State v. Devin

• Decision Date: 24 August 2006
• Docket Number: No. 76947-8.,76947-8.
• Citation: 158 Wn.2d 157,142 P.3d 599
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Jules DEVIN, Respondent.

Page 599

142 P.3d 599

158 Wn.2d 157

STATE of Washington, Petitioner, v. Jules DEVIN, Respondent.

No. 76947-8.

Supreme Court of Washington, En Banc.

Argued March 14, 2006.

Decided August 24, 2006.

Brian Martin McDonald, King County Prosecutor's Office, Seattle, for Petitioner/Appellant.

Gregory Charles Link, Washington Appellate Project, Seattle, for Appellee/Respondent.

William Berggren Collins, Carol A. Murphy, Attorney General's Office, Olympia, Amicus Curiae on behalf of Attorney General of Washington.

ALEXANDER, C.J.

¶1 The Court of Appeals vacated the attempted murder conviction of Jules Devin because, after his conviction, Devin died. We hold that, because Devin failed to file a timely appeal, it was error to apply the common law rule that when a criminal appellant dies with an appeal pending, the underlying conviction is abated as if it never happened. Furthermore, we agree with the State that the abatement rule, first established in 1914 in State v. Furth, 82 Wash. 665, 667, 144 P. 907 (1914), is in conflict with modern laws that compensate crime victims for their suffering. Accordingly, we overrule Furth to the extent that it vacates challenged convictions automatically upon an appellant's death, regardless of whether the unresolved appeal has merit or whether compensation is still owed to victims.

I. FACTS

¶ 2 On January 4, 2002, Jacqueline Galan¹ was shot in the face and neck while standing in the driveway of her Burien home as her 3-year-old daughter sat in the car nearby. At the time of the shooting, Galan was engaged in a child custody dispute with Phillip Devin, the son of Jules Devin. In May 2003, a jury convicted Jules Devin of the first degree attempted murder of Galan, his daughter-in-law. On September 12, 2003, Devin received a standard-range sentence of 300 months in prison and was ordered to pay a $500 victim penalty assessment to King County. Restitution to the victim was neither required nor ruled out at that time. At sentencing, Devin signed a "notice of rights on appeal" in which he acknowledged his right to appeal the conviction as well as a sentence outside the standard range. Clerk's Papers (CP) at 14. He was advised that his sentence was inside the standard range and that "unless a written notice of appeal is filed within 30 days after the entry of this judgment (today), the right of appeal is irrevocably waived." Id.

¶ 3 Shortly after Devin was sentenced, Galan obtained sole custody of her 3-year-old daughter. In awarding custody, the court said that Phillip Devin had cultivated a climate of fear and intimidation within his family and that his violence and threats "ultimately culminated in" his father, Jules Devin shooting Galan in front of the child. State's Mot. to Reconsider Order Vacating Conviction, App. B at 6.

¶ 4 On December 30, 2003, the King County prosecutor's office notified the court that it was unable to set a restitution amount for Galan. The prosecutor indicated that she "did not want to claim" restitution, that attempts to reach Galan had failed, and also that her health insurer had provided no documentation of its coverage of her medical costs. CP at 17.

¶ 5 Although Devin had been notified at sentencing that any appeal must be filed within 30 days, he waited nearly six months to file a notice of appeal. In his March 5, 2004, notice of appeal, Devin sought review only of his sentence, not his conviction.²

¶ 6 About a month later, Devin's newly appointed appellate counsel was notified that Devin's notice of appeal was not timely. On May 3, 2004, Devin moved to enlarge the time for filing a notice of appeal in an attempt to cure the timeliness problem.

¶ 7 In his motion to enlarge, Devin inaccurately stated that in his March 2004 notice of appeal, he sought review of his conviction, not just his sentence. Devin contended in his motion that (1) his trial counsel reportedly recalled that Devin's family agreed not to pursue an appeal, but (2) trial counsel "has not said" whether Devin himself instructed him to forgo an appeal, and (3) Devin "never elected not to appeal his case and apparently assumed a notice of appeal was filed." Mot. to Enlarge to File Notice of Appeal at 2. Based on these alleged facts, which lacked documentation, Devin contended that the record did not show that he voluntarily waived his right to appeal. The State opposed Devin's motion, pointing out that he provided no affidavits or sworn declarations from his trial counsel, himself, or others, supporting his claim that he intended all along to appeal his conviction. The State asked for a reference hearing to explore what communications took place between trial counsel and Devin and to determine if Devin voluntarily waived his right to appeal.³

