                                                                                      February 14 2012


          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        DA 11-0031

                                        2012 MT 33
                                     _________________

STATE OF MONTANA,

           Plaintiff and Appellee,
                                                                 OPINION
     v.                                                            AND
                                                                  ORDER
WESLEY WILLIAM BENN,

           Defendant and Appellant.
                                     _________________


¶1     Colin M. Stephens, counsel for Appellant Wesley William Benn, filed a notice
advising that Benn passed away on July 26, 2011. The State of Montana moved for
dismissal, arguing that Benn’s death had mooted the appeal. Benn’s counsel filed a
response opposing the State’s motion, and suggesting that this Court’s precedent,
particularly, our last ruling on this issue in State v. Holland, 1998 MT 67, 288 Mont. 164,
955 P.2d 1360, was unclear about the effect of a defendant’s death upon the proceeding.
We concluded the issue warranted further consideration and ordered the parties to submit
supplemental briefing that analyzed, inter alia, recent decisions by other state courts
addressing the issue. That briefing has now been filed.
¶2     Benn was convicted by jury of sexual intercourse without consent and sexual
assault on May 7, 2010. The District Court sentenced Benn to 100 years in the Montana
State Prison, with 50 years suspended, for sexual intercourse without consent, and to 50
years in prison, with all 50 years suspended, for sexual assault to run consecutively with
the sentence for sexual intercourse without consent. The court imposed a 25-year parole
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eligibility restriction, designated Benn a Level II sexual offender, and ordered Benn to
pay the costs associated with the victim’s therapy. Benn filed a notice of appeal from the
judgment on January 18, 2011 and filed his opening brief on June 30, 2011, raising three
issues: 1) whether the District Court erred in instructing the jury on the sexual assault
charge; 2) whether Benn’s trial counsel rendered ineffective assistance by failing to move
for a continuance of a hearing when a witness became ill; and 3) whether Benn’s lengthy
sentence “shocked the conscience” and violated his constitutional rights in light of his
failing health. Benn died the following month.
¶3     In Holland, the Defendant died pending his appeal, and the State, as here, moved
for dismissal of the appeal. Holland, ¶¶ 1-2. We stated we had “consistently held that
the death of an accused pending the appeal of a judgment of conviction abates the
appeal,” although noting that none of our previous cases had “made reference to abating
the underlying criminal proceedings.” Holland, ¶¶ 3-4. We rejected the argument of
Defendant’s counsel that an appeal should be decided on the merits following a
defendant’s death, Holland, ¶¶ 5, 8, and concluded that “[i]t further appears to us that the
best reasoning is represented by the majority of jurisdictions which hold that a criminal
proceeding is abated in its entirety upon the death of the criminal defendant.” Holland,
¶ 8. As has been explained, “‘[i]n the abatement ab initio scheme, the judgment is
vacated and the indictment is dismissed, but only because the convicted defendant died.’”
Ex parte Estate of Cook, 848 So. 2d 916, 919 (Ala. 2002) (citation omitted); see also
State v. Carlin, 249 P.3d 752, 756 (Alaska 2011) (citation omitted) (under abatement ab
initio, “‘all proceedings are permanently abated as to appellant by reason of his death’”).
¶4     The State argues that Holland is manifestly wrong and should be overruled. It
argues that the doctrine of abatement ab initio embraced in Holland originated prior to

