Bevel v. Com.

Present: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and
McClanahan, JJ., and Koontz, S.J.

JAMES LUTHER BEVEL
OPINION BY SENIOR JUSTICE
v. Record Nos. 102246 & 102323 LAWRENCE L. KOONTZ, JR.
November 4, 2011
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In these appeals, we consider what effect the death of a

convicted criminal defendant has on a pending appeal and the

underlying criminal prosecution. Our consideration of these

issues invokes the determination of the extent of the

application of the so-called "abatement doctrine" in such

instances under the law of Virginia. We have not addressed

this issue previously in a reported opinion.

BACKGROUND

Because the issues raised by these appeals concern only

the proceedings that followed the defendant's death, a brief

summary of the underlying criminal conviction of the

defendant will suffice. On May 21, 2007, James Luther Bevel

was indicted by the Grand Jury in the Circuit Court of

Loudoun County for violating Code § 18.2-366 by having sexual

relations with his daughter who was at the time between the

ages of 13 and 18. The felony indictment was founded on an

allegation made by Bevel's adult daughter that her father had

sexual relations with her repeatedly during a two-year period
between 1992 and 1994 while they were living in Loudoun

County. At trial, the victim testified that these acts of

sexual abuse began when she was 6 years old and living in

another state. Bevel was convicted in a jury trial on April

10, 2008. The circuit court entered a final sentencing order

on October 27, 2008, imposing the jury's verdict of 15 years

imprisonment and a fine of $50,000.

The following facts reflect the procedural history of

the subsequent appeals in this case. On November 4, 2008,

Bevel's counsel, from the Office of the Public Defender,

noted an appeal of Bevel's conviction. On December 8, 2008,

counsel filed a notice of filing of transcripts, thus

completing the record of the trial for transmission to the

Court of Appeals as required by Rule 5A:8(b). The record was

duly received by the Court of Appeals, and the appeal was

assigned Record Number 2646-08-4 (hereafter, "the merits

appeal").

On December 29, 2008, Bevel's counsel filed a "notice of

death" in the circuit court and the Court of Appeals averring

that Bevel had died on December 19, 2008. Simultaneously,

counsel filed a motion to withdraw as counsel in the Court of

Appeals, asserting that as a result of Bevel's death she was

unable to proceed with the representation as she "no longer

[had] a client with whom to consult or from whom to take

2
direction regarding this appeal." Within none of these

pleadings did counsel request that the prosecution abate. On

January 23, 2009, the Court of Appeals denied the motion to

withdraw as counsel.

Thereafter, Bevel's counsel filed a "motion to dismiss"

in the circuit court. Within the motion, counsel noted that

Code § 8.01-20 allowed, in the discretion of the court, for

the abatement of a civil case in which a party had died while

the case was pending appeal. Conceding that there were no

reported appellate cases in Virginia addressing the abatement

or dismissal of a criminal prosecution in such circumstances,

counsel noted that in a prior unreported decision the circuit

court had ruled that when a defendant dies while his appeal

is pending, "[the] conviction must be dismissed." Counsel

further averred that abatement ab initio of criminal

convictions when the defendant dies while the conviction is

pending appeal is the rule in a majority of other

jurisdictions that have considered the question. By an order

dated February 26, 2009, the circuit court denied the motion

to dismiss.

On March 25, 2009, Bevel's counsel filed a "motion to

abate conviction ab initio" in the Court of Appeals.

Reciting the same argument for abatement of the entire case

as that contained in the motion to dismiss filed in the

3
circuit court, counsel further noted that continuation of the

appeal was "inappropriate as counsel for the deceased cannot

fulfill . . . her ethical obligations, to wit: counsel cannot

communicate with her client and therefore lacks authority

either to proceed with the appeal or to withdraw the appeal."

She further maintained that the Commonwealth would suffer no

prejudice from the abatement of the conviction "as it can

neither retry the accused if his appeal succeeds nor impose

punishment upon the accused if his appeal fails." The

Commonwealth did not file a response to this motion to abate.

