*1 Plaintiff-Respondent, Wisconsin, STATE of Defendant-Appellant. McDONALD, Daniel P. Court of Submitted, No. 86-0942-CR. on March briefs 1987.— Decided March 1987. (Also 771.) reported in 405 N.W.2d defendant-appellant For the the cause was sub- Hayes Beloit, mitted on the briefs of William J. Patrick K. McDonald of Janesville. plaintiff-respondent
For the the cause was sub- attorney Follette, mitted on the brief of La Bronson C. general, gener- attorney Ebert, and Steven D. assistant al. Sundby, Gartzke, P.J.,
Before Eich and JJ. GARTZKE, McDonald, P. J. P. Daniel once judge *2 of the circuit court LaFayette was county, convict- murder, first-degree 940.01, ed of Stats., sec. and sentenced to a term imprisonment. of life He timely filed a notice of intent to seek postconviction relief from trial court, court and to appeal to this died before trial court ruled on motion. his He died by suicide.
After his death McDonald’s attorneys moved the trial court for an vacating order his conviction and sentence and dismissing information. The trial court denied the motion. McDonald’s attor- neys appealed then from that order the judgment of conviction.
McDonald’s agree his attorneys death moots all issues could in postconviction which be raised proceed- ings appeal. and on are proceedings Moot ordinarily however, dismissed. McDonald’s attorneys, request that we not only dismiss but remand the case to the trial court with instructions vacate all him, criminal proceedings against their from initia- through sentence. undisputed, When the facts are justice requires vacating proceedings all before McDonald’s question suicide is a of law. We hold that does not so We therefore dismiss the with require. against to vacate any proceedings direction McDonald. undisputed, sparse. the facts are they
While are surrounding No circumstance McDonald’s death is of record, except "Doxepin it caused Intoxi- was resulting cation” His attorneys from an "overdose.” stipulated request that he suicide and died did an evidentiary hearing. State
In Wis. 2d 349 N.W.2d (Ct. App. the defendant died of a heart attack while his motion for a new trial was pending. We held that death mooted the issues because the result on appeal could have no practical effect. We concluded because defendant’s death made postconviction meaningless, relief it appropriate was to dismiss his motion for a new trial. Krysheski.
We went further We concluded that prosecution, from its inception conviction, through the should be abated. We said:
Abatement of all is based on the recognition that a pursuing *3 right yet has not safeguards received all of the of judicial system. prior appeal Death to works a deprivation of a final determination of the case’s appeal merits. plays integral Because an part in system our for adjudication guilt final or inno- cence, justice requires the abatement of a convic- where the merits are left unresolved. 88,
Our in inapplicable when the death is a In suicide. the absence of contrary evidence, we are entitled to person assume that who takes his own life does so A by choice.
who chooses death pending request postconvic- a deprives
tion relief himself of a final determination of require his case’s merits. Justice does not abatement or vacation of a conviction when the defendant prevents himself merits, a review of the request suicide, a failure to or a that an be dismissed. otherwise,
Were we to hold
a convicted defendant
could use suicide to ensure the "return to the status
quo before commencement of’
action,
by way
return we directed
of abatement
89,
The decision abatement for a suicide has not convinced us. United States v. 1983), Oberlin, 718 F.2d abated all holding after that the defendant right appeal by killing had not waived his himself, stating simply "[t]he contention that suicide is the 'ultimate waiver’ is without merit. The doctrine of waiver has no connection to the issue of abatement.”1 Supp. Id. Chin, at 896. In United States v. 633 F. (E.D. Va. a district court found that a guilty defendant’s suicide after a verdict and before further was a "conscious and deliberate” choice, Oberlin, declined to follow and refused to abate *4 proceedings.2 Krysheski
1In
is relied on two federal decisions and one state
decision,
suicide,
none of which involved a
as well as United States
Oberlin,
1983),
general
By the Appeal dismissed. Court. — SUNDBY, {concurring). agree J. I the However, should be dismissed. I find myself I believe that quandary. appellant when an dies during appeal, of an pendency appeal should be dismissed because the is no longer subject to the jurisdiction of the court. However we have held recently that when a defendant dies pending conviction, appeal of his is dismissal appeal appropriate, but all in the prosecu- inception, conviction, tion from its including the shall be abated. State v. 84, 88-89, 119 Wis. 2d (Ct. 1984). 349 N.W.2d App. We accord decisions of panel another of our great court defer- ence, when the especially decision is a recent one and disputed point of law has been thoroughly consid- Therefore, ered. Krysheski I defer our decision in suggest our holding should be reexamined. I recognize that there impressive authority for that, the proposition at least when a defendant dies pending an appeal right, prior proceedings are abated ab initio. However, a review of the cases which this line of is based reveals authority do they not support proposition. Krysheski, supra, general this relied on Durham v. United example, (1971), U.S. 482-83 which in turn relied heavily on the analysis Eighth issue Circuit appeal of a suicide with no discussion whether the conviction should be abated.
