State v. Peltier, 68942-8-I

STATE OF WASHINGTON, Appellant, v. JOSEPH ALBERT PELTIER, Respondent.

No. 68942-8-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

FILED: September 16, 2013

PUBLISHED OPINION

DWYER, J. — By amended information, the State charged Joseph Peltier with four felonies. The superior court dismissed the charges, ruling that the applicable statutory limitation periods had expired prior to the charges being filed and that, accordingly, the court was without authority to proceed. We affirm.

I

On September 6, 2002, the State charged Peltier with two counts of second degree rape, one count of second degree child molestation, and one count of second degree rape of a child. Each of the charges was filed within the applicable limitation period.¹

Peltier and the State subsequently stipulated to a bench trial on agreed documentary evidence. Pursuant to the stipulation agreement, on July 14, 2003, the State filed an amended information charging Peltier with one count of rape in the third degree and one count of indecent liberties. The charges set forth in the amended information were not filed within the applicable limitation period.² The stipulation agreement did not acknowledge, however, that the charges were time-barred.

The stipulation agreement did provide that Peltier agreed not to challenge any conviction on the charged offenses, including by means of a personal restraint petition. The agreement further provided:

If the defendant fails to appear for sentencing, or if prior to sentencing the defendant commits any new offense or violates any condition of release, the State may recommend a more severe sentence.

If the defendant violates any other provision of this agreement, the State may either recommend a more severe sentence, file additional or greater charges, or re-file charges that were dismissed. The defendant waives any objection to the filing of additional or greater charges based on pre-charging or pre-trial delay, statutes of limitations, mandatory joinder requirements, or double jeopardy.

(Emphasis added.)

On January 28, 2004, based upon the agreed documentary evidence, thesuperior court found Peltier guilty of the charges set forth in the amended information. The court sentenced Peltier to 77 months of incarceration.³ In August 2011, Peltier filed a personal restraint petition challenging his convictions as barred by the applicable statute of limitations. The State conceded that the offenses were time-barred and, thus, that the resulting judgment was invalid. In re Pers. Restraint of Peltier, noted at 166 Wn. App. 1023, 2012 WL 432258, at *1. We accepted the State's concession, granted Peltier's petition, vacated his convictions, and remanded to the superior court for dismissal of the charges. Peltier, 2012 WL 432258, at *1. On March 29, 2012, the superior court dismissed the charges set forth in the amended information.

On that same day, the State filed a second amended information, charging Peltier with one count of rape of a child in the second degree, one count of child molestation in the second degree, and two counts of rape in the second degree.⁴ Peltier moved to dismiss the charges alleged in the second amended information, asserting that, because the charges had been filed following the expiration of the applicable statutory limitation periods, the court did not have subject matter jurisdiction over the case.⁵

The superior court determined that the issue before it was whether a criminal statute of limitations is jurisdictional "such that it can or cannot be waived when the parties are entering into their plea negotiations." The court agreed with Peltier that Washington judicial authority indicated that a criminal statute of limitations affects subject matter jurisdiction. Accordingly, the superior court granted Peltier's motion to dismiss the charges alleged in the second amended information. The court thereafter denied the State's motion for reconsideration.

The State appeals.

II

For over 30 years, Washington's Courts of Appeal have consistently held that the expiration of a statutory limitation period, in a criminal case, deprives the trial court of subject matter jurisdiction over that controversy. The trial court understandably followed this authority in ordering the case dismissed. However, an opinion of our Supreme Court, issued 13 years ago, indicates that the holdings of these appellate court cases are no longer viable. Nevertheless, in that same opinion, our Supreme Court made clear that a superior court judge has no authority to sentence a defendant and enter judgment in a criminal case in which the statutory limitation period expired before the charge was brought. Thus, we affirm the order of dismissal, albeit on a different basis than that relied upon by the trial court.

III

It is disconcerting that, 124 years after statehood, there exists uncertainty as to the effect of our criminal statutes of limitation.⁶ However, through time, such uncertainty has existed in other jurisdictions as well.