On March 27, 2009, the Court of Appeals entered an order

suspending the time for filing the necessary petition for

appeal in the merits appeal. 1 On August 26, 2009, the Court

1
Although Bevel’s counsel had done all that was required
to advance the appeal from the circuit court to the Court of
Appeals, unless and until a timely petition for appeal was
filed the appeal would not have been perfected, thus, the
Court suspended the time for filing the petition in order to
give consideration to the motion to abate. In criminal cases
in Virginia, other than in cases where a sentence of death is
imposed, the awarding of an appeal is discretionary and not a
matter of right. Code § 17.1-406(A)(i); see, e.g., West v.
Commonwealth, 43 Va. App. 327, 340-41, 597 S.E.2d 274, 280
(2004) (holding that a merits review is undertaken only after
an appeal is granted and only as to the issues accepted by
the Court). As will be explained below, in some
jurisdictions abatement ab initio applies only when a
convicted defendant dies and at that time he was entitled to
an appeal of right or where a discretionary appeal had
already been granted. Although Bevel had not yet perfected
his discretionary appeal on the merits of his conviction, we
emphasize that our resolution of these appeals does not rest

4
entered an order remanding the case to the circuit court

"with instructions to hold a hearing and to abate the

prosecution ab initio, unless good cause is shown by the

Commonwealth not to do so."

The circuit court complied with the mandate of the Court

of Appeals' order by conducting a hearing on September 10,

2009. In support of its contention that the conviction

should not abate, the Commonwealth presented testimony from

the victim and one of her sisters who also claimed that Bevel

had sexually abused her. Both women stated, among other

reasons, that they opposed having the conviction abate

because acknowledgement by the court of their father's guilt

provided them with a sense of closure and validation.

On September 30, 2009, the circuit court entered an

order denying the motion to abate Bevel's conviction, finding

that the Commonwealth had an interest in maintaining the

conviction for the benefit of the victim and as a "powerful

symbol" that a guilty verdict represents. The court further

concluded that following conviction the presumption of

innocence no longer applied and, thus, abatement should not

be favored in such cases. For these reasons, the court ruled

on the fact that his appeal was discretionary, not of right,
and had not yet been granted.

5
that the Commonwealth had established good cause for not

abating the conviction.

Bevel's counsel noted an appeal from the judgment of the

circuit court finding that there was good cause not to abate

the conviction. The Court of Appeals treated the appeal as

if it were from a separate proceeding and assigned it Record

Number 2373-09-4 (hereafter, "the good cause appeal"). After

receiving briefs and hearing oral argument, the Court issued

an unpublished opinion affirming the judgment of the circuit

court. Bevel v. Commonwealth, Record No. 2373-09-4

(September 14, 2010).

The Court of Appeals first reviewed similar cases in

that Court and in the Supreme Court, noting that prior

dispositions of criminal appeals when the defendant had died

were inconsistent, with the appellate court in which the

appeal was pending sometimes abating the conviction and other

times simply dismissing the appeal and leaving the conviction

intact. Id., slip op. at 5-6. Thus, the Court concluded

that there was no clear authority in Virginia for routinely

abating a criminal conviction ab initio when the defendant

dies while pursuing an appeal. Id., slip op. at 6.

The Court then considered whether the circuit court had

correctly determined the factors to consider in determining

whether there was good cause not to abate the conviction and

6
whether it properly applied the facts from the hearing in

determining that Bevel's conviction should not abate. The

Court held that these matters were committed to the circuit

court's discretion and found no abuse of that discretion.

Id., slip op. at 7. Accordingly, the Court affirmed the

judgment of the circuit court refusing to abate Bevel's

conviction. Id., slip op. at 8.

On October 14, 2010, the Court of Appeals issued a rule

to show cause in the merits appeal, which required Bevel's

counsel to show why that appeal should not be dismissed as

moot in light of the Court's judgment in the good cause

appeal. In her response to the show cause, Bevel's counsel

maintained that dismissal of the merits appeal would be

premature, as a petition for rehearing en banc was pending in

the good cause appeal, and, failing that, she intended to

appeal the judgment to this Court. Counsel also contended

that the dismissal of the merits appeal would render the

appeal of the abatement issue equally moot, and deny the

Court of Appeals sitting en banc and this Court jurisdiction

to consider whether abatement had been properly denied.

