The opinion of the court was delivered by: Justice Zwick
Appeals from the Circuit Court of Cook County.
Honorable Themis Karnezis, Fred Suria, Michael Bolan, Robert Krup & Rodolfo Garcia, Judges Presiding.
These five criminal cases share a common procedural element. In all, the defendants died during the pendency of their appeals. Subsequently, counsel who had represented the defendants brought independent motions seeking to dismiss the appeals and to vacate the convictions, arguing that the cases had become moot upon their clients' deaths. The State agreed that the appeals were moot and that the appellate proceedings should be dismissed, but disagreed as to what effect dismissal would have upon the underlying convictions. Whereas defense counsel argued that the convictions should be voided as if they had never occurred (ab initio, or literally, "from the beginning"), the State took the position that the defendants' convictions should be allowed to stand as a matter of record. We consolidated the cases and ordered the issue briefed and argued. We also ordered supplemental briefing following oral argument to address the impact of our State constitution's 1992 "victim's rights" amendment. See Ill. Const. 1970, Art. I, § 8.1. The effect of this amendment presents an issue of first impression.
The underlying facts of the defendants' convictions can be briefly stated.
Defendant Will Robinson, in appeal number 1-96-1695, was covicted of burglary. Officers testified that they observed Robinson in the act of removing a cellular telephone from the rear seat of a parked vehicle. Robinson was sentenced to serve 20 years in the custody of the Illinois Department of Corrections. He subsequently died in custody on April 16, 1997, while his appeal was pending.
Defendant John Dunn, in appeal number 1-96-2053, was convicted of voluntary manslaughter for killing his wife, Patricia "Penny" Dunn, by shooting her in the mouth. Penny did not die immediately but was rendered a quadriplegic and suffered during the next 8 years from her injury. Following his conviction, Dunn was sentenced to an extended term in prison of 24 years. He died at the Dixon Correctional Center of lung and throat cancer, on October 9, 1996, while his appeal was pending.
Defendant Raymond Golden, in appeal number 1-97-3728, was arrested for possession of less than 15 grams of a substance containing cocaine. The arrest occurred after the vehicle he was driving was stopped on suspicion that it had been stolen. A pat-down search of Golden at the scene resulted in the officers discovering the cocaine. After his conviction, Golden was sentenced to three years imprisonment in the Illinois Department of Corrections. He died on March 29, 1998, during the pendency of his appeal.
Defendant Amanda Wallace, in appeal number 1-96-3757, was convicted of the first-degree murder of her three-year-old son, Joseph. Evidence presented at trial established that Wallace wrapped an electrical cord around his neck and then hung him from a door transom. Wallace was sentenced to natural life imprisonment for her crime. Counsel subsequently informed this court that Wallace committed suicide on August 3, 1997, during the pendency of her appeal.
Defendant Glennon Dye, in case number 1-97-3054, was convicted of aggravated criminal sexual assault, criminal sexual assault and aggravated criminal sexual abuse against his six-year-old niece. He was sentenced to 30 years imprisonment for his crimes. Dye appealed his conviction and subsequently committed suicide on October 1, 1997, prior to his appeal being resolved.
When a criminal defendant dies and thereby renders a pending appeal moot, appellate courts are faced with three possible alternatives: (1) the appeal can be dismissed, leaving the conviction to stand unabated, (2) the proceedings can be abated ab initio, thereby removing forever any stigma of the conviction or (3) a third-party can be substituted for the defendant and the case may proceed. Defense counsel argue that these cases should be abated ab initio. They note that this was the approach taken by our supreme court in People v. Mazzone, 74 Ill. 2d 44, 383 N.E.2d 947 (1978). They also note that dismissing the appeal and vacating the proceedings ab initio is, by far, the rule followed in most federal and other state courts. See generally, Tim A. Thomas, "Effect, On Proceedings Below, Of Death Of Defendant Pending Appeal From Criminal Conviction," Annot., 80 A.L.R. 4th 189 (discussing cases since 1950) and John H. Derrick, "Abatement Effects Of Accused Death Before Appellate Review of Federal Criminal Conviction," Annot., 80 A.L.R.Fed. 446.
