State v. Korsen
| Decision Date | 01 April 2005 |
| Docket Number | No. 31016.,31016. |
| Citation | 141 Idaho 445,111 P.3d 130 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. David William KORSEN, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Eric D. Fredericksen argued.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Lori A. Fleming argued.
The State requested review of a decision of the Idaho Court of Appeals, granting the State Appellate Public Defender's (SAPD's) motion to abate ab initio all criminal proceedings against David William Korsen. Korsen had been sentenced to concurrent unified sentences of fifteen years and ordered to pay court costs and fees after being convicted on two counts of second degree kidnapping. Korsen died while his appeal was pending. We hold that abatement applies only to the custody or incarceration provisions of a judgment of conviction, and that Korsen's conviction and order of restitution remain intact.
Korsen was found guilty by a district court jury of two counts of kidnapping in the second degree, Idaho Code § 18-4501(2) and 18-4503, for withholding his children from their mother for approximately two months in violation of a custody order. Korsen was sentenced to concurrent unified sentences of fifteen years, with two and one-half years determinate, and ordered to pay court costs and fees in the sum of $13,773.53, including $13,685.03 in restitution pursuant to Idaho Code § 19-5304.1 No fine was imposed. Korsen appealed from his judgment of conviction and sentence. The appeal was assigned to the Idaho Court of Appeals on March 11, 2003. Korsen was released from the Department of Corrections and placed on parole. On March 31, 2003, the Court of Appeals issued an order approving the parties' stipulation to submit the case for decision on the briefs.
Korsen was found dead of apparent suicide on or about July 16, 2003. The SAPD filed a motion to abate ab initio all criminal proceedings against Korsen. The State opposed that motion, and countered with a motion to dismiss Korsen's appeal, which, if granted, would have had the effect of leaving the underlying conviction intact. The Court of Appeals held that abatement ab initio is the law of Idaho, granted the SAPD's motion to abate ab initio, and denied the State's motion to dismiss. The State filed a Petition for Review which was accepted by this Court on August 10, 2004. The State asserts the SAPD did not have the authority to file the motion to abate and that the Court of Appeals erred when it granted the motion to abate ab initio.
When considering a case on review from the Court of Appeals, this Court gives serious consideration to the Court of Appeals decision. Leavitt v. Swain, 133 Idaho 624, 627, 991 P.2d 349, 352 (1999). We exercise free review over matters of law. Iron Eagle Dev., LLC v. Quality Design Systems, Inc., 138 Idaho 487, 491, 65 P.3d 509, 513 (2003).
The State asserts that Korsen's death terminated appellate counsel's authority to act on his behalf and divested the appellate court of jurisdiction to do anything other than dismiss the appeal. The State contends the only means that would have allowed appellate counsel to continue to represent Korsen's interests would have been to substitute a third party in Korsen's place under I.A.R. 7. The SAPD argues I.A.R. 7 does not apply to criminal cases and that appellate counsel had the authority, and was obligated, to act on behalf of Korsen.
The State cites McCornick v. Shaughnessy, 19 Idaho 465, 114 P. 22 (1911), to support its contention that appellate counsel did not have authority to act on Korsen's behalf following his death. In Shaughnessy, judgment was rendered in favor of the plaintiff, and the attorneys who had represented the defendants at trial filed a notice of appeal. Id. at 467, 114 P. at 22 (1911). After the appeal was perfected, the defendant died but no substitution was made in the case. Id. After noting that the attorneys who filed the appeal on behalf of Shaughnessy had apparently thereafter withdrawn and that a new attorney, who had no connection with the case prior to Shaughnessy's death, was now purporting to represent Shaughnessy, this Court dismissed the appeal. Id. at 469, 114 P. at 23. The Court stated that an attorney's authority in an action ceases upon the death of the client and that the attorney may not proceed without the substitution of a representative who can authorize him to do so.
