Court of Appeals Office of Appellate Courts
Lori Swanson, Attorney General, Saint Paul, Minnesota; and Kristen Nelsen, Mower County Attorney, Jeremy Clinefelter, Assistant County Attorney, Austin, Minnesota, for respondent.
David W. Merchant, Chief Appellate Public Defender, Benjamin J. Butler, Assistant State Public Defender, Saint Paul, Minnesota, for appellant.
Gildea, C.J. Dissenting, Dietzen, J. Took no part, Wright, and Lillehaug, JJ.
1. State v. Hakala, No. A08-0215, Order (Minn.), in which we applied the doctrine of abatement ab initio to a defendant who died while his petition for discretionary review was pending in our court and after the court of appeals had reversed his conviction, does not control application of the doctrine to a defendant who dies during the pendency of his appeal of right from a final judgment of conviction.
2. When a defendant dies during an appeal of right from a final judgment of conviction and there is no restitution award at issue, the appellate court, consistent with the doctrine of abatement ab initio, is to vacate the defendant's conviction and remand to the district court with instructions to dismiss the charging document.
GILDEA, Chief Justice
Appellant Mark Myrl Burrell filed a direct appeal challenging his forgery convictions. While his direct appeal was pending in the Minnesota Court of Appeals, Burrell died. Defense counsel filed a motion to abate the prosecution ab initio, arguing that Burrell's death required the court of appeals to vacate the convictions and remand to the district court with instructions to dismiss the complaint. After denying the abatement motion, the court of appeals dismissed the appeal. Because we conclude that a prosecution should abate ab initio when the defendant dies during an appeal of right from a final judgment of conviction in which restitution is not at issue, we reverse the court of appeals' denial of the abatement motion, vacate Burrell's convictions, and remand to the district court with instructions to dismiss the complaint.
This case arises from the decision of Burrell and his brother, Steven Burrell ("Steven"), to switch identities. After the brothers had lived as each other for approximately 12 years, attorneys advised both of them that they had been living as each other for so long that it was impossible to stop. Attorneys also advised Burrell and his brother, however, that there were certain things, including marriage and the purchase of property, they should do under their legal names. Steven later purchased two properties in Austin, one at 204 South Main and one at 1604 East Oakland, under his own name. Steven and the brothers' mother lived at the 204 South Main address, and Burrell lived at both addresses at various times.
By 2007, Steven had moved to Florida. While Steven was living in Florida, the Mower County Auditor-Treasurer's Office sent a letter to Steven advising him that because he had not paid property taxes for several years, both Austin properties were going into forfeiture. The letter stated that Steven could avoid forfeiture by signing a confession of judgment for each property, which is an agreement to pay the delinquent property taxes at a payment schedule of 10 percent of the owed amount per year. Steven was unable to return to Minnesota to sign the confessions of judgment and authorized Burrell to sign on his behalf and pay the taxes. Burrell consulted with an attorney, who advised him that he could sign the confessions of judgment and pay the taxes as long as he did not intend to defraud anyone or benefit from it. Accordingly, on December 21, 2007, Burrell, pretending to be Steven, signed the two confessions of judgment as Steven Burrell. Burrell made the required payments from December 2007 until February 2010.
On January 17, 2010, Steven died intestate in Nebraska. Burrell went to the Mower County Auditor-Treasurer and asked if there was a way to transfer Steven's two Austin properties to Burrell without going through probate. Burrell, who had been living in Austin as Steven Burrell, explained that he was really Mark Burrell, not Steven; that he and his brother had been switching identities for years; and that he wanted to transfer title to the properties to the name of Mark Burrell. The auditor-treasurer notified police that there was an individual who had entered into an agreement with Mower County as Steven Burrell but who now claimed to be Mark Burrell.
Austin police investigated and determined that Burrell had identified himself to several people in Austin as both Steven and Mark Burrell. Additionally, police determined that the late Steven Burrell had been living in Nebraska under the name of Mark Burrell. At the conclusion of the investigation, Burrell was charged with two counts of aggravated forgery in violation of Minn. Stat. § 609.625, subd. 1(1) (2012), one count for each of the confessions of judgment that Burrell signed in December 2007.
Following a jury trial, Burrell was found guilty of both counts of aggravated forgery. The district court convicted Burrell of both offenses and sentenced him to 12 months and 1 day in prison for each charge, to be served concurrently. The court also imposed a $3, 000 fine, which is still outstanding, but no restitution was sought or awarded.
Burrell filed a direct appeal in the Minnesota Court of Appeals challenging his convictions and sentence. Burrell raised five issues in his direct appeal: (1) insufficient evidence to support the convictions; (2) plain error in the jury instruction for intent to defraud; (3) error in permitting the alternate juror to deliberate; (4) prosecutorial misconduct during closing argument; and (5) error in imposing a sentence for each conviction. Oral argument was held in the court of appeals on June 20, 2012.
Five days later, on June 25, 2012, defense counsel was informed that police had discovered Burrell's body in his home in Nebraska. On July 5, 2012, defense counsel filed a motion in the court of appeals to abate the prosecution ab initio.
The court of appeals denied the motion, explaining that although the doctrine of abatement ab initio was "not itself new, its use in this factual context in Minnesota would be new." State v. Burrell, No. A11-1517, Order Opinion at 3 (Minn.App. filed Nov. 7, 2012). Noting a recent trend in other jurisdictions to limit the doctrine, the court of appeals concluded that it was "not fitting for us to adopt and apply the abatement ab initio doctrine here." Id. After denying the motion to abate the prosecution ab initio, the court of appeals dismissed Burrell's direct appeal. We granted Burrell's petition for review.
Burrell argues that the doctrine of abatement ab initio requires the appellate court to vacate his convictions and remand to the district court with instructions to dismiss the complaint because he died during the pendency of his appeal of right from a final judgment of conviction. The State argues that we should simply dismiss Burrell's appeal.
Whether to adopt the doctrine of abatement ab initio is a question of law that we review de novo. In re McCaskill, 60 ...