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the recognition of victims’ rights, which Holland failed to address. It notes that Montana
has passed laws requiring the payment of restitution to victims and that, in 1998, Article
II, Section 28 of the Montana Constitution was amended to add “restitution for victims”
as a principle of the State’s criminal justice policy. Montana’s legislatively-enacted
correctional and sentencing policy now calls for “restitution, reparation, and restoration
to the victim of the offense.” Section 46-18-101(2)(c), MCA. The State offers that other
state courts have reevaluated their approach to this issue and have overruled prior cases
abating criminal proceedings ab initio. The State also argues that upon a defendant’s
death an appeal should be dismissed as moot because it is not possible to grant effective
relief to the parties, noting that if a defendant were to prevail, the State could not retry the
defendant and obtain a judgment requiring payment of restitution to victims.
¶5     Benn’s counsel discusses and categorizes court decisions demonstrating the
different approaches taken by state courts. He “does not specifically advocate for a
policy of abatement ab initio,” but rather urges the Court to choose a middle path
between abatement ab initio and dismissal of the appeal as moot. He indicates that
Benn’s mother has been appointed Benn’s personal representative and asks that she be
allowed “to substitute in as the party to his appeal and decide whether or not she wants
the appeal to run its course.” He notes that M. R. App. P. 25 provides for substitution of
a party upon death in a civil case, and argues that the absence of such a procedure in
criminal cases violates constitutional protections to equal protection, due process, and
access to courts. He argues that Benn’s appeal should be allowed to continue to protect
his reputation and clear his name, and because Benn’s criminal conviction may affect
potential civil litigation. While conceding that the third issue raised by Benn’s briefing,



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challenging his sentence, has been mooted, Benn’s counsel argues that Issues 1 and 2 are
still appropriate for review.
¶6     Holland was a brief opinion which, as the State notes, did not address a number of
relevant considerations. First, as both parties acknowledge, a judgment of conviction is
presumptively valid. See State v. Smerker, 2006 MT 117, ¶ 36, 332 Mont. 221, 136 P.3d
543 (citation omitted) (“prior convictions are presumed to be valid”); DeVoe v. State, 281
Mont. 356, 364, 935 P.2d 256, 260 (1997) (citation omitted) (“[a] district court’s findings
and judgment are presumed correct”).            Upon conviction, a defendant loses the
presumption of innocence and a presumption arises in favor of the judgment. As the
United States Supreme Court has explained, “[a]fter a judgment of conviction has been
entered, however, the defendant is no longer protected by the presumption of innocence.”
McCoy v. Ct. of Appeals of Wis., Dist. 1, 486 U.S. 429, 436, 108 S. Ct. 1895, 1900
(1988); see also In re Wheat v. State, 907 So. 2d 461, 462 (Ala. 2005) (“A conviction in
the circuit court removes the presumption of innocence, and the pendency of an appeal
does not restore that presumption.”); Carlin, 249 P.3d at 762 (“[A]lmost every court that
has discussed the abatement issue has noted that a defendant is no longer presumed
innocent after a conviction; rather a convicted defendant is presumed guilty despite the
pendency of an appeal, and the conviction is presumed to have been validly obtained.”).
After conviction, the burden shifts to the defendant to demonstrate that the judgment has
been entered in error. See State v. Giddings, 2009 MT 61, ¶ 69, 349 Mont. 347, 208 P.3d
363 (“The appellant bears the burden to establish error by a district court.”). Courts
considering this issue have reasoned that abatement of the proceeding ab initio upon the
death of the defendant is contrary to the principle that a criminal judgment is presumed to
be valid.   “[A]utomatic abatement of the entire criminal proceeding ab initio . . .

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disregards entirely the presumptive validity of the conviction . . . .” Surland v. State, 895
A.2d 1034, 1044 (Md. 2006). “[T]here is a strong public policy against the doctrine.
Abatement ab initio allows a defendant to stand as if he never had been indicted or
convicted.” State v. Korsen, 111 P.3d 130, 134 (Idaho 2005).
¶7     Further, courts have expressed concern about the effect which abatement ab initio
has upon victims, to whom restitution may have been ordered by the judgment.
“[A]batement of the conviction would deny the victim of the fairness, respect and dignity
guaranteed by these [restitution] laws by preventing the finality and closure they are
designed to provide.” Korsen, 111 P.3d at 135; see also State v. Devin, 142 P.3d 599,
606 (Wash. 2006) (abatement ab initio “threatens to deprive victims of restitution that is
supposed to compensate them for losses caused by criminals”); Wheat, 907 So. 2d at 463
(citation and emphasis omitted) (‘“We expect this trend [away from abatement ab initio]
will continue as the courts and public begin to appreciate the callous impact such a
procedure necessarily has on the surviving victims of violent crime.”’). Consequently,
“the trend has been away from abating a deceased defendant’s conviction ab initio.”
Korsen, 111 P.3d at 133.
¶8     For these reasons, we likewise hold that abatement of the proceeding ab initio is
an inappropriate resolution of a case when the defendant has died. We conclude that we
manifestly erred in Holland by failing to consider all of the relevant factors at issue,
including the presumptive validity of the judgment.          Further, the law which has
developed since Holland has challenged the wisdom of the policy of abating criminal
proceedings upon a defendant’s death. “[S]tare decisis does not require that we follow a
manifestly wrong decision.” Formicove, Inc. v. Burlington Northern, Inc., 207 Mont.
189, 194-95, 673 P.2d 469, 472 (1983) (citations omitted). We thus overrule Holland’s

