State v. Webb
| Decision Date | 29 October 2009 |
| Docket Number | No. 81314-1.,81314-1. |
| Citation | 167 Wn.2d 470,219 P.3d 695 |
| Parties | STATE of Washington, Respondent, v. Michael Kenneth WEBB, Petitioner. |
| Court | Washington Supreme Court |
Nancy P. Collins, Washington Appellate Project, Seattle, for Petitioners/Appellants.
James Morrissey Whisman, Brian Martin McDonald, King Co. Pros. Office, Seattle, for Appellees/Respondents.
¶ 1 Defendant Michael Webb filed a notice of appeal of his conviction but died shortly after he was sentenced. His appointed counsel moved for abatement of Webb's conviction. The Court of Appeals dismissed the appeal and declined to abate the conviction or any of the monetary amounts that Webb was ordered to pay, relying on this court's decision in State v. Devin, 158 Wash.2d 157, 142 P.3d 599 (2006). We accepted review to consider whether the deceased defendant's right to appeal requires that the conviction be abated. We conclude that it does not. However, picking up where Devin left off, we conclude that RAP 3.2, providing for substitution of parties on appeal, is the appropriate avenue for heirs to challenge financial obligations imposed on the deceased defendant and for pursuing the appeal on the merits. We reverse the Court of Appeals and remand this matter for that court to provide a reasonable time in which a motion for substitution may be made.
¶ 2 On February 2, 2007, Mr. Webb was convicted of one count of presenting a fraudulent insurance claim, a class C felony. The trial court imposed a first time offender sentence of 240 hours of community service and financial obligations: a $500 victim penalty assessment, $443.90 in court costs, a $1,000 fine, and a $100 DNA (deoxyribonucleic acid) collection fee. Although the judgment and sentence indicated that restitution remained to be determined, no order of restitution was ever filed.
¶ 3 Webb filed a timely notice of appeal. He was found to be indigent and accordingly was provided appointed appellate counsel at public expense. Mr. Webb was brutally murdered while his appeal was pending and his body was discovered in the crawl space under his home about two months after he died. When his appointed counsel learned of his death, she filed a motion in the Court of Appeals to abate the appeal and the underlying conviction and financial obligations.
¶ 4 On November 29, 2007, in reliance on this court's decision in Devin the Court of Appeals denied the motion. In Devin, we held that when a criminal defendant dies during the pendency of the appeal the conviction does not automatically abate "ab initio." The court also dismissed the appeal. On December 18, 2007, counsel filed a motion for reconsideration or, in the alternative, a stay of the order dismissing the appeal to allow counsel time to review the case and determine whether there are any meritorious issues to raise on appeal. On January 15, 2008, this motion was denied.
¶ 5 Counsel filed a petition for discretionary review.
¶ 6 Webb's counsel contends that the Court of Appeals erroneously applied our decision in Devin.
¶ 7 In Devin, the defendant filed an untimely appeal of his sentence. Later, he moved to enlarge time to cure the timeliness problems but died prior to his hearing. Devin's counsel then argued that State v. Furth, 82 Wash. 665, 144 P. 907 (1914), required abatement of the defendant's conviction. The rule of abatement ab initio in Furth was based on the principle that the object of criminal punishment is to punish the offender, not his or her heirs or beneficiaries. Once the defendant dies, this purpose cannot be carried out and the abatement doctrine "shield[s] innocent heirs from financial obligations intended to punish their deceased ancestors." Devin, 158 Wash.2d at 162-63, 142 P.3d 599. However, because the defendant in Devin had not filed a timely appeal of his conviction before his death and had only appealed his sentence, we held that the abatement ab initio rule of Furth did not apply.
¶ 8 Nevertheless, we then addressed the propriety of the abatement ab initio rule. We explained that the punishment rationale "does not reflect the compensation purpose served by restitution and victim penalty assessments" under modern law and "Furth is incorrect in stating that the `only' purpose of all criminal punishment is to punish the offender." Id. at 168, 169, 142 P.3d 599. We also rejected the premise that there is a presumption that convicted criminals are innocent pending appeal. Id. at 169, 142 P.3d 599. We overruled Furth, "to the extent that it automatically abates convictions as well as victim compensation orders upon the death of a defendant during a pending appeal." Id. at 171-72, 142 P.3d 599.
