State v. Devlin

• Decision Date: 30 November 2011
• Docket Number: No. 29363–7–III.,29363–7–III.
• Citation: 267 P.3d 369,164 Wash.App. 516
• Parties: STATE of Washington, Respondent and Cross–Appellant, v. Christopher Harrison DEVLIN, Appellant.
• Court: Washington Court of Appeals

164 Wash.App. 516

267 P.3d 369

STATE of Washington, Respondent and Cross–Appellant,

v.Christopher Harrison DEVLIN, Appellant.

No. 29363–7–III.

Court of Appeals of Washington, Division 3.

Oct. 27, 2011.Reconsideration Denied Nov. 30, 2011.

David L. Donnan, Gregory Charles Link, Washington Appellate Project, Seattle, WA, for Appellant/Cross–Respondent.

Larry D. Steinmetz, Mark Erik Lindsey, County Prosecuting Attorney Office, Spokane, WA, for Respondent/Cross–Appellant.

Joanne Irene Moore, Sean Joseph Flynn, Office of Public Defense, Olympia, WA, Amicus Curiae on behalf of Office of Public Defense.Pamela Beth Loginsky, Washington Assoc of Prosecuting Atty, Olympia, WA, Amicus Curiae on behalf of Washington Association of Prosec.Suzanne Lee Elliott, Attorney at Law, Travis Stearns, Washington Defender Association, Seattle, WA, Amicus Curiae on behalf of Washington Assoc. of Criminal De.David L. Donnan, Gregory Charles Link, Washington Appellate Project, Seattle, WA, for Other Parties.KULIK, C.J.

[164 Wash.App. 518] ¶ 1 The question presented here is whether a substituted party for a deceased criminal defendant on appeal may proceed at public expense under the deceased's order of indigency. We conclude that the substituted party, Christopher Devlin's estate, must independently pursue an order of indigency under RAP 15.2(c).¹ Accordingly, we vacate the order of indigency granted to Mr. Devlin and remand to the superior court for consideration of the indigency of Christopher Devlin's estate. Under RAP 15.2(c), the substituted party must demonstrate that the issues on appeal have probable merit and that the party has a constitutional or statutory right to that review at public expense.

FACTS

¶ 2 On September 16, 2010, Mr. Devlin was convicted by a jury of first degree murder with aggravating circumstances. He was sentenced to life without possibility of early release and ordered to pay $800 in legal financial obligations. By separate order entered on January 20, 2011, the court imposed restitution of $7,097 for crime victim compensation. RCW 9.94A.753. Mr. Devlin's attorney filed a notice of appeal and an order of indigency on September 16, 2010. Four days later, Mr. Devlin died in his jail cell of a drug overdose.

¶ 3 On October 21, 2010, Leslee Devlin, Mr. Devlin's sister and a resident of New York, filed a notice of substitution of party with this court. The notice was treated as a motion. After the State filed an objection to the substitution of party, the commissioner stayed the substitution question pending the trial court's appointment of Ms. Devlin as the personal representative of the deceased.

¶ 4 On December 30, 2010, Ms. Devlin was appointed administrator of Mr. Devlin's estate. The appointment order states that “[s]ince the assets of the Decedent's estate are minimal and the only asset of the estate has secured indebtedness in excess of its market value, cash bond should be waived.” Order Granting Letters of Administration and for Authority to Participate in the Criminal Appeal, In re Estate of Devlin, No. 10–4–01659–9, at 2 (Spokane County Super. Ct., Wash., Dec. 30, 2010).

¶ 5 In January 2011, the commissioner of this court ruled that Ms. Devlin could substitute for her deceased brother, but raised sua sponte the question “whether Ms. Devlin may proceed with this appeal at State expense under Christopher Devlin's Order of Indigency.” Commissioner's Ruling, State v. Devlin, 164 Wash.App. 516, ––––, 267 P.3d 369 (2011). The parties were directed to brief this issue. Additionally, amicus briefs have been filed by the Washington State Office of Public Defense (OPD), Washington Association of Criminal Defense Lawyers (joined by Washington Defender Association), and Washington Association of Prosecuting Attorneys (WAPA).

ANALYSIS

¶ 6 The issue before this court is one of first impression: whether a substituted party may proceed with a criminal appeal at public expense under the deceased appellant's order of indigency. Our analysis begins with a short history of the evolution of the Washington rule of abatement.

Abatement Ab Initio and the Webb² Rule

¶ 7 Abatement ab initio was first adopted by the Washington Supreme Court over 90 years ago in State v. Furth, 82 Wash. 665, 667, 144 P. 907 (1914). Furth held that if a criminal defendant dies while the appeal is pending, the appeal is dismissed and the entire criminal conviction is abated. The Furth rule was based on the principle that criminal punishment is designed to punish the offender, not the defendant's heirs or beneficiaries. State v. Webb, 167 Wash.2d 470, 473, 219 P.3d 695 (2009). After the defendant dies, the innocent heirs are shielded from “ ‘financial obligations intended to punish their deceased ancestors.’ ” Id. (quoting State v. Devin, 158 Wash.2d 157, 162–63, 142 P.3d 599 (2006)). The rule of abatement ab initio established in Furth was followed in Washington for many years and is still the rule in the majority of state courts. Id.; State v. Carlin, 249 P.3d 752, 762 (Alaska 2011).

