State v. Reed

• Decision Date: 22 January 2019
• Docket Number: No. 1 CA-CR 17-0620,1 CA-CR 17-0620
• Citation: 246 Ariz. 138,435 P.3d 1044
• Parties: STATE of Arizona, Appellee, v. Richard Allen REED, Appellant.
• Court: Arizona Court of Appeals

246 Ariz. 138

435 P.3d 1044

STATE of Arizona, Appellee,

v.Richard Allen REED, Appellant.

No. 1 CA-CR 17-0620

Court of Appeals of Arizona, Division 1.

FILED January 22, 2019

Arizona Attorney General’s Office, Phoenix, By Elizabeth B. N. Garcia, Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix, By Nicholaus Podsiadlik, Counsel for Appellant

Chief Judge Samuel A. Thumma delivered the Opinion of the Court, in which Presiding Judge James P. Beene and Judge James B. Morse Jr. joined.

THUMMA, Chief Judge:

¶1 Defendant Richard Allen Reed died while this appeal of a criminal restitution order entered against him was pending. The State then sought dismissal of his appeal pursuant to Arizona Revised Statutes (A.R.S.) section 13-106(A) (2018),¹ which states that "[o]n a convicted defendant’s death, the court shall dismiss any pending appeal." Because that statute is constitutional as applied, this appeal is dismissed.

FACTS AND PROCEDURAL HISTORY

¶2 The State charged Reed with voyeurism, a Class 5 felony, committed in January 2015. The victim hired an attorney to assist her during the criminal proceedings. The jury found Reed guilty; he was placed on probation and this court affirmed in a prior appeal. See State v. Reed , 1 CA-CR 16-0269, 2017 WL 1325647 (Ariz. App. Apr. 11, 2017) (mem. dec.).

¶3 Meanwhile, the State filed a motion requesting restitution, including the victim’s attorneys’ fees. After an evidentiary hearing, the superior court awarded the victim attorneys’ fees and granted in part and denied in part other requested restitution. Reed timely filed this second appeal challenging that restitution order. See State v. French , 166 Ariz. 247, 248 n.3, 801 P.2d 482, 483 n.3 (App. 1990) (noting an "order of restitution is a separately appealable order").

¶4 When Reed died while this appeal was pending, the State sought dismissal pursuant to A.R.S. § 13-106(A). Reed’s counsel objected, claiming the statute was unconstitutional. The court allowed Reed’s counsel, the State and others to file briefs on the constitutionality of Section 13-106 and the availability of any other forum to challenge a restitution order.²

DISCUSSION

I. A.R.S. § 13-106.

¶ 5 Enacted effective July 24, 2014, A.R.S. § 13-106 states:

A. On a convicted defendant’s death, the court shall dismiss any pending appeal or postconviction proceeding.

B. A convicted defendant’s death does not abate the defendant’s criminal conviction or sentence of imprisonment or any restitution, fine or assessment imposed by the sentencing court.

A legislative fact sheet states the statute was a response to: (1) State v. Griffin , 121 Ariz. 538, 592 P.2d 372 (1979) (noting Arizona’s common law abatement rule means a defendant’s death "pending appellate review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception") and (2) State v. Glassel , 233 Ariz. 353, 312 P.3d 1119 (2013) (holding abatement does not apply to post-conviction relief proceedings after an appeal). See Ariz. Senate Fact Sheet, H.B. 2593, 51st Leg., 2d Reg. Sess. (Ariz. 2014). A brief history of the rule of abatement provides helpful background for this appeal.

II. The Rule Of Abatement.

¶6 The rule of abatement, sometimes called "abatement ab initio ," is based on the common law principle that "all private criminal injuries or wrongs, as well as all public crimes, are buried with the offender." United States v. Daniel , 47 U.S. (6 How.) 11, 14, 12 L.Ed. 323 (1848). The concept has ancient roots, as evidenced by a British statute enacted in 1330 providing an exception to abatement. Torts. Right of Privacy. Survival of Action , 46 Colum. L. Rev. 315, 315 n.6 (1946) (citing authority). The "unanimous" approach in federal court is that "death pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception." Durham v. United States , 401 U.S. 481, 482-83, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971). Federal courts have held that, "[i]f the sentence included a fine, this rule of abatement ab initio prevents recovery against the estate." United States v. Oberlin , 718 F.2d 894, 895 (9th Cir. 1983). As conceded in Durham , however, United States Supreme Court cases applying abatement "are not free of ambiguity." 401 U.S. at 482, 91 S.Ct. 858.³

¶7 Four Arizona state court opinions have addressed abatement in criminal matters. The first, decided in 1976, dismissed an appeal when the defendant died, noting "[t]he generally conceded grounds for mootness are that in the event the judgment of conviction is affirmed, it is impossible of execution, and if the judgment is reversed, the accused is unavailable for a new trial." State v. Richards , 26 Ariz. App. 41, 41-42, 545 P.2d 1003 (1976). Richards , however, did not address "the effect of the dismissal of this appeal upon the underlying conviction appealed from," or "whether a fine or forfeiture of property based upon the prior conviction would require the same determination of mootness." Id.