The State acknowledges that Shaughnessy was a civil action, but argues that I.A.R. 7, which governs substitution of a party following the death or disability of a party, also applies to criminal cases. Rule 7 provides:
Upon the death or disability of a party to a proceeding governed by these rules, or upon the assignment, transfer, or the accession to the interest or office of party to a proceeding governed by these rules by another person, the representative, or successor in interest of such party shall file a notification of substitution of party and serve the same on all parties to the proceeding or appeal.
The State claims the rule extends to criminal cases because the rule states it applies to proceedings "governed by these rules" and criminal cases are governed by the Idaho Appellate Rules. The State cites U.S. v. Dwyer, 855 F.2d 144 (3d Cir.1988), as an example of a criminal case in which the court held the attorneys lost the authority to act on behalf of their client after his suicide. The Third Circuit held that the attorneys who had represented Dwyer "lacked the legal authority to act as his agents after his death and thus had no standing to move to abate his conviction" following Dwyer's suicide, which occurred after his conviction and prior to his sentencing. U.S. v. Dwyer, 855 F.2d 144, 145 (3d Cir.1988). However, in 2001 the Third Circuit suggested that the issue of appellate court jurisdiction is not present where the defendant dies after appealing, as is the situation here, as opposed to before an appeal has been filed, as was the case in Dwyer. U.S. v. Christopher, 273 F.3d 294, 297 (3d Cir.2001). The court held that Dwyer is "clearly distinguishable from a situation in which the defendant dies after appealing the entry of a judgment of sentence." Id.
The SAPD argues that no substitution is required in a criminal case where the defendant dies while an appeal is pending. The SAPD notes that the right of an attorney to withdraw from representation of a client differs greatly, depending on whether the case is a criminal or civil matter. An attorney in a criminal case may not withdraw from representation of a defendant without leave of court under I.C.R. 44.1. Rule 44.1 provides:
No attorney may withdraw as an attorney of record for any defendant in any criminal action without first obtaining leave and order of the court upon notice to the prosecuting attorney and the defendant except as provided in this rule. Leave to withdraw as the attorney of record for a defendant may be granted by the court for good cause. Provided, an attorney may withdraw at any time after the final determination and disposition of the criminal action by the dismissal of the complaint or information, the acquittal of the defendant, or the entry of a judgment of conviction and sentence; but in the event of conviction an attorney may not withdraw without leave of the court until the expiration of the time for appeal from the judgment of conviction.
From this, the SAPD asserts that appellate counsel not only had the right to file the motion to abate, but also had the obligation to continue to act in Korsen's best interests. It is argued this obligation could only be terminated at the final determination and disposition of the criminal action or following a motion and showing good cause. The SAPD urges this Court to agree with the South Dakota Supreme Court when it stated:
[T]here is no statute or provision of the state constitution that provides for disposition of a criminal appeal in the event of the death of a defendant pending that appeal. Our state's statutes allowing substitution of a party in the event of the party's death, SDCL 15-6-25(a)—(e), have heretofore been applied only to civil litigation and, under the present statutory scheme, cannot be construed to apply to criminal appeals.
State v. Hoxsie, 570 N.W.2d 379, 379-80 (S.D.1997). Like the Idaho rule that governs substitution, the statute referred to by the South Dakota Supreme Court does not specifically state that it only applies to civil actions.
Of further interest in this regard is the fact that I.R.C.P. 25(a) specifically provides for the substitution of a successor or representative of a deceased party in a civil action. The Idaho Criminal Rules contain no comparable provision. Idaho Appellate Rule 7 appears to be the appellate counterpart of I.R.C.P. 25(a). Both rules are primarily designed to allow for the substitution of a successor or representative to carry on and conclude civil litigation upon the death of a deceased party.
In this case, no issues of a civil nature have been presented on appeal. Korsen has not directly challenged the restitution order. Thus, we do not address the questions of whether a representative or successor may challenge a restitution order following the death of a convicted criminal appellant or whether substitution is required or appropriate in such a matter. We hold that substitution under I.A.R. 7 is not necessary in the circumstances of this case, where the attorney for the deceased criminal appellant has not been granted leave to withdraw and merely wishes to conclude the criminal proceeding.
Having concluded that the motions of the parties are properly before the Court, we now turn to consideration of...
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