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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Carlin (3/25/2011) sp-6547

State v. Carlin (3/25/2011) sp-6547, 249 P3d 752

        Notice:  This opinion is subject to correction before publication in the PACIFIC REPORTER. 
        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 
        K   Street,   Anchorage,   Alaska   99501,   phone   (907)   264-0608,   fax   (907)   264-0878,   email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

STATE OF ALASKA,                                ) 
                                                )       Supreme Court Nos. S-13385/13573 
                        Petitioner,             )       (Consolidated) 
                                                ) 
        v.                                      )       Court of Appeals No. A-10155 
                                                )       Superior Court No. 3AN-06-10139 CR 
JOHN T. CARLIN III,                             ) 
                                                )       O P I N I O N 
                        Respondent.             ) 
                                                )       No. 6547 - March 25, 2011 
                                                ) 
JIMMIE DALE,                                    ) 
                                                )       Court of Appeals No. A-09659 
                        Petitioner,             )       Superior Court No. 3PA-05-02725 CR 
                                                ) 
        v.                                      ) 
                                                ) 
STATE OF ALASKA,                                ) 
                                                ) 
                        Respondent.             ) 
                                                ) 

                Petition for Hearing in File No. S-13385 from the Court of 
                Appeals of the State of Alaska, on appeal from the Superior 
                Court, Third Judicial District, Anchorage, Philip R. Volland, 
                Judge.     Petition for Hearing in File No. S-13573 from the 
                Court of Appeals of the State of Alaska, on appeal from the 
                Superior Court, Third Judicial District, Palmer, Eric Smith, 
                Judge. 

                Appearances:       Diane     L.  Wendlandt,      Assistant    Attorney 
                General,     Office    of   Special    Prosecutions     and   Appeals, 
                Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, 

----------------------- Page 2-----------------------

                for   State   of  Alaska.    Marjorie      Allard,   Assistant   Public 
                Defender, and Quinlan Steiner, Public Defender, Anchorage, 
                as amicus curiae and previous counsel for Respondent Carlin. 
                Christine   S.   Schleuss,   Law   Office   of   Christine   Schleuss, 
                Anchorage,       for  Petitioner   Dale.   Allen    M.   Bailey,    Law 
                Offices   of  Allen   M.   Bailey,   Anchorage,   for   Amici   Curiae 
                National Crime Victim Law Institute and Alaska Office of 
                Victims' Rights. 

                Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and 
                Stowers, Justices. 

                FABE, Justice. 

I.      INTRODUCTION 

                We consolidated these two cases to resolve the following question:  What 

is the effect of the death of a criminal defendant while an appeal is pending?                    John 

Carlin III was convicted of first-degree murder.  He appealed his conviction to the court 

of appeals and died before the opening brief was filed.            Jimmie Dale was convicted of 

several crimes arising out of a drunk driving incident.               He appealed to the court of 

appeals, which affirmed his conviction.  He then filed a petition for hearing before this 

court, and we granted the petition.  But after filing his opening brief, Dale died.  In each 

case,   the   defendant's   attorney   filed   a   motion   to   dismiss   the   appeal   and   vacate   the 
conviction pursuant to the rule of abatement we adopted in Hartwell v. State.1 

                Because   of   changed   conditions,   including   increased   recognition   of   the 

rights of crime victims and rejection of abatement by some state courts, we now overrule 

Hartwell.      We hold that when a criminal defendant dies after filing an appeal, or a 

        1       423 P.2d 282, 284 (Alaska 1967) (holding that the death of a criminal 

defendant while a conviction is on appealwill permanently abate all criminal proceedings 
and nullify the defendant's conviction). 

                                                  -2-                                               6547 

----------------------- Page 3-----------------------

petition for hearing which has been granted, the defendant's conviction will stand unless 

the defendant's personal representative elects to continue the appeal. 

II.     FACTS AND PROCEEDINGS 

        A.      State v. Carlin 

                In September 2006 John Carlin III was indicted on a charge of first-degree 

murder for killing Kent Leppink a decade earlier.             A jury found Carlin guilty, and the 

trial court sentenced Carlin to serve 99 years in prison.  In a separate trial following his 

conviction, Carlin's co-defendant, Mechele Linehan, was also convicted of first-degree 
murder on the theory that she aided and abetted Carlin.2  Carlin appealed his conviction, 

arguing that the superior court should not have admitted certain hearsay statements made 

by Leppink and Linehan at his trial.          Among the evidence admitted by the court was a 

letter written by Leppink shortly before his death in which he stated that if he died under 

mysterious circumstances, Linehan and either Carlin or another of Linehan's boyfriends 

would probably be the ones responsible. 

                On October 27, 2008, before the opening brief in his appeal was filed, 

Carlin   was   murdered   in   prison.   Carlin's  appellate   attorney   from  the   Alaska   Public 

Defender Agency moved to dismiss the appeal and vacate Carlin's criminal conviction 
under the doctrine of abatement ab initio that we adopted in Hartwell v. State.3  The State 

opposed the motion, arguing in the alternative that (1)Hartwell should not apply because 

the abatement of Carlin's conviction could have collateral consequences for a retrial of 

Linehan should she be successful in appealing her conviction for aiding and abetting 

        2       But   see   Linehan   v.   State,   224   P.3d   126,   130,   150   (Alaska   App.   2010) 

(reversing Linehan's conviction and concluding that Linehan is entitled to a new trial). 

        3       423 P.2d at 284.       "Abatement" is defined as "[t]he act of eliminating or 

nullifying" or "[t]he suspension or defeat of a pending action for a reason unrelated to 
the merits of the claim."  BLACK'S LAW DICTIONARY 3 (9th ed. 2009). 

                                                  -3-                                             6547
 

----------------------- Page 4-----------------------

Carlin; or (2) the doctrine of abatement announced inHartwell should be abandoned. The 

court of appeals rejected the State's arguments and granted the motion to dismiss the 

appeal and abate Carlin's conviction. 

                 The State petitioned for a hearing, requesting that we revisit our ruling in 

Hartwell.   We granted the petition and permitted the Public Defender Agency to file an 

amicus   brief   in   light   of   its   expressed  concern   about   the   propriety   of   continuing   its 

representation after Carlin's death.           We also invited the Office of Victims' Rights to 

participate as amicus curiae.          After the  State   filed   its   opening   brief, but before any 

responsive brief was filed, the court of appeals reversed Linehan's conviction, holding 
that it was error to admit Leppink's accusatory letter "from the grave."4 

         B.      Dale v. State 

                 On October 4, 2005, Jimmie Dale drove his truck off the road and down a 

                                                                                      5 
100-foot embankment, seriously injuring his two female passengers.                      A sergeant of the 

Alaska State Troopers, who responded to the scene, learned that Dale had left on foot. 

