State v. Iii

• Decision Date: 25 March 2011
• Docket Number: Nos. S–13385,S–13573.,s. S–13385
• Citation: 249 P.3d 752
• Parties: STATE of Alaska, Petitioner,v.John T. CARLIN III, Respondent.Jimmie Dale, Petitioner,v.State of Alaska, Respondent.
• Court: Alaska Supreme Court

249 P.3d 752

STATE of Alaska, Petitioner,

v.John T. CARLIN III, Respondent.Jimmie Dale, Petitioner,

v.State of Alaska, Respondent.

Nos. S–13385

S–13573.

Supreme Court of Alaska.

March 25, 2011.

Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for State of Alaska.Marjorie Allard, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, as amicus curiae and previous counsel for Respondent Carlin.Christine S. Schleuss, Law Office of Christine Schleuss, Anchorage, for Petitioner Dale.Allen M. Bailey, Law Offices of Allen M. Bailey, Anchorage, for Amici Curiae National Crime Victim Law Institute and Alaska Office of Victims' Rights.Before: CARPENETI, Chief Justice, FABE, WINFREE, CHRISTEN, and STOWERS, Justices.

OPINION

FABE, Justice.I. INTRODUCTION

We consolidated these two cases to resolve the following question: What is the effect of the death of a criminal defendant while an appeal is pending? John Carlin III was convicted of first-degree murder. He appealed his conviction to the court of appeals and died before the opening brief was filed. Jimmie Dale was convicted of several crimes arising out of a drunk driving incident. He appealed to the court of appeals, which affirmed his conviction. He then filed a petition for hearing before this court, and we granted the petition. But after filing his opening brief, Dale died. In each case, the defendant's attorney filed a motion to dismiss the appeal and vacate the conviction pursuant to the rule of abatement we adopted in Hartwell v. State. ¹

Because of changed conditions, including increased recognition of the rights of crime victims and rejection of abatement by some state courts, we now overrule Hartwell. We hold that when a criminal defendant dies after filing an appeal, or a petition for hearing which has been granted, the defendant's conviction will stand unless the defendant's personal representative elects to continue the appeal.

II. FACTS AND PROCEEDINGSA. State v. Carlin

In September 2006 John Carlin III was indicted on a charge of first-degree murder for killing Kent Leppink a decade earlier. A jury found Carlin guilty, and the trial court sentenced Carlin to serve 99 years in prison. In a separate trial following his conviction, Carlin's co-defendant, Mechele Linehan, was also convicted of first-degree murder on the theory that she aided and abetted Carlin.² Carlin appealed his conviction, arguing that the superior court should not have admitted certain hearsay statements made by Leppink and Linehan at his trial. Among the evidence admitted by the court was a letter written by Leppink shortly before his death in which he stated that if he died under mysterious circumstances, Linehan and either Carlin or another of Linehan's boyfriends would probably be the ones responsible.

On October 27, 2008, before the opening brief in his appeal was filed, Carlin was murdered in prison. Carlin's appellate attorney from the Alaska Public Defender Agency moved to dismiss the appeal and vacate Carlin's criminal conviction under the doctrine of abatement ab initio that we adopted in Hartwell v. State. ³ The State opposed the motion, arguing in the alternative that (1) Hartwell should not apply because the abatement of Carlin's conviction could have collateral consequences for a retrial of Linehan should she be successful in appealing her conviction for aiding and abetting Carlin; or (2) the doctrine of abatement announced in Hartwell should be abandoned. The court of appeals rejected the State's arguments and granted the motion to dismiss the appeal and abate Carlin's conviction.

The State petitioned for a hearing, requesting that we revisit our ruling in Hartwell. We granted the petition and permitted the Public Defender Agency to file an amicus brief in light of its expressed concern about the propriety of continuing its representation after Carlin's death. We also invited the Office of Victims' Rights to participate as amicus curiae. After the State filed its opening brief, but before any responsive brief was filed, the court of appeals reversed Linehan's conviction, holding that it was error to admit Leppink's accusatory letter “from the grave.” ⁴

B. Dale v. State

On October 4, 2005, Jimmie Dale drove his truck off the road and down a 100–foot embankment, seriously injuring his two female passengers.⁵ A sergeant of the Alaska State Troopers, who responded to the scene, learned that Dale had left on foot. The sergeant located Dale a short distance away and believed that Dale had been drinking.⁶ Dale was taken to a hospital along with his passengers,⁷ and there a trooper directed the staff to take a blood sample from Dale without first obtaining a warrant. The test, taken more than three hours after the accident, revealed a blood-alcohol content between 0.07 and 0.08.⁸

