In re the Personal Restraint of Swagerty , 186 Wash. 2d 801 ( 2016 )

González, J.

¶1 Jerry Lee Swagerty raped a child in 2004, but he was not identified until DNA (deoxyribonucleic acid) tests were done in 2012. Well within the relevant statutes of limitations, Swagerty was charged with first degree rape of a child and first degree child molestation. Because of his criminal history, he faced a life sentence if convicted as charged. In order to avoid a life sentence, Swagerty pleaded guilty to four lesser offenses in 2013. However, the statute of limitations had run on three of the amended charges. Swagerty seeks to vacate those three convictions and be resentenced only on the one remaining charge. We hold that a criminal defendant may expressly waive an expired statute of limitations on lesser charges during plea negotiations to take advantage of a favorable plea offer. Accordingly, we reverse the Court of Appeals in part and remand to the trial court with direction to allow Swagerty a choice of two options: (1) he may withdraw his personal restraint petition, effectively keeping to the plea bargain he made, or (2) he may keep the victory he won at the Court of Appeals and move to vacate the 2013 judgment and sentence, and the State will have the opportunity to refile the original charges.

Background

¶2 In 2004, a young, developmentally disabled girl went to a grocery store with her father. State’s Resp. to Pet’r’s Pers. Restraint Pet., App. F at 1-2 (State’s Resp.). When the girl went to the front of the store to get a cart, a man offered her $10 to help him find his girlfriend. Id. at 1. The girl left the store with the man, who led her to a nearby alley and molested her. Id. Ten minutes later, the girl returned to her father, and her father immediately contacted the police. Id. Although police investigated the case and collected evidence, no arrest was made. Id. at 2. In 2012, the Washington State Patrol crime lab conducted DNA testing on a sample taken from the victim’s underwear that identified Swagerty as a match. Id.

¶3 Shortly after the DNA testing, the State charged Swagerty with first degree rape of a child and first degree child molestation for the 2004 incident. State’s Resp., App. B at 1-2. Plea bargaining was conducted in the shadow of a potential life sentence for Swagerty as a persistent offender. See RCW 9.94A.570; see also State’s Resp., App. A at 4. In 2013, Swagerty pleaded guilty to third degree child rape, luring, second degree burglary, and intimidating a witness. State’s Resp., App. A at 3-4. Swagerty’s statement on plea of guilty makes clear he pleaded to the amended charges in order to take advantage of the State’s offer for a sentence other than life without the possibility of parole. Id., App. C at 9. Swagerty did not, however, explicitly waive the statute of limitations. As part of the plea agreement, the State agreed to recommend a 30-year exceptional sentence. Suppl. Br. of Pet’r, Ex. 2. The court accepted the recommendation and imposed the exceptional sentence, finding that the victim, a 10-year-old developmentally disabled girl, was particularly vulnerable or incapable of resistance. State’s Resp., App. D at 2-3.

¶4 Swagerty filed this timely personal restraint petition pro se. Division Two, without appointing counsel for Swagerty, requested additional briefing from the State to address the statute of limitations for the amended charges. Suppl. Br. of Pet’r, Ex. 5. In response, the State conceded that the three-year statute of limitations had expired for the amended charges of luring, burglary in the second degree, and intimidating a witness. Suppl. Resp. per Court’s Request at 1-2; see In Re Pers. Restraint of Swagerty, No. 45862-4-II (Wash. Ct. App. Jan. 21, 2015) (unpublished), http://www.courts.wa.gov/opinions/pdf7D2%2045862-4-II%20 %20Unpublished%200pinion.pdf. Division Two determined the amended charge of rape of a child in the third degree was not barred by the statute of limitations when the State amended the charges in 2013. Swagerty, slip op. at 4. Because Swagerty’s plea was an “indivisible ‘package deal,’ ” Division Two vacated all his current convictions, remanded for an order of dismissal, and noted that the State “may then refile any charges for which the statute of limitations has not yet expired.” Id. at 5. Division Two did not rule on any of the other issues Swagerty raised.