¶ 8 In 2006, the Supreme Court in Devin overruled Furth to the extent that the older case automatically abated convictions and victim compensation orders when a defendant died during a pending appeal. Devin, 158 Wash.2d at 171–72, 142 P.3d 599. The appeal in Devin was dismissed because the defendant untimely filed it before he died. But the Supreme Court additionally ruled that Furth conflicted with modern laws that compensate crime victims because abatement ab initio may deprive victims of restitution. Id. at 167–68, 171, 142 P.3d 599. Although Devin abolished the automatic rule of abatement, it did not prohibit abatement of legal financial obligations and left open the option of an appeal on the merits:

[W]e do not preclude courts from abating financial penalties still owed to the county or State, as opposed to restitution owed to victims, where the death of a defendant pending an appeal creates a risk of unfairly burdening the defendant's heirs. We also do not preclude courts from deciding a criminal appeal on the merits after the appellant has died, if doing so is warranted.

Id. at 172, 142 P.3d 599.

¶ 9 The Washington Supreme Court again addressed the abatement rule in Webb, 167 Wash.2d at 472, 219 P.3d 695. In Webb, the defendant timely appealed a conviction of presenting a fraudulent insurance claim and obtained an order of indigency. He was murdered while his appeal was pending. Mr. Webb's appointed counsel then moved the appellate court to abate the conviction and all legal financial obligations; no order of restitution was ever filed. Relying on Devin, the Court of Appeals dismissed the appeal and declined to abate the conviction or the financial obligations. Id.

¶ 10 On review, the Washington Supreme Court held that a deceased defendant's right to appeal does not mandate abatement of the conviction and monetary obligations.³ Id. at 475, 219 P.3d 695. Then Webb explained how, following Devin, “an heir may establish that financial obligations other than restitution are unfairly burdensome and under what circumstances an appeal on the merits is warranted.” Id. at 476, 219 P.3d 695. The court held that substitution of parties on appeal under RAP 3.2 was the appropriate avenue for heirs to challenge the deceased's financial obligations and to pursue the appeal on its merits. Webb, 167 Wash.2d at 472, 477, 219 P.3d 695.

[164 Wash.App. 522] ¶ 11 Specifically, Webb addressed three scenarios for pursuing appeals after the appellant's death. First, substitution allows the deceased defendant's heirs to argue that the financial obligations under the judgment, other than restitution, impose an unfair burden. Id. at 477, 219 P.3d 695. Second, substitution may be used to successfully challenge the conviction on the merits. Under this scenario, remand for retrial is impossible, but the conviction and all associated financial obligations, including restitution, are abated. Id. at 478, 219 P.3d 695. Third, “the substituted party may be successful in establishing that some or all financial obligations, including restitution, were incorrectly imposed or improperly calculated (as a matter separate from whether the financial obligation would impose an unfair burden on the heirs).” Id. If no one substitutes for the deceased appellant, the conviction and all financial obligations will stand. Id. at 478 n. 1, 219 P.3d 695.

¶ 12 Webb was remanded to the Court of Appeals to allow a motion to substitute. Id. at 479, 219 P.3d 695. A motion to substitute was granted by the Court of Appeals and a due date for the appellant's opening brief was set. Shortly thereafter, however, a joint motion to dismiss the appeal was filed and the appeal was dismissed without further action by the court. Although the substituted party continued to be represented by appointed counsel up to dismissal, it is unknown whether representation would have continued at public expense.

The Order of Indigency

¶ 13 Mr. Devlin's appointed counsel contends Ms. Devlin, as the personal representative of Mr. Devlin's estate, has stepped into the shoes of Mr. Devlin and, therefore, is entitled to appointed counsel under Mr. Devlin's order of indigency. He notes that because Mr. Devlin was found to be indigent, his estate is by definition indigent as well. See RAP 15.2(f) (continued indigency is presumed unless the trial court finds that the party is no longer indigent).

[164 Wash.App. 523] ¶ 14 The petitioner carries the burden of proving qualification for an order of indigency. State v. Clark, 88 Wash.2d 533, 534, 563 P.2d 1253 (1977) (citing RAP 15.2(a)). “Indigence is a relative term, and must be considered and measured in each case by reference to the need or service to be met or furnished.” State v. Rutherford, 63 Wash.2d 949, 953, 389 P.2d 895 (1964). “[I]t connotes a state of impoverishment or lack of resources on the part of a defendant which, when realistically viewed in the light of...