The   sergeant   located   Dale  a   short   distance   away   and   believed   that   Dale   had   been 

            6                                                                       7 
drinking.     Dale was taken to a hospital along with his passengers,  and there a trooper 

directed the staff to take a blood sample from Dale without first obtaining a warrant. The 

         4       Linehan, 224 P.3d at 130-43, 150. 

         5       Dale v. State, 209 P.3d 1038, 1039 (Alaska App. 2009). 

         6       Id. 

         7       Id. 

                                                     -4-                                               6547
 

----------------------- Page 5-----------------------

test, taken more than three hours after the accident, revealed a blood-alcohol content 
between 0.07 and 0.08.8 

                Dale    was   charged    with   driving    under   the  influence,    driving   with   a 

suspended license, two counts of assault in the first degree, two counts of assault in the 

third degree, and failure to remain at the scene and render assistance after an accident 

causing   injury.     Dale   moved   to   suppress  the   results   of   the   blood   test   on   Fourth 
Amendment grounds,9 arguing that the warrantless blood draw was not supported by 

exigent circumstances.       The superior court denied Dale's motion, and a jury convicted 
him of all charges.10    He was sentenced to 23 years and 40 days in prison.  The court of 

appeals affirmed.11 

                Dale then filed a petition for hearing, raising the issue of whether exigent 

circumstances always exist in DUI cases.  We granted the petition and set a briefing 

schedule.     After Dale filed his opening brief, but before the State filed its opposition, 

Dale died in prison.   The State moved to dismiss the appeal, leaving intact the decision 

by the court of appeals.  Dale's counsel requested that the appeal continue unless Dale's 

conviction was abated.   We stayed further briefing on the merits of Dale's petition and 

ordered full briefing on the "abatement issue presented by Dale's death," inviting the 

National Crime Victim Law Institute and the Alaska Public Defender Agency to submit 

amicus briefs. In addition, we consolidated the matter with State v. Carlin for argument, 

consideration, and decision. 

        8       Id. at 1039, 1040. 

        9       Id. at 1040. 

        10      Id. 

        11      Id. at 1044. 

                                                  -5-                                            6547
 

----------------------- Page 6-----------------------

III.    STANDARD OF REVIEW 

                In State v. Carlin, the State challenges the decision by the court of appeals 

to dismiss Carlin's appeal and abate his criminal prosecution under the common law 

doctrine of abatement.       We apply our independent judgment to questions of law, such 
as the formulation and scope of common law rules.12                In Dale v. State, the issue of 

abatement was first raised in a motion before this court, so there is no decision by a lower 

court to review.   We will overturn one of our prior decisions only when we are "clearly 

convinced   that   the   rule   was   originally   erroneous   or   is   no   longer   sound   because   of 

changed conditions, and that more good than harm would result from a departure from 
precedent."13 

IV.     DISCUSSION 
        A.      Hartwell v. State14 

                In 1967 we addressed the following question: "[W]hat effect does the death 

of the appellant, pending disposition of his appeal from a criminal conviction, have on 
the proceedings."15      Robert Hartwell was found guilty by a jury of the crime of incest 

and sentenced to seven years in prison with five years suspended.16   He appealed his 

conviction and sentence to this court but died before his appeal was heard. We requested 

briefing from the parties on the effect of Hartwell's death.  The State submitted a three- 

        12      Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 

177 P.3d 1181, 1184 (Alaska 2008). 

        13      Pratt & Whitney Canada, Inc. v. Sheehan, 852 P.2d 1173, 1175-76 (Alaska 

1993) (quoting State v. Dunlop, 721 P.2d 604, 610 (Alaska 1986)). 

        14      423 P.2d 282 (Alaska 1967). 

        15      Id. at 283. 

        16      Id. 

                                                  -6-                                           6547
 

----------------------- Page 7-----------------------

page brief requesting that we abate Hartwell's criminal proceedings, a position different 

from the one it takes today, and describing abatement ab initio as the "universal rule" 

absent   a   statute   to   the   contrary.   Hartwell's   attorney   submitted   a   one-page   letter 

requesting that we resolve the appeal, noting that Hartwell's "reputation while alive is 

important to his three remaining children." 

                We     adopted     the   doctrine   of   abatement    ab    initio,  holding     that  "all 

proceedings are permanently abated as to appellant by reason of his death pending the 
appeal."17    We gave three reasons for our holding:            (1) "A majority of the federal and 

state courts where the question has arisen" had adopted the doctrine of abatement ab 

initio;   (2)   maintaining   the   conviction   did   not   serve   either   of   the   two   "underlying 

principles of penal administration in Alaska[:] . . . reformation and protection of the 

public";   and   (3)   "[d]eath   ha[d]   removed  the   appellant   from   the   jurisdiction   of   this 
court."18 

                When Hartwell was decided, a criminal defendant had a right to appeal his 
conviction and sentence to the supreme court.19  In 1980, the Alaska Legislature created 

the court of appeals to hear criminal appeals. Now criminal defendants can appeal to the 
court of appeals as a matter of right, rather than to the supreme court.20              Supreme court 

        17      Id. at 284. 

        18      Id. at 283-84 (citations omitted). 

        19      Former AS 22.05.010 (1976), repealed by ch. 12,  2, SLA 1980. 

        20      AS 22.07.010, .020, enacted by ch. 12,  1, SLA 1980. 

                                                   -7-                                              6547
 

----------------------- Page 8-----------------------

review   of   decisions   by   the   court   of   appeals   is   discretionary,   thus   leaving   criminal 
defendants with only one appeal as a matter of right.21 

                 Carlin, like Hartwell, died while his appeal as a matter of right was pending. 

Therefore, our ruling inHartwell controls in State v. Carlin unless Hartwell  is overruled. 

                 In contrast, Dale's appeal to the court of appeals was resolved, and his 

conviction affirmed.  Dale died after we agreed to hear Dale's discretionary appeal.   For 

this reason, the State argues that Hartwell is not controlling.               It urges us to follow the 

"vast majority of courts that have addressed this issue" and have held that abatement ab 
initio does not apply when a criminal defendant dies during discretionary review.22                    But 

as Dale's counsel notes, the cases cited by the State involve criminal defendants who 

died before the higher court acted on their request for discretionary review.                  There is a 

substantive   difference   between   those   cases   and   cases   where,   as   here,   the   court   has 

granted the request for discretionary review prior to the defendant's death. 

                 In one case directly on point,People v. Mazzone, the Illinois Supreme Court 

applied the doctrine of abatement ab initio to a criminal defendant whose petition for 

        21       AS 22.05.010. 

        22       See    Surland    v.  State,   895   A.2d    1034,   1035    (Md.    2006)    ("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."); see also Dove v. United States, 423 
U.S. 325 (1976) (dismissing petition for writ of certiorari in criminal case upon notice 
that petitioner had died);  United States v. Moehlenkamp, 557 F.2d 126, 127 (7th Cir. 
1977) (interpreting Dove as rejecting doctrine of abatement ab initio only for cases in 
which a petition for writ of certiorari was pending). 