¶5 Swagerty moved for discretionary review, arguing, among other issues, that his case should be remanded to the trial court for resentencing on the single remaining amended charge that is not time barred. We granted review and directed the clerk to appoint counsel for Swagerty. Order, In re Pers. Restraint of Swagerty, No. 91268-8 (Wash. Dec. 9, 2015).

Analysis

1. Expired Statute of Limitations

¶6 We recognize that Division Two’s opinion vacating Swagerty’s convictions potentially puts him in a worse position than if he had not filed his personal restraint petition because the State is able to refile the original, more serious charges against Swagerty. Given that the court below raised the statute of limitations issue sua sponte and did not appoint counsel, and given that it is not clear to us that Swagerty understood the import of the issue the Court of Appeals raised sua sponte, this resolution is troubling and leads us to consider other remedies that may be available.

¶7 To receive relief on collateral review, Swagerty must show either a constitutional error that resulted in actual and substantial prejudice or a nonconstitutional error that “constitute [s] ‘a fundamental defect which inherently results in a complete miscarriage of justice’.” In re Pers. Restraint of Cook, 114 Wn.2d 802, 810-12, 792 P.2d 506 (1990) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962)).

¶8 Generally, plea agreements, so long as they are voluntarily and intelligently made with an understanding of the consequences, are both encouraged and enforced. In re Pers. Restraint of Breedlove, 138 Wn.2d 298, 310, 979 P.2d 417 (1999) (citing State v. Perkins, 108 Wn.2d 212, 216, 737 P.2d 250 (1987)). However, a plea agreement “ ‘cannot exceed the statutory authority given to the courts.’ ” In re Pers. Restraint of Moore, 116 Wn.2d 30, 38, 803 P.2d 300 (1991) (quoting In re Pers. Restraint of Gardner, 94 Wn.2d 504, 507, 617 P.2d 1001 (1980)).

¶9 The prefiling expiration of a statute of limitations for a crime affects the authority of the court to enter a judgment and sentence, but it has been found to be a statutory defect, not a jurisdictional one. In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 355, 5 P.3d 1240 (2000). Generally speaking, statutory errors must be raised at trial or, at the latest, in a timely collateral challenge, to be considered. See generally In re Pers. Restraint of Coats, 173 Wn.2d 123, 140, 267 P.3d 324 (2011). Some errors are exempted from that time bar, including, at least since Stoudmire, claims that the statute of limitations had run before the charges were filed. Stoudmire, 141 Wn.2d at 353-54. We have held that the statute of limitations “bars prosecution of charges commenced after the period prescribed in the statute,” id. at 355, and “limits ... the time in which the court can exercise” its authority to enter judgment on an offense to those cases that were properly filed. State v. Peltier, 181 Wn.2d 290, 297, 332 P.3d 457 (2014). In Stoudmire, we found that it was a complete miscarriage of justice to allow someone to be restrained on time-lapsed charges. 141 Wn.2d at 354-55. The continuing vitality of Stoudmire has not been questioned in this case. With one notable exception, once the statute of limitations expires for a crime, the State lacks the authority to charge a defendant and the court lacks the authority to sentence a defendant under a plea agreement based on untimely charges. Id.; cf. Peltier, 181 Wn.2d at 298.

