Opinion
No. CR-02-0374.
December 17, 2004.
Appeal from Jefferson Circuit Court (CC-00-2213; -2214; -2215; and -2217).
On Application for Rehearing.
On May 22, 2002, Bobby Frank Cherry was convicted of four counts of murder. The trial court imposed four consecutive life sentences. On appeal, this Court affirmed his convictions and sentences. Cherry v. State, [Ms. CR-02-0374, October 1, 2004] ___ So.2d ___ (Ala.Crim.App. 2004).
On October 15, 2004, Cherry filed an application for rehearing in this Court. On November 19, 2004, this Court overruled his application for rehearing. On that same date, Cherry's attorney filed a "Suggestion of Death and Motion for Remand to Vacate Convictions," stating that Cherry had died on November 18, 2004, the day before this Court overruled his application for rehearing.
In his motion, Cherry's attorney, citing to the Alabama Supreme Court's case of Ex parte Estate of Cook, 848 So.2d 916 (Ala. 2002), requested that this Court dismiss Cherry's appeal as moot and remand this cause to the trial court for that court to vacate Cherry's four murder convictions. On November 23, 2004, the State filed a response, requesting that this Court allow Cherry's convictions to stand; the State argued that Cherry's application for rehearing was a discretionary action and, therefore, that Ex parte Estate of Cook was inapplicable. On November 30, 2004, Cherry's attorney responded to the State, arguing that Cherry's convictions were to be vacated because, the attorney contended, Cherry's right to file an application for rehearing was "absolute" and also arguing that the judgment of this Court was not final because we had not yet issued a certificate of judgment. For the reasons below, we agree with the State. Cherry's convictions and sentences stand.
In Ex parte Estate of Cook, Cook was convicted in municipal court of driving under the influence. He filed a notice of appeal to the circuit court for a trial de novo. At the circuit court level, a mistrial was declared and a new trial ordered. While awaiting a second trial in circuit court, Cook died. Cook's counsel sought the dismissal of the charge against Cook, arguing that Cook's death constituted an abatement of his prosecution and that his conviction in municipal court should be vacated as a nullity. The Alabama Supreme Court held that, "under the circumstances presented [t]here," Cook's conviction in municipal court was "to be vacated as a result of his death during the course of his de novo appeal to the circuit court." Cook, 848 So.2d at 917, 919. The Alabama Supreme Court reasoned:
"The facts of this case present an appropriate occasion for the application of the ab initio abatement rule. At the time of Cook's death, he was exercising an appeal as of right; further, his appeal to the circuit court was de novo; he was being retried as if the municipal court conviction did not exist, and he had no burden to show reversible error — the City had the burden of proving his guilt. § 12-14-70(c), Ala. Code 1975; Rule 30, Ala. R. Crim. P. Cook's first trial in the circuit court resulted in a hung jury, and a second trial could not be had because of his death."
Cook, 848 So.2d at 919. The Alabama Supreme Court further noted in a footnote:
"Because the issue has not been presented in this case, we do not address whether the abatement ab initio rule applies when the death of a criminal defendant occurs during the course of a discretionary appeal."
848 So.2d at 919 n. 3.
In Wheat v. State, [Ms. CR-02-2171, June 18, 2004] ___ So.2d ___ (Ala.Crim.App. 2004), Wheat was convicted in circuit court of five counts of capital murder and was sentenced to death. Wheat filed his notice of appeal to this Court on June 12, 2003. The trial judge subsequently filed a "Notice of Death," stating that Wheat had died on May 6, 2004. In holding Wheat's appeal as moot and remanding his case to the trial court for that court to vacate his capital-murder convictions, this Court stated:
"The Supreme Court in Cook intended to adopt the rule followed by the majority of state and federal jurisdictions — when a defendant dies while an appeal as of right of his or her conviction is pending the prosecution abates ab initio. We are bound by the decisions of the Alabama Supreme Court. § 12-3-16, Ala. Code 1975. Wheat died while his appeal granted to him as of right by statute was pending before this Court. According to the reasoning of Cook, Wheat's conviction was not entitled to any degree of finality."