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holding that “a criminal proceeding is abated in its entirety upon the death of the criminal
defendant.” Holland, ¶ 8.
¶9     Turning to the parties’ mootness arguments, we have explained that the judicial
power of the courts is limited to “‘justiciable controversies.’” Plan Helena, Inc. v.
Helena Reg’l Airport Auth. Bd., 2010 MT 26, ¶ 6, 355 Mont. 142, 226 P.3d 567 (citing
Greater Missoula Area Fed’n. of Early Childhood Educators v. Child Start, Inc., 2009
MT 362, ¶ 22, 353 Mont. 201, 219 P.3d 881); Gateway Opencut Mining Action Group v.
Bd. of Co. Comm’rs of Gallatin Co., 2011 MT 198, ¶ 16, 361 Mont. 398, 260 P.3d 133.
“[A] ‘controversy,’ in the constitutional sense, is one that is ‘definite and concrete,
touching legal relations of parties having adverse legal interests’; it is ‘a real and
substantial controversy, admitting of specific relief through decree of conclusive
character, as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts, or upon an abstract proposition.’” Plan Helena, ¶ 9 (citation
omitted). Further, “[t]he mootness doctrine is closely related to these principles. Under
that doctrine, the requisite personal interest that must exist at the commencement of the
litigation (standing) must continue throughout its existence (mootness).” Plan Helena,
¶ 10 (citations omitted). Consequently, if “the issue presented at the outset of the action
has ceased to exist or is no longer ‘live,’ or if the court is unable due to an intervening
event or change in circumstances to grant effective relief or to restore the parties to their
original position, then the issue before the court is moot.” Plan Helena, ¶ 10 (citation
omitted). We must determine whether a defendant’s death during appeal of a criminal
judgment is such an “intervening event or change in circumstances” which renders the
appeal moot. See Plan Helena, ¶ 10.



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¶10    Generally, the relief sought in criminal appeals is individual to the defendant, who
challenges the rulings or procedure in the trial court which led to his conviction by
verdict or plea, and seeks dismissal of a charge, a new trial, or a new sentence. The
defendant’s death will often render the requested relief futile, as further proceedings
against the defendant upon remand would be impossible. Even if affirmed, a judgment
may be rendered ineffectual because supervision or incarceration of the defendant would
no longer be possible or necessary. See Surland, 895 A.2d at 1042 (“If affirmed, the
judgment cannot be executed; a dead defendant obviously cannot be imprisoned or made
to satisfy conditions of probation. If reversed, there can be no retrial and no practical
benefit to the defendant.”). In such cases, this Court would be unable “to grant effective
relief or to restore the parties to their original position,” Plan Helena, ¶ 10, and the appeal
would be subject to dismissal on mootness grounds. While a defendant or his survivors
may have an interest in pursuing an appeal for purely personal reasons, such as
vindication or reputation, an appeal based solely on such purposes would not constitute a
case which is “definite and concrete . . . a real and substantial controversy, admitting of
specific relief through decree of conclusive character,” and is subject to dismissal. Plan
Helena, ¶ 9 (internal quotations and citation omitted). Similarly, the mere potential
impact of a conviction upon other civil obligations or proceedings does not make an
appeal a “definite and concrete” dispute which would satisfy justiciability requirements.
¶11    However, we recognize that it is possible a criminal appeal could involve issues
which are not mooted because of a defendant’s death.             For example, a restitution
condition imposed within a criminal judgment may be enforceable by victims against the
defendant’s estate.    See Carlin, 249 P.3d at 764 (“Often, there will be a financial
component, such as restitution, to a criminal judgment, and the appeal will thus have