¶10 Since Stoudmire, we have also held that a defendant may waive a statute of limitations. See Peltier, 181 Wn.2d at 298. Peltier entered a stipulated trial agreement where he was found guilty of two amended charges rather than the four original charges. Id. at 292. Although the statute of limitations had expired on the two amended charges, his stipulated trial agreement included a waiver on the statute of limitations if a subsequent challenge of the agreement led to the refiling of the original charges. Id. at 292-93. After Peltier’s convictions were vacated, we held the State could refile the original charges, even though the limitations period had passed, because a defendant may expressly waive the statute of limitations when the statute of limitations has not yet run on the underlying charges. Id. at 298. Before the statute of limitations expires, the court “still has authority to sentence on charges if convicted.” Id. at 297. Notably, we also reasoned:

If it proves more advantageous for a defendant to waive a statute of limitations that has not expired, he or she should be able to do so. This will allow a defendant to plead guilty to lesser charges instead of standing trial on greater ones and facing a lengthy prison sentence.

Id. at 297-98 (citations omitted). “Generally, criminal defendants can waive rights that exist for their own benefit,” including a statute of limitations. Id. at 297 (citing Cowan v. Superior Court, 14 Cal. 4th 367, 371, 926 P.2d 438, 58 Cal. Rptr. 2d 458 (1996)).

¶11 We recognize that in Peltier, we were faced with an agreement that was executed before the relevant statute of limitations had passed, and that our holding specifically concerned that factual scenario. Id. at 292, 298. But we see no principled reason why under Peltier, a defendant could not agree to waive a lapsed statute of limitation on lesser charges to avoid greater charges.¹ Based on Peltier, we conclude that as long as the statute of limitations has not yet run at the time of charging on the original, more serious charges, the defendant may knowingly and expressly waive an expired statute of limitations on lesser charges to take advantage of a beneficial plea offer. The defendant may execute this waiver after consulting with counsel as part of plea negotiations.²

¶12 In the present case, the statute of limitations had expired on three of the four charges that were part of Swagerty’s plea agreement before he was charged. Swa-gerty, slip op. at 4. Swagerty did not expressly waive the expired statute of limitations on the lesser charges. Thus, the trial court exceeded its authority in entering judgment. “ ‘When a sentence has been imposed for which there is no authority in law, the trial court has the power and duty to correct the erroneous sentence.’ ” In re Pers. Restraint of Carle, 93 Wn.2d 31, 33, 604 P.2d 1293 (1980) (emphasis omitted) (quoting McNutt v. Delmore, 47 Wn.2d 563, 565, 288 P.2d 848 (1955)). Under Stoudmire, Swagerty has met the common law threshold requirements for relief on a personal restraint petition.

¶13 Under RAP 12.2, we find two appropriate remedies for this invalid judgment. Swagerty may withdraw his personal restraint petition and effectively ratify his agreement, knowing now the implications of the statute of limitations. Alternatively, Swagerty may insist on the relief he is entitled to: accept the vacation of his convictions on all four charges and risk recharging and a life sentence. We leave the choice to Swagerty on remand to the trial court.

¶14 We stress that we are taking this step in large part because the court below did not appoint counsel. Division Two accepted Swagerty’s petition and requested additional briefing on the statute of limitations issue. Presumably, the chief judge also determined Swagerty’s issues were not “frivolous,” as the petition was referred to a panel of judges for determination on the merits of the statute of limitations claim. RAP 16.11(b). Under RCW 10.73.150(4), counsel “shall be provided ... to prosecute a collateral attack after the chief judge has determined that the issues raised by the petition are not frivolous.” But see RAP 16.15(h) (providing “the court may provide for the appointment of counsel at public expense for services in the appellate court” (emphasis added)). Without the assistance of counsel, it is possible that Swagerty did not adequately understand the consequences of the argument he pursued. After conferring with his appointed appellate counsel, he may choose to withdraw his personal restraint petition.

