Surland v. State

Page 1034

895 A.2d 1034

392 Md. 17

Carl SURLAND v. STATE of Maryland.

Stefan Tyson Bell v. State of Maryland.

No. 8, September Term, 2005.

No. 45, September Term, 2005.

Court of Appeals of Maryland.

April 11, 2006.

Martha Weisheit, Assistant Public Defender (Nancy S. Forster, Public Defender, Baltimore, for appellant in 8 Sept. Term, 2005.

Sarah Page Pritzlaff, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, Baltimore), on brief, for appellee in 8 Sept. Term, 2005 and for respondent in 45 Sept. Term, 2005.

George E. Burns, Jr., Assistant Public Defender (Nancy S. Forster, Public Defender, Baltimore), on brief, for petitioner in 45 Sept. Term, 2005.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

WILNER, J.

We are asked in these two cases to revisit what the appropriate response should be when a defendant, convicted in a Circuit Court of a criminal offense, notes a timely appeal to the Court of Special Appeals (or, in a death penalty case, to this Court) but dies before the appeal is decided.

The law throughout the country seems clear, and by now mostly undisputed, that, if the defendant's conviction has already been affirmed on direct appeal and the death occurs while the case is pending further discretionary review by a higher court, such as on certiorari, the proper course is to dismiss the discretionary appellate proceeding and leave the existing judgment, as affirmed, intact. The Supreme Court has adopted that view, and so have we. See Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976), overruling, in that regard, Durham v. United States, 401 U.S. 481, 483, 91 S.Ct. 858, 860, 28 L.Ed.2d 200, 203 (1971); Jones v. State, 302 Md. 153, 158, 486 A.2d 184, 187 (1985).

There is no such consensus when the death occurs during the pendency of an appeal of right, however. From the case law around the country, there seem to be several basic choices on the menu of options:

(1) Dismiss the appeal as moot and direct as well that the entire criminal proceeding, from the charging document through the trial court's judgment, be abated (voided).

(2) Dismiss the appeal as moot and either expressly leave the trial court's judgment intact or say nothing about the continuing vitality of that judgment (which presumably will either leave the judgment intact or reserve the issue for future litigation).

(3) Dismiss the appeal as moot, abate the conviction and any purely punitive part of the judgment but allow one or more adjunctive aspects of the judgment, such as an order of restitution and possibly court costs and fines that have already been paid, to remain intact.

(4) Resolve the pending appeal, notwithstanding the death of the appellant, and let the fate of the trial court's judgment be determined by the result of the appeal. A variant of this approach, and perhaps that of (3), is to allow the appeal to continue only if, by reason of an order of restitution or a fine, the appellant's estate has a financial interest in resolving the validity of the judgment and wishes the appeal to continue. A variant of that is to allow the appeal to continue in any case in which a substituted party is appointed and elects to continue the appeal, or counsel of record elects to continue it.

(5) Dismiss the appeal as moot and direct that a note be placed in the record that the judgment of conviction removed the presumption of the defendant's innocence, that an appeal was noted, and that, because of the death of the defendant, the appeal was dismissed and the judgment was neither affirmed nor reversed.

Each of these options attempts to balance competing public policies, and advantages and disadvantages, justifications and non-justifications, have been offered as to each of them. The Federal courts have mostly adopted the first approach, although some, including the Court of Appeals for the Fourth Circuit, have opted for the third, to leave in effect restitution orders, and, in some of the decisions, fines that already have been paid have not been disturbed.

A slight majority of the States that have ruled upon the matter also favor the first approach, although some that would ordinarily abate the entire proceeding have opted to leave restitution orders in place and thus are really in the third category. About twelve State courts have adopted the second option, of either expressly leaving the judgment of conviction intact or dismissing the appeal and saying nothing about that judgment. Approximately seven States have chosen to proceed with the appeal if a substituted party elects to do so, and Alabama, so far alone, has chosen the fifth approach, which also leaves the judgment intact. A few courts that have leaned toward the first approach have at least considered whether that approach should be followed if the death was due to suicide — whether a defendant should get the advantage of a full abatement if he or she effectively frustrated the appeal and thus created the problem. Most of those courts have ended up rejecting the distinction. See United States v. Oberlin, 718 F.2d 894, 896 (9th Cir.1983); also Joseph Sauder, How a Criminal Defendant's Death Pending Direct Appeal Affects the Victim's Right to Restitution Under the Abatement Ab Initio Doctrine, 71 Temple L.Rev. 347 (1998). Maryland, at this point, is with the majority, although, as we shall explain, this Court has yet really to explore and evaluate the competing public policy considerations and has not expressly determined what to do about restitution orders.