Wheat, ___ So.2d at ___ (footnote omitted).
In Wheat, this Court also opined:
"There is no indication in the Supreme Court's opinion that its holding in Cook is limited to an appeal to the circuit court from a municipal court conviction."
___ So.2d at ___. Upon further review, this comment may have slightly overstated the effect of the decision in Cook. The Alabama Supreme Court specifically noted that its decision was made "under the circumstances presented [t]here," Cook, 848 So.2d at 917, and also enumerated those circumstances that were unique to an appeal in Cooks's case from municipal to circuit court: "his appeal to the circuit court was de novo; he was being retried as if the municipal court conviction did not exist[;] and he had no burden to show reversible error — the City had the burden of proving his guilt." Cook, 848 So.2d at 919. Therefore, apparently, the Alabama Supreme Court did indicate that its opinion inCook was specific to the facts of that case. However, the Alabama Supreme Court did not state that the opinion was unavailable for extension in analogous situations, as this Court implicitly recognized in our decision in Wheat.
Our initial inquiry, then, is whether filing an application for rehearing in Alabama constitutes a discretionary appeal or an appeal as of right. We have addressed this issue in Kinsey v. State, 545 So.2d 200, 203 (Ala.Crim.App. 1989), in determining whether a defendant has a right to counsel in the filing of an application for rehearing:
"In this case, the dispositive question is whether a rehearing in the Alabama Court of Criminal Appeals is a matter of right or a matter of discretionary appellate review? We hold that a rehearing before this Court is a matter of discretion to which the right of counsel does not attach.
"In Alabama, all persons convicted of a criminal offense are granted the right to an appeal by Alabama Code 1975, § 12-22-130. This appeal is a right granted to the defendant and is to the Court of Criminal Appeals. Alabama Code 1975, § 12-3-9. Any subsequent review of a criminal conviction by a higher state appellate court is by writ of certiorari to the Alabama Supreme Court. Review by certiorari is entirely discretionary with our Supreme Court (except in capital cases. See [Ala. R. App. P.] Rule 39; Ex parte Sellers, 250 Ala. 87, 33 So.2d 349 (1948). The Supreme Court will consider a petition for writ of certiorari `only after the court of appeals has overruled an application for rehearing. . . .' [Ala. R. App. P.] Rule 39(a). Thus, a rehearing by this Court lies somewhere between a defendant's first appeal as a matter of right and a subsequent discretionary review.
Rule 39, Ala. R. App. P., was amended effective May 19, 2000, to make review by the Alabama Supreme Court discretionary in capital cases.
"With regard to rehearings,
"`it is generally the rule that, except in cases provided for by statute, a rehearing is not a matter of right, but a privilege given by the appellate court, and governed and limited by its rules. Accordingly it is often held that an application for a rehearing of an appeal addresses itself to the discretion of the court, and its decision in the matter is final.' 5 C.J.S. Appeal Error § 1409 (1958) (footnotes omitted) (emphasis added).
"Section 12-22-130, which provides for an appeal as of right, does not contain any reference to a rehearing. We have not found any statute which grants rehearing by this Court as a matter of right."
As for the rationale for treating an appeal as of right differently from a discretionary appeal in the event of the defendant's death, we turn to West v. United States, 659 A.2d 1260, 1261-62 (D.C. 1995), in which the court reasoned:
"Appellant argues that this court's ruling in Howell v. United States, 455 A.2d 1371 (D.C. 1983) (en banc), supports his contention that his conviction should be abated ab initio, pointing out that in Howell we stated that `[w]hen the defendant dies before he has exhausted his right of appeal' the underlying conviction should be vacated and the prosecution abated ab initio. Id. at 1372. We disagree.
"Consideration of the procedural background of Howell, quite different from that of the present case, clarifies why our holding there does not support appellant's contention. A division of this court reversed Howell's conviction for possession of marijuana and remanded the case with directions to suppress the marijuana evidence. Id. Upon learning of the division's decision, appellant's counsel tried to telephone Howell, only to learn that he had been murdered some five months before the division opinion issued. Id. Upon being notified of that fact, government counsel filed a suggestion of death. Id. Over the objection of Howell's counsel, the division vacated its opinion reversing the conviction and dismissed the appeal, nunc pro tunc. Id. The en banc court took a different view, ordering not only that the appeal be dismissed, but also that the case should be remanded to the trial court so that the conviction could be vacated and the prosecution abated by reason of death. Id. at 1373.
