State v. BellState v. Bell
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[¶ 1] Thе State of North Dakota moved to dismiss Kyle Kenneth Bell’s appeal of his murder conviction. We grant the State’s motion to dismiss, concluding Bell forfeited and abandoned his appeal by escaping.
I
[¶ 2] On August 20, 1999, a jury found Bell guilty of murder for the killing of еleven-year-old Jeanna North. On September 24, 1999, the district court issued a criminal judgment and commitment, sentencing ’ him to life imprisonment. Bell appealed his conviction on September 24, 1999. On October 13, 1999, Bell escaped from custody whilе being transported from the North Dakota State Penitentiary to a prison facility in Oregon.
[¶ 3] On November
5, 1999,
the State moved to dismiss Bell’s appeal, asking this Court to adopt and apply the “fugitive dismissal rule.” Bell’s attorney filed a response, requesting this Court reject the fugitive dismissal rule and hear the appeal on the merits. On November 17, 1999, we considered the motion and ordered the matter set for oral argument. Following a nationwide manhunt, Bell was recaptured on January 9, 2000. We then dirеcted the filing of supplemental briefs on the motion to dismiss. This Court has jurisdiction under
II
A
[¶ 4] The fugitive dismissal rule, also known as the “fugitive disentitlement
[¶ 5] The United States Supreme Court has upheld the fugitive dismissal rule in several cases, “consistently and unequivocally” authorizing dismissal of an appeal as an acceptable sanction when a defendant is а fugitive during the “ongoing appellate process.” Ortega-Rodriguez v. United States, 507 U.S. 234, 242, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993). “It has been settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal.” Id. at 239, 113 S.Ct. 1199.
[¶ 6] In Molinaro v. New Jersey, the Supreme Court explained:
No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him рursuant to the conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims.
396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970).
[¶ 7] In Ortegar-Rodriguez, the Supreme Court was asked to decide whether the same reasoning supported dismissal when the defendant had been a fugitive but was recaptured before he brought an appeal. 507 U.S. at 242, 113 S.Ct. 1199. The Supreme Court stated the fugitive dismissal rule rests partly on a theory of disentitlement, treating the defendant’s flight during the appeal’s pendency as a waiver or abandonment of the appeal. Id. at 240, 113 S.Ct. 1199. The Supreme Court held former fugitivеs returned to custody before filing an appeal generally are not subject to dismissal of an appeal brought after recapture, unless the defendant’s escape has significantly interfered with the appellate process. Id. at 249, 113 S.Ct. 1199.
[¶ 8] A fugitive flouts the court and its authority by escaping after filing an appeal. Ort ega-Rodriguez, 507 U.S. at 240-41, 113 S.Ct. 1199. Accordingly, dismissal is appropriate because the fugitive has shown such disrespect for the legal system that the fugitive has no right to call upon the court to examine his or her appeal. Id. Adoption of the fugitive dismissal rule is also a tool to deter other defendants from escaping or fleeing the jurisdiction pending appeal. Id. at 242, 113 S.Ct. 1199.
[¶ 9] As early as 1897, the Supreme Court upheld not only a court’s dismissal of a fugitive defendant’s appeal, but also its refusal to reinstate the appeal after the defendant was recaptured.
Allen v. Georgia,
166 U.S. 138, 17 S.Ct. 525, 41 L.Ed. 949 (1897). In 1975, the Supreme Court again held dismissal of an appeal after the defеndant was recaptured was proper.
Estelle v. Dorrough,
420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975) (upholding dismissal of defendant’s appeal where he was recaptured two days after escaping). In
Estelle,
the Supreme Court upheld a Texas fugitive dismissal statute on grounds it discouraged esсape and promoted efficiency in the appellate court.
Id.
at 537, 95 S.Ct. 1173. The Supreme Court held the state was free to implement laws to discourage escape and was “free to impose more severe sanсtions on those whose escape is reasonably calculated to disrupt the very appellate process which they themselves have set in motion.”
Id.
at 541-42, 95 S.Ct. 1173.
See Goeke v. Branch,
514 U.S. 115, 120, 115 S.Ct. 1275,
B
[¶ 10] Federal appellate courts have held the fugitive dismissal rule is an independent and adequate state procedural rule. See Wood v. Hall, 130 F.3d 373, 378 (9th Cir.1997) (defendant procedurally defaulted by fleeing the state during his аppeal). See also Daccarett-Ghia v. Comm’r, 70 F.3d 621 (D.C.Cir.1995) (a defendant’s fugitive status in a federal criminal case did not entitle the tax court to dismiss his petition for redetermination of a deficiency because the fugitive disentitlement doctrine should be applied by a cоurt to manage its own docket, not the docket of another court).
[¶ 11] In a case factually similar to Bell’s, a federal appeals court held “[m]erely because — no thanks to him,” the defendant was recaptured, he was nоt entitled to have his full appellate rights restored. United States v. Puzzanghera, 820 F.2d 25, 26-27 (1st Cir.1987). Prior to the court’s ruling on whether to dismiss the appeal, the escaped appellant was captured and returned to custody. Id. at 26. Because the defendant was recaptured involuntarily after a period in excess of thirty days, and was found living “under an assumed name in a distant city,” the court found no reason why he should be given back his forfeited right of appeal. Id. at 27. “Escape, pursuit, and recapturе not only put the government and the taxpayers to considerable expense,” but fugitives often put an appellate court to additional trouble “by diverting its attention from the merits of the appeal and involving it in a flurry of extraneous matters.” Id. at 26.
