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State v. Reed

Court of Appeals of Arizona, First Division

January 22, 2019

STATE OF ARIZONA, Appellee,
v.
RICHARD ALLEN REED, Appellant.

          Appeal 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

          Chief Judge Samuel A. Thumma delivered the Opinion of the Court, in which Presiding Judge James P. Beene and Judge James B. Morse Jr. joined.

          OPINION

          THUMMA, CHIEF JUDGE

         ¶1 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), [1] 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.

         FACTS AND PROCEDURAL HISTORY

         ¶2 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) (mem. dec).

         ¶3 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 order").

         ¶4 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.[2]

         DISCUSSION

         I. A.R.S. § 13-106.

         ¶5 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.

         A 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 ...


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