                                                    -8-                                              6547
 

----------------------- Page 9-----------------------

discretionary review had been granted, but who died before the appeal was completed.23 

The court found "the matter [to be] closely analogous to initial appeals as of right, and 
the reasons justifying abatement [a]b initio there apply equally here."24  The State seeks 

to distinguish Mazzone by arguing that unlike in Illinois, where "the discretionary nature 

of the petition process ends with the grant of the petition," in Alaska we retain the right 

to dismiss a petition as improvidently granted.  This attempted distinction lacks merit: 

In   Illinois,   as   in   Alaska,   the   supreme   court   can   dismiss   a   petition   as   improvidently 
granted.25 

                While Dale, unlike Carlin, already had the benefit of appellate review, in 

granting his petition we decided that his case was one that warranted further appellate 
review.26    By granting Dale's petition for hearing, we gave Dale a right to present his 

appeal.   Once that right has been conferred, there is no obvious basis for distinguishing 

between Dale's position and that of a criminal defendant who has filed an appeal as a 

matter of right.  Thus, Hartwell, while not strictly controlling, is persuasive and should 

be applied unless it is overruled.          We now turn to the question of whether there are 

grounds for overruling Hartwell before examining whether such a departure from the 

doctrine of abatement ab initio is warranted and what alternatives are available. 

        23      383 N.E.2d 947, 950 (Ill. 1978). 

        24      Id. 

        25      See, e.g., People v. Thompson, 587 N.E.2d 484 (Ill. 1992). 

        26      In 2009 we granted only six of 88 petitions for hearing.              ALASKA COURT 

SYSTEM,       ANNUAL      STATISTICAL       REPORT      2009,     at  3,   6   (2010),   available      at 
http://www.courts.alaska.gov/reports/annualrep-fy09.pdf. 

                                                   -9-                                             6547
 

----------------------- Page 10-----------------------

        B.      Are There Grounds For Overruling Hartwell? 

                The   State   urges   us   to   overrule   our   decision   in Hartwell.   Stare   decisis 

compels us to approach overruling one of our prior decisions carefully.  "[S]tare decisis 

is a practical, flexible command that balances our community's competing interests in 

the stability of legal norms and the need to adapt those norms to society's changing 
demands."27     We will overrule a decision only when convinced: (1) "that the rule was 

originally erroneous or is no longer sound because of changed conditions," and (2) "that 
more good than harm would result from a departure from precedent."28  We conclude that 

both criteria are met here. 

                1.      Is Hartwell no longer sound because of changed conditions? 

                The State argues that changes in the past 40 years since Hartwell  was 

decided render it no longer sound.   These changes include the constitutional recognition 

of victims' rights as part of the criminaljustice process and the growing number of states 

that have rejected abatement. 

                To    support   a  departure    from   precedent    on   the  grounds    of   "changed 

conditions," a party must show that "related principles of law have so far developed as 

to have left the old rule no more than a remnant of abandoned doctrine, [or] facts have 

so changed or come to be seen so differently, as to have robbed the old rule of significant 
application."29 

        27      Pratt & Whitney Canada, Inc. v. Sheehan, 852 P.2d 1173, 1175 (Alaska 

1993). 

        28      Id. at 1175-76 (quoting State v. Dunlop, 721 P.2d 604, 610 (Alaska 1986)). 

        29      Id. (quoting Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 

833, 855 (1992)). 

                                                 -10-                                            6547
 

----------------------- Page 11-----------------------

                        a.      Recognition of rights of crime victims 

                Both the State, and the National Crime Victim Law Institute and Alaska 

Office of Victims' Rights in their amicus briefs, note the "dramatic shift" in the 40 years 

since Hartwell was decided "to provide substantial constitutional and statutory rights to 

crime victims during all phases of the criminal justice process."             This shift has taken 
place throughout the country.30        The State and amici argue that the constitutional and 

statutory rights of crime victims, increasingly recognized since Hartwell, constitute a 

changed condition that supports reconsideration of Hartwell  and abandonment of the 

doctrine of abatement ab initio. 

                In Alaska, the rights of crime victims were first given legal recognition in 
1984, when the Alaska legislature addeda statutory provision enumerating those rights.31 

In the same act, the legislature directed judges and parole boards to consider the interests 

of   crime   victims    when    imposing    felony   sentences    or  considering     the  release   of 
prisoners.32    Five   years   later,   the   legislature  passed   a   comprehensive   Alaska   Crime 

Victims' Rights Act.33       The Act codified the rights of crime victims not only to be 

        30      According to the amici, more than thirty states have, like Alaska, amended 

their constitutions to explicitly provide crime victims with rights and protections in 
criminal justice proceedings, and every single state and the federal government grant 
statutory rights to crime victims. 

        31      Ch.   154,      4,   SLA   1984   (codified   at  AS   12.61.010(a)). These   rights 

included the right to be notified of criminal proceedings, the right to be protected from 
harm and threats, the right to be informed of the procedure to obtain restitution, and the 
right to immediate medical assistance. 

        32      Ch. 154,  1-2, 5-6, 8-9, SLA 1984. 

        33      Ch. 59, SLA 1989. 

                                                 -11-                                           6547
 

----------------------- Page 12-----------------------

informed of criminal proceedings but to participate in sentencing and parole decisions.34 

The legislature has continued to promulgate and refine statutes concerning the rights of 

crime   victims,   for   example   defining   a   restitution   order   as   a   "civil   judgment,"   thus 
allowing a victim to use civil collection procedures to enforce a restitution order.35 

                In 1994 Alaska's voters overwhelmingly approved the Rights of Victims 
of Crime Amendment to the Alaska Constitution.36 The amendment added article I, 

section 24, providing that victims of crimes have "the right to be treated with dignity, 

respect, and fairness during all phases of the criminal and juvenile justice process" and 
"the right to restitution from the accused," among other rights.37              The amendment also 

revised article I, section 12, which enumerates the goals of the criminal justice system. 

Prior to the amendment, this section provided that "[p]enal administration shall be based 
on the principle of reformation and upon the need for protecting the public,"38 a statement 

on   which   we   relied   in  Hartwell.39     The   1994   amendment   expanded   the   goals   of 

"[c]riminal administration" to include "community condemnation of the offender, the 
rights of victims of crimes, [and] restitution from the offender."40 

                Hartwell's assertion that the "underlying principles of penal administration 

in Alaska are reformation and protection of the public" is thus no longer complete. 

        34      Id.  4-5, 8, 14, 21, 27-28.
 

        35      See ch. 92, SLA 2001; ch. 23, SLA 2002; ch. 17, SLA 2004.
 

        36      See http://www.elections.alaska.gov/doc/forms/H28.pdf. 
 

        37      Alaska Const. art. I,  24. 

        38      Alaska Const. art. I,  12 (amended 1994). 

        39      Hartwell v. State, 423 P.2d 282, 284 (Alaska 1967). 

        40      Alaska Const. art. I,  12. 

                                                  -12-                                             6547
 

----------------------- Page 13-----------------------

Alaska's statutes and its constitution now also require the criminal justice system to 

accommodate the rights of crime victims.         The abatement of criminal convictions has 

important implications for these rights.      Therefore, the expansion and codification of 

victims' rights since Hartwell provides the changed conditions needed to satisfy the first 

element of the test for overruling precedent. 

                       b.	    Rejection   of   the   abatement  ab   initio  doctrine   by   some 
                              state courts 

               While the doctrine of abatement ab initio was the majority rule in federal 

and state courts when Hartwell was decided, the State argues that "a steadily growing 
number of state courts have rejected the doctrine."41  According to the State, these state 

courts have pointed to the unfairness to crime victims of abating criminal convictions and 

the doctrine's inconsistency with the presumption of guilt following a jury conviction. 

