Cox v. State

• Decision Date: 29 December 2006
• Docket Number: No. C-2005-675.,C-2005-675.
• Citation: 2006 OK CR 51,152 P.3d 244
• Parties: Kenneth James COX, Petitioner v. STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

152 P.3d 244

2006 OK CR 51

Kenneth James COX, Petitioner v. STATE of Oklahoma, Respondent.

No. C-2005-675.

Court of Criminal Appeals of Oklahoma.

December 29, 2006.

Greg Camp, attorney at law, Enid, OK, attorney for defendant at trial.

Stephanie Hampton, Bryan Slabotsky, Michael Fields, Office of District Attorney, Enid, OK, attorneys for State at trial.

Kimberly D. Heinze, Appellate Defense Counsel, Oklahoma Indigent Defense System, Norman, OK, attorney for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Thomas Lee Tucker, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.

A. JOHNSON, Judge.

¶ 1 Petitioner Kenneth James Cox, pled guilty in the District Court of Garfield County to Child Sexual Abuse in violation of 10 O.S. § 7115(E) in Case No. CF-2004-48. The Honorable Ronald G. Franklin, District Judge, accepted Cox's plea and sentenced him to twenty years imprisonment with all but the first fifteen years suspended. Cox filed a timely motion to withdraw his plea and, after a hearing, the district court denied it. Cox now seeks certiorari review of the district court's order denying his motion to withdraw his plea.

¶ 2 Cox raises the following propositions of error:

I. The prosecution for child sexual abuse was time-barred by expiration of the statute of limitations.

II. The district court erroneously denied his motion to withdraw his plea because there was an insufficient factual basis on an essential element of the offense.

III. The guilty plea was not knowingly and voluntarily entered.

IV. The sentence imposed by the district court was excessive.

¶ 3 After considering these propositions and the record of the proceeding below, we grant the petition for certiorari, vacate the judgment and sentence, and remand with direction that Cox be permitted to withdraw his plea. Because we remand on the basis that the offense was time-barred under the statute of limitations as charged and on the additional grounds that the record contains an insufficient factual basis to establish that Cox's plea was entered knowingly and intelligently, we do not address Cox's excessive sentence claim, nor do we address the propriety of raising such a claim on certiorari review.

A. Statute of Limitations

1. Jurisdictional Requirement or Affirmative Defense?

¶ 4 Cox contends initially that prosecution for this crime was barred by the statute of limitations. The State argues that Cox raises the issue for the first time in this appeal and therefore has waived the matter. Generally, when an issue is not raised in the trial court, it is reviewed only for plain error on direct appeal. Medlock v. State, 1994 OK CR 65, ¶ 34, 887 P.2d 1333, 1344.¹ In a certiorari appeal such as this, our review is even more limited. On certiorari review of a guilty plea, our review is limited to two inquiries: (1) whether the guilty plea was made knowingly and voluntarily; and (2) whether the district court accepting the guilty plea had jurisdiction to accept the plea. Frederick v. State, 1991 OK CR 56, ¶ 5, 811 P.2d 601, 603. This Court has not addressed directly, however, whether a statute of limitations claim may be reviewed for the first time on either direct or certiorari appeal. Resolution of this question hinges on whether a statute of limitations is construed as an affirmative defense or as a constraint on the trial court's jurisdiction. If, as the State asserts, a statute of limitations is an affirmative defense, not raising the defense in the trial court clearly waives the issue on certiorari review as a non-jurisdictional defect and thereby limits review solely to a review of the knowing and voluntary nature of the guilty plea. See e.g., Frederick, 1991 OK CR 56 at ¶ 5, 811 P.2d at 603 (holding that voluntary guilty plea waives all but non-jurisdictional defects). If, on the other hand, a statute of limitations is construed as imposing a jurisdictional limit on the State's power to prosecute a criminal case, or concomitantly, on a trial court's power to hear the case, a statute of limitations challenge may be raised for the first time on direct or certiorari review. See e.g., Bowen v. State, 1972 OK CR 146, ¶ 8, 497 P.2d 1094, 1097("objection to lack of jurisdiction may be raised at any time or stage of the proceeding").

