State v. McGettrick, 86-89

• Decision Date: 24 June 1987
• Docket Number: No. 86-89,86-89
• Citation: 31 Ohio St.3d 138,31 OBR 296,509 N.E.2d 378
• Parties: , 31 O.B.R. 296 The STATE of Ohio, Appellant, v. McGETTRICK, Appellee.
• Court: Ohio Supreme Court

Page 138

31 Ohio St.3d 138

509 N.E.2d 378, 31 O.B.R. 296

The STATE of Ohio, Appellant, v. McGETTRICK, Appellee.

No. 86-89.

Supreme Court of Ohio.

June 24, 1987.

Syllabus by the Court

1. When a criminal defendant-appellant dies while his appeal is pending and, subsequently, within a reasonable time, a personal representative of the decedent is appointed, that representative may be substituted as a party on motion by the decedent's representative or the state under the then existing style of the case, and the court of appeals shall proceed to determine the appeal. Absent such a motion, filed within a reasonable time by the state, for substitution of a party, the court of appeals may dismiss the appeal as moot, vacate the original judgment of conviction and dismiss all related criminal proceedings, including the original indictment. (App.R. 29[A], construed and applied.)

2. When a criminal defendant-appellant dies while his appeal is pending and no personal representative is, within a reasonable time, subsequently appointed, the state may suggest the decedent's death on the record and, upon motion by the state for substitution of a party, the court of appeals should substitute any proper person, including the decedent's attorney of record, as party defendant-appellant and proceed to determine the appeal. Absent such a motion for substitution of a party, filed within a reasonable time by the state, the court of appeals may dismiss the appeal as moot, vacate the original judgment of conviction and dismiss all related criminal proceedings, including the original indictment. (App.R. 29[A], construed and applied.)

3. If a convicted defendant in a criminal case dies prior to the filing of a notice of appeal, the decedent's personal representative or, if he has no representative, his attorney of record, may file the notice of appeal. Absent such timely notice of appeal, the original judgment of conviction shall stand with full force and effect as a valid, subsisting judgment of the trial court. (App.R. 29[A], construed and applied.)

In 1984, appellee, James J. McGettrick, was a duly elected, actively serving judge in the Cuyahoga County Court of Common Pleas. On April 17, 1984, appellee was indicted on two counts of bribery, pursuant to R.C. 2921.02, for accepting $5,000 to influence the discharge of his duties as judge in the then pending criminal case of State of Ohio v. Fencyl, case No. 174472. Subsequently, on May 11, 1984, appellee was indicted on an additional count of bribery for accepting $6,900 to influence the discharge of his duties as judge in the then pending criminal case of State of Ohio v. Amato, case No. 174474. The separate indictments were consolidated for trial.

Prior to trial, appellee moved to suppress evidence seized under what appellee contended to be constitutionally inform general exploratory search warrants. This motion was overruled. Following the trial court's denial of the motion to suppress, appellee withdrew his pleas of not guilty and entered pleas of no contest to the three counts contained within the indictments. The court found the defendant-appellee guilty of bribery under R.C. 2921.02 on all three counts charged within the indictments. Appellee was sentenced to a four-year definite term of confinement in the Chillicothe Correctional Institution and fined a total of $15,000. ¹ Appellee filed a timely appeal to the court of appeals. It is undisputed that appellee died while the appeal was pending. Following appellee's death, his counsel filed a motion in the court of appeals to abate all proceedings, vacate the original judgment of conviction and dismiss the original indictment. This motion was granted by the court of appeals on the basis of its prior holding in State v. Blake (1977), 53 Ohio App.2d 101, 7 O.O.3d 71, 371 N.E.2d 843.

The court of appeals, finding its judgment to be in conflict with the judgment of the Court of Appeals for Summit County in State v. Sholiton (1954), 70 Ohio Law Abs. 385, 128 N.E.2d 666, certified the record of the case to this court for review and final determination.

John T. Corrigan, Pros. Atty., George J. Sadd and Edward M. Walsh, Cleveland, for appellant.

Gold, Rotatori, Schwartz & Gibbons Co., L.P.A., John S. Pyle, Cleveland, Lane, Alton & Horst, Jeff Jurca and Theodore S. Holtz, Columbus, for appellee.