Further, the State suggests that "more states have rejected abatement to some degree (22 

states) than have retained it fully intact (19 states and the District of Columbia)." 

               The Public Defender Agency responds that "[a]lthough a few state courts 

have moved away from the majority rule in the last few decades, a far greater number of 

state courts have directly affirmed their continued adherence to the doctrine during this 
same time."42    The Public Defender Agency points out that two states, Montana and 

        41     See State v. Korsen, 111 P.3d 130, 133 (Idaho 2005) ("[W]hen reviewing 

the most recent cases, it is apparent that the trend has been away from abating a deceased 
defendant[']s conviction ab initio."); Surland v. State, 895 A.2d 1034, 1039 (Md. 2006) 
("[A]n increasingly smaller majority . . . of the courts that have considered the matter 
adopt this full abatement approach."). 

        42     See Tim A. Thomas, Annotation, Abatement of State Criminal Case by 

Accused's Death Pending Appeal of Conviction-Modern Cases, 80 A.L.R.4TH 189 (1990 
& Supp. 2010) ("[T]he most frequently stated rule is that . . . the prosecution abates from 
the inception of the case (ab initio)."); see also Korsen, 111 P.3d at 134 (referring to 
                                                                                  (continued...) 

                                              -13-	                                          6547 

----------------------- Page 14-----------------------

Mississippi, have actually adopted abatement ab initio for the first time in the last few 
decades.43    By the Public Defender Agency's count, a "majority (or near majority) of 

state courts that have addressed the abatement issue continue to apply a strict rule of 

abatement ab initio." 

                The     State   and    the   Public    Defender     Agency's      primary     source    of 
disagreement is in how to group the approaches to abatement taken by each state.44  The 

Public Defender Agency separates states into four categories: (1) those that dismiss the 

appeal   and   abate   the   criminal   conviction   (21   states   and   the   District   of   Columbia); 

(2) those that dismiss the appeal and do not abate the criminal conviction (five states); 

(3) those that allow the appeal to continue in certain circumstances but otherwise abate 

the criminal conviction (seven states); and (4) those that allow the appeal to continue in 

certain circumstances but otherwise do not abate the criminal conviction (four states). 

Under the Public Defender Agency's analysis, a solid majority of the states that have 

        42(...continued) 

abatement ab initio as the "majority rule"); Surland, 895 A.2d at 1039 (noting that "a 
slight majority" of states apply abatement ab initio).   The Public Defender Agency also 
notes, correctly, that federal courts that have addressed the issue have been essentially 
unanimous   in   their   application   of   the   doctrine   of   abatement  ab   initio  to   abate   the 
conviction of criminal defendants.  See John H. Derrick, Annotation, Abatement Effects 
of Accused's Death Before Appellate Review of Federal Criminal Conviction, 80 A.L.R. 
FED. 446 (1986 & Supp. 2009). 

        43      See Gollott v. State, 646 So. 2d 1297, 1304-05 (Miss. 1994) (overruling 

prior precedent and adopting a modified approach where an appeal may go forward in 
certain circumstances but a conviction will otherwise be abated); State v. Holland, 955 
P.2d 1360, 1361-62 (Mont. 1998) (overruling prior precedent and joining "the majority 
of  jurisdictions   in   holding   that   prosecution   of  a   criminal   case   abates   in   its   entirety, 
including fines, upon the death of the criminal defendant"). 

        44      To support their analyses, each party has included an appendix where it 

summarizes each state's caselaw on abatement. 

                                                  -14-                                             6547
 

----------------------- Page 15-----------------------

addressed   the   issue   (21   of   37)   abate   criminal   convictions   in   all   instances   and   an 

additional   seven   states   abate   criminal   convictions   in   some   instances.     The   State,   in 

contrast, argues that all approaches other than a strict application of the abatement ab 

initio doctrine should be grouped together.             It further challenges some of the Public 

Defender Agency's categorizations.             Under the State's analysis, only 19 of 41 states 

continue to dismiss the appeal and abate the criminal proceedings in all cases. 

                It is not necessary, or even useful, to choose between these two analyses. 

 Under the characterization of either party, it is clear that the legal landscape is very 

different than it was whenHartwell was decided. Our own count, using slightly different 

categories than either the State or the Public Defender Agency, confirms this.  It appears 

that the highest courts in 41 states have addressed abatement in some manner. The courts 
in 19 states have continued to apply strictly the doctrine of abatement ab initio.45 Eight 

        45      State v. Griffin, 592 P.2d 372, 373 (Ariz. 1979) (in banc) ("[D]eath pending 

appeal abates the appeal and the conviction."); People v. Gonzalez, 184 P.3d 702, 704 
n.3 (Cal. 2008) ("[D]efendant's death will abate his appeal . . . ."); Crowley v. People, 
223 P.2d 387, 388 (Colo. 1950) (en banc) ("As to the deceased, the proceedings are 
abated by operation of law."); People v. Mazzone, 383 N.E.2d 947, 950 (Ill. 1978); 
Maghee v. State, 773 N.W.2d 228, 231 n.2 (Iowa 2009) ("It is well established that 
criminal prosecutions, including any pending appellate proceedings, abate upon the death 
of the defendant."); State v. Morris,           328 So. 2d 65, 67 (La. 1976) ("[W]e adopt the 
majority rule and hold that because of defendant's death while the appeal was pending, 
the judgment of conviction must be vacated and all proceedings in the prosecution abated 
from its inception."); State v. Carter, 299 A.2d 891, 894 (Me. 1973) ("[T]he death of the 
defendant in such situation will be held to abate the appeal and require dismissal of it on 
grounds both of mootness and the inability of the appellate tribunal to proceed because 
of loss of an indispensable party to the proceeding . . . ."); Commonwealth v. Latour, 493 
N.E.2d 500, 501 (Mass. 1986) ("When a criminal defendant dies pending his appeal, the 
general practice is to dismiss the indictment."); State v. Holland, 955 P.2d 1360, 1362 
(Mont. 1998) ("It further appears to us that the best reasoning is represented by the 
majority of jurisdictions which hold that a criminal proceeding is abated in its entirety 
                                                                                          (continued...) 