In Mazzone, the defendant was found guilty of publicly exhibiting an obscene film and assessed a fine of $500. He died after leave to appeal had been granted but before the State had filed its brief. Noting some controversy in the United States Supreme Court on the question of what should occur when a defendant whose appeal has not yet been resolved dies (Mazzone, 74 Ill. 2d at 47-48, citing Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971); Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976)), our supreme court held that, because Mazzone's petition for leave to appeal had been granted and his right to challenge his conviction had formally vested, the proceedings must abate ab initio. *fn1 The court emphasized that this was the procedure followed "in the great majority of courts." Mazzone, 74 Ill. 2d at 47-48.
In its arguments to this court, the State has strenuously maintained the view that a criminal defendant's constitutional right to pursue an appeal should be considered a personal right which expires upon the defendant's death. According to the State, a defendant's conviction should stand because the "presumption of innocence has been erased by his conviction" and because "the ultimate Disposition of defendant's prosecution should be determined by the status quo at the time of his death." The State urges that we distinguish Mazzone from those cases now before us because the defendant in Mazzone faced only a fine and not a prison sentence.
We reject the State's narrow interpretation of Mazzone. We note that the cases cited in Mazzone fail to draw the distinction now advanced by the State. See Mazzone, 74 Ill. 2d at 47, citing State v. Stotter, 67 Idaho 210, 175 P.2d 402 (1946)(defendant sentenced to 30 days in jail and $300 criminal fine -- conviction abated in its entirety); State v. Bradley, 229 Iowa 92, 293 N.W.858 (1940)(defendant sentenced to both prison term and payment of a fine -- conviction abated); State v. Blake, 53 Ohio App. 2d 101, 371 N.E.2d 483 (1977)(rejecting argument that fine should not be abated); State v. Clark, 260 N.W.2d 370 (S.D. 1970)("inclusion of a fine does not operate to alter the rule of abatement of all proceedings"); Crooker v. United States, 325 F.2d 318 (1963)(fine and prison sentence -- conviction abated in its entirety); United States v. Knetzer, 117 F. Supp. 917 (S.D. Ill. 1954)("fine is a part and parcel of the judgment or punishment, and also abated upon the death of the defendant"). It follows that the supreme court did not intend the rule of abatement ab initio to apply only to those cases involving criminal fines. We agree with the State, however, that developments in Illinois law since Mazzone was decided prevent us from adopting the sweeping view of that case now advanced by defendants' counsel.
The cases which have abated proceedings ab initio and nullified the defendant's conviction after his or her death, including Mazzone, emanate from the view that criminal prosecutions should punish the guilty and protect society from any future criminal misdeeds of the defendant. Once the defendant has died, these objectives are no longer possible. This traditional view began to change nationally, however, in the late 1970's and early 1980's with the recognition that crime victims and witnesses also have important, personal interests at stake in criminal proceedings. See Craig Peyton Gaumer, Protecting the Innocent: Victim-Witness Rights in Illinois, 83 Ill. Bar Journal 568 (November 1995).
To protect the interests of crime victims and witnesses, our General Assembly passed the Rights of Crime Victims and Witnesses Act (725 ILCS 120/1 et seq. (West 1996)) in 1984. The Act recognizes that certain "crime victims" (see 725 ILCS 120/3(a)(West 1996), specifically those persons and their families who have been harmed by "violent crime" (see 725 ILCS 120/3(c) (West 1996)), have legally recognized rights in criminal proceedings which are distinct from the interests of either the defendant or the State. "Violent crime" is defined by the Act to be: "any felony in which force or threat of force was used against the victim, or any offense involving sexual exploitation, sexual conduct or sexual penetration, domestic battery, violation of an order of protection, stalking, or any misdemeanor which results in death or great bodily harm to the victim or any violation of Section 9-3 of the Criminal Code of 1961 [involuntary manslaughter and reckless homicide], or Section 11-501 of the Illinois Vehicle Code [driving while under the influence], or a similar provision of a local ordinance, if the violation resulted in personal injury or death, and includes any action committed by a juvenile that would be a violent crime if committed by an adult." 725 ILCS 120/3(a)(West 1996). The Act guarantees 10 specific rights to those who have been victimized by violent crime:
(1) The right to be treated with fairness and respect for their dignity and privacy throughout the ...