People v. Peters
| Decision Date | 10 August 1995 |
| Docket Number | No. 6,Docket No. 99830,6 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Louis PETERS, Defendant-Appellee. Calendar |
| Court | Michigan Supreme Court |
We granted leave to consider whether an order of restitution should abate where a convicted criminal defendant died pending appeal of his conviction. 1 To decide this issue it is necessary to clarify our position on the rule of abatement ab initio.
In People v. Elauim, we applied the rule of abatement ab initio to dismiss an appeal from a criminal conviction and erase the criminal conviction and accompanying penal sanctions where a defendant died pending appeal. 2 We continue to believe that it is appropriate to dismiss an appeal upon the death of a convicted criminal defendant, but are not persuaded that abatement ab initio, when applied to compensatory sanctions, is consistent with Michigan law since the 1985 enactment of the Michigan Crime Victim's Rights Act, M.C.L. § 780.751 et seq.; M.S.A. § 28.1287(751) et seq., and the 1988 amendment of art. 1, § 24 of the Michigan Constitution. Instead, we hold that where a convicted defendant dies pending appeal, the appeal should be dismissed, absent collateral consequences not presented here, and the underlying conviction and accompanying compensatory sentencing sanctions should stand. Purely penal sanctions, however, should be abated ab initio because they no longer continue to serve a purpose.
On September 20, 1990, defendant Louis Peters entered a plea of no contest to four counts of burning dwelling houses, M.C.L. § 750.72; M.S.A. § 28.267; two counts of burning real property, M.C.L. § 750.73; M.S.A. § 28.268; four counts of burning insured property, M.C.L. § 750.75; M.S.A. § 28.270; and one count of conspiracy to burn insured property, M.C.L. § 750.157a; M.S.A. § 28.354(1) and M.C.L. § 750.75; M.S.A. § 28.270. At sentencing, defendant was ordered to serve three years' probation, to pay a criminal fine of $10,000, and to pay $400,000 in restitution. 3 The restitution was to be divided between the victims, the City of Detroit ($140,000) and Michigan Basic Property Insurance Association ($260,000). 4 Because defendant was suffering from terminal lung cancer, he was not ordered to serve time in jail.
Defendant appealed the amount of the restitution order. 5 However, during the pendency of his appeal, defendant died. On notification of defendant's death, the Court of Appeals remanded the case for entry of an order dismissing the case ab initio. 6 The Court of Appeals denied the prosecutor's motion for rehearing, and we denied the prosecution's leave to appeal the denial of rehearing at that time. 7 On remand, the trial court abated the criminal conviction and $10,000 fine, but held that the $400,000 order of restitution survived the abatement ab initio of the criminal case. The trial court relied on art. 1, § 24 of the Michigan Constitution, which guarantees a crime victim's right to restitution, and the reasoning of United States v. Dudley, 739 F.2d 175 (C.A.4, 1984). 8
Defendant, by his attorney, appealed the trial court's ruling regarding the order of restitution. The Court of Appeals reversed, holding that an order of restitution must be vacated when a defendant's criminal conviction is abated ab initio because of defendant's death. 9 The prosecution appealed the abatement of the order of restitution. 10 We reverse and reinstate the order of restitution.