Notably, although counsel referenced an assertion made by the

Commonwealth in the circuit court "that Mr. Bevel's death

should not necessarily act as a bar to hearing the [appeal

from the underlying conviction] on its merits," she did not

7
retreat from the position first stated in her motion to

withdraw as counsel that she could not ethically pursue the

appeal, nor did she contend that the appeal could go forward

in its current posture without an appellant or with the

substitution of a personal representative of Bevel's estate

or other party. Rather, counsel only requested that the

merits appeal remain suspended while she pursued the appeal

of the abatement issue.

After the petition for rehearing en banc on the good

cause issue was denied, Bevel's counsel noted an appeal of

that judgment to this Court on November 1, 2010. On November

16, 2010, the Court of Appeals entered an order in the merits

appeal dismissing the appeal as moot. Counsel noted an

appeal from this judgment as well. By orders dated May 5,

2011, we awarded appeals from the Court of Appeals' judgments

in the good cause appeal (our Record Number 102246) and the

merits appeal (our Record Number 102323), consolidating the

appeals for briefing and argument.

DISCUSSION

While we have not previously addressed in a reported

opinion what effect the death of a criminal defendant has on

a conviction or an appeal that is pending at the time of the

defendant's death, the issue has arisen in several prior

appeals before this Court. As the Court of Appeals noted in

8
its opinion and we acknowledge, there has been a disparity in

the treatment of such cases, which have always been disposed

of by an unpublished order. Compare, e.g., Isaac v.

Commonwealth, Record No. 102208 (March 30, 2011) (firearms

possession appeal abated ab initio) and Alaia v.

Commonwealth, Record No. 011575 (March 15, 2002) (capital

murder appeal abated ab initio) with Barber v. Commonwealth,

Record Nos. 930409 & 930492 (November 9, 1993) (capital

murder appeal dismissed as moot).

In these previous cases, however, the orders were

entered solely in response to a notice of the defendant’s

death from his counsel or the Commonwealth. The present case

presents the first opportunity this Court has been given to

address the issue of abatement after receiving briefs and

argument of counsel. Accordingly, we are of opinion that the

prior orders in which abatement was applied have no

precedential value. Cf. Sheets v. Castle, 263 Va. 407,

410-12, 559 S.E.2d 616, 618-19 (2002) (holding that with

respect to unpublished order denying a petition for appeal, a

clear statement of the grounds for the denial "is

indispensable in assessing its potential applicability in

future cases" and that "unless the grounds upon which the

[denial] is based [are] discernable from the four corners of

the . . . order, the denial carries no precedential value").

9
 We begin by first considering the historical context of

the abatement doctrine. We further consider how it has been

applied to criminal prosecutions in other jurisdictions.

Abatement is the dismissal or discontinuance of a legal

proceeding "for a reason unrelated to the merits of the

claim." Black's Law Dictionary 3 (9th ed. 2009). Abatement

can occur in civil cases for a variety of reasons, see 1 Am.

Jur. 2d Abatement, Survival, and Revival §1 (2006), but in

criminal prosecutions abatement traditionally has been

limited to circumstances where the defendant dies prior to a

final resolution of the case in the trial court. It is clear

that when a defendant dies before the trial court has

confirmed a verdict by a final order of judgment, the death

of the defendant causes the prosecution to abate. United

States v. Lay, 456 F. Supp. 2d 869, 874 (S.D. Tex. 2006)

(citing United States v. Asset, 990 F.2d 208, 211 (5th Cir.

1993)); see also United States v. Oberlin, 718 F.2d 894, 896

(9th Cir. 1983). Obviously, subsequent to the death of the

defendant there is no one upon whom the trial court can

impose a final judgment. When final judgment of conviction

has been entered in the trial court, however, there is less

certainty as to the effect of the death of the defendant at

the time he was pursuing, or at least had the opportunity to

pursue, a direct appeal of the conviction.

10
 The origin of the abatement doctrine as applied to

criminal appellate cases is unclear, with little or no

evidence of its application prior to the late nineteenth

century. See Timothy A. Razel, Note, Dying to Get Away With

It: How The Abatement Doctrine Thwarts Justice-And What

Should Be Done Instead, 75 Fordham L. Rev. 2193, 2198 (2007).

These early decisions were occasionally quite terse and

provide little insight into the reasons the courts elected to

abate a case or not, or even as to what aspect of the case

was being abated – the appeal only or the entire prosecution.

See, e.g., List v. Pennsylvania, 131 U.S. 396, 396 (1888)

(per curiam) (dismissing a writ of error because "this cause

has abated"); O'Sullivan v. People, 32 N.E. 192, 194 (Ill.