BACKGROUND

Surland

We have consolidated two cases — Surland and Bell. In May, 2004, Surland was convicted in the Circuit Court for Anne Arundel County of theft of property under $500, for which he was sentenced to one year in jail, all but ten weekends of which was suspended. The offense arose from a shoplifting — stealing about $65 worth of razor blades from a drug store. Surland noted an appeal to the Court of Special Appeals, complaining that (1) the trial court erred in admitting evidence that, in attempting to leave the store, he assaulted two store detectives, and (2) the State failed to prove corporate ownership of the stolen items. Before the intermediate appellate court could resolve the appeal, we granted certiorari, principally to consider the first issue.

Just prior to scheduled oral argument, Surland died, and defense counsel moved that we vacate his conviction and remand the case with instructions to dismiss the indictment. Counsel advised that, because the trial court had not ordered restitution, no victim's rights would be affected by such a ruling. The State opposed the motion, urging that we do no more than dismiss the appeal.

Bell

In August, 2003, Bell was convicted in the Circuit Court for Anne Arundel County of first degree murder and conspiracy to commit first degree murder, for which he was sentenced to consecutive terms of life imprisonment, the imprisonment for the murder being without the possibility of parole. Although the murder victim's parents apparently followed the case closely, no order of restitution was entered.

Bell noted a timely appeal to the Court of Special Appeals, but, prior to resolution of the appeal, he died. His attorney moved to dismiss the appeal and the indictment. The appellate court denied the motion, without prejudice to renewing it upon a showing that no victims' rights would be prejudiced by the granting of the motion and that any victim whose rights would be affected was served with the renewed motion. In April, 2005, counsel filed a renewed motion, seeking the same relief and contending that he was unaware of any victim's right that would be relevant and that there was no requirement in any event to notify victims or victims' representatives.

The State filed a response, noting that the murder victim's parents had been closely involved in the trial proceedings and that they had been informed by the State of counsel's motion to dismiss. The State agreed that the appeal should be dismissed but urged that the convictions should stand and that the indictment should not be ordered dismissed. Although clearly not parties to the case, at either the trial or appellate level, the victim's parents, through the Maryland Crime Victims' Resource Center (MCVRC), also filed a response in opposition to the motion. They urged that the court not direct the eradication of the conviction or indictment but should instead adopt the view taken by courts in Idaho and Alabama that such a policy would be unfair to crime victims.

The Court of Special Appeals found potential merit in those responses. By action of its Chief Judge, it entered an order granting the motion to dismiss the appeal but remanded the case to the Circuit Court with instructions "to hold a hearing at which all parties, including the victim's parents, are represented, to determine in the first instance whether [the indictment] should be dismissed."

Bell, obviously through counsel, filed a petition for certiorari, seeking review of whether the intermediate appellate court erred in "disregarding the precedents of this Court requiring that when an Appellant dies before resolution of his direct appeal, both the appeal and the indictment be dismissed," and whether the Chief Judge of the Court of Special Appeals was authorized to act alone in remanding the case for a hearing in the Circuit Court. The State answered the petition, arguing that (1) the order of the Court of Special Appeals was correct, (2) certiorari was premature in any event, because the only issue in real dispute — whether the indictment should be dismissed — had not yet been resolved, but was simply remanded for a hearing, and (3) if the Chief Judge was without authority to act alone, the proper relief would be a remand to the Court of Special Appeals for a hearing before a panel of that court.

The parents, through MCVRC, also filed an answer to the...