Courts approach criminal statutes of limitations in one of three ways. First is the view that the statute of limitations is a jurisdictional limit on the subject matter of a court that cannot be waived or forfeited; second is the view that a defendant may "waive" the defense so long as he or she does so voluntarily, intelligently, and knowingly after consulting with counsel; finally, some courts hold that the statute of limitations is a defense that is "forfeited" if not affirmatively raised in the trial court. SeeState v. Timoteo, 87 Hawaii 108, 952 P.2d 865, 877 (1997) (Ramil, J., dissenting); State v. Pearson, 858 S.W.2d 879, 886 (Tenn.1993); Padie v. State, 594 P.2d 50, 55-57 (Alaska 1979). Historically, courts took the first approach, that is, that once the statute of limitations ran, a court lacked subject matter jurisdiction. Timoteo, 952 P.2d at 877 (Ramil, J., dissenting); see alsoPeople v. Verbruqqe, 998 P.2d 43, 45-46 (Colo.Ct.App.1999) (holding that, because the statute of limitations had run, the trial court had no jurisdiction to enter a conviction even though the defendant requested an instruction on the offense). Over time, however, courts have moved away from the jurisdictional view and toward deciding that a defendant may waive the defense if it is beneficial to him or her. SeeTimoteo, 952 P.2d at 877-78 (Ramil, J., dissenting); Adlestein, [Conflict of the Criminal Statute of Limitations with lesser Offenses at Trial, 37 Wm. & Mary L. Rev., 199, 259, 291 (1995)]. This appears to be because the primary policy of a criminal statute of limitations, to protect the defendant, is not served by strict adherence to a jurisdictional approach.

State v. Kerby, 141 N.M. 413, 156 P.3d 704, 708-09 (2007).⁷

For over 30 years, an uninterrupted series of Court of Appeals decisions—from all three divisions—adopted the first of these approaches: holding that the expiration of a criminal statutory limitation period deprived the superior court of subject matter jurisdiction over the charge.

Recently, Division Three reaffirmed its view that, "[t]he statute of limitations in a criminal case is jurisdictional." State v. Walker, 153 Wn. App. 701, 705, 224 P.3d 814 (2009). Additionally, the court reaffirmed that, "[b]ecause a criminal statute of limitations is jurisdictional, unlike the statute of limitations in a civil action, it cannot be waived." Walker, 153 Wn. App. at 705 n.2. This was consistent with the court's holding, 25 years previously, that a criminal "statute of limitation is jurisdictional." State v. Ansell, 36 Wn. App. 492, 496, 675 P.2d 614 (1984).

The Walker court's pronouncements were well-supported in the appellate case law. More than 30 years ago, Division Two cited to out-of-state authority for the proposition that, "a criminal statute of limitation is not merely a limitation upon the remedy, but is a 'limitation upon the power of the sovereign to act against the accused.' State v. Fogel, 16 Ariz.App. 246, 248, 492 P.2d 742, 744 (1972). It is jurisdictional." State v. Glover, 25 Wn. App. 58, 61, 604 P.2d 1015 (1979).

Two years later, Division Two reaffirmed Glover's validity, citing it for the proposition that, "a statute of limitations is viewed differently in the criminal than in the civil context. In the civil law, such a statute provides repose and a limitation on remedies; in the criminal law, such statutes create an absolute barto prosecution." State v. Eppens, 30 Wn. App. 119, 124, 633 P.2d 92 (1981). Four years later, Division Two cited Glover for the proposition that, "a criminal statute of limitation is jurisdictional." State v. Bryce, 41 Wn. App. 802, 807, 707 P.2d 694 (1985). Subsequently, Division Two reaffirmed its adherence to the holdings in Glover and Eppens. State v. Kirk, 64 Wn. App. 788, 789 n.1, 828 P.2d 1128 (1992). It later cited Glover with approval in State v. Phelps, 113 Wn. App. 347, 357, 57 P.3d 624 (2002).

Division One followed suit in 1985, observing that, "[a] criminal statute of limitation is jurisdictional." State v. Fischer, 40 Wn. App. 506, 510, 699 P.2d 249 (1985). Several years later, we reiterated that, "the criminal statute of limitations is jurisdictional and creates an absolute bar to prosecution." State v. Novotny, 76 Wn. App. 343, 345 n.1, 884 P.2d 1336 (1994).

Six years later, we reversed a defendant's conviction, holding "that a defendant cannot be convicted of a lesser offense upon a prosecution for a greater crime commenced after the statute has run on the lesser offense." State v. N.S., 98 Wn. App. 910, 912, 991 P.2d 133 (2000). We did, however, note that, "[s]ome courts hold that the statute of limitations is an affirmative defense that may be waived when the defendant seeks a jury instruction on a time-barred lesser included offense; others find that it is jurisdictional and cannot be waived." N.S., 98 Wn. App. at 915 n.12. We determined that we did not need to "address this contentious issue" in order to resolve the case. N.S., 98 Wn....