1892) (per curiam) (denying motion to consider an appeal and

render judgment nunc pro tunc because "the writ of error

abated upon the death" of the defendant); March v. State, 5

Tex. Ct. App. 450, 456 (Tex. Crim. App. 1879) (granting a

"motion to abate the proceedings").

The modern statement of the abatement doctrine is found

in Durham v. United States, 401 U.S. 481, 483 (1971)(per

curiam), in which the United States Supreme Court held that

"death pending direct review of a criminal conviction abates

not only the appeal but also all proceedings had in the

prosecution from its inception." The defendant in Durham

11
died after filing a petition for a writ of certiorari. The

Supreme Court granted the defendant's writ, vacated the

judgment of the Ninth Circuit affirming his conviction, and

remanded the case to the district court with instructions to

dismiss the indictment. Id. Justice Blackmun dissented,

contending "the situation is not one where the decedent

possessed, and had exercised, a right of appeal." Id. at 484

(Blackmun, J., dissenting). Thus, rather than abating the

entire proceeding, Justice Blackmun contended that the proper

remedy was to "merely dismiss the decedent's petition for

certiorari," noting further that "[i]f, by chance, the

suggestion of death has some consequence upon the survivor

rights of a third party (a fact not apparent to this Court),

the third party so affected is free to make his own timely

suggestion of death to the court of appeals." Id. at 484-85.

Just five years later in Dove v. United States, 423 U.S.

325, 325 (1976) (per curiam), the Supreme Court, with only

Justice White dissenting, overruled Durham. In a concise

opinion, the Court denied Dove's petition for certiorari

because he had died before the petition was heard, overruling

Durham "[t]o the extent that [it] may be inconsistent with

this ruling." Id. Subsequently, however, the federal

circuit courts have concluded that Dove did not abrogate the

abatement doctrine entirely for criminal cases, but only for

12
those cases that had concluded their initial appeals. See,

e.g., United States v. Moehlenkamp, 557 F.2d 126, 128 (7th

Cir. 1977) ("We do not believe that the Court's cryptic

statement in Dove was meant to alter the longstanding and

unanimous view of the lower federal courts that the death of

an appellant during the pendency of his appeal of right from

a criminal conviction abates the entire course of the

proceedings brought against him").

Nonetheless, the circuits are divided on how the

abatement doctrine applies in specific cases, such as whether

an order of restitution abates along with other aspects of

the conviction. Compare United States v. Christopher, 273

F.3d 294, 298-99 (3d Cir. 2001) (holding restitution order

does not abate); United States v. Dudley, 739 F.2d 175,

179-80 (4th Cir. 1984) (same), with United States v. Rich,

603 F.3d 722, 728-31 (9th Cir. 2010) (holding restitution

order does abate); United States v. Estate of Parsons, 367

F.3d 409, 415 (5th Cir. 2004) (en banc) (same); United States

v. Logal, 106 F.3d 1547, 1552 (11th Cir. 1997) (same); see

also John H. Derrick, Annotation, Abatement Effects of

Accused's Death Before Appellate Review of Federal Criminal

Conviction, 80 A.L.R. Fed. 446 (1986 & Supp. 2011).

Among the states, the treatment of the abatement

doctrine is even more multifarious. Although the issue is

13
most frequently framed as being a choice between abatement ab

initio of the entire prosecution or dismissal of the appeal

only, there are at least seven categories of policies on

abatement: (1) abatement ab initio when the defendant dies

pending resolution of his appeal; (2) abatement ab initio

when the appeal at issue is an appeal of right; (3) abatement

ab initio when the court has granted a discretionary

application for review, thereafter treating the case as if

the appellant had been given an appeal of right; (4) the case

is not abated and the appeal may be prosecuted; (5) the case

is not abated ab initio, but the appeal may not be

prosecuted; (6) a personal representative may be substituted

to avoid abatement ab initio; or, (7) the appeal abates

without addressing whether the proceedings are abated ab

initio. United States v. Rorie, 58 M.J. 399, 402 (C.A.A.F.

