United States v. Rorie

58 M.J. 399, 2003 CAAF LEXIS 654, 2003 WL 21506333
CourtCourt of Appeals for the Armed Forces
DecidedJuly 1, 2003
Docket02-0949/AR
StatusPublished
Cited by26 cases

This text of 58 M.J. 399 (United States v. Rorie) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Rorie, 58 M.J. 399, 2003 CAAF LEXIS 654, 2003 WL 21506333 (Ark. 2003).

Opinions

Judge ERDMANN

delivered the opinion of the Court.

Appellant, Specialist Gregory G. Rorie, was tried by general court-martial at Fort Polk, Louisiana. Pursuant to his pleas, he was convicted of three specifications of wrongful distribution of cocaine in violation of Article 112a, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 912a (2000). Appellant was sentenced to confinement for two years and reduction to the grade of Private E-l. On June 8, 2001, the convening authority approved the sen[400]*400tence. On June 28, 2002, the Army Court of Criminal Appeals affirmed the findings and sentence in a memorandum decision. United States v. Rorie, ARMY 20000964 (A. Ct.Crim. App. June 28, 2002).

Appellant died on August 31, 2002. On September 27, 2002, Appellant’s detailed appellate defense counsel filed a Petition for Grant of Review and a Motion to Abate with this Court. Upon consideration of the Petition for Grant of Review and the Motion to Abate, we specified and ordered briefs on the following two issues:

ISSUE I
WHETHER THE FILING OF A PETITION FOR GRANT OF REVIEW BY APPELLATE DEFENSE COUNSEL WAS SUFFICIENT TO CONFER JURISDICTION ON THIS COURT OR WHETHER JURISDICTION WAS RETAINED BY THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS.
ISSUE II
IN THE EVENT THAT THIS COURT DOES HAVE JURISDICTION, WHETHER THE PROCEEDINGS SHOULD BE ABATED.

Prior to argument the parties agreed that this Court had jurisdiction over the question of whether the proceedings and conviction in this case should be abated ab initio. Therefore, we proceed directly to consideration of the second specified issue. For the reasons that follow, we hold that abatement ab initio is neither appropriate nor required at this Court.

FACTS

The United States Army Court of Criminal Appeals reviewed Appellant’s conviction and affirmed the findings and sentence in a memorandum decision on June 28, 2002. On July 1, 2002, Appellant’s initial appellate defense counsel prepared correspondence to Appellant advising him that the Army court had rendered a decision in his case. On July 5, 2002, the Deputy Clerk of the Army court sent notice of the Army court decision to Appellant by certified mail, return receipt requested.

On July 12, 2002, the United States Postal Service returned the certified mail with the notation “Forward Time Exp Rtn to Send.” Constructive service was therefore effected on July 5, 2002, as the appellate defense counsel had received a copy of the decision and the decision had been deposited in the United States mail to Appellant on that date. Article 67(b)(2), UCMJ, 10 U.S.C. § 867(b)(2) (2000).

Appellant had 60 days within which to petition this Court for a grant of review, a period that would have expired on September 3, 2002. On August 31, 2002, Appellant sustained massive head trauma in an automobile accident and died. Upon learning of Appellant’s death, appellate defense counsel sought and obtained a copy of the death certificate. Subsequently, on September 27, 2002, appellate defense counsel filed a Petition for Grant of Review and a Motion to Abate the proceedings.

Upon consideration of the Petition for Grant of Review and the Motion to Abate, this Court specified the previously noted issues and directed that the parties file briefs.

BACKGROUND

Principals of Abatement ab initio

Appellant’s motion for abatement rests upon the general concept that the death of an accused after conviction but before completion of an appeal of right abates the entire proceeding from its inception. If granted, abatement ab initio has the effect of “eliminating or nullifying” the proceeding or conviction “for a reason unrelated to the merits” of the case. Black’s Law Dictionary 2 (7th ed.1999). “[I]t is as if the defendant had never been indicted and convicted.” United States v. Logal, 106 F.3d 1547, 1551-52 (11th Cir.1997).

Two reasons are commonly advanced in support of abatement ab initio upon the death of a criminal defendanVappellant. The first reason advanced relates to the interests of justice. The 7th Circuit Court of Appeals [401]*401has noted that “the interests of justice ordinarily require that [a defendant] not stand convicted without resolution of the merits of his appeal” and echoed the Supreme Court’s view that such an appeal “is an ‘integral part of [our] system for finally adjudicating [the] guilt or innocence [of a defendant]’.” United States v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir.1977)(quoting Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891 (1956)). See also United States v. Pogue, 19 F.3d 663, 665-66 (D.C.Cir.1994).

Death arguably disrupts appellate adjudication and may leave an unreviewed conviction that is unsound, unlawful, or unjust. Confidence may be lacking in such convictions; they should not serve as the basis for finality. See Logal, 106 F.3d at 1552 (“[A] criminal conviction is not final until resolution of the defendant’s appeal as a matter of right”); Pogue, 19 F.3d at 665-66 (rejecting arguments against abatement ab initio even when the conviction is based on a guilty plea). Thus, where “death has deprived the accused of his right to [an appellate] decision,” abatement serves the interests of justice by removing criminal convictions that do not have the necessary basis for confidence to support finality. Moehlenkamp, 557 F.2d at 128.

The second reason advanced is that the penal purposes of a criminal proceeding are defeated by the death of the defendant. Charges, trial, conviction, and sentences are directed at and punish the individual. Those purposes can not be served after the defendant has passed away. See United States v. Asset, 990 F.2d 208, 211 (5th Cir.1993); United States v. Pomeroy, 152 F. 279, 282 (C.C.S.D.N.Y.1907). “[S]huffling off the mortal coil completely forecloses punishment, incarceration, or rehabilitation, this side of the grave at any rate.” United States v. Dudley, 739 F.2d 175, 177 (4th Cir.1984).

Application by Federal and State Courts

Nonetheless, abatement is not the universal policy in the federal and state courts. For a number of years, the United States Supreme Court’s position on abatement lacked clarity.1 In Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971), the Court acknowledged its previous “ambiguity,” id. at 482, 91 S.Ct. 858, and adopted the policy of abatement ab initio:

The unanimity of the lower federal courts which have worked with this problem over the years ... is impressive. We believe they have adopted the correct rule. Accordingly, the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted.

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Bluebook (online)
58 M.J. 399, 2003 CAAF LEXIS 654, 2003 WL 21506333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rorie-armfor-2003.