There is no federal constitutional right to an appeal. 11 However, the perception of appeal as the opportunity to finally determine a convicted defendant's guilt or innocence is one source of the rule of abatement ab initio. Despite this perception, it is well established in the federal system that, once convicted, a criminal defendant is no longer presumed innocent. 12 Art. 1, § 20 of the Michigan Constitution does provide for an appeal of right from a criminal conviction. Even given this appeal of right, a criminal conviction in Michigan also destroys the presumption of innocence. 13 A convicted criminal defendant must prove error requiring reversal. 14 It is also interesting to note that the appeal of right has recently been limited. 15 Although the recent constitutional amendment does not apply in this case, we find that the appeal of right was personal to the defendant and, therefore, died with him. 16
In literal application, abatement ab initio erases a criminal conviction from the beginning on the theory that all injuries resulting from the crime " 'are buried with the offender.' " 17 The reasoning behind abatement ab initio varies among jurisdictions ascribing to the rule. 18 Some jurisdictions distinguish between appeals of right and discretionary review when applying the rule. Those jurisdictions that have rejected the rule of abatement ab initio may dismiss the appeal, 19 abate the appeal, 20 allow the appeal to proceed notwithstanding the defendant's death, 21 or substitute a personal representative for the defendant. 22
This Court's treatment of appeals from criminal convictions on the defendant's death has varied. In People v. Elauim, 393 Mich. 601, 227 N.W.2d 553 (1975), this Court abated ab initio the indictment of a defendant who died pending his appeal from a conviction for first-degree murder. The Elauim Court relied on the reasoning of the United States Supreme Court in Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971). In Durham, a criminal defendant's indictment was abated following his death. 23 However, in other cases this Court has dismissed appeals from criminal convictions that were interrupted by the death of the defendant, apparently allowing the convictions to remain intact. 24
We take this opportunity to clarify our position on abatement ab initio. Where a defendant dies pending an appeal of a criminal conviction, we hold that the appeal should be dismissed, but the conviction retained. The conviction of a criminal defendant destroys the presumption of innocence regardless of the existence of an appeal of right. We therefore find that it is inappropriate to abate a criminal conviction.
Further, it is better policy to allow the litigation to end and the presumptively valid conviction to stand than it is to allow the convicted defendant's survivors to pursue litigation ad infinitum, in an effort to clear the deceased defendant's name. We agree with the rationale offered by the Indiana Supreme Court:
The presumption of innocence falls with a guilty verdict. At that point in time, although preserving all of the rights of the defendant to an appellate review, for good and sufficient reasons we presume the judgment to be valid, until the contrary is shown. To wipe out such a judgment, for any reason other than a showing of error, would benefit neither party to the litigation and appears to us likely to produce undesirable results in the area of survivor's rights in more instances that it would avert an injustice. 25
Finally, we see no state interest, under the facts presented in this case, that can be served by allowing an appeal to proceed when the defendant is not available for trial. 26
Given our decision to dismiss an appeal and retain the conviction where a criminal defendant dies with an appeal pending, we now consider the status of fines, penalties, and orders that may accompany a criminal conviction. The majority of jurisdictions that have addressed this issue have found that the resolution turns on the purpose the fine, penalty, or order is to serve. Typically, jurisdictions have identified two purposes for the sanctions associated with a criminal conviction: penal and compensatory. 27 The majority of jurisdictions abate or dismiss sanctions that are primarily penal. 28 8] However, where the intent behind a fine or order is to compensate the victim, the fine or order may survive the death of the offender. 29 Although the distinction between penal and compensatory is helpful, it is not always clear. Indeed, with almost any sanction, it is possible to identify both penal and compensatory purposes.
In this case, we address whether an order of restitution should abate on the death of defendant. Although defendant argued that the order was a penalty because it would force him to pay a large sum of money, the order was designed to compensate the City of Detroit Fire Department and Michigan Basic for their combined costs of approximately $456,000. Pursuant to stipulation by the parties, a substantial portion of those costs were to be recouped by the victims through restitution. However, the fact that defendant, now his estate, will experience some "financial pain" does not transform the restitution order into a primarily penal sanction. Erasing the order of restitution or even attempting to divine the portion of the order that the trial judge acknowledged he hoped would cause some "financial pain" is inconsistent with the Michigan Constitution and the Michigan Crime Victim's Rights Act. These laws authorized the payment of restitution, because the victims had suffered significant losses as a result of defendant's criminal conduct.
The Michigan Crime Victim's Rights Act was enacted in 1985 in response to growing recognition of the concerns of crime victims. The act codifies a crime victim's right to restitution, while leaving to the discretion of the sentencing judge the form the restitution will take:
[T]he court, when sentencing a defendant convicted of a crime, shall order, in addition to or in lieu of any other penalty authorized by...
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