¶8 On June 6, 2004, the Court of Appeals remanded the motion to enlarge to the King County Superior Court with instructions to hold a reference hearing within 60 days. Although it is not clear from the record exactly when Devin died, on November 15, 2004, Devin's counsel moved to "reverse" Devin's conviction "because Mr. Devin has died." Appellant's Mot. to Reverse & Dismiss Conviction at 1. This motion again inaccurately stated that Devin's March 2004 notice of appeal was for both his conviction and sentence. The court was told that Devin's death occurred "[p]rior to the ordered reference hearing" and that although the notice of appeal was untimely, "the State has not established that the tardy filing of the notice was the result of a knowing, intelligent and voluntary waiver of the right" to appeal. Id. at 3, 4. The motion stated that because Devin died while pursuing an appeal, his conviction must be dismissed pursuant to Furth, 82 Wash. 665, 144 P. 907.

¶9 On February 11, 2005, the Court of Appeals issued the following brief order: "The attorney representing Jules Devin has moved to reverse his conviction and remand this case to the superior court for dismissal because Devin has died. We have considered the motion and determined that the conviction should be vacated and the appeal dismissed." Order Vacating Conviction & Dismissing Appeal. A month later, the court issued an equally brief order saying—without explanation—that the State's motion for reconsideration was denied.

¶10 The King County prosecutor, on behalf of the State of Washington, petitioned this court for review of two issues: (1) whether the Furth abatement doctrine should be abandoned in light of modern victim rights policies, and (2) whether the doctrine should apply where the deceased defendant's notice of appeal was not timely. The petition included Galan's sworn declaration that the abatement of Devin's conviction has distressed her emotionally. She expressed fear that the abatement could lead to a reopening of the child custody case, which would aggravate her anxiety about the possibility of more violence. Amicus curiae, the attorney general of Washington, supported the State's position on behalf of crime victims.

II. ANALYSIS

¶11 The abatement rule first surfaced in Washington more than 90 years ago in Furth. This court said in that case, "The courts of the country, both state and Federal, have, with marked unanimity, held that the death of the defendant in a criminal case pending appeal, in the absence of a statute expressing the contrary, permanently abates the action and all proceedings under the judgment." Furth, 82 Wash. at 667, 144 P. 907. "The underlying principle is that the object of all criminal punishment is to punish the one who committed the crime or offense, and not to punish those upon whom his estate is cast by operation of law or otherwise." Id. (citations omitted).

¶ 12 Furth relied partly on the reasoning of United States v. Pomeroy, 152 F. 279 (1907), rev'd on other grounds sub nom. United States v. N.Y. Cent. & Hudson River R.R., 164 F. 324 (2d Cir.1908). In one of the earliest expressions of the policy underlying abatement, Pomeroy said that "the fundamental principle applicable to this case is that the object of criminal punishment is to punish the criminal, and not to punish his family." Id. at 282 (emphasis added).

In this case the defendant was fined $6,000. That money was not awarded as compensation to the United States. No harm had been done to the United States. It was imposed as a punishment of the defendant for his offense. If, while he lived, it had been collected, he would have been punished by the deprivation of that amount from his estate; but, upon his death, there is no justice in punishing his family for his offense.

Id. (emphasis added). Thus, the concern was with shielding innocent heirs from financial obligations intended to punish their deceased ancestors.

¶ 13 The defendant in Furth had been convicted of aiding and abetting the receiving of deposits by an insolvent bank. He was fined $10,000 plus costs and was ordered to remain in custody "until such fine and costs are paid." Furth, 82 Wash. at 667, 144 P. 907. He died while his appeal was pending, and both the State and the executrix of Furth's estate asked the court to decide the appeal on the merits. In response, this court examined Pomeroy and other cases around the country in which the abatement rule was applied and concluded, "We think the action abated as to the appellant Furth upon his death." Id. at 672, 144 P. 907. Therein, Washington's abatement rule was born.

A.

¶ 14 Besides Furth, the only published opinion in Washington applying the abatement rule is State v. Banks, 94 Wash. 237, 237-38, 161 P. 1189 (1917), consisting of a mere three paragraphs. The State contends that in Banks and Furth, this court did not clearly adopt the doctrine known as "abatement ab initio," which abates the underlying conviction and not just unpaid financial penalties upon the death of an appellant. Suppl. Br. of Pet'r at 13. Thus, the first question in this case is whether Furth or Banks embraced the "ab initio" doctrine. If not, the abatement in this case should have...