¶8 Three years later, the Arizona Supreme Court held that a criminal defendant’s "death pending appeal abates the appeal and the conviction" and remanded "with directions to dismiss the indictment." Griffin , 121 Ariz. at 539, 592 P.2d at 373. Griffin , however, left unresolved whether abatement "should include an order for reimbursement of the fine and restitution" defendant had paid before he died. Id. Although a civil case, In re Estate of Vigliotto stated that "a restitution order, albeit one that is an allocated portion of a fine, survives a defendant’s death." 178 Ariz. 67, 69, 870 P.2d 1163, 1165 (App. 1993).

¶9 Twenty years later, Glassel held that abatement did "not apply when a defendant dies after his conviction is affirmed, but while postconviction relief proceedings are pending." 233 Ariz. at 353 ¶ 1, 312 P.3d 1119, 1119. Glassel , however, declined to address arguments by amicus curiae filed on behalf of victims that abatement violates victims’ rights and that other states "have abandoned or modified the doctrine." Id. at 355 ¶ 12, 312 P.3d at 1121. The year after Glassel , the Legislature enacted A.R.S. § 13-106.

¶10 Given Reed’s death while this appeal was pending, Section 13-106 directs that the appeal be dismissed and that his death "does not abate" his conviction, sentence "or any restitution, fine or assessment imposed by the sentencing court." A.R.S. § 13-106(A) & (B). Reed’s counsel makes no argument to the contrary, arguing instead that Section 13-106 is unconstitutional for various reasons. Before addressing those arguments, the State’s standing argument must be resolved.

III. Standing.

¶11 The State argues Reed’s right to appeal ended when he died and that his counsel "and third parties — including the personal representative of Reed’s estate" lack standing to challenge the constitutionality of Section 13-106. In essence, the State argues that no one would ever have standing to challenge Section 13-106. The State concedes, however, that "standing is not a constitutional jurisdictional requirement in the state courts of Arizona." State v. B Bar Enters., Inc. , 133 Ariz. 99, 101 n.2, 649 P.2d 978, 980 (1982). Instead, Arizona’s standing requirement is prudential. See Bennett v. Brownlow , 211 Ariz. 193, 196 ¶ 14, 119 P.3d 460 (2005).

¶12 Prudential standing under Arizona law requires "a distinct and palpable injury," which "sharpens the legal issues presented by ensuring that true adversaries are before the court and thereby assures that our courts do not issue mere advisory opinions." Sears v. Hull , 192 Ariz. 65, 69 ¶ 16, 71 ¶ 24, 961 P.2d 1013, 1017, 1019 (1998). In "exceptional circumstances," this prudential standing requirement has been waived, "generally in cases involving issues of great public importance that are likely to recur." Id. at 71 ¶ 25, 961 P.2d at 1019.

¶13 In Glassel and Griffin , the Arizona Supreme Court tacitly found appeals involving abatement are just such "exceptional circumstances" where standing is waived. See Glassel , 233 Ariz. at 354, 312 P.3d at 1120 (allowing defense counsel to brief petition for review and merits, and present oral argument, after defendant died while his post-conviction relief petition was pending); Griffin , 121 Ariz. at 538, 592 P.2d at 372 (allowing defense counsel to file petition for review and brief merits after defendant died while appeal was pending). For these same reasons, in this unique setting, the constitutional challenges pressed by Reed’s counsel to the application of Section 13-106 do not fail for lack of standing.

IV. Challenges To The Application Of A.R.S. § 13-106.

¶14 Reed’s counsel argues Section 13-106 (1) abrogates a criminal defendant’s appeal rights under the Arizona Constitution; (2) violates separation of powers principles; (3) violates due process and (4) is an improper bill of attainder. "When a state statute conflicts with Arizona’s Constitution, the constitution must prevail." Dobson v. State ex rel. Comm’n on Appellate Court Appointments , 233 Ariz. 119, 124 ¶ 17, 309 P.3d 1289, 1294 (2013). There is, however, "a strong presumption supporting the constitutionality of any legislative enactment." State v. Tocco , 156 Ariz. 116, 119, 750 P.2d 874, 877 (1988). "[T]he burden of proof is on the opponent of the statute to show it infringes upon a constitutional guarantee or violates a constitutional principle." State v. Casey , 205 Ariz. 359, 362 ¶ 11, 71 P.3d 351, 354 (2003) (citation omitted). Using these standards, the court addresses these arguments in turn.

A. The Right To Appeal.

¶15 Reed’s counsel argues that Section 13-106"directly conflicts with the constitutional right to appeal by removing that right." Arizona’s Constitution provides that, "[i]n criminal prosecutions, the accused shall have ... the right to appeal in all cases." Ariz. Const. art. 2, § 24 ; accord A.R.S. § 13-4031 ("Right of appeal"); A.R.S. § 13-4033 ("Appeal by defend...