Court of in Crooker v. United 325 F.2d 1963). Cir. It is informative therefore to this examine latter decision. qualifica-
Crooker, 325 F.2d at holds without during pendency if dies of a appeal, only criminal must be dis- missed but "the have causes abated.” An examination by of the reveals, decisions relied on the Crooker court many however, that of those decisions involved the of a fine. assessment developed The abatement rationale was because courts did not it believe was just punish family the defendant’s for his offense. The Crooker court stated: something
A fine is not to which the United States compensation is entitled way damages, or punishment as only being a matter thereby upon meted imposed the defendant. "It was as a punishment If, his offense. lived, collected, he while it had been he would have punished deprivation been of that amount but, estate; death, from his his there no punishing in family his for his offense.” 279, 282, Pomeroy, States v. F. [United (C.C.S.D.N.Y. grounds, rev’d on other United Co., States v. New Cent. York & H.R.R. F. 324 (2d (Footnote omitted.) 1908).] Id. at 321. persuasiveness
The abatement rationale loses its when the failure to abate affects the defendant. guidance Because we have clear from the United Supreme Court, States and because the rule which we adopted Krysheski shaky precedent, rests on such I adopt appeals do not believe we should rule death of the defendant abates all simply I ab initio. we believe should *6 dismiss the as moot because the defendant longer subject jurisdiction to the of the court. precedential weight Durham, The 401 U.S. at suspect 483, is for another reason. The United States Supreme Court in 423 325 Dove United U.S. (1976), overruled Durham. In 119 Wis. 2d agreed 732, at 88 n. 349 at N.W.2d we with the Seventh Circuit Court of in United States v. Moehlenkamp, F.2d Cir. respect that Dove overrules Durham with to the appropriate disposition petitions for certiorari petitioner’s Durham, mooted the death. In 401 U.S. Supreme *, however, at 483 n. the United States Court prevent any stated that: "Since death will review on merits, the the situation is an or certiorari, the distinction between the two would not important present purposes.” Thus, seem to be it is Supreme supra, Dove, not clear whether in the Court preserve holding any intended to of its in Durham. As appeals Moehlenkamp, the circuit court of stated in 127: "[I]t F.2d at is difficult to divine the inten- Supreme says tions of the Court when it so little ....” require holdWe does not abatement or vacation of a conviction when the defendant prevents himself a review of the merits suicide. If we base our decision whether to abate a conviction ab involuntarily initio whether the defendant died necessarily open life, or took his or her own we door to an exhaustive examination of the circum- deny stances of death in most such cases. Would we to McDonald abatement of his conviction if it were established that at time of his suicide he lacked capacity voluntary to make a choice whether to live or die?
Rather than involve ourselves extensive inves- tigation litigation concerning the voluntariness or appellant, I involuntariness of the death of an believe adopt simple covering very it is better to rule pending appeal, i.e., deaths is dis- longer subject missed because the is no jurisdiction of the court.