                                                   -15-                                               6547 

----------------------- Page 16-----------------------

states generally dismiss a deceased defendant's appeal but leave the conviction intact.46 

        45(...continued) 

upon the death of the criminal defendant."); State v. Campbell, 193 N.W.2d 571, 572 
(Neb.   1972); State   v.   Poulos,   88   A.2d   860,   861   (N.H.   1952)   ("Since   the   defendant 
Derrickson has died pending his appeal, the appeal on his behalf is abated."); People v. 
Mintz, 229 N.E.2d 712, 713 (N.Y. 1967); State v. Dixon, 144 S.E.2d 622, 622 (N.C. 
1965); Nott   v.   State,   218   P.2d   389,   389   (Okla.   Crim.   App.   1950)   ("In   a   criminal 
prosecution, the purpose of proceedings being to punish the accused, the action must 
necessarily abate upon his death, and where it is made to appear that the defendant has 
died   pending   the   determination   of   the   appeal,   the   cause   will   be   abated.");  State   v. 
Marzilli, 303 A.2d 367, 368 (R.I. 1973); State v. Hoxsie, 570 N.W.2d 379, 382 (S.D. 
1997) (holding that defendant who pleaded guilty and then appealed sentence was only 
entitled to have sentence abated but stating that it did not intend to disturb the general 
rule of abatement ab initio); Carver v. State, 398 S.W.2d 719, 721 (Tenn. 1966) ("[W]e 
hold that all proceedings in this case against Carver are abated ab initio."); Vargas v. 
State, 659 S.W.2d 422, 423 (Tex. Crim. App. 1983) (en banc) ("Accordingly, the State's 
motion to dismiss the appeals is overruled.  The appeals, however, as well as any further 
proceedings in the court below, are ordered permanently abated."); State v. Free, 260 P. 
173, 174 (Wyo. 1927). 

        46       State v. Trantolo, 549 A.2d 1074, 1074 (Conn. 1988) ("[I]t has become 

clear that, in this case, there is neither allegation nor evidence that the fine levied against 
the defendant at trial would be collectible from his estate or that the judgment will 
otherwise affect its interests.  On this state of the record, the defendant's appeal must be 
dismissed as moot.");  State v. Raffone, 285 A.2d 323, 326 (Conn. 1971) ("[D]ue to the 
death of Arcangelo, the appeal, as to him, is dismissed as moot."); Perry v. State,                      575 
A.2d 1154, 1156 (Del. 1990) ("[A]s a result of Perry's death, and in the absence of any 
other real party in interest, this Court has been divested of its jurisdiction to proceed with 
Perry's direct appeal. Consequently, the ultimate disposition in Perry's prosecution will 
be determined by the status quo at the time of his death."); State v. Clements,   668 So. 2d 
980, 981 (Fla. 1996) ("[W]e hold that upon the death of a criminal defendant, the appeal 
of a conviction may be dismissed but is not to be abated ab initio."); State v. Korsen, 111 
P.3d 130, 135 (Idaho 2005) ("[W]e hold that a criminal conviction and any attendant 
order requiring payment of court costs and fees, restitution or other sums to the victim, 
or other similar charges, are not abated, but remain intact, in the event of the defendant's 
death following conviction and pending appeal."); Whitehouse v. State, 364 N.E.2d 1015, 
1016   (Ind.   1977); People   v.   Peters,   537   N.W.2d   160,   163   (Mich.   1995)   ("Where   a 
                                                                                           (continued...) 

                                                   -16-                                                 6547 

----------------------- Page 17-----------------------

Two states have unique approaches; Alabama places a particular notation in the deceased 
defendant's record,47 while Oregon gives judges discretion both to dismiss the appeal and 

to vacate thejudgment.48       Eight states allow some mechanism for the appeal to continue 

with substitution; if no substitution occurs some of those states abate the conviction while 
others   allow   it   to  stand.49 Two   states   simply   proceed   with   the   appeal.50   This   new 

        46(...continued) 

defendant dies pending an appeal of a criminal conviction, we hold that the appeal should 
be dismissed, but the conviction retained."), cert. denied, Peters v. Michigan, 516 U.S. 
1048 (1996); State v. Anderson, 314 S.E.2d 597, 597 (S.C. 1984); State v. Christensen, 
866    P.2d   533,   535   (Utah    1993).     Three    states  dismiss    the  pending    appeal    upon 
defendant's death, but it is unclear whether the underlying conviction is abated.                     See 
Harris v. State, 194 S.E.2d 76, 77 (Ga. 1972);Royce v. Commonwealth, 577 S.W.2d 615, 
616 (Ky. 1979) ("The fact of the conviction, whether it be regarded as legally final or 
not, is history, and as such it cannot be expunged. What meaning and effect it may have 
at some other time and place is not for the court to determine here and now."); In re 
Carlton, 171 N.W.2d 727, 728 (Minn. 1969). 

        47       Wheat v. State,   907 So. 2d 461, 464 (Ala. 2005) ("We therefore hold that 

when a person convicted of a crime dies while an appeal is pending in the Court of 
Criminal   Appeals   and   that   court   abates   the  appeal,   pursuant   to   Rule   43(a),   Ala.   R. 
App. P., by reason of the death of that person, the Court of Criminal Appeals shall 
instruct   the   trial   court   to   place   in   the   record   a   notation   stating   that   the   fact   of   the 
defendant's conviction removed the presumption of the defendant's innocence, but that 
the conviction was appealed and it was neither affirmed nor reversed on appeal because 
the defendant died while the appeal of the conviction was pending and the appeal was 
dismissed."). 

        48      Or. R. App. P. 8.05. 

        49      State v. Makaila, 897 P.2d 967, 972 (Haw. 1995); Surland v. State, 895 

A.2d 1034, 1044-45 (Md. 2006); Gollott v. State, 646 So. 2d 1297, 1304-05 (Miss. 1994) 
("Thus, the state, in order to avoid abatement ab initio of the proceedings, may file a 
Rule 43(a) motion, in which case we will substitute the decedent's representative, or 
where appropriate, counsel of record, as party appellant and determine the merits of the 
appeal."); City of Newark v. Pulverman, 95 A.2d 889, 894 (N.J. 1953) ("We hold the 
                                                                                          (continued...) 

                                                   -17-                                               6547 

----------------------- Page 18-----------------------

diversity of opinions among the high courts of states throughout the country is another 

reason to conclude that the "changed conditions" element of the test for overruling 
precedent is satisfied.51 

                2.      Would more good than harm result from overruling Hartwell? 

                Because the State has successfully demonstrated changed conditions, we 

must   consider   whether   "more   good   than   harm   would   result   from   a   departure   from 
precedent" in this instance.52     In analyzing this element, we must balance the benefits of 

adopting a new rule against the benefits of stare decisis: providing guidance for the 

conduct of individuals, creating efficiency in litigation by avoiding the relitigation of 

        49(...continued) 

belief that there is likewise no mootness insofar as the family of a deceased defendant is 
concerned and that his legal representative should have the opportunity to establish on 
appeal that the conviction was wrongful."); State v. Salazar, 945 P.2d 996, 1004 (N.M. 
1997) ("This right is best vindicated by permitting the courts either (1) to continue the 
appeal where a party moves for substitution or where the court deems that the interests 
involved warrant completion of the review, or (2) to completely abate the proceedings 
to their inception."); State v. McGettrick, 509 N.E.2d 378, 381-82 (Ohio 1987); State v. 
Webb, 219 P.3d 695, 699 (Wash. 2009) (en banc) ("We hold that when a [defendant] dies 
during   the   pendency   of   his   or   her   appeal,  that   appeal   may   be   pursued   by   a   party 
substituted under the provisions of RAP 3.2.");State v. McDonald, 424 N.W.2d 411, 414 
(Wis. 1988) ("[W]e conclude that, when a defendant dies pending appeal, regardless of 
the cause of death, the defendant's right to an appeal continues."). 

