[Cite as State v. McGilvary, 2015-Ohio-4825.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

STATE OF OHIO,                                  )   CASE NO. 15 MA 15
CITY OF YOUNGSTOWN,                             )
                                                )
        PLAINTIFF-APPELLEE,                     )
                                                )
VS.                                             )   OPINION AND
                                                )   JUDGMENT ENTRY
AARON O. MCGILVARY,                             )
                                                )
        DEFENDANT-APPELLANT.                    )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from Youngstown
                                                    Municipal Court.
                                                    Case No. 14 CRB 021054

JUDGMENT:                                           Dismissed as moot; original
                                                    judgment of conviction vacated and
                                                    criminal proceedings dismissed.

APPEARANCES:

For Plaintiff-Appellee:                             Atty. Dana Lantz
                                                    Youngstown City Prosecutor
                                                    Atty. Jeffrey Moliterno
                                                    Assistant Prosecuting Attorney
                                                    26 S. Phelps St.
                                                    Youngstown, Ohio 44503

For Defendant-Appellant:                            Atty. Katherine E. Rudzik
                                                    26 Market Street, Suite 904
                                                    Youngstown, Ohio 44503

JUDGES:

Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                    Dated: November 17, 2015
[Cite as State v. McGilvary, 2015-Ohio-4825.]
PER CURIAM.


         {¶1}    Defendant-Appellant Aaron McGilvary appealed from a fourth-degree
misdemeanor drug paraphernalia conviction entered in the Youngstown Municipal
Court. The state filed a notice of death with this court showing Appellant died while
this direct criminal appeal was pending. The state has not asked to substitute a
party.
         {¶2}    For the following reasons, we hereby “dismiss the appeal as moot,
vacate the original judgment of conviction and dismiss all related criminal
proceedings, including the original [complaint]” as per State v. McGettrick, 31 Ohio
St.3d 138, 142, 509 N.E.2d 378 (1987).
                                  STATEMENT OF THE CASE
         {¶3}    Appellant was issued a citation for possession of drug paraphernalia in
violation of R.C. 2925.14, a fourth-degree misdemeanor. He was appointed counsel
after his arraignment in the Youngstown Municipal Court. Appellant filed a motion to
suppress on the grounds that the paraphernalia was viewed by police officers after
they entered his home without a warrant. A suppression hearing ensued. The state
presented the testimony of a police officer, and the defense presented the testimony
of Appellant and his mother. The trial court denied the suppression motion, finding
an exception to the warrant requirement applied.
         {¶4}    A bench trial was conducted.    At the close of the state’s case, the
defense filed a Crim.R. 29 motion for acquittal, arguing there was insufficient
evidence connecting Appellant to the drug paraphernalia since the officer testified
that a woman was alone in Appellant’s room where two glass pipes were found. The
court applied the doctrine of constructive possession and found Appellant guilty.
         {¶5}    On January 29, 2015, the court sentenced Appellant to nine months of
basic probation and imposed a $100 fine, $100 reimbursement for community
control, and court costs. Appellant filed a timely notice of appeal, and new counsel
was appointed for purposes of appeal. Transcripts of the suppression hearing and
the bench trial were filed.
                                                                                                                      -2-

