435 P.3d 1044
Ariz. Ct. App.2019Background
- Richard Allen Reed was convicted of voyeurism; after conviction he was placed on probation and this court affirmed a prior appeal.
- The State sought restitution including the victim's attorney fees; the superior court awarded those fees and Reed appealed that restitution order.
- Reed died while this second appeal was pending; the State moved to dismiss under A.R.S. § 13-106(A), which requires dismissal of any pending appeal on a convicted defendant's death and provides the conviction and restitution do not abate.
- Reed's counsel argued § 13-106 is unconstitutional (rights to appeal, separation of powers, due process, bill of attainder) and raised concerns about enforcement and finality of the restitution order for third parties and the estate.
- The court asked and received briefing on standing and constitutionality and concluded prudential standing could be waived in these ‘‘exceptional circumstances.’n ### Issues
| Issue | Plaintiff's Argument (Reed) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether A.R.S. § 13-106 violates the Arizona constitutional right to appeal | § 13-106 nullifies Reed’s constitutional right to appeal by mandating dismissal on death | The right to appeal isn’t a right to a particular result; dismissal on death is a rule of decision, not denial of the right | Court: No violation — Reed had invoked the right to appeal; statute sets a rule for disposition on death and does not deny the right to appeal |
| Standing to challenge § 13-106 after a defendant’s death | Reed’s counsel pursued the challenge despite Reed’s death | State argued no party has standing because the defendant’s appellate rights end at death | Court: Prudential standing waived in these exceptional, recurring public‑importance circumstances; challenge may proceed |
| Separation of powers — whether the Legislature improperly intruded on judicial rulemaking by enacting § 13-106 | § 13-106 is a procedural rule that conflicts with courts’ rulemaking authority and improperly adjudicates cases | Legislature may enact substantive or procedural laws protecting victims’ rights; under Hansen, statute is permissible if it affects victims’ rights and advances those rights | Court: No separation‑of‑powers violation — applying Hansen the statute advances victims’ rights and is within legislative authority |
| Due process / Bill of attainder / Finality and enforceability of restitution after dismissal | Dismissal under § 13-106 deprives victims or third parties of due process and leaves restitution non‑final or unenforceable; statute functions as a bill of attainder | Dismissal simply terminates the appeal; restitution and conviction do not abate and civil avenues (recording/enforcing as civil judgment, probate claims) remain | Court: No due process or bill‑of‑attainder violation; dismissal under § 13-106 is constitutional and provides an outcome — restitution may be enforced and civil/probate remedies remain for third parties |
Key Cases Cited
- State v. Griffin, 121 Ariz. 538 (1979) (Arizona Supreme Court held death pending appeal abates appeal and conviction)
- State v. Glassel, 233 Ariz. 353 (2013) (death during postconviction proceedings does not trigger abatement)
- Durham v. United States, 401 U.S. 481 (1971) (federal abatement doctrine vacated convictions when defendant died pending direct review)
- In re Estate of Vigliotto, 178 Ariz. 67 (1993) (restitution order survives defendant’s death)
- United States v. Oberlin, 718 F.2d 894 (9th Cir. 1983) (abatement ab initio can prevent recovery of fines from the estate)
- State v. Richards, 26 Ariz. App. 41 (1976) (dismissal of appeal on defendant’s death; early Arizona treatment of mootness/abatement)
- State v. Hansen, 215 Ariz. 287 (2007) (analyzing separation‑of‑powers challenge to statutes affecting restitution; sets test applied here)
- State ex rel. Napolitano v. Brown, 194 Ariz. 340 (1999) (separation‑of‑powers case striking conflicting statutory time limits for postconviction relief)