¶15 Swagerty’s second option is to accept the Court of Appeals’ vacation of all convictions on all four charges that were part of an indivisible plea agreement. This remedy for an invalid plea agreement allows both parties to start over and “placets] the parties back in the position they were in before they entered into the agreement.” In re Pers. Restraint of Thompson, 141 Wn.2d 712, 730, 10 P.3d 380 (2000). However, if Swagerty chooses this option, the State will still be able to refile the original charges as the statute of limitations has not yet run on those charges.³

¶16 We specifically reject the remedy Swagerty requests: resentencing only on the third degree child rape charge. This would be an unreasonable windfall for Swa-gerty, allowing him to negotiate a deal with the State that would spare him a life sentence and then repudiate that deal to his benefit. We recognize that was the remedy given in Stoudmire, but Stoudmire almost exclusively concerned whether the petition could be heard at all, not the remedy should we reach the merits. Stoudmire, 141 Wn.2d at 348-54. Further, as the State argues, Swagerty’s plea was an “indivisible ‘package deal’ ” under our court’s post-Stoudmire decision in State v. Turley, 149 Wn.2d 395, 69 P.3d 338 (2003). The defendant in Turley pleaded guilty to two crimes after relying on the State’s erroneous representations that there was not a mandatory community placement requirement for one of the charges. Id. at 396. The trial court allowed him to withdraw his guilty plea as to that single charge. Id. at 397. We reversed, holding that when a defendant pleads guilty “to multiple counts or charges at the same time, in the same proceedings, and in the same document, the plea agreement will be treated as indivisible, absent objective evidence of a contrary intent in the agreement.” Id. at 402. Here, Swagerty entered a guilty plea to multiple charges at the same time, during the same proceeding, and in the same document. We hold that Swagerty’s plea agreement is indivisible under Turley and that given the fact there is no discussion in either the Stoudmire briefs or the Stoudmire opinion of whether the plea agreement was indivisible or what the consequences of indivisibility would be, the relief granted there does not govern the relief appropriate here.

¶17 Swagerty contends that resentencing on the single charge is required based on a double jeopardy opinion, State v. Knight, 162 Wn.2d 806, 174 P.3d 1167 (2008). In Knight, the defendant was originally charged with five crimes and pleaded guilty to three under a plea agreement. Id. at 809. However, two of her convictions violated the double jeopardy clause by punishing a single conspiracy twice. Id. at 810-11. Even though we assumed Knight’s plea agreement was indivisible under Turley, we held that vacating a single conviction that violated double jeopardy was the appropriate remedy as Knight did not need to withdraw her entire guilty plea. Id. at 813.

¶18 Double jeopardy is a constitutional limitation on the power of the court to place a person in jeopardy multiple times for the same offense. See State v. Bobic, 140 Wn.2d 250, 260, 996 P.2d 610 (2000). A statute of limitations is a legislatively imposed limit on the time in which charges may be brought. See Stoudmire, 141 Wn.2d at 355. The extraordinary remedy in Knight has been applied only to other cases involving double jeopardy violations as a result of plea agreements. See State v. Hughes, 166 Wn.2d 675, 681 n.5, 689, 212 P.3d 558 (2009); In re Pers. Restraint of Francis, 170 Wn.2d 517, 531-32, 242 P.3d 866 (2010); see also State v. League, 167 Wn.2d 671, 223 P.3d 493 (2009). It does not apply here.

2. Remaining Issues

¶19 Swagerty raised other issues in his personal restraint petition and his motion for discretionary review,⁴ some of which merit this court’s review.

¶20 First, Swagerty argues that the State’s charges of two first degree crimes, rape and child molestation, for one single alleged act violates double jeopardy. However, jeopardy does not attach until a trial-like proceeding begins before a trier of fact to determine guilt or innocence. State v. Cockrell, 102 Wn.2d 561, 567, 689 P.2d 32 (1984) (citing Serfass v. United States, 420 U.S. 377, 391, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975)). Because Swagerty never went to trial or entered a guilty plea on those charges, jeopardy never attached. Swagerty’s double jeopardy rights were not violated.

¶21 Next, Swagerty argues that his defense counsel was ineffective. A review of the record indicates defense counsel made tactical decisions to secure a plea agreement given the evidence against Swagerty. It is difficult to imagine what evidence or strategy could have overcome the documented presence of Swagerty’s DNA in the victim’s underwear, and Swagerty identifies none. Even if counsel’s assistance was deficient, Swagerty has failed to show any prejudice. Swagerty’s ineffective assistance of counsel claim fails.