¶ 9 In this case, Mr. Webb's counsel characterizes Devin as holding only that the abatement ab initio doctrine does not apply if the defendant appealed his sentence but not his conviction. Beyond that, counsel contends, the analysis in Devin regarding abatement is dicta. Counsel urges us to align once again with the majority of courts and apply the abatement ab initio rule in cases where the defendant appealed his or her conviction and then died while the appeal was pending. He says that Devin is flawed because decisions of courts in other jurisdictions were not adequately considered when we overruled Furth. Primarily, counsel maintains that insufficient weight was given to the defendant's right to appeal, in contrast to decisions by courts in other jurisdictions.
¶ 10 In Devin, defense counsel argued that the majority of states had adopted the abatement doctrine and argued that in those states the dominant theme is that a conviction is not final absent an appeal, which is a fundamental component of the criminal process. Id. at 169-70, 142 P.3d 599. We observed, however, that counsel had not cited authority holding as a constitutional matter that abatement of a conviction is required when a defendant dies pending an appeal. Id.
¶ 11 While we overruled Furth and rejected the constitutionally based argument advanced in Devin, we did not entirely abandon abatement principles with respect to a deceased defendant's conviction and financial obligations. Rather we abolished the automatic rule of abatement ab initio. We said:
In so doing, we 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 defendants' 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. We decline, though, to fashion a new doctrine in place of the Furth "ab initio" rule.
Id. at 172, 142 P.3d 599. Thus, we left it to the appellate courts to determine whether to allow an appeal to go forward but found it unnecessary under the facts in Devin to consider the matter any further.
¶ 12 As Mr. Webb's counsel contends, in some jurisdictions the right to appeal is a critical aspect of the analysis when the defendant dies while the appeal is pending. See, e.g., Surland v. State, 392 Md. 17, 24-25, 895 A.2d 1034 (2006); see also, e.g., Rosanna Cavallaro, Better Off Dead: Abatement, Innocence, and the Evolving Right of Appeal, 73 U. COLO. L.REV. 943, 945, 960 (Summer 2002) ("[a]n often unstated premise underlies the remedy of abatement ab initio: that appellate review of a conviction is so integral to the array of procedural safeguards due a criminal defendant that incapacity to obtain such review nullifies the jury verdict"; "any theory of punishment, even one that is victim-centered, must demand accuracy from the process used to determine criminal culpability [and] appellate review acts as an essential guarantee of that accuracy"); Tim E. Staggs, Note, Legacy of a Scandal: How John Geoghan's Death May Serve as an Impetus to Bring Abatement Ab Initio in Line With the Victims' Rights Movement, 38 IND. L.REV. 507, 515-17 (2005). Even restitution orders are not immune from the purpose of an appeal: to ensure that the conviction and sentence are fairly and properly entered. Speaking generally, an award of restitution would be improper, for example, if the person awarded restitution is not entitled to it or the amount has been incorrectly determined.
¶ 13 However, as we indicated in Devin, we have been presented with no authority holding that a deceased defendant's right to appeal mandates abatement of all convictions or all monetary obligations imposed on a criminal defendant. We decline to alter our analysis in Devin.
¶ 14 Nevertheless, this case presents the opportunity to explain how to obtain the type of review that we said in Devin an appellate court could provide after a criminal defendant dies while his or her appeal is pending. More specifically, we address how an heir may establish that financial obligations other than restitution are unfairly burdensome and under what circumstances an appeal on the merits is warranted. We are guided in answering these questions by decisions in other jurisdictions where courts have concluded that substitution of parties on appeal should be allowed when a criminal defendant dies while the appeal is pending.
¶ 15 Significantly, as counsel here suggests, the right to appeal has been a factor for those courts that have allowed substitution of parties. For example, in State v. McGettrick, 31 Ohio St.3d 138, 509 N.E.2d 378 (1987), the state argued that the defendant's death mooted the appeal but the conviction should stand. The defendant's counsel argued for abatement ab initio. The court described the problems with each approach as follows:
To hold as the [state] 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...
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