C
[¶ 12] Bell argues the fugitive dismissal rule should be adopted not by the Court, but by the legislature. The rule has been adopted by statute or rule in some jurisdictions, and has been judicially adopted by courts in other jurisdictions. State courts have recognized that the power to dismiss a fugitive’s ease is inherent. See, e.g., Irvin v. State, 236 Ind. 384, 139 N.E.2d 898, 901 (1957) (adopting rule that a fugitive has no standing in court during his or her status as a fugitive); Joensen v. Wainwright, 615 F.2d 1077, 1079 (5th Cir. 1980) (upholding Florida’s judicially-adopted fugitive dismissal rule); Young v. State, 518 So.2d 822 (Ala.Crim.App.1987), cert. denied, 488 U.S. 834, 109 S.Ct. 93, 102 L.Ed.2d 69 (1988) (judicial adoption); State v. Patten, 134 N.H. 319, 591 A.2d 1329 (1991) (judicial adoption).
[¶ 13] For example, Wisconsin trial courts have both inherent and statutory power to exercise the fugitive dismissal rule.
See
[¶ 14] In a Pennsylvania case, the defendant filed a petition for permission to file an appeal within thirty days.
In the Interest of C.G.,
428 Pa.Super. 314, 630 A.2d 1266, 1267 (1993). The petition was denied and the defendant then failed to appear at his probation review hearing, but filed an appeal the day after his hearing was scheduled.
Id.
The defendant also failed to attend a later probation review hearing.
Id.
The
court
quoted
Ortega-Rodriguez v. United States
and recognized dismissal of an appeal is appropriate when a defendant is a fugitive during “the ongoing appellate process.”
Id.
at 1268 n. 6 (citing 507 U.S. 234, 242, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993)). The court held “fw]here a defendant is a fugitive at any time after post-trial proceedings commence he forfeits his
[¶ 15] The court in
In the Interest of C.G.
further hеld such a forfeiture is irrevocable and cannot “be undone despite capture or voluntary return to custody.” 630 A.2d at 1268. A defendant who intentionally bypasses this process is “bound by the consequences” of his or her decision; therefore, the court was authorized under
Ill
[¶ 16] This Court addressed the fugitive dismissal rule in State v. LaFromboise, in which a defendant fled from North Dakota while his appeal was pending. 542 N.W.2d 110, 111 n. 1 (N.D.1996). In LaFromboise, however, the State did not move to dismiss the appeal under the fugitive dismissal rule. Id. at 112 n. 1. We stated we would “prefer to consider whether to adopt the ‘fugitive dismissal rule’ when it has been properly raised and documented in a pre-hearing motion to dismiss the appеal.” Id.
[¶ 17] Bell argues dismissal of his appeal would be improper because he has the right to an appeal under
[¶ 18] Moreover, other courts have upheld the fugitive dismissal rule despite a defendant’s statutory right to a criminal appeal.
See State v. Lundahl,
130 Or.App. 385, 882 P.2d 644, 645-46 (1994). In
Lun-dahl,
the appeal of a former fugitive brought after recapture was dismissed because of the fugitivе’s escape of seven years.
Id.
(citing
[¶ 19] Bell also argues, because he can be prosecuted for escape, he should not be doubly punished by having his appeal dismissed. However, the United States Supreme Court in Allen v. Georgia held a defendant who escapes is committing a separate criminal offense as well as abandoning his right of appeal. 166 U.S. 138, 141, 17 S.Ct. 525, 41 L.Ed. 949 (1897).
[¶20] We hold Bell is precluded from maintaining his appеal because he forfeited and abandoned his appeal by escaping. The fugitive dismissal rule and the public policy reasons behind the rule are well established in both state and federal courts. Unlike the defendant in
Ortega-Rodriguez v. United States,
Bell filed
[¶ 21] Dismissal of Bell’s appeal is in the best interests of both this Court and the taxpayers of this state. See State v. Bono, 103 Wis.2d 654, 309 N.W.2d 400 (Wis.Ct.App.1981). Dismissal prevents further time being spent on “a defendant who is no longer entitled to call upon the resources” of this Court. Id.
[¶ 22] We reserve, for an appropriate case, the issue of whether the fugitive dismissal rule would apрly when a fugitive defendant voluntarily turns himself or herself in to the proper authorities. See Estelle v. Dorrough, 420 U.S. 534, 541, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975) (encouraging voluntary surrender is a valid justification for dismissing a fugitive defendant’s appeal); Irvin v. State, 236 Ind. 384, 139 N.E.2d 898, 900 (1957) (holding courts should not grant new trials on the basis of bargaining with a defendаnt at large). See also Anthony Michael Altman, Comment, The Fugitive Dismissal Rule: Ortega-Rodriguez Takes the Bite out of Flight, 22 Pepp. L.Rev. 1047, 1082-83 (1995) (proposing a discretionary dismissal rule for fugitives, in which courts weigh the following three factors in deciding whether a former fugitive’s appeal should be dismissed: “(1) length and effect of the delay; (2) voluntary versus involuntary return; and (3) nature of the claim asserted”).
IV
[¶ 23] The State’s motion is granted, and Bell’s appeal is dismissed.
[¶ 24] GERALD W. VANDE WALLE, C.J., and WILLIAM A. NEUMANN, MARY MUEHLEN MARING and CAROL RONNING KAPSNER , JJ„ concur.