from the Superior Court in Maricopa County No.
CR2015-117844-001 The Honorable Danielle J. Viola, Judge
Arizona Attorney General's Office, Phoenix By Elizabeth
B. N. Garcia Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix By
Nicholaus Podsiadlik Counsel for Appellant
Judge Samuel A. Thumma delivered the Opinion of the Court, in
which Presiding Judge James P. Beene and Judge James B. Morse
THUMMA, CHIEF JUDGE
Defendant Richard Allen Reed died while this appeal of a
criminal restitution order entered against him was pending.
The State then sought dismissal of his appeal pursuant to
Arizona Revised Statutes (A.R.S.) section 13-106(A) (2018),
which states that "[o]n a convicted defendant's
death, the court shall dismiss any pending appeal."
Because that statute is constitutional as applied, this
appeal is dismissed.
AND PROCEDURAL HISTORY
The State charged Reed with voyeurism, a Class 5 felony,
committed in January 2015. The victim hired an attorney to
assist her during the criminal proceedings. The jury found
Reed guilty; he was placed on probation and this court
affirmed in a prior appeal. See State v. Reed, 1
CA-CR 16-0269, 2017 WL 1325647 (Ariz. App. Apr. 11, 2017)
Meanwhile, the State filed a motion requesting restitution,
including the victim's attorneys' fees. After an
evidentiary hearing, the superior court awarded the victim
attorneys' fees and granted in part and denied in part
other requested restitution. Reed timely filed this second
appeal challenging that restitution order. See State v.
French, 166 Ariz. 247, 248 n.3 (App. 1990) (noting an
"order of restitution is a separately appealable
When Reed died while this appeal was pending, the State
sought dismissal pursuant to A.R.S. § 13-106(A).
Reed's counsel objected, claiming the statute was
unconstitutional. The court allowed Reed's counsel, the
State and others to file briefs on the constitutionality of
Section 13-106 and the availability of any other forum to
challenge a restitution order.
A.R.S. § 13-106.
Enacted effective July 24, 2014, A.R.S. § 13-106 states:
A. On a convicted defendant's death, the court shall
dismiss any pending appeal or postconviction proceeding.
B. A convicted defendant's death does not abate the
defendant's criminal conviction or sentence of
imprisonment or any restitution, fine or assessment imposed
by the sentencing court.
legislative fact sheet states the statute was a response to:
(1) State v. Griffin, 121 Ariz. 538 (1979) (noting
Arizona's common law abatement rule means a
defendant's death "pending appellate review of a
criminal conviction abates not only the appeal but also all
proceedings had in the prosecution from its inception")
and (2) State v. Glassel, 233 Ariz. 353 (2013)
(holding abatement does not apply to post-conviction relief
proceedings after an appeal). See Ariz. Senate Fact
Sheet, H.B. 2593, 51st Leg., 2d Reg. Sess. (Ariz. 2014). A
brief history of the rule of abatement provides helpful
background for this appeal.
II.The Rule Of ...