¶ 5 This Court's only statement on the issue is found in State v. Day, 1994 OK CR 67, ¶ 14, 882 P.2d 1096, 1098, where we stated that statutes of limitations raise a "jurisdictional issue and, once asserted, the presumption is that the statute has run and the State has the obligation to overcome this presumption." In Day, the defendant successfully asserted a statute of limitations defense in the trial court against a charge of lewd molestation and the State appealed. Unlike the jurisdictional issue raised here, however, the sole issue in Day was a question of statutory construction as to when the statute of limitations for the crime of lewd molestation began to run (i.e., after discovery by the victim or the State). Because it was unnecessary for the Day court's resolution of the issue before it, the Court's pronouncement that a statute of limitations is jurisdictional is dictum. As a result, Day does not resolve the issue presented here.

¶ 6 Recognizing the lack of clear direction from this Court, Cox and the State each seek authority for their respective positions from other jurisdictions. Cox relies on the Tenth Circuit case of United States v. Cooper, 956 F.2d 960, 961-62 (10th Cir.1992). In Cooper, the Tenth Circuit held that a statute of limitations operates "as a jurisdictional limitation upon the power to prosecute and punish" and is therefore noticeable when raised for the first time on appeal. Id. at 961-62. The Cooper court took pains to explain, however, that the use of the term jurisdictional in the statute of limitations context does not equate to the concept of subject matter jurisdiction, and that unlike subject matter jurisdiction, which cannot be waived to confer subject matter jurisdiction on a court when it has none, a defendant may waive a statute of limitations as bar to prosecution. Id. at 962. The approach taken by the Tenth Circuit in Cooper and urged upon this Court by Cox is similar to that followed by several states.² The State on the other hand relies on case law from a different group of states to support its position that a statute of limitations merely provides an affirmative defense that, like other defenses, is waived through failure to assert the defense in the trial court.³

¶ 7 This Court's early jurisprudence provides guidance here and points to the approach taken by the Tenth Circuit in Cooper as being the correct path. In the syllabus to State v. Fulkerson, 16 Okl.Cr. 250, 182 P. 725 (1919), this Court held that a statute of limitations abrogates the right of the State to try and punish criminal offenses at its discretion. When so viewed, a statute of limitations constrains the reach of the State's power to prosecute and punish. It is therefore jurisdictional.

¶ 8 By concluding that a statute of limitations is jurisdictional we do not, however, equate the jurisdictional nature of statutes of limitations with the concept of subject matter jurisdiction. We, like the Tenth Circuit in Cooper, do not believe such a parallel exists. See Cooper, 956 F.2d at 962. Subject matter jurisdiction applies to a court's authority to adjudicate⁴ a particular type of controversy. See Marley v. Dept. of Labor and Industries, 125 Wash.2d 533, 886 P.2d 189, 193 (1994)(citing Restatement (Second) of Judgments § 11). If the type of controversy at issue is within a court's subject matter jurisdiction, "`then all other defects or errors go to something other than subject matter jurisdiction.'" Marley, 886 P.2d at 193 (quoting Robert J. Martineau, Subject Matter Jurisdiction as a New Issue on Appeal: Reining in an Unruly Horse, 1988 B.Y.U.L.Rev. 1, 28). Because statutes of limitation speak in terms of time periods in which prosecutions must be initiated, not in terms of types of controversies, limitations periods are jurisdictional only in the sense that they impose temporal, but not subject matter, limits on a court's exercise of judicial authority. Subject matter jurisdiction, cannot be waived to confer jurisdiction on a court lacking the power to adjudicate a particular type of controversy. A statute of limitations, however, may be waived because such waiver affects only the temporal breadth of the court's power over a type of controversy that is already within its subject matter reach. See Bowen v. State, 1972 OK CR 146 at ¶ 8, 497 P.2d at 1097 ("jurisdiction of subject matter can neither be waived nor conferred by consent"); Cooper, 956 F.2d at 962 (same).

¶ 9 In this sense then, by waiving the statute of limitations applicable to a particular crime, a defendant neither confers subject matter jurisdiction on the court to adjudicate the case nor power on the State to prosecute. Instead, the waiver becomes a binding agreement not to object to the filing of charges beyond the time bounds established by the statutory limitation. Nevertheless, because a statute of limitations may operate as an absolute bar to prosecution and implicates at least the temporal jurisdictional limits of the power of a court to adjudicate a case as well as the State's power to prosecute, we will not presume a defendant waived the issue through silence by failing to raise it in the trial court. Cf. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969)(holding that in guilty plea context, waiver cannot be presumed from silent record); Cooper, 956 F.2d at 962 (explaining that express waiver of statute of limitations is necessary for to allow otherwise, based "simply on the strength of a defendant's mistaken notion that a valid charge was pending against her, would be to change the statute of limitations from a law into a mere suggestion")....