                                              7
financial consequences for the defendant’s estate.”).     A challenge on appeal to the
amount of restitution ordered by the sentence, for example, may remain a viable and
concrete issue for which this Court would be able to grant effective relief between the
parties. The right to appeal a criminal judgment should not be denied as to issues which
have not been mooted by the defendant’s death.
¶12    As discussed above, a judgment is presumed to be valid and, in a criminal appeal,
the burden to demonstrate reversible error is on the defendant.         Likewise, upon a
defendant’s death, the task of demonstrating that the appeal has not been mooted will be
the burden of the defendant’s personal representative. If the defendant’s representative
establishes that the appeal involves concrete issues beyond those which are individual or
personal to the defendant, for which this Court can grant effective relief, then the appeal
may proceed. If the defendant’s representative fails to carry this burden, the appeal will
be dismissed as moot and the judgment will remain as entered. If no party steps forward
to be appointed personal representative of the defendant’s estate and to pursue the appeal,
the appeal will be subject to dismissal for failure to prosecute. See Surland, 895 A.2d at
1045; see also Carlin, 249 P.3d at 765. Again, the judgment would remain as entered.
¶13    The parties have pointed out that M. R. App. P. 25 provides for substitution of a
deceased party’s personal representative in civil appeals, but makes no provision for
substitution in criminal cases. Although Benn’s counsel argues that this distinction rises
to a constitutional violation, our decision herein does not rest upon M. R. App. P. 25, but
upon justiciability principles applicable to all cases, and we therefore need not address
the constitutional arguments. The determination that a criminal case is not moot, as
discussed above, would be premised upon the identification of concrete interests which
survive the defendant. While we cannot anticipate the scope of those interests, in the

                                            8
ordinary course the defendant’s personal representative would be authorized to act on the
defendant’s behalf pursuant to § 72-3-613(22), MCA (a personal representative is
authorized to “prosecute or defend claims or proceedings in any jurisdiction for the
protection of the estate”).
¶14    There are other potential issues which could arise with regard to the legal
representation of the personal representative in the appeal, both in the circumstance
where counsel had been previously retained by the defendant, and in cases where the
Appellate Defender had been previously appointed.              See Carlin, 249 P.3d at 765.
However, those issues have not been raised and briefed here, and we decline to address
them. For purposes of this case, we have determined to resolve the merits of the motion
to dismiss based upon the arguments made by Defendant’s current counsel, and based
upon his representations that Defendant’s mother has agreed to be appointed personal
representative of Defendant’s estate.
¶15    Upon these principles, we turn to the question of whether Benn’s appeal is moot.
Benn’s counsel concedes that Issue 3, challenging Benn’s lengthy prison sentence and
parole eligibility restriction, has been mooted by Benn’s death. The restitution condition
of Benn’s sentence has not been challenged.1 Benn’s counsel seeks review of Issues 1
and 2. However, both Issues 1 and 2 are of the kind that are subject to dismissal as moot,
as explained in ¶ 10. Issue 1 challenges Benn’s sexual assault conviction and Issue 2
alleges ineffective assistance of counsel. If Benn were to prevail, either issue would
contemplate further trial or postconviction proceedings that are now impossible to


1
  The State offers that the restitution order was subject to challenge on appeal for failure of the
sentence to specify the amount to be paid, but that, as a practical matter, Benn was indigent,
restitution is unenforceable and a remand to designate the specific amount would be useless. As
this issue was not raised on appeal, we decline to address it further.
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undertake, given Benn’s death. They are issues which are individual to Benn, for which
this Court cannot grant effective relief.
¶16    We agree with the State’s argument that Benn’s appeal is moot. Therefore,
¶17    IT IS HEREBY ORDERED that the motion to dismiss the appeal is GRANTED.
The appeal is dismissed with prejudice.
¶18    The Clerk is directed to mail a true copy hereof to counsel of record herein.
       DATED this 14th day of February, 2012.


                                                    /S/ JIM RICE

We Concur:

/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ MICHAEL E WHEAT




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