2003) (citing Tim A. Thomas, Annotation, Abatement of State

Criminal Case by Accused's Death Pending Appeal of Conviction

- Modern Cases, 80 A.L.R.4th 189 (1990 & Supp. 2002)). Thus,

although most courts and commentators agree that abatement in

some form is the majority position in the federal and state

courts, see, e.g., Surland v. State, 895 A.2d 1034, 1046 (Md.

2006) (Greene, J., dissenting); Ex parte Estate of Cook, 848

So. 2d 916, 918 (Ala. 2002), it is also true that a modern

trend has been to limit or modify the application of the

14
doctrine, or dispense with it entirely, though this remains a

minority view. See, e.g., State v. Carlin, 249 P.3d 752,

759-60 (Alaska 2011); Surland, 895 A.2d at 1039; State v.

Korsen, 111 P.3d 130, 133 (Idaho 2005).

Given the diversity of opinion in the application of the

abatement doctrine, it is perhaps not surprising that the

doctrine's legal underpinnings are not well established. As

one court has observed, "[d]espite the common acknowledgment

that abatement ab initio is a well-established and oft-

followed principle . . . few courts have plainly articulated

the rationale behind the doctrine." Parsons, 367 F.3d at

413. This is so, apparently, because the abatement doctrine,

at least as applied to criminal prosecutions "is largely

court-created." Id. at 414. It does not appear that

abatement of a criminal case is addressed by statute in any

jurisdiction in the United States, see Razel, supra, at 2197-

98, nor is the ability to challenge abatement addressed by

any statutory scheme providing for victim's rights. Douglas

E. Beloof, Weighing Crime Victims' Interests In Judicially

Crafted Criminal Procedure, 56 Cath. U.L. Rev. 1135, 1159

(2007).

15
 Against this background, we now turn to the issues

raised in these appeals. 2 The thrust of Bevel's counsel

contentions is that under the abatement doctrine, "death [of

the defendant] during the pendency of a direct appeal

necessitates abatement of the conviction ab initio." The

Commonwealth responds that the abatement doctrine is founded

upon a false premise that a convicted defendant who dies

while his appeal is pending would have ultimately prevailed

and been exonerated. The Commonwealth contends that the

modern trend in jurisdictions that have examined the issue is

to dismiss the appeal, leaving the conviction intact, because

on appeal there is no presumption of innocence and the

conviction is presumed to be correct.

The Commonwealth further contends that abatement "is

also outdated because it rests on the premise that criminal

convictions and sentences serve only to punish the

2
For the reasons that will become apparent, we do not
reach the assertions of Bevel's counsel in the good cause
appeal that the Court of Appeals erred in creating a "good
cause" exception to the abatement doctrine and remanding the
case to the circuit court for a hearing whether good cause
existed to deny the motion to abate. The Court of Appeals
stated in its opinion that Bevel failed to present argument
on this issue and, thus, had waived this issue on appeal.
Bevel, slip op. at 7 n.4. Although the Court of Appeals went
on to review and approve the circuit court's application of
the "good cause" exception, id., slip op. at 11-12, Bevel's
counsel did not assign error to the Court's determination
that the issue was waived.

16
convicted." The modern trend, according to the Commonwealth,

recognizes "that the criminal justice system does not only

serve to punish, but it also serves to protect and compensate

crime victims." We believe that the Commonwealth’s

contentions have merit.

Reviewing the authorities cited above, it seems clear

that the determination of various courts whether to abate a

conviction ab initio when the defendant has died while his

appeal was pending, to merely dismiss the appeal and leave

the conviction intact, or to apply some intermediate

solution, rests largely on the individual court's

consideration of the purpose of the punishment imposed on the

defendant, the interest of society in acknowledging the fact

of his offense, and the potential effect on the victim or

victims of the offense in erasing that fact. We are of

opinion, however, that such policy determinations fall

outside the scope of the authority granted to the appellate

courts of this Commonwealth by the Virginia Constitution and

by statute.

