State v. Gleason

349 So.3d 977

STATE of Louisiana

v.Kenneth James GLEASON

No. 2021-K-01788

Supreme Court of Louisiana.

November 10, 2022

Hillar Clement Moore, III, Dylan Christopher Alge, for Applicant-State.

Katherine M. Franks, for Respondent-Defendant.

GRIFFIN, J.

We granted this writ to reconsider the utility of the common law procedural rule of abatement ab initio in Louisiana. Finding the doctrine to be obsolete and inconsistent with our positive law, we abandon it.

FACTS AND PROCEDURAL HISTORY

Defendant Kenneth Gleason was unanimously convicted of the first-degree murder of Donald Smart and sentenced to life imprisonment without the possibility of parole, probation, or suspension of sentence.¹

After providing written notice of his intent to appeal, Mr. Gleason died in prison. The court of appeal – adhering to this Court's precedent in State v. Morris , 328 So.2d 65 (La. 1976) – dismissed the appeal, vacated his conviction, and remanded the matter to the trial court with instructions to dismiss the indictment.

The State's writ application to this Court followed, which we granted. State v. Gleason , 21-1788 (La. 2/8/22), 332 So.3d 665.

DISCUSSION

The issue before this Court is whether we should overrule our precedent adopting the abatement ab initio doctrine.² Such questions of law are subject to de novo review. Wooley v. Lucksinger , 09-0571, p. 49 (La. 4/1/11), 61 So.3d 507, 554.

Abatement ab initio , abatement "from the beginning," provides that when a defendant dies during the pendency of a direct appeal, the appeal be dismissed, the conviction and sentence vacated, and the indictment dismissed. While the historical origins of the rule are unclear, early justification in the United States appeared premised on the acknowledgment that punishment of a deceased defendant is futile. See , e. g. , Overland Cotton Mill Co. v. People , 32 Colo. 263, 75 P. 924, 925 (1904) ("a judgment cannot be enforced when the only subject-matter upon which it can operate has ceased to exist"). This later shifted to include concerns over the legitimacy of a conviction that has not been subjected to appellate review for errors. See , e. g. , State v. Carter , 299 A.2d 891, 894 (Me. 1973) ("a judgment of conviction, in fact left under a cloud as to its validity or correctness when the defendant's death causes a pending appeal to be dismissed, should not be permitted to become a final and definitive judgment of record"). These two justifications are commonly referred to as the punishment principle and the finality principle. See Commonwealth v. Hernandez , 481 Mass. 582, 593, 118 N.E.3d 107, 117 (2019).

Louisiana first adopted the abatement ab initio doctrine in State v. Morris wherein this Court, echoing the above rationale, observed a defendant's death prevents the execution of any sentence in furtherance of punishment and reform and renders practical relief futile. 328 So.2d at 67 ("even if reversible error is found," "[o]ften the appeal results only in a new trial for which [defendant] would be unavailable"). This Court further observed that "the surviving family has an interest in preserving, unstained, the memory of the deceased defendant or his reputation." Id. The latter interest was found to be of such legal significance that a conviction should not become final when its validity has not been determined on appeal. Id. The rule has been applied by our courts consistently since its inception. See , e.g. , State v. Sargent , 21-0214 (La. App. 3 Cir. 7/14/21), 2021 WL 2948850. In the intervening years, however, multiple states have reassessed its continued application in light of changes to the positive law in the areas of victims’ rights and restitution. See State v. Al Mutory , 581 S.W.3d 741, 748 (Tenn. 2019).

The State argues this Court should abandon the abatement ab initio doctrine and adopt the "Alabama Rule" which, while dismissing the appeal, maintains the conviction with a notation in the record that, because the defendant died, his conviction was neither affirmed nor reversed. See Wheat v. State , 907 So.2d 461, 464 (Ala. 2005) ; Hernandez , 481 Mass. at 602, 118 N.E.3d at 124. The State contends this approach is consistent with Louisiana's policy shift towards the rights of crime victims. See La. Const. art. I, § 25 ; La. R.S. 46:1801, et seq. (the Crime Victims Reparation Act ("CVRA")); La. R.S. 46:1844 (the Crime Victims Bill of Rights ("CVBR")). Defense³ counters that, unlike Alabama and Massachusetts, the right to appeal in Louisiana is constitutionally protected. See La. Const. art. I, § 19 ; La. C.Cr.P. art. 912(C)(1) (defendant may appeal from a judgment that imposes a sentence); see also La. C.Cr.P. art. 922 (timely appealed judgment is precluded from being final until the last appellate delay has expired). Defense concludes that any change to the application of the abatement ab initio doctrine should be left up to the legislature.⁴