        50      State v. Jones, 551 P.2d 801, 804 (Kan. 1976); Commonwealth v. Walker, 

288 A.2d 741, 744 (Pa. 1972). 

        51      See Kinegak v. State, Dep't of Corr., 129 P.3d 887, 890 (Alaska 2006) 

(finding the "changed conditions" element to be satisfied "based primarily on changes 
in the federal cases in the years since [the prior case] was decided"). 

        52      Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska 

2004). 

                                                 -18-                                            6547
 

----------------------- Page 19-----------------------

decided issues, and maintaining public faith in the judiciary.53                 These countervailing 

interests do not weigh heavily in this case.   It is unclear how an individual would rely on 

the rule adopted in Hartwell.   That is, it is unlikely that a person would commit a crime 

because he believed that, upon his death while his appeal was pending, his conviction 

would   be   abated.      As   for   the   efficiency  rationale,   while   it   is   true   that   overturning 

Hartwell would result in some additional litigation of the continued appeals of deceased 

defendants, the number of such cases should be small. As for the third factor, public faith 

in the judiciary, allowing continued appeals will protect both victims and defendants by 

providing the opportunity to have criminal charges fully litigated and decided. 

         C.      Substitution Is The Appropriate Rule To Replace AbatementAb Initio. 

                 The plurality of state courts that have considered the issue strictly apply the 
doctrine of abatement ab initio.54         The Public Defender Agency urges us to continue to 

apply   this   majority   rule.   In   these   states,   when   a   criminal   defendant   dies   while   the 

defendant's appeal is pending, the entire criminal prosecution including the conviction 

is   abated.     Courts   adopting   abatement  ab   initio  argue   that   the   death   of   a   criminal 

defendant pending appeal frustrates his appeal rights and requires the abatement of his 
conviction.55 

         53      See Pratt & Whitney Canada, Inc. v. Sheehan, 852 P.2d 1173, 1175-76 n.4 

(Alaska 1993) (citing Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403 (1970)). 

         54      See supra note 45. 

         55      See, e.g., United States v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir. 1977) 

("[W]hen an appeal has been taken from a criminal conviction to the court of appeals and 
death has deprived the accused of his right to [an appellate] decision, the interests of 
justice ordinarily require that he not stand convicted without resolution of the merits of 
his appeal . . . ."); People v. Rickstrew, 961 P.2d 1139, 1140 (Colo. App. 1998) ("[W]hen 
an appeal has been taken from a conviction and death deprived the accused of his or her 
                                                                                           (continued...) 

                                                    -19-                                                6547 

----------------------- Page 20-----------------------

                On the other extreme are those states that generally dismiss a deceased 

defendant's appeal but leave the conviction intact. We count eight states that follow this 
approach.56    Regardless of which rule it has ultimately adopted, almost every court that 

has discussed the abatement issue has noted that a defendant is no longer presumed 

innocent after a conviction; rather a convicted defendant is presumed guilty despite the 
pendency of an appeal,57 and the conviction is presumed to have been validly obtained.58 

                Neither extreme seems to us to strike the correct balance. While abatement 

is   contrary   to  the   victims'   rights  under    the   Alaska    Constitution,    relying   on   the 

presumption of guilt after conviction to leave the conviction intact is contrary to the 

defendant's right to appeal.        Therefore, we choose the middle path, electing to follow 

        55(...continued) 

right to appellate review, the defendant should not stand convicted."). 

        56      See supra note 46. 

        57      See, e.g., Wheat v. State, 907 So. 2d 461, 462 (Ala. 2005) ("A conviction 

in the circuit court removes the presumption of innocence, and the pendency of an appeal 
does not restore that presumption."); State v. Clements, 668 So. 2d 980, 981 (Fla. 1996) 
("This Court has stated that the presumption of innocence ceases upon the adjudication 
of guilt and the entry of sentence." (internal quotation marks omitted)); Whitehouse v. 
State, 364 N.E.2d 1015, 1016 (Ind. 1977) ("The presumption of innocence falls with a 
guilty verdict."); People v. Peters, 537 N.W.2d 160, 163 (Mich. 1995) ("The conviction 
of a criminal defendant destroys the presumption of innocence regardless of the existence 
of an appeal of right."); State v. McGettrick, 509 N.E.2d 378, 380 (Ohio 1987) (stating 
that a convicted defendant "no longer stands cloaked with the presumption of innocence 
during the appellate process"); State v. Devin, 142 P.3d 599, 605 (Wash. 2006) (en banc) 
("[T]here is no presumption of innocence pending appeal."). 

        58      Clements, 668 So. 2d at 981 ("Furthermore, we have held that a judgment 

of   conviction   comes   for   review   with   a   presumption   in   favor   of   its   regularity   or 
correctness.");  Whitehouse, 364 N.E.2d at 1016 ("[When a guilty verdict is issued,] 
although preserving all of the rights of the defendant to an appellate review, for good and 
sufficient reasons we presume the judgment to be valid, until the contrary is shown."). 

                                                  -20-                                               6547 

----------------------- Page 21-----------------------

those courts that allow the appeal to continue upon substitution.59   These courts have 

provided that either the State or the defendant's estate may request substitution, allowing 

another party to be substituted for the defendant.           Specifically, we agree with the high 

courts of Washington and Maryland that the defendant's estate may substitute in for the 

deceased appellant.   We so decide because allowing the defendant's appeal to continue 

when the defendant's estate does not wish it would undermine the right to appeal that 
substitution is meant to protect.60 

        59      See supra note 49. 

        60      The courts that have allowed substitution have done so pursuant to their 

appellate rules. See, e.g., State v. Makaila, 897 P.2d 967, 972 (Haw. 1995) ("By its plain 
language, HRAP Rule 43(a) allows for the substitution of a party for a deceased criminal 
defendant." (internal citation omitted)); Gollott v. State, 646 So. 2d 1297, 1304 (Miss. 
1994) ("On its face, Rule 43(a) allows for a substituted party in place of a criminal 
defendant."); State v. Salazar, 945 P.2d 996, 1003 (N.M. 1997) ("The language of the 
[appellate] rule clearly permits the personal representative or 'any other party' to seek 
substitution     of  the   deceased.");  McGettrick,        509   N.E.2d    at  381   ("The    [appellate 
substitution] rule clearly permits the decedent's personal representative to be substituted 
as a party . . . ."); State v. Webb, 219 P.3d 695, 699 (Wash. 2009) (en banc) ("We hold 
that when a decedent dies during the pendency of his or her appeal, RAP 3.2 permits a 
party to be substituted on appeal.").   Alaska Appellate Rule 516 provides for substitution 
upon the death of a party to an appeal, but applies only to civil appeals.  Because Alaska 
has no appellate rule providing for substitution in criminal cases, we refer this matter to 
the Supreme Court's Standing Advisory Committee on Appellate Rules.  Until the rules 
committee promulgates a new rule, a defendant's personal representative may substitute 
upon   the   defendant's   death.     In   the   absence   of   an   appearance   and   substitution,   the 
conviction   will   stand.   We   do   not   now   address   whether   any   other   party   besides   the 
defendant's personal representative has the right to substitute.  In referring this matter to 
the rules committee, we note the thoughtful discussion of the issue by the Washington 
Supreme Court in State v. Devin, 142 P.3d 599, 606 (Wash. 2006): 

                 [W]e 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 
                                                                                         (continued...) 