Likewise, to the extent that such authority might derive

from the common law of England as applicable in Virginia at

the time of the founding of the Jamestown colony in 1607,

17
Code §§ 1-200 and -201, 3 we find no support for the notion

that a criminal proceeding necessarily would abate following

conviction if the defendant were to die while he might yet

have obtained relief through a writ of error or some other

process equivalent to a direct appeal. To the contrary, the

authorities are consistent in affirming that at common law an

attainder of felony would not be affected by the death of the

defendant, but that his executor or heirs could pursue a writ

of error in his stead. See, e.g., 4 William Blackstone,

Commentaries *391-92; 2 William Hawkins, Pleas of the Crown

654 (John Curwood, ed., 8th ed. 1824). The rule appears to

derive from the case of Marsh and his Wife, found in the

reports of Sir George Croke for the Easter Term of the

3
As we recently explained in construing and applying
Code §§ 1-200 and -201,

our adoption of English common law, and the rights
and benefits of all writs in aid of English common
law, ends in 1607 upon the establishment of the
first permanent English settlement in America,
Jamestown. From that time forward, the common law
we recognize is that which has been developed in
Virginia. More simply stated, English common law
and writs in aid of it prior to the settlement of
Jamestown (insofar as the same are consistent with
the Bill of Rights and Constitution of the
Commonwealth and the Acts of Assembly), together
with common law developed in Virginia thereafter,
constitute the corpus of common law that guides our
analysis.

Commonwealth v. Morris, 281 Va. 70, 82, 705 S.E.2d 503, 508-
09 (2011).

18
Queen's Bench in the 33rd (1590-91) and 34th (1591-92) years

of the reign of Queen Elizabeth I. See Marsh & his Wife,

(1790) 78 Eng. Rep. 481 (Q.B.); Cro. Eliz. 225 (holding that

"[a]n executor may bring a writ of error to reverse the

outlawry for felony of his testator"), continued sub nom.

Marshe's Case, (1790) 78 Eng. Rep. 528 (Q.B.); Cro. Eliz. 273

(same).

We conclude that if it is to be the policy in Virginia

that a criminal conviction necessarily will abate upon the

death of the defendant while an appeal is pending and whether

there should be a good cause exception in that policy, the

adoption of such a policy and the designation of how and in

what court such a determination should be made is more

appropriately decided by the legislature, not the courts.

See, e.g., Uniwest Constr., Inc. v. Amtech Elevator Servs.,

280 Va. 428, 440, 699 S.E.2d 223, 229 (2010)("The public

policy of the Commonwealth is determined by the General

Assembly [because] it is the responsibility of the

legislature, not the judiciary . . . to strike the

appropriate balance between competing interests.")(internal

quotation marks omitted). For these reasons, we hold that

the Court of Appeals erred in applying the abatement doctrine

to Bevel's criminal appeal. In light of this holding, the

remainder of Bevel's counsel's assignments of error relating

19
to the proceedings in the circuit court and the subsequent

review of those proceedings in the Court of Appeals are now

moot. Accordingly, we will vacate the judgment of the Court

of Appeals in Record Number 102246 (the good cause appeal).

We now turn to the sole issue raised by Bevel's counsel

in the merits appeal, which is whether the Court of Appeals

erred in dismissing the appeal of Bevel's conviction on its

merits as moot on account of his death. As we have already

indicated, Bevel's counsel's objection to the dismissal of

the appeal by the Court of Appeals was not based upon any

contention that the appeal could go forward, but rather was

based only on the concern that dismissal of the underlying

appeal would result in the Court of Appeals and this Court

losing jurisdiction over the issue of abatement. Having

resolved the abatement issue, we conclude that under the

facts and procedural posture of this case, proceeding on the

merits would be a pointless exercise, as there is no party

seeking to prosecute the appeal. Accordingly, we will affirm

the judgment of the Court of Appeals in Record Number 102323

(the merits appeal) dismissing Bevel's appeal of his

conviction as moot.

In doing so, however, we expressly do not address

whether in all cases an appeal on the merits of a criminal

conviction would become moot on the death of the defendant.

20
It is conceivable that in a case where a criminal conviction

could have a significant negative impact on a deceased

defendant's estate or the rights of his heirs or another

party, the appeal could be prosecuted by a substituted party

as was allowed under the common law of England before 1607.

But, as neither Bevel's counsel nor the Commonwealth has

argued for such a remedy, or even averred that it would be

practical in this particular case, we leave that issue to

another day.

CONCLUSION

For these reasons, we will vacate the judgment of the

Court of Appeals applying the abatement doctrine. We will

affirm the judgment of the Court of Appeals, under the

specific facts and procedural posture of this case, holding

that Bevel's death renders the appeal of his conviction moot.

Record No. 102246 – Vacated.

Record No. 102323 – Affirmed.

21