¶22 Finally, Swagerty argues that his criminal history is inaccurate and certain convictions should not have counted as strikes under the Persistent Offender Accountability Act of the Sentencing Reform Act of 1981 because the crimes should have been considered the “same criminal conduct.” Ch. 9.94A RCW. Legal errors in offender score calculations may be raised for the first time on collateral review when the error is apparent on the face of the judgment and sentence “without further elaboration.” In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 866, 873-74, 50 P.3d 618 (2002). But whether Swagerty’s prior convictions were for the same criminal conduct is not evident on the face of the judgment and sentence without further elaboration. Instead, it was a matter of fact and trial judge discretion. See In re Pers. Restraint of Shale, 160 Wn.2d 489, 494-95, 158 P.3d 588 (2007) (plurality opinion) (citing State v. Nitsch, 100 Wn. App. 512, 520-23, 997 P.2d 1000 (2000) (noting that because the same criminal conduct inquiry involves both factual determinations and the exercise of discretion, if a defendant fails to bring this to the court’s attention, she waives the challenge to her offender score)).

Conclusion

¶23 We hold that a criminal defendant may expressly waive an expired statute of limitations during plea negotiations to receive the benefit of a better sentence on a different charge. We reverse the Court of Appeals in part and remand this case to the trial court with direction to allow Swagerty the choice of withdrawing his personal restraint petition or accepting the vacated judgment and sentence for his convictions. If Swagerty chooses the latter, the State may refile any original charges for which the statute of limitations have not yet expired.

Johnson, Wiggins, Gordon McCloud, and Yu, JJ., concur.

1 In dissent, Justice Stephens suggests that the principled reason is Stoudmire and Peltier themselves. See dissent (Stephens, J.) at 823. But whether a defendant could make this waiver was before neither court, and thus neither decided it. “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.’’ Webster v. Fall, 266 U.S. 507, 511, 45 S. Ct. 148, 69 L. Ed. 411 (1925) (citing New v. Oklahoma, 195 U.S. 252, 256, 25 S. Ct. 68, 49 L. Ed. 182 (1904)).

2 Nothing in this opinion should be taken to suggest that the State has the authority to initiate prosecution after the relevant statute of limitations has lapsed or that it would be an appropriate arrow in the prosecutorial quiver to overcharge a defendant with an unlapsed charge in order to induce a plea to a lesser lapsed one. See Stoudmire, 141 Wn.2d at 355. Nor should it be taken to suggest that the statute of limitations can be impliedly waived.

3 In 2004, the statute of limitations for rape of a child in the first degree and child molestation in the first degree allowed prosecution for three years after the victim’s 18th birthday. Former RCW 9A.04.080(1)(c) (2004). The statute of limitations was extended twice more: in 2009, to allow prosecution up to the victim’s 28th birthday, and in 2013, to allow prosecution until the victim’s 30th birthday. Laws of 2009, ch. 61, § 1; Laws of 2013, ch. 17, § 1. A new limitations period applies to an offense if the prior period has not expired. State v. Hodgson, 108 Wn.2d 662, 666-67, 740 P.2d 848 (1987). Because the initial time limit had not expired when the legislature subsequently amended the statute of limitations for those crimes, the original charges were not barred in 2012 when Swagerty was originally charged and would not be barred now as the victim has not yet reached her 30th birthday.

4 Swagerty also raises claims of prosecutorial misconduct, judicial misconduct, actual innocence, and various due process violations. Swagerty devoted insufficient argument on these claims to warrant our review. Due to the lack of briefing, we decline to reach these issues. See Saunders v. Lloyd’s of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989) (declining to reach arguments not supported by adequate argument and authority).