                                                  -21-                                                6547 

----------------------- Page 22-----------------------

                1.      Jurisdiction 

                Courts   that   automatically   dismiss   a  deceased   defendant's   appeal   have 

assumed that an appellate court may not proceed with the appeal because it has lost 
jurisdiction.61  However, as we recognize in Appellate Rule 516, the death of an appellant 

should not cause the court to lose jurisdiction over the defendant or the appeal.62  A court 

obtains personal jurisdiction over a criminal defendant by the service of a summons and 
complaint or by arrest.63       Once personal jurisdiction is obtained over a party, it will 

        60(...continued)
 

                appeal creates a risk of unfairly burdening the defendant's
 
                heirs.
 

        61      See   Hartwell   v.   State,   423   P.2d   282,   284   (Alaska   1967)   ("Death   has 

removed the appellant from the jurisdiction of this court."); Perry v. State, 575 A.2d 
 1154, 1156 (Del. 1990) ("Therefore, as a result of Perry's death, and in the absence of 
any other real party in interest, this Court has been divested of its jurisdiction to proceed 
with Perry's direct appeal. . . . Perry's appeal is moot and is [dismissed]."); State v. 
Kriechbaum, 258 N.W. 110, 113 (Iowa 1934) ("Death withdrew the defendant from the 
jurisdiction of the court. It left no apportionment of jurisdiction."); State v. Holland, 955 
P.2d 1360, 1362 (Mont. 1998) ("In a criminal case, however, no case or controversy 
remains upon the death of the defendant."); State v. Campbell, 193 N.W.2d 571, 572 
(Neb. 1972) ("The death of the defendant makes the case moot and requires dismissal of 
the appeal."). 

        62      Cf. Collison v. Thomas, 360 P.2d 51, 54 (Cal. 1961) (in bank) ("The court 

did not lose jurisdiction of the case in the strict sense upon Mrs. Kellogg's death. This 
is established by the many cases in this state holding that the death of a party pending suit 
does not oust the jurisdiction of the court, and hence that the judgment is voidable only, 
not void. This does not mean that a judgment can be really rendered for or against a dead 
man, but that it can be rendered nominally for or against him, as representing his heirs, 
or   other   successors,   who   are   the   real   parties   intended."   (internal   quotation   marks 
omitted)). 

        63      See    State   v.  Gottschalk,    138   P.3d    1170,   1173    (Alaska    App.   2006) 

(Mannheimer, J., concurring) (citing Alaska R. Crim. P. 4). 

                                                  -22-                                            6547
 

----------------------- Page 23-----------------------

generally not be lost as a result of subsequent events.64  The trial court properly obtained 

personal jurisdiction over both Carlin and Dale, and they are, in a technical sense, still 

subject to the jurisdiction of the Alaska courts, including the appellate court. 

                Nor does an appellate court lose subject matter jurisdiction over an appeal 
when a party dies.65     Under AS 22.07.020 the court of appeals has appellate jurisdiction 

over criminal prosecutions commenced in superior court.                The supreme court has final 

appellate jurisdiction in all actions and proceedings, including jurisdiction to "in its 
discretion review a final decision of the court of appeals."66   No statute or court rule 

divests these appellate courts of jurisdiction upon the death of a party.  To the contrary, 

in the case of civil appeals, the Alaska Appellate Rules specifically provide that the 
"death of a party . . . shall not affect any appeal taken or petition for review made."67 

        64      See Kotsonis v. Superior Motor Express, 539 F. Supp. 642, 646 (M.D.N.C. 

 1982) (stating that, in the context of transfer of venue, "[p]ersonal jurisdiction once 
obtained is not lost."); Gilford v. People, 2 P.3d 120, 130 (Colo. 2000) (en banc) (Hobbs, 
J., concurring) (explaining that "[a] court does not generally lose jurisdiction by the 
occurrence of a subsequent event, even if that event would have prevented acquiring 
jurisdiction in the first instance"); Boardman v. Boardman, 62 A.2d 521, 525 (Conn. 
 1948) (regarding as settled law that "if a court of a state has jurisdiction when an action 
is brought to it, a subsequent removal of a party from the state will not terminate that 
jurisdiction");  People v. Goecke, 579 N.W.2d 868, 876 (Mich. 1998) ("Having once 
vested in the circuit court, personal jurisdiction [over a criminal defendant] is not lost 
even when a void or improper information is filed."). 

        65      See   United   States   v.   Christopher,   273   F.3d   294,   297   (3d   Cir.   2001) 

(determining   that   appellate   jurisdiction   is   not   at   issue   where   "defendant   dies   after 
appealing the entry of a judgment of sentence" because a final order has been entered). 

        66      AS 22.05.010(a), (d). 

        67      Alaska R. App. P. 516(a). 

                                                  -23-                                             6547
 

----------------------- Page 24-----------------------

Thus, neither Carlin's nor Dale's appeal is subject to dismissal based on lack of personal 

or subject matter jurisdiction. 

                2.      Mootness 

                We will generally "refrain from deciding questions where the facts have 
rendered the legal issues moot."68        A case becomes moot when it "has lost its character 

as a present, live controversy" or when the "party bringing the action would not be 
entitled to any relief even if" the party prevails.69 

                But a criminal appeal, even after the defendant has died, may remain a 

"present,   live   controversy."       Often,   there   will   be   a   financial   component,   such   as 

restitution, to a criminal judgment, and the appeal will thus have financial consequences 

for the defendant's estate.  This situation is analogous to disputes over attorney's fees in 

civil cases that are otherwise moot. InLaMoureaux v. Totem Ocean Trailer Express, Inc. 
we held that such cases may continue.70 

                Even without monetary consequences, the appeal is not necessarily moot. 

As   discussed   above,   the   particular   sentence   a   defendant   is   to   receive   is   but   one 

component of the administration of criminal justice.  Article I, section 12 of the Alaska 

Constitution provides that "[c]riminal administration shall be based upon the following: 

the need for protecting the public, community condemnation of the offender, the rights 
of victims of crimes, restitution from the offender, and the principle of reformation."71 

        68      O'Callaghan        v.  State,  920   P.2d   1387,    1388   (Alaska    1996)    (internal 

quotation marks omitted). 

        69      Gerstein v. Axtell, 960 P.2d 599, 601 (Alaska 1998). 

        70      651 P.2d 839, 840 n.1 (Alaska 1982). 

        71      Alaska Const. art. I,  12. 

                                                  -24-                                             6547
 

----------------------- Page 25-----------------------

The interests of the victim and the community's interest in condemning the offender 

persist even after the defendant's death. 