"In reaching our decision in Howell, we relied on the Supreme Court's decision in Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976), a case in which the Court dismissed a petition for certiorari that was pending at the time the petitioner died. In its brief opinion in Dove, the Supreme Court stated that to the extent that its holding was inconsistent with its previous opinion in Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971), Durham was overruled. Upon the death of the petitioner in Durham while his petition for certiorari was pending, the Supreme Court had disposed of the case by granting the petition for certiorari, vacating the judgment below, and remanding the case to the District Court with instructions to dismiss the indictment. While the language of Dove was cryptic, it is frequently interpreted as holding that, upon the death of an appellant, appeals of right should be treated differently from discretionary appeals. See, e.g., United States v. Pauline, 625 F.2d 684 (5th Cir. 1980); United States v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir. 1977); Jones v. State, 302 Md. 153, 486 A.2d 184 (1985).
"This court was of that view in Howell, stating: `The rationale for distinguishing between cases of death pending an appeal as of right and cases involving death pending discretionary review of a conviction is compelling.' Howell, supra, 455 A.2d at 1373. In making that observation, this court relied upon and cited portions of the opinion inMoehlenkamp, supra, where the United States Court of Appeals for the Seventh Circuit stated:
"`The mootness of an appeal of right taken from a criminal conviction brings into play different considerations than does the mootness of a petition for a writ of certiorari committed to the Supreme Court's discretion. As Mr. Justice Blackmun noted in his dissent to Durham, supra at 484, 91 S.Ct. at 860-61, a court of appeals confronts a "contrasting and very different situation" in disposing of a moot appeal of right than does the Supreme Court in disposing of a moot petition for certiorari. The Supreme Court may dismiss the petition without prejudicing the rights of a deceased petitioner, for he has already had the benefit of the appellate review of his conviction to which he was entitled of right. In contrast, when an appeal has been taken from a criminal conviction to the court of appeals and death has deprived the accused of his right to our decision, the interests of justice ordinarily require that he not stand convicted without resolution of the merits of his appeal, which is an "integral part of [our] system for finally adjudicating [his] guilt or innocence." Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956).'
"557 F.2d at 128; Howell, supra, 455 A.2d at 1373.
"The highest court of Maryland has stated in a similar situation:
"`Where the deceased criminal defendant has not had the one appeal to which he is statutorily entitled, it may not be fair to let his conviction stand. But, on the other hand, where the right of appeal has been accorded and the Court of Special Appeals has decided that there was no reversible error, no unfairness results in leaving the conviction intact even though an application for further review has not been resolved when the defendant dies. The mere possibility that this Court might have reversed the conviction is not sufficient ground to order dismissal of the entire indictment.'
"Jones, supra, 486 A.2d at 187."
(Footnote omitted.)
Cherry died while his application for rehearing was pending. Cherry's application for rehearing was a discretionary appeal, rather than an appeal of right. Because at the time of his death Cherry was engaged in a discretionary appeal rather than an appeal as of right, we withdraw our November 19, 2004, ruling denying his application for rehearing, which was unknowingly entered the day following his death, and we dismiss his application for rehearing as moot. We decline to remand this cause for the trial court to vacate Cherry's convictions. Cherry's convictions and sentences stand as directed by this Court in its decision on direct appeal. Cherry v. State, supra.
DECISION OF NOVEMBER 19, 2004, WITHDRAWN; MOTION TO REMAND DENIED; AND APPLICATION FOR REHEARING DISMISSED AS MOOT.
Wise, J., concurs. Shaw, J., concurs in the rationale in part and concurs in the result, with opinion. McMillan, P.J., dissents. Baschab, J., dissents, with opinion.
