[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. 
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{¶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 nonfrivolous 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.
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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 postconviction 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). 
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{¶12} No costs assessed. 

Robb, J., concurs. 

Donofrio, P.J., concurs. 

DeGenaro, J., concurs.