         {¶6}     In July 2015, Appellant’s appointed attorney filed a motion to withdraw
and an Anders brief, stating she could find no arguable issues.                                  See Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). This court notified
Appellant and provided him time to file his own brief raising the arguments of his
choice. See id. When he did not do so by the time provided, this court began
conducting its independent review under Anders to ascertain whether any non-
frivolous issue existed for briefing.                  In the meantime, the state filed notice of
Appellant’s death with an attached death notice and a police report from October 6,
2015, showing Appellant died on or prior to the date of the report.
                  DEATH OF CRIMINAL DEFENDANT PENDING APPEAL
         {¶7}     Our instructions for this scenario have been provided by the Ohio
Supreme Court’s McGettrick case. In that case, the state claimed the appellate court
should dismiss a criminal appeal as moot and allow the conviction to stand when a
defendant dies pending his direct appeal. McGettrick, 31 Ohio St.3d at 140. The
Ohio Supreme Court found this position would preclude a convicted criminal
defendant from exercising his constitutional right to a direct review of his criminal
conviction. Id.
         {¶8}     The defendant’s attorney argued the defendant’s death not only mooted
the appeal but rendered the underlying criminal proceedings abated ab initio. Id.1
The Court found this position did not protect the interests of society as represented
by the state.         Id. at 140-141.          To protect the interests of both sides, the Ohio
Supreme Court then adopted a middle-ground position. Id. at 141, 143. See also
State v. Makaila, 79 Haw. 40, 45 897 P.2d 967 (1995) (adopting McGettrick after
finding the holding fashions a fair compromise between the competing interests).
Pursuant to rule, if a party dies while a proceeding is pending in the court of appeals,
the personal representative of the deceased party may be substituted as a party on
motion filed by the representative “or by any party.”                            App.R. 29(A).           The Ohio

1 This is the position taken by various federal courts: a criminal defendant’s conviction is abated ab initio if he

dies while his direct appeal is pending, and the state cannot argue otherwise. See, e.g., U.S. v. Bennett, 765
F.3d 887 (8th Cir.2014); U.S. v. Volpendesto, 755 F.3d 448 (7th Cir.2014) (criminal restitution order exceeding
half a million dollars was vacated when defendant died pending appeal). It has been recognized that this
abatement doctrine does not have a federal constitutional basis. Volpendesto, 755 F.3d at 453.
                                                                                     -3-

Supreme Court noted that application of the rule is not automatic as affirmative action
is required before substitution can be afforded. McGettrick, 31 Ohio St.3d at 143.
      {¶9}    The Court explained that the state can use this rule to ask for
substitution of the decedent’s personal representative as a party, which would allow
the appeal to proceed through the appellate process. Id. at 142. If no personal
representative has been appointed for the decedent and the state moves the court for
a substitution of party, the court of appeals should substitute any proper person as a
party, including the decedent's attorney of record, and continue with the
determination of the appeal. Id., applying App.R. 29(A).
      {¶10} “Absent such a motion, filed within a reasonable time by the state, for
substitution of a party, the court of appeals may dismiss the appeal as moot, vacate
the original judgment of conviction and dismiss all related criminal proceedings,
including the original indictment.” McGettrick, 31 Ohio St.3d at 142. Therefore, when
a criminal defendant dies while his direct appeal is pending in the court of appeals
and the state does not seek to substitute a party in place of the defendant, the
appellate court is to dismiss the appeal as moot, vacate the judgment of conviction,
and dismiss the indictment. Id.; State v. Grant, 6th Dist. No. E-96-070 (Sep. 16,
1997); State v. Fisher, 11th Dist. No. 93-T-4938 (June 30, 1994). See also State v.
Short, 2d Dist. No. 17228 (June 18, 1999) (the representative of the criminal
defendant should not seek to substitute himself as party in the absence of the state’s
request as the conviction will be vacated if no substitution is sought). Compare State
v. Liddy, 11th Dist. No. 2010-L-135, 2011-Ohio-5866, ¶ 13 (distinguishing a post-
conviction appeal).
      {¶11} In conclusion:     Appellant died while his direct criminal appeal was
pending in this court; the state filed a notice of death; and the state has not asked to
substitute a party pursuant to App.R. 29(A) in order to permit this court to proceed
with the appeal.      We hereby “dismiss the appeal as moot, vacate the original
judgment of conviction and dismiss all related criminal proceedings, including the
original [complaint]” as per State v. McGettrick, 31 Ohio St.3d 138, 142, 509 N.E.2d
378 (1987).
                                 -4-

      {¶12} No costs assessed.



Robb, J., concurs.

Donofrio, P.J., concurs.

DeGenaro, J., concurs.