DOUGLAS, Justice.

Former Judge McGettrick, a convicted criminal defendant, died while the appeal of his conviction was pending. We are now called upon to decide what effect, if any, his death had on both the pending appeal and the original conviction.

Appellant state of Ohio contends that appellee's death moots the appeal, yet leaves the judgment of the trial court in full force and effect. ² Conversely, appellee's counsel asserts, and the court of appeals held, that the death not only moots the appeal, but additionally abates ab initio all proceedings involved in the criminal prosecution. ³

To hold as the appellant seeks us to hold would effectively preclude a convicted criminal defendant from exercising his constitutional right to a direct review of his criminal conviction. This would be so even if there was a major prejudicial error committed before or during trial or, not inconceivably, it was later shown that the deceased had not committed the crime for which he had been convicted. Such a holding would be violative of the convicted criminal defendant's fundamental rights, even though he be deceased.

Alternatively, the defendant-appellee's counsel would have us hold that the death of the defendant during the pendency of his appeal renders the appeal moot and since such a defendant would not have had his full right of review, the appeal should be dismissed, the original judgment of conviction vacated and the original indictment dismissed. To accept appellee's position would require us to ignore the fact that the defendant has been convicted and, therefore, no longer stands cloaked with the presumption of innocence during the appellate process. Such a holding would not be fair to the people of this state who have an interest in and a right to have a conviction, once entered, preserved absent substantial error.

For the reasons that follow, we decline to follow the position of either appellant or appellee, finding instead that it is not necessary to offend the rights or interests of either party in cases such as the one now before us.

It is in the interest of the defendant, the defendant's estate ⁴ and society that any challenge initiated by a defendant to the regularity of a criminal proceeding be fully reviewed and decided by the appellate process. Commonwealth v. Walker (1972), 447 Pa. 146, 148, 288 A.2d 741, 742, at fn.; State v. Jones (1976), 220 Kan. 136, 551 P.2d 801. App.R. 29(A) ⁵ provides a means by which such interests may be protected.

App.R. 29(A) initially provides in part:

"If a party dies after a notice of appeal is filed or while a proceeding is otherwise pending in the court of appeals, the personal representative of the deceased party may be substituted as a party on motion filed by the representative, or by any party, with the clerk of the court of appeals. * * * " (Emphasis added.)

The rule clearly permits the decedent's personal representative to be substituted as a party on motion by either the representative or the state. Once such a motion is filed, the court of appeals should proceed to substitute the decedent's representative as a party and continue the determination of the appeal. Thus, if herein there was an appointed personal representative of the estate of the defendant-decedent McGettrick, either that representative or the state may have moved the court of appeals for a substitution of party. Upon substitution, the appeal could then have been fully determined.

Accordingly, we construe this part of App.R. 29(A) as providing that when a criminal defendant-appellant dies while his appeal is pending and, subsequently, within a reasonable time, a personal representative of the decedent is appointed, that representative may be substituted as a party on motion by the decedent's representative or the state under the then existing style of the case and the court of appeals shall proceed to determine the appeal. Absent such a motion, filed within a reasonable time by the state, for substitution of a party, the court of appeals may dismiss the appeal as moot, vacate the original judgment of conviction and dismiss all related criminal proceedings, including the original indictment.

App.R. 29(A) further provides that: " * * * [i]f the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the court of appeals may direct. * * * " (Emphasis added.) Thus, if there is no personal representative of the decedent appointed, any party may suggest the decedent's death on the record ⁶ and proceedings may then be had as the court of appeals directs. We interpret this to mean that if the state "suggest[s] the death on the record" and within a reasonable time moves the court for a substitution of party, the court of appeals should substitute any proper person as a party, including the decedent's attorney of record, and continue with the determination of the appeal.

In the case now before us, the death was suggested on the record by appellee's attorney not for the purpose of continuing the appeal process but instead only for purposes of dismissing the appeal, vacating the original judgment and dismissing the original indictment. Given our interpretation of the first part of App.R. 29(A), we find that the state should be given the opportunity to "suggest the death on the record" and if the state does so and subsequently or simultaneously moves for substitution of a party defendant, then the appeal process should continue.

Therefore, we hold that when a criminal defendant-appellant dies while his appeal is pending and no personal representative is,...