Opinion
Docket No. 28196.
Filed January 21, 2004.
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael R. McLaughlin, District Judge.
Motion to abate, ab initio, all criminal proceedings against appellant, granted and case remanded; motion to dismiss appeal, denied.
Molly J. Huskey, State Appellate Public Defender; Paul S. Sonenberg, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.
David William Korsen, now deceased, by and through his state appellate public defender, has filed a motion to abate, ab initio (from the beginning), the criminal proceedings against him. The state opposes Korsen's motion and has in response filed a competing motion to dismiss Korsen's appeal. We grant Korsen's motion to abate ab initio and remand the case for entry of an order of abatement. We deny the state's motion to dismiss the appeal.
I. FACTUAL AND PROCEDURAL SUMMARY
Korsen was found guilty by a 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 $13,685.03 in restitution. Korsen appealed from his judgment of conviction and sentence by filing a notice of appeal and submitting a brief in support thereof. Korsen's appeal was assigned to this Court on March 11, 2003. On March 14, 2003, Korsen was released from the Department of Corrections and placed on parole. On March 31, 2003, this Court issued an order approving the parties' stipulation to submit the case for decision on the briefs. On or about July 16, 2003, Korsen was found dead of apparent suicide. Korsen's state appellate public defender filed a motion to abate, ab initio, all criminal proceedings against Korsen. The state opposes this motion, and counters with a motion to dismiss Korsen's appeal, which if granted would have the effect of leaving the underlying conviction intact.
II. ANALYSIS
When a criminal defendant dies before his or her appeal has been resolved, appellate courts typically dispose of the matter in one of three ways. See generally Tim Thomas, J.D., Annotation, Abatement of State Criminal Cases by Accused's Death Pending Appeal — Modern Cases, 80 A.L.R. 4th 189 (1990). These options can be described as: (1) abatement ab initio; (2) dismissal of the appeal, leaving the conviction to stand unabated; (3) substitution of a third party for the appellant so the appeal can proceed. Id. Based on the competing motions before this Court and because this is a criminal case for which substitution of a third party cannot be appropriate, it is unnecessary to address the third option. Consequentially, we are left to determine which of the two remaining alternatives should apply to Korsen's case.
Korsen, citing to State v. Stotter, 67 Idaho 210, 175 P.2d 402 (1946), contends that abatement ab initio is the rule in Idaho. In Stotter, the Idaho Supreme Court noted that "[i]t appears to be the almost universal rule that the death of a defendant pending appeal from a conviction in a criminal prosecution abates the appeal," and the "portion of the judgment providing for a jail sentence necessarily abated upon the death of the appellant." Id. at 212-213, 175 P.2d at 403. The Stotter court, quoting with approval from State v. Kriechbaum, 258 N.W. 110, (Iowa 1934), continued:
The abatement is deemed to be the necessary result of the death and is not subject to any judgment or discretion of the court. The abatement applies not only to the pending proceedings in the appellate court, but applies likewise to all procedure had ab initio in the court below, including the verdict and judgment of conviction.
Id.
The state contends that because the only question before the Stotter Court was whether a fine imposed as part of the judgment against Stotter abated upon his death, the language relied on by Korsen is dicta and is not binding. While the central issue in Stotter involved a fine, the Court made clear that abatement ab initio applied to all procedures in the trial court, including the verdict and judgment of conviction. Therefore, we are obligated to follow Stotter. Furthermore, abatement ab initio is preferred by virtually all federal circuit courts and is also recognized as law in a majority of state courts. See Ex Parte Cook, 848 So.2d 916 (Ala. 2002) (stating that abatement ab initio is the law in the 2d 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, and 11th federal circuit courts of appeal, as well as in the majority of state courts). The South Dakota Supreme Court has offered the following concise rationale for the majority position: "[W]hile there is no constitutional right to appeal a criminal conviction, once the right is conferred by statute, it may not be indiscriminately denied." State v. Hoxsie, 570 N.W.2d 379, 380 (S.D. 1997). The Hoxsie court also noted that "dismissal of the appeal, without abatement of the proceedings ab initio, would permit a judgment to stand that is not final." Id. at 382.
In support of its motion to dismiss the appeal, the state contends that the rule of abatement ab initio is no longer viable in light of recent developments in Idaho law pertaining to victim's rights. Beginning in 1985, the Idaho Legislature codified the right of crime victims to receive restitution for economic losses actually suffered in result of the defendant's criminal conduct. See I.C. § 19-5304. The legislature also added rights guaranteed by statute to crime victims during the investigation, prosecution, and disposition of the crime. I.C. § 19-5306. Furthermore, the Idaho Constitution was amended in 1994 to provide crime victims with constitutionally protected rights from the beginning to the end of criminal proceedings. Idaho Const., art I, § 22. Both the statutes and the constitutional amendment emphasize the necessity of providing crime victims with compensation, fairness of process, and finality in the criminal proceedings.
The state argues that allowing Korsen's appeal and underlying conviction to abate ab initio would only exacerbate the loss suffered by his victims. In this case the district court, in addition to imposing sentence, the determinate portion already served by Korsen, also ordered that he pay $13, 685.03 in restitution, approximately $13,000 of which came from an order out of the original child custody case. Korsen does not ask that we vacate this order of restitution. Thus, abatement ab initio in this case does not undermine the right of the victims to pursue satisfaction for their economic losses.
We recognize that abatement ab initio would not be universally appropriate upon the death of an appellant during the pendency of an appeal. However, Korsen's appeal was a direct challenge to the judgment and conviction against him. Had his appeal been limited to a challenge of his sentence, such as an appeal from the denial of an Idaho Criminal Rule 35 motion, our analysis would necessarily be much different. The Colorado Court of Appeals has held that:
A defendant who dies prior to the conclusion of a direct appeal of a conviction has not obtained a final adjudication of guilt or innocence; in an appeal from the denial of [a Rule 35] motion, the conviction has become final, and there is no further need to vindicate a defendant's rights.
People v. Rickstrew, 961 P.2d 1139, 1141 (Colo.App. 1998). We agree with this reasoning. Korsen has contested the accusations against him from their inception. Korsen pled not guilty, presented a defense and filed, through the office of the State Appellate Public Defender, a brief on appeal alleging the existence of several substantive reversible errors in his trial. Therefore, Korsen's judgment cannot be deemed final. Applying Strotter, and the overwhelming case law from other jurisdictions to Korsen's appeal, abatement ab initio is appropriate.
III. CONCLUSION
We conclude that abatement ab initio is the law in Idaho. Although we note that simple dismissal of a given appeal might be more appropriate in certain factual circumstances, none of those circumstances exist in this case. We therefore grant Korsen's motion to abate ab initio and deny the state's motion to dismiss the appeal. This case is remanded to the district court for entry of an order designating that the criminal proceedings against Korsen are abated, ab initio.
Chief Judge LANSING and Judge PERRY CONCUR.