Dale was charged with driving under the influence, driving with a suspended license, two counts of assault in the first degree, two counts of assault in the third degree, and failure to remain at the scene and render assistance after an accident causing injury. Dale moved to suppress the results of the blood test on Fourth Amendment grounds,⁹ arguing that the warrantless blood draw was not supported by exigent circumstances. The superior court denied Dale's motion, and a jury convicted him of all charges.¹⁰ He was sentenced to 23 years and 40 days in prison. The court of appeals affirmed.¹¹

Dale then filed a petition for hearing, raising the issue of whether exigent circumstances always exist in DUI cases. We granted the petition and set a briefing schedule. After Dale filed his opening brief, but before the State filed its opposition, Dale died in prison. The State moved to dismiss the appeal, leaving intact the decision by the court of appeals. Dale's counsel requested that the appeal continue unless Dale's conviction was abated. We stayed further briefing on the merits of Dale's petition and ordered full briefing on the “abatement issue presented by Dale's death,” inviting the National Crime Victim Law Institute and the Alaska Public Defender Agency to submit amicus briefs. In addition, we consolidated the matter with State v. Carlin for argument, consideration, and decision.

III. STANDARD OF REVIEW

In State v. Carlin, the State challenges the decision by the court of appeals to dismiss Carlin's appeal and abate his criminal prosecution under the common law doctrine of abatement. We apply our independent judgment to questions of law, such as the formulation and scope of common law rules. ¹² In Dale v. State, the issue of abatement was first raised in a motion before this court, so there is no decision by a lower court to review. We will overturn one of our prior decisions only when we are “clearly convinced that the rule was originally erroneous or is no longer sound because of changed conditions, and that more good than harm would result from a departure from precedent.” ¹³

IV. DISCUSSIONA. Hartwell v. State¹⁴

In 1967 we addressed the following question: “[W]hat effect does the death of the appellant, pending disposition of his appeal from a criminal conviction, have on the proceedings.” ¹⁵ Robert Hartwell was found guilty by a jury of the crime of incest and sentenced to seven years in prison with five years suspended.¹⁶ He appealed his conviction and sentence to this court but died before his appeal was heard. We requested briefing from the parties on the effect of Hartwell's death. The State submitted a three-page brief requesting that we abate Hartwell's criminal proceedings, a position different from the one it takes today, and describing abatement ab initio as the “universal rule” absent a statute to the contrary. Hartwell's attorney submitted a one-page letter requesting that we resolve the appeal, noting that Hartwell's “reputation while alive is important to his three remaining children.”

We adopted the doctrine of abatement ab initio, holding that “all proceedings are permanently abated as to appellant by reason of his death pending the appeal.” ¹⁷ We gave three reasons for our holding: (1) “A majority of the federal and state courts where the question has arisen” had adopted the doctrine of abatement ab initio; (2) maintaining the conviction did not serve either of the two “underlying principles of penal administration in Alaska[:] ... reformation and protection of the public”; and (3) “[d]eath ha[d] removed the appellant from the jurisdiction of this court.” ¹⁸

When Hartwell was decided, a criminal defendant had a right to appeal his conviction and sentence to the supreme court.¹⁹ In 1980, the Alaska Legislature created the court of appeals to hear criminal appeals. Now criminal defendants can appeal to the court of appeals as a matter of right, rather than to the supreme court.²⁰ Supreme court review of decisions by the court of appeals is discretionary, thus leaving criminal defendants with only one appeal as a matter of right.²¹

Carlin, like Hartwell, died while his appeal as a matter of right was pending. Therefore, our ruling in Hartwell controls in State v. Carlin unless Hartwell is overruled.

In contrast, Dale's appeal to the court of appeals was resolved, and his conviction affirmed. Dale died after we agreed to hear Dale's discretionary appeal. For this reason, the State argues that Hartwell is not controlling. It urges us to follow the “vast majority of courts that have addressed this issue” and have held that abatement ab initio does not apply when a criminal defendant dies during discretionary review.²² But as Dale's counsel notes, the cases cited by the State involve criminal defendants who died before the higher court acted on their request for discretionary review. There is a substantive difference between those cases and cases where, as here, the court has granted the request for discretionary review prior to the defendant's...