Chmurny v. State

WILNER, J. In a consolidated Opinion in Surland v. State, 392 Md. 17 , 895 A.2d 1034 (2006) and Bell v. State, 392 Md. 17 , 895 A.2d 1034 (2006), we held that, when a defendant in a criminal case dies after being convicted in Circuit Court and while a properly filed appeal of right is pending in the Court of Special Appeals or this Court, (1) the appeal may proceed if a substituted party, appointed in conformance with Maryland Rules 1-203(d), 2-241, and 8-401, elects to have it proceed, (2) if the appeal proceeds, the fate of the judgment will depend on the result of the appeal, but (3) if, within the time allotted, no substituted party elects to have the appeal proceed, it will be dismissed and the judgment will remain intact, as with any other dismissed appeal. ¹⁶² In this case, the question is what happens when the defendant dies after a verdict of guilty is rendered but before sentence is imposed and any appeal can properly be taken. Unfortunately, the question is presented in an untimely and unauthorized appeal which, consequently, must be dismissed. BACKGROUND In an eight-count indictment, Alan Chmurny, was charged in the Circuit Court for Howard County with first and second degree assault (Counts 1 and 2), three counts of reckless endangerment (Counts 3, 4, and 5), stalking (Count 6), malicious destruction of property (Count 7), and harassment (Count 8). Prior to trial, Counts 6 and 8 were severed.

On September 12, 2001, after a five day trial, a jury found Chmurny guilty on Counts 1 through 5 and not guilty on Count 7. Sentencing was scheduled for November 15, 2001. We are informed that, contemporaneously with the return of the verdicts and the scheduling of sentencing, Chmurny, while still in the courtroom, ingested cyanide poison, from which he died the next day. 1 Six days later, the State filed a “Line” requesting that the untried Counts 6 and 8 be scheduled “for an abatement by death.” On September 24, 2001, defense counsel moved “that this matter be dismissed by suggestion of death.” That was supplemented by a second, more specific motion filed October 12, 2001, to dismiss Counts 1 through 5 and 7. Citing Jones v. State, 302 Md. 153 , 486 A.2d 184 (1985) and Russell v. State, 310 Md. 96 , 527 A.2d 34 (1987), counsel contended that, when a defendant dies prior to sentencing, the case must be dismissed.

On October 12, 2001, the court held a hearing on the motions, although the proceeding, presumably limited to argument of counsel, was not transcribed. The court abated ¹⁶³ Counts 6 and 8, as requested by the State, but declined to dismiss the verdicts on the remaining counts, as urged by defense counsel. Those rulings were contemporaneously recorded on a Criminal Hearing Sheet that was placed in the record and in docket entries made by the clerk. On November 8, 2001, counsel moved for reconsideration of the denial of his motion to dismiss the counts on which verdicts had been rendered.

Although, with the lack of a transcript and the omission of any explanation noted either on the Criminal Hearing Sheet or in the docket entries, there is no indication of why the court ruled as it did, counsel asserted in his motion to reconsider—and the State has never denied the assertion— that the court had based its decision on the premise that there was “no mechanism or procedure for the dismissal of the Counts which resulted in a jury verdict, but did not proceed to sentencing.” In response, counsel argued that, because Chmurny’s death precluded him from exercising his appellate rights, Jones and Russell did, indeed, mandate that the entire criminal proceeding be abated. The court denied the motion the next day, without a hearing. No appeal was taken from the court’s ruling. Indeed, nothing more was done for nearly four years.

The case remained officially open, with guilty verdicts recorded on five counts, a not guilty verdict on one count, no disposition on the guilty verdicts and no disposition possible on those verdicts, and thus no judgment entered on any of the six counts on which verdicts had been rendered. On June 24, 2005, defense counsel in the case filed a new motion, nearly identical to the motion filed in October, 2001, to dismiss Counts 1 through 5 and 7. The motion is stated to be that of “the Defendant, ALAN BRUCE CHMURNY, by and through his attorney.” The State opposed the motion, stressing the point apparently of concern to the court earlier, that there was no mechanism for dismissing or abating verdicts returned by a jury. Neither Jones nor Russell , the prosecutor claimed, was on point; Jones dealt with the defendant’s death while the case was pending on certknuri review in the Court of Appeals, and Russell dealt with a defendant who died while pending trial. ¹⁶⁴ No case, he claimed, and no Rule or statute provided for the abatement of guilty verdicts that had not ripened into judgments.

Once again, without any recorded explanation, the court, on July 1, 2005, denied the motion, whereupon, on July 11, 2005, “the defendant, Alan Bruce Chmurny, by and through his attorneys,” filed an appeal from the July 1, 2005 denial of the motion to dismiss. We granted certiorari prior to any disposition by the Court of Special Appeals to consider the issue in conjunction with Surland and Bell . DISCUSSION There are two equally dispositive defects with respect to this appeal. First, counsel had no authority to file it, and second, it was untimely.

As far back as 1880, this Court declared that an appeal filed by an attorney for a party who had died prior to the filing of an appeal was “not a mere irregularity, but a complete and radical defect,” requiring dismissal of the appeal. Owings v. Owings, 3 Gill & J. 1, 2, 4 (1830). The Court has confirmed that holding on a number of occasions. In Switkes v. John McShain, 202 Md. 340, 348 , 96 A.2d 617, 621 (1953), our predecessors made clear, as a matter of basic agency law, that “ordinarily the death of the principal revokes an agency and terminates the power of the agent to act” and that “[tjhis rule includes the agency embodied in the relationship of client and attorney.” In that case, we held that, where a claimant died after the Workers’ Compensation Commission denied his claim for benefits, the claimant’s attorney had no authority to seek judicial review, even though the attorney claimed an interest in a potential attorney’s fee if the judicial action was successful.

The judgment of the Circuit Court dismissing the action—in those days denoted as an “appeal” from the Commission—was. affirmed. More recently, in Brantley v. Fallston General Hospital, Inc., 333 Md. 507, 511 , 636 A.2d 444, 446 (1994), we expressly reaffirmed Switkes , holding that (1) “[ojrdinarily, under well-established principles of agency law, an agent’s authority ¹⁶⁵ terminates upon the death of the principal,” (2) “[t]he lawyer-client relationship is not excepted from this rule,” and (3) “an attorney has no authority to note an appeal on behalf of a client who has died.” The appeal in Brantley , filed long after the client had died, was ordered dismissed. As a purely housekeeping measure and more as an officer of the court, counsel would be authorized to bring to the court’s attention that the defendant has died, offer evidence of that fact, and move, as trial counsel did here, to dismiss the counts that proceeded to verdict. No financial or other detriment can accrue to the defendant’s estate or lingering reputation from such a motion, whether granted or denied, and, as we shall point out later, dismissal of those counts is appropriate as a matter of proper judicial administration.

Filing an appeal is another matter; that is not a housekeeping measure. At the very least, court costs, printing costs incurred in preparing a transcript, brief, and record