                 The defendant's interests also support treating the appeal as not moot. The 

appeal has important consequences for the defendant's reputation and estate, as explained 

by the former Chief Justice of the Supreme Court of Wisconsin: 

                 It is not [defendant's] appeal which is moot, as the dissent 
                 would   have   it,   but   rather   it   is   his   death   which   is   moot, 
                 because he did not take the potential errors of our justice 
                 system into the grave with him. These potential errors remain 
                 behind     to  perplex     and   confound      his  relatives,    friends, 
                 reputation, and the legal system.  Indeed, an important point 
                 of the majority opinion is that these errors remain behind to 
                 worry   society   at   large,   because   such   important   collateral 
                 matters   as   inheritance,   insurance   benefit   distribution,   and 
                 distribution     of   various     property     may    wind     up   being 
                 conclusively determined without benefit of a review for error 
                 in the potentially controlling criminal action.[72] 

                 3.      Representation 

                 Though the death of a criminal defendant does not require dismissal of the 

appeal for mootness or lack of jurisdiction, it creates obvious practical complications for 

continuing an appeal.   Of immediate concern will likely be whether, after the defendant 

dies, his attorney can continue to prosecute the appeal.              If the defendant's attorney can 

no longer act as defendant's representative, then the appeal may be subject to dismissal 
for failure to prosecute.73     The Court of Appeals of Maryland thoughtfully discussed this 

        72       State v. McDonald, 424 N.W.2d 411, 415 (Wis. 1988) (Heffernan, C.J., 

concurring). 

        73       Alaska   R.   App.   P.   511.5;  see   also  Alaska   R.   Civ.   P.   25(a)   (civil   case 

dismissed if no timely motion for substitution is made following the death of a party); 
Surland v. State, 895 A.2d 1034, 1045 (Md. 2006) ("If no substituted party comes forth 
                                                                                           (continued...) 

                                                   -25-                                                 6547 

----------------------- Page 26-----------------------

issue.     It   first   noted   that   "the   defendant's   death,   as   a   matter   of   agency   law,   would 

ordinarily     terminate    the   lawyer-client  relationship       and,   with   that  termination,    the 
authority of the erstwhile agent . . . to continue an appeal already noted."74  But taken to 

its   logical   extreme,   continued   the   court,  that   conclusion   would   prevent   defendant's 

counsel from moving for dismissal of the prosecution and even seeking to abate the 
conviction.75    In Carlin v. State, the Public Defender Agency filed such a motion before 

the court of appeals.      Because courts allow these motions, an attorney must have some 

authority to act on behalf of a deceased client. The Maryland court further observed that, 
"[a]s a practical matter, the role that the client plays in criminal appeals is very limited."76 

                 In the case of a privately retained attorney, the personal representative of 

the defendant's estate can elect to continue the attorney's services. We conclude that the 

public defender is also authorized to continue representing a deceased defendant after the 

personal representative of the defendant's estate chooses to continue the appeal.                     The 

Public Defender Act provides that "[a]n indigentperson who is under formal charge of 

        73(...continued) 

within the time allotted by Rule 1-203(d) and elects to continue the appeal, it will be 
dismissed, not for mootness but for want of prosecution, and, as with any appeal that is 
dismissed, the judgment will remain intact."). 

        74       Surland, 895 A.2d at 1041, 1045. 

        75      Id. at 1041. The Supreme Court of Idaho, after noting that "[a]n attorney in 

a criminal case may not withdraw from representation of a defendant without leave of 
court," held that an attorney has the authority to file a motion to abate the conviction of 
a client that has died during an appeal.          State v. Korsen, 111 P.3d 130, 132-33 (Idaho 
2005). 

        76       Surland, 895 A.2d at 1041 n.3;see also Coffman v. State, 172 P.3d 804, 807 

(Alaska App. 2007) ("[E]ven though it is the [criminal] defendant's decision whether to 
appeal, it is the attorney's role to decide which issues to raise on appeal."). 

                                                   -26-                                              6547
 

----------------------- Page 27-----------------------

having   committed   a   serious   crime   and   the   crime   has   been   the   subject   of   an   initial 

appearance or subsequent proceeding, or is being detained under a conviction of a serious 
crime"   is   entitled   to   "be   represented."77  At   oral   argument,  there   was   debate   about 

whether the word "person" could include a deceased defendant.                     Some courts, when 

construing other statutes using the word "person," have held that "person" can include 
the deceased78 while other courts have held that it cannot.79           In the context of appeals on 

behalf of deceased defendants, Maryland has allowed continued representation by the 
public  defender.80      Because   the   purpose   of   the   Public   Defender   Act   is   to   provide 

representation comparable to representation by private attorneys,81 we interpret the Public 

        77      AS 18.85.100(a) (emphasis added). 

        78      See, e.g., United States v. Maciel-Alcala, 612 F.3d 1092 (9th Cir. 2010), 

cert. denied, Maciel-Alcala v. United States, 131 S. Ct. 673, 2010 WL 4168514 (Nov. 29, 
2010); United States v. LaFaive, 618 F.3d 613, 618 (7th Cir. 2010 ) ("We are also 
unpersuaded that because some states have drafted identity theft statutes that explicitly 
mention deceased individuals, we should not read deceased persons into the definition 
of "person" in  1028A. That Congress could have drafted the statute differently does not 
negate the plain meaning of the statute as enacted."); State v. Hardesty, 213 P.3d 745, 
749   (Kan.   App.   2009)   (holding   that   an   identity   theft   statute's   use   of  term  "person" 
included both living and deceased victims of identity theft). 

        79      See, e.g., Guyton v. Phillips, 606 F.2d 248, 250-51 (9th Cir. 1979). 

        80      Surland v. State, 895 A.2d 1034, 1045 (Md. 2006) ("Because counsel, 

whether private counsel or the Public Defender, is usually already in the case and, but for 
the appellant's death, would be obliged to see it through, we see no reason why, unless 
a substituted party obtains other counsel, counsel already of record should not continue 
to prosecute the appeal, as they were employed or appointed to do."). 

        81      See McKinnon v. State, 526 P.2d 18, 22 (Alaska 1974) ("Once counsel is 

appointed to represent an indigent defendant, whether it be the public defender or a 
volunteer private attorney, the parties enter into an attorney-client relationship which is 
no less inviolable than if counsel had been retained.") (quoting Smith v. Superior Court, 
                                                                                          (continued...) 

                                                  -27-                                                6547 

----------------------- Page 28-----------------------

Defender Act to allow continued representation on appeal after the death of the defendant 

where the defendant's estate chooses to proceed with the appeal. 

V.      CONCLUSION 

                In State v. Carlin, we REVERSE the order of the court of appeals granting 

the   motion   by   Carlin's   counsel   to   dismiss   Carlin's   appeal   and   abate   his   criminal 

proceedings.      We REMAND to the court of appeals to continue the case for 60 days, 

during which time Carlin's estate may move for substitution and to proceed with the 

appeal; if no motion is filed, the court of appeals is directed to dismiss the appeal and to 

leave   Carlin's   conviction   intact.    In Dale   v.   State,   we   DENY   the   State's   motion   to 

dismiss the appeal and Dale's attorney's cross-motion for abatement  ab initio  or to 

continue the appeal.   Dale's estate has 60 days in which to move for substitution and to 

proceed with the appeal; if no motion is filed, we will dismiss the petition and leave 

Dale's conviction intact. 

        81(...continued) 

440 P.2d 65, 74 (Cal. 1968)). 

                                                  -28-                                              6547 
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