Recently, in Wheat v. State, [Ms. CR-02-2171, June 18, 2004] ___ So.2d ___ (Ala.Crim.App. 2004), this Court held that the Supreme Court in Ex parte Estate of Cook, 848 So.2d 916 (Ala. 2002), in addressing the threshold issue presented in that case, "intended to adopt the rule followed by the majority of state and federal jurisdictions — when a defendant dies while an appeal as of right of his or her conviction is pending the prosecution abates ab initio." ___ So.2d at ___ (footnote omitted). This Court's decision in Wheat was, in my view, dictated by the Alabama Supreme Court's decision in Cook; therefore, I cannot agree with the majority's statement in footnote one that this Court in Wheat expanded, rather than applied, the holding in Cook. Otherwise, I agree with the majority opinion.
I agree with the majority that the Supreme Court's decision in Cook does not mandate the extension of the abatement ab initio rule to the facts of the present case — involving the death of a criminal defendant during the course of discretionary appellate review. In the absence of a clear indication from the Alabama Supreme Court as to its perception of the breadth of the abatement ab initio rule, and in light of the valid policy considerations in West v. United States, 659 A.2d 1260 (D.C. 1995), for differentiating in this area of the law between an appeal of right and further discretionary appellate review, cited by Judge Cobb, I will not extend this Court's holding in Wheat. See also United States v. Pauline, 625 F.2d 684 (5th Cir. 1980). I also note that in United States v. Christopher, 273 F.3d 294 (3d Cir. 2001), cert. denied, 536 U.S. 964 (2002), a case cited as primary authority by the Supreme Court in Cook, the United States Court of Appeals for the Third Circuit also distinguished between an appeal as of right and discretionary review.
Therefore, I concur to dismiss the application for rehearing as moot. I also agree with the majority that Cherry's motion to dismiss the appeal as moot and to remand the case for vacation of his conviction and sentence is due to be denied.
The appellant's counsel has filed a petition for a writ of certiorari with the Alabama Supreme Court, but the Alabama Supreme Court has not ruled on that petition. Therefore, this court and the Alabama Supreme Court have concurrent jurisdiction over the appellant's motion for remand to vacate convictions. See generally Committee Comments to Rule 39(k), Ala. R. App. P., effective February 1, 1994. However, for the reasons set forth below, I believe we should defer to the Alabama Supreme Court in this case. Therefore, I respectfully dissent.
This case is distinguishable from Strickland v. State, [Ms. CR-03-0167, October 20, 2004] ___ So.2d ___ (Ala.Crim.App. 2004) (Baschab, J., dissenting), because an application for a rehearing was filed in this case before the appellant died and because a petition for certiorari review in the Alabama Supreme Court has been filed in this case.
In Ex parte Estate of Cook, 848 So.2d 916 (Ala. 2002), the Alabama Supreme Court held that, when a defendant who has been convicted of a crime dies while he is challenging that conviction by an appeal taken as a matter of right, the conviction abates from its inception. In a footnote, the court also stated: "Because the issue has not been presented in this case, we do not address whether the abatement ab initio rule applies when the death of a criminal defendant occurs during the course of a discretionary appeal." Cook, 848 So.2d at 919 n. 3. As the main opinion correctly notes, a rehearing in this court is a matter of discretionary appellate review. Therefore, this case squarely presents the question of whether the abatement ab initio rule applies when the death of a criminal defendant occurs during the course of a discretionary appeal. Although this court has concurrent jurisdiction to rule in this case, our decision would not be binding on the Alabama Supreme Court. Rather,
"[t]he decisions of the Supreme Court shall govern the holdings and decisions of the courts of appeals, and the decisions and proceedings of such courts of appeals shall be subject to the general superintendence and control of the Supreme Court as provided by Constitutional Amendment No. 328."
§ 12-3-16, Ala. Code 1975. Because this court is bound by the decisions of the Alabama Supreme Court, because the Alabama Supreme Court could review our decision in this case, and in the interests of judicial economy and finality, the Alabama Supreme Court is in the best position to decide the issue. Therefore, we should defer to the Alabama Supreme Court and transfer the motion for remand to vacate convictions to the Alabama Supreme Court. Accordingly, I respectfully dissent.