Abandoning the abatement ab initio doctrine requires overruling State v. Morris . The decision to overrule precedent may be informed by consideration of three broad factors: 1) whether the precedent was egregiously wrong when decided or later revealed as such by subsequent legal or factual understandings; 2) the precedent's negative jurisprudential or real-world effects; and 3) would overruling the precedent unduly upset reliance interests. See Harris , 18-1012, 340 So.3d at 862-63 (Crichton, J. concurring) (citing Ramos v. Louisiana , 590 U.S. ––––, 140 S.Ct. 1390, 1414-15, 206 L.Ed.2d 583 (2020) (Kavanaugh, J., concurring in part)). These factors – while not a definitive test for evaluating the propriety of the adherence to stare decisis in Louisiana criminal law – provide a useful analytical framework to evaluate the issue at hand.⁵

" ‘Considerations in favor of stare decisis’ are at their weakest in cases ‘involving procedural and evidentiary rules." Scott v. Harris , 550 U.S. 372, 388, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (Breyer, J., concurring) (quoting Payne v. Tennessee , 501 U.S. 808, 828, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) ). Thus, stare decisis may not be a sufficient reason to maintain the abatement ab initio doctrine if the precedent adopting it was poorly reasoned and wrongly decided. See Harris , 18-1012, 340 So.3d at 861 (Crichton, J., concurring); United States v. Estate of Parsons , 367 F.3d 409, 414 (5th Cir. 2004) (because abatement ab initio "is largely court-created and a creature of the common law, the applications of abatement are more amenable to policy and equitable arguments"). The uncertain origins of the doctrine were accompanied by a further lack of clarity "as to what aspect of the case was being abated – the appeal only or the entire prosecution." Bevel v. Commonwealth , 282 Va. 468, 475, 717 S.E.2d 789, 793 (2011). It has been observed that the exonerative quality of abatement is a relatively modern concept whereas traditional abating courts did not speak to a defendant's guilt and, instead, merely recognized the court's limitations. See Alexander F. Mindlin, " Abatement Means What It Says:" The Quiet Recasting of Abatement , 67 N.Y.U. Ann. Surv. Am. L. 195, 208 (2011) ; United States v. Mitchell , 163 F. 1014, 1015-16 (C.C. Or. 1908) ("Ordinarily ... the abatement or dismissal of the appeal or writ of error for any cause will leave the judgment below as it was prior to the removal of the cause to the higher court; that is, in full force and effect."). For many state courts, abatement has historically meant dismissing the appeal, but leaving the conviction intact. Mindlin, supra ; Whitley v. Murphy , 5 Or. 328, 331 (1874) ("whenever that appeal abated, it left the judgment in the Court below in full force"); State v. Ellvin , 51 Kan. 784, 33 P. 547, 548 (1893) ("judgment was stayed, and, in a certain sense, suspended by the appeal, but a dismissal of the same ordinarily leaves the judgment unimpaired and in full force"). The finality and punishment principles supporting the abatement ab initio doctrine are also not without their flaws.

The right to an appeal is guaranteed in our constitution. La. Const. art. I, § 19. However, the lack of an appeal does not necessarily render a conviction illegitimate as not every conviction is appealed. See State v. Counterman , 475 So.2d 336, 338 (La. 1985) (conviction and sentence become final after lapse of delay for filing appeal under La. C.Cr.P. 914 ); State v. McKinney , 406 So.2d 160, 161 (La. 1981) (defendant pleading guilty knowingly waives all non-jurisdictional defects in the proceedings including the right to appeal). Numerous courts examining the abatement ab initio doctrine have observed that a conviction removes the presumption of innocence and is further presumed to have been validly obtained. See Carlin , 249 P.3d at 762 (collecting cases). It may also be questioned whether the right to appeal survives death or whether a deceased defendant, sentenced to life in prison, has effectively served that sentence therefore mooting any benefit to the appeal.⁶ Cf. State v. Malone , 08-2253, p. 13 (La. 12/1/09), 25 So.3d 113, 123 (observing adoption of La. Const. art. I, § 19 is not inconsistent with the Court's use of the traditional rule that satisfaction of sentence renders a case moot); Whitehouse v. State , 266 Ind. 527, 529, 364 N.E.2d 1015, 1016 (1977) (dismissal of appeal is not in derogation of constitutional or statutory rights as such rights were "personal to and exclusively those of the defendant").

The punishment principle is grounded in the notion that a defendant who dies on appeal is no longer capable of being punished. See La. C.Cr.P. art. 381 (criminal prosecutions are brought for the purpose of punishing those who have violated the law). Yet this principle is short-sighted. It ignores consideration that the state has an interest in preserving a presumptively valid conviction. See State v. Makaila , 79 Hawai'i 40, 45, 897 P.2d 967, 972 (1995) ; State v. McGettrick , 31 Ohio St.3d 138, 141, 509...