Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 08CA2694.
The supreme court granted the People's petition for writ of certiorari after the court of appeals vacated defendant Carey Andre Griffin's conviction for failure to register as a sex offender. After the court granted certiorari review, but prior to oral arguments, Griffin died. Defense counsel filed a notice of death and motion to dismiss, arguing that because of Griffin's death, the court should dismiss the writ of certiorari and vacate the criminal proceedings ab initio. The supreme court reviewed additional briefing regarding the proper resolution of the matter in light of the defendant's death, and heard oral arguments. The supreme court holds that the doctrine of abatement ab initio in Colorado does not apply to cases pending on certiorari review. Accordingly, consistent with the practice of the United States Supreme Court, the supreme court vacates its order granting the writ of certiorari and dismisses the People's petition, but does not abate the proceedings ab initio. The court of appeals' judgment vacating Griffin's conviction stands undisturbed.
Attorneys for Petitioner: John Suthers, Attorney General, Matthew S. Holman, First Assistant Attorney General, Denver, Colorado.
Attorneys for Respondent: Douglas K. Wilson, Public Defender, Elizabeth H. Porter-Merrill, Denver, Colorado.
[¶1] We granted the People's petition for writ of certiorari to review the court of appeals' opinion in
People v. Griffin, __ P.3d __, 2011 WL 915714, at *1 (Colo. App. Apr. 21, 2011), which vacated Carey Andre Griffin's conviction for failure to register as a sex offender in violation of sections 18-3-412.5(1)(g) and (2), C.R.S. (2006). After we
granted certiorari review, Griffin died. Griffin's counsel filed a notice of death and moved to dismiss the People's appeal, arguing that the proceedings should abate ab initio. Under the doctrine of abatement ab initio, a defendant's death abates not just the pending appeal but all proceedings in the prosecution " ab initio," or " from the beginning."
See State v. Burrell, 837 N.W.2d 459, 462-63 (Minn. 2013). We issued an order granting the motion to dismiss but later vacated that order to allow the People to respond to the motion. After reviewing the response and reply, we asked the parties for additional briefing to address whether the abatement ab initio doctrine applies under the circumstances of this case and whether this court should nevertheless resolve the issues accepted for certiorari review.
[¶2] Griffin's counsel argues that the doctrine of abatement ab initio applies here because Griffin died while his case was pending on direct appellate review of his conviction. Thus, Griffin asks us to dismiss the appeal, vacate the judgment of the court of appeals, and remand with directions to return the case to the district court to dismiss the complaint. The People argue that we should resolve the appeal despite Griffin's death because the State has an interest in obtaining resolution of the court of appeals' interpretation of the sex offender registration laws and this issue is likely to evade future review. The People also note that other courts have questioned the continuing validity of the abatement ab initio doctrine in light of other interests, including the rights of crime victims.
[¶3] Consistent with cases from the United States Supreme Court and other jurisdictions, we decline to apply the doctrine of abatement ab initio to matters pending on certiorari review. In light of Griffin's death, we vacate our order granting the writ of certiorari and dismiss the People's petition, but do not abate the proceedings ab initio.
[¶4] The doctrine of abatement ab initio is not grounded in the constitution or in statute, but is instead a court-created common law doctrine.
United States v. Estate of Parsons, 367 F.3d 409, 415 (5th Cir. 2004). Under the doctrine, a defendant's death that occurs while his criminal conviction is pending on direct appeal " abates not only the appeal but also all proceedings had in the prosecution from its inception."
Crooker v. United States, 325 F.2d 318, 320 (8th Cir. 1963) (citing J.C. Vance, Annotation, Effect, on Proceedings Below, of Death of Defendant Pending Appeal from Criminal Conviction, 83 A.L.R. 2d 864 (1962) (collecting cases)). " [T]he appeal does not just disappear, and the case is not merely dismissed. Instead, everything associated with the case is extinguished, leaving the defendant as if he had never been indicted or convicted." Estate of Parsons, 367 F.3d at 413 (internal quotation marks and citation omitted); ...