. We conclude that it hasn't.

A. Standard of Review and Rules of Statutory Interpretation

¶9 We review questions of statutory interpretation de novo. Cowen v. People , 2018 CO 96, ¶ 11, 431 P.3d 215, 218. When interpreting statutes, our primary goal is to ascertain and give effect to legislative intent. Id. at ¶ 12, 431 P.3d at 218. To do so, we begin with the plain meaning of the statutory language, "giving its words and phrases their plain and ordinary meaning," McCulley v. People, 2020 CO 40, ¶ 10, 463 P.3d 254, 257, and if the language is unambiguous, we look no further, Cowen, ¶ 12, 431 P.3d at 218.

¶10 While the General Assembly may abrogate common law doctrines, "[a] statute is not presumed to alter the common law except to the extent that such statute expressly provides." Beach v. Beach, 74 P.3d 1, 4 (Colo. 2003). "[I]f the legislature wishes to abrogate rights that would otherwise be available under the common law, it must manifest its intent either expressly or by clear implication." Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004) (quoting Vaughan v. McMinn, 945 P.2d 404, 408 (Colo. 1997) ). We therefore strictly construe statutes in derogation of the common law. Id.

B. Abatement Ab Initio

¶11 The abatement ab initio doctrine is a longstanding facet of Colorado common law. This court first recognized it more than a century ago, see Overland Cotton Mill Co. v. People, 32 Colo. 263, 75 P. 924, 925 (1904) (recognizing that legal "proceedings are abated by operation of law" when a defendant dies during direct appeal), and Colorado courts and other jurisdictions have repeatedly applied the doctrine in cases where a defendant dies before his direct appeal of a criminal conviction is finished, e.g., Griffin, ¶ 9, 328 P.3d at 93 (surveying cases in which the doctrine of abatement ab initio has been applied on direct appeal but concluding that it does not apply to a defendant's case if he dies while the petition for certiorari review is pending); Crowley v. People, 122 Colo. 466, 223 P.2d 387, 388 (1950) (concluding that "the death of the defendant ... put an end to an infliction or enforcement of the punishment imposed" by the trial court).

¶12 Abatement ab initio establishes that when a defendant dies while his conviction is on appeal, all criminal proceedings against him are vacated. Overland Cotton Mill , 75 P. at 925. "[T]he appeal does not just disappear, and the case is not merely dismissed. Instead, everything associated with the case is extinguished, leaving the defendant ‘as if he had never been indicted or convicted.’ " United States v. Estate of Parsons, 367 F.3d 409, 413 (5th Cir. 2004) (quoting United States v. Estate of Parsons, 314 F.3d 745, 749 (5th Cir. 2002) ); accord Griffin, ¶ 4, 328 P.3d at 92. Abatement, therefore, "render[s] the entire proceedings a nullity." People v. Lipira, 621 P.2d 1389, 1390 (Colo. App. 1980).

¶13 Courts have embraced two primary rationales for the doctrine: finality and mootness. Griffin, ¶¶ 5-6, 328 P.3d at 92-93. The finality (or right of appeal) rationale "rests on the notion that ‘an 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.’ " Id. at ¶ 5, 328 P.3d at 92 (quoting People v. Valdez, 911 P.2d 703, 704 (Colo. App. 1996) ). Without finality, which includes the statutory right of direct appeal, "courts would have to choose among disregarding a finding of guilt, entering an unreviewed judgment, or adjudicating an imaginary appeal of a deceased defendant's conviction." United States v. Rich, 603 F.3d 722, 729 (9th Cir. 2010).

¶14 The second rationale relates to mootness. Penological goals of retribution and specific deterrence arguably disappear when a defendant dies. "[A]ssum[ing] that the primary purpose of the criminal justice system is to punish offenders, and that the death of the defendant renders enforcement of the punishment impossible," the "state's interests in protecting society have been satisfied." Griffin, ¶ 6, 328 P.3d at 93. Thus, because the state loses its "substantial interest in attempting to maintain the conviction[,] ... the entire criminal proceeding abates from the beginning." Id. (quoting State v. Griffin, 121 Ariz. 538, 592 P.2d 372, 373 (1979) ).

¶15 With the doctrine firmly in mind, we now turn to the primary question before us: Has the General Assembly, expressly or by clear implication, chosen to abrogate abatement ab initio as to restitution?

C. The Restitution Statute

¶16 Section 18-1.3-603 governs restitution orders. It states in part: "Any order for restitution entered pursuant to this section is a final civil judgment in favor of the state and any victim. Notwithstanding any other civil or criminal statute or rule, any such judgment remains in force until the restitution is paid in full." § 18-1.3-603(4) (a)(I).

¶17 Subsection (4)(a)(II) is the only provision addressing what happens in the event of a defendant's death:

Notwithstanding the provisions of subparagraph (I) of this paragraph (a), two years after the presentation of the defendant's original death certificate to the clerk of the court or the court collections investigator, the court may terminate the remaining balance of the judgment and order for restitution if, following notice by the clerk of the court or the court collections investigator to the district attorney, the district attorney does not object and there is no evidence of a continuing source of income of the defendant to pay restitution.

¶18 The prosecution contends that subsection (I) reveals the General Assembly's intent to allow restitution orders to survive a defendant's death, while subsection (II) provides the sole mechanism by which a court may terminate a restitution order based on a defendant's death (and that proceeding requires the consent of the district attorney, which is lacking here).

¶19 In staking out its position, the prosecution leans heavily on Daly, in which a division of the court of appeals held that "the [abatement ab initio] doctrine does not apply to civil judgments created by restitution orders." 313 P.3d at 578. Instead, "to vindicate [a defendant's] statutory right to an appeal, [his] estate is entitled to challenge the restitution order that forms the basis for the civil judgment." Id.

¶20 The Daly division reached this conclusion by interpreting what is now section 18-1.3-603(4)(a)(I). (The statute at the time did not include subsection (4)(a)(II).) The division concluded that "the legislature saw civil judgments created by [ section] 18-1.3-603(4)(a) as an important part of guaranteeing victims' rights." Daly, 313 P.3d at 576. In the Daly division's view, the General Assembly demonstrated its intent to make "these civil judgments robust and durable" when it declared that "they cannot be...