129 Nev., Advance Opinion 53
IN THE SUPREME COURT OF THE STATE OF NEVADA
RONNIE DANELLE BRASS, No. 56146
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. JUL 2 2013
... .
p
4411 /17b. :frite,IS
"
#
Motion for abatement of conviction.
Motion denied; remanded.
David M. Schieck, Special Public Defender, and JoNell Thomas, Deputy
Special Public Defender, Clark County,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, and David L. Stanton and Nancy A. Becker,
Deputy District Attorneys, Clark County,
for Respondent.
BEFORE THE COURT EN BANC.
OPINION
By the Court, DOUGLAS, J.:
Ronnie Brass was convicted of conspiracy to commit
kidnapping and murder, first-degree kidnapping, and first-degree murder
with the use of a deadly weapon. Brass timely appealed, but he died
before his appeal was decided. Brass's attorney filed a suggestion of death
SUPREME COURT
OF
NEVADA
/ s-a/ q /c,
(0) I947A
442",t'SMK7
.. I
and a motion for abatement—arguing that this court should abate the
conviction and remand the case to the district court with instructions to
dismiss the charging document. However, no party has been properly
substituted as Brass's personal representative.
We consider whether an attorney may file a substantive
motion on a deceased client's behalf in a criminal case when a personal
representative has not been substituted as a party to the appeal. We
determine that an attorney lacks authority to act on the deceased client's
behalf in those circumstances; thus, we deny counsel's motion for
abatement. Further, we conclude that if a party dies pending a review of
his appeal, the appeal will be dismissed unless the decedent's personal
representative is substituted in as a party to the appeal within 90 days of
the decedent's death.
DISCUSSION
Brass's counsel raises a novel issue regarding the appropriate
remedy when a criminal defendant dies while his appeal from a judgment
of conviction is pending. There are three possible approaches in that
situation: (1) abatement of the judgment ab initio, (2) no abatement and
the appeal may be prosecuted, and (3) no abatement and the appeal may
not be prosecuted. Abatement of State Criminal Cases by Accused's Death
Pending Appeal of Conviction—Modern Cases, 80 A.L.R. 4th 189 (1990).
But we decline to consider the issue at this time based on our conclusion
that the motion for abatement is not properly before this court.
Generally, counsel cannot act on a deceased client's behalf.
See Fariss v. Lynchburg Foundry, 769 F.2d 958, 962 (4th Cir. 1985) (citing
Restatement (Second) of Agency § 120(1) (1958)); United States v. Chin,
848 F.2d 55, 57 (4th Cir. 1988). Rather, only a properly substituted
2
personal representative of the deceased party may bring a motion on the
decedent's behalf. 1 NRAP 43(a)(1) governs the substitution of parties
where a party has died while an appeal is pending:
If a party dies. . . while [an appeal] is pending in
the [Nevada] Supreme Court, the decedent's
personal representative may be substituted as a
party on motion filed by the representative or by
any party. . . . A party's motion shall be served on
the representative in accordance with Rule 25. If
the decedent has no representative, any party may
suggest the death on the record, and the court may
then direct appropriate proceedings.
As this court observed in Walker v. Burkham, "[u]pon the death of a
party. . . the [action] cannot proceed until someone is substituted for the
decedent. . . ." 68 Nev. 250, 253-54, 229 P.2d 158, 160 (1951) (interpreting
former Supreme Court Rule 9, a precursor to NRAP 43).
It has been almost one year since counsel suggested Brass's
death upon the record. NRCP 25(a)(1), like NRAP 43(a)(1), allows a
personal representative to substitute for a deceased party; however, NRCP
25(a)(1) establishes a limitation on the time for filing a motion for
substitution. Under NRCP 25(a)(1), a substitution motion must be filed
within 90 days of the decedent's death being suggested upon the record,
'If a party to an action dies while the action is pending before any
court, NRS 7.075(1) requires the attorney who represented the decedent in
the pending action to "file a notice of death and a motion for substitution
of a party with the court" within 90 days of the person's death.
SUPREME COURT
OF
NEVADA
3
(0) 1947A
otherwise, "the action shall be dismissed as to the deceased party." 2 An
unlimited time frame for substitution under NRAP 43 is inconsistent with
Nevada's interest in the finality of judgments. Consistent with these
interests, a motion under NRAP 43 must be filed within a reasonable time
after the decedent's death has been suggested on the record. Given the
similarities between NRCP 25(a) and NRAP 43(a)(1), we conclude that the
time limit set forth in NRCP 25(a)(1) sets a reasonable limit on
substitution motions based on a party's death. We now clarify that when a
criminal defendant dies after a notice of appeal has been filed, a personal
representative must be substituted for the decedent within 90 days of his
death being suggested upon the record; otherwise, this court will dismiss
the appeal and the decedent's conviction will stand.
Here, this court's process caused the delay in filing the motion
for substitution. So, in this instance only, we extend the time for filing the
substitution motion until 90 days after this opinion is filed. Further, we
determine the substitution motion must be filed with the district court
because the determination of a proposed personal representative's
eligibility may involve fact-finding. We are not a fact-finding court; thus,
the district court is best suited to determine who can substitute for the
deceased appellant. See Wade v. State, 115 Nev. 290, 294, 986 P.2d 438,
441 (1999) (citing Zugel v. Miller, 99 Nev. 100, 101, 659 P.2d 296, 297
(1983)).
2 We recognize that, by its terms, NRCP 25(a) only applies in civil
cases and that this is a criminal appeal. Nonetheless, criminal judgments
carry civil consequences. Also, the court system's need for party input and
timely adjudication is no less in criminal than in civil cases.
4
Accordingly, we allow 90 days from the date of this opinion for
the limited purposes of determining Brass's proper personal
representative and for the representative to file a motion for substitution
with this court, pursuant to NRAP 43. If no personal representative is
substituted within the allotted time, we will dismiss the proceedings on
appeal.
J.
Douglas
We concur:
Pickering
Ple/64 , C.J.
J.
GiblgOns
J.
Hardesty
baaiot
J.
Parraguirre
J.
J.
Saitta
SUPREME COURT
OF
NEVADA
5
(0) 1947A