In re Swagerty

• Decision Date: 27 October 2016
• Docket Number: No. 91268–8,91268–8
• Citation: 186 Wash.2d 801,383 P.3d 454
• Court: Washington Supreme Court
• Parties: In re the Matter of the Personal Restraint of Jerry Lee Swagerty, Petitioner.

186 Wash.2d 801

383 P.3d 454

In re the Matter of the Personal Restraint of Jerry Lee Swagerty, Petitioner.

No. 91268–8

Supreme Court of Washington, En Banc.

Argued May 10, 2016

Filed Oct. 27, 2016

Eric J. Nielsen, Eric Broman, Nielsen Broman & Koch PLLC, 1908 E. Madison St., Seattle, WA, 98122–2842, for Petitioner.

Kimberley Ann DeMarco, Brent J. Hyer, Pierce County Prosecutor's Office, 955 Tacoma Ave. S., Rm. 301, Tacoma, WA, 98402–2160, for Respondent.

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, 2015 WL 264219 (Wash. Ct. App. Jan. 21, 2015), http://www.courts.wa.gov/opinions/pdf/D2% 2045862-4II% 20% 20Unpublished% 20Opinion.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. Id. 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[ ] ‘a fundamental defect which inherently results in a complete miscarriage of justice.’ ” In re Pers. Restraint of Cook, 114 Wash.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 Wash.2d 298, 310, 979 P.2d 417 (1999)citing State v. Perkins , 108 Wash.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 Wash.2d 30, 38, 803 P.2d 300 (1991) (quoting In re Pers. Restraint of Gardner , 94 Wash.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 Wash.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 Wash.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 Wash.2d at 353–54, 5 P.3d 1240. We have held that the statute of limitations “bars prosecution of charges commenced after the period prescribed in the statute,” id. at 355, 5 P.3d 1240, 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 Wash.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 Wash.2d at 354–55, 5 P.3d 1240. 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 Wash.2d at 298, 332 P.3d 457.

¶10 Since Stoudmire, we have also held that a defendant may waive a statute of limitations. See Peltier , 181 Wash.2d at 298, 332 P.3d 457. Peltier entered a stipulated trial agreement where he was found guilty of two amended charges rather than the four original charges. Id. at 292, 332 P.3d 457. 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, 332 P.3d 457. 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, 332 P.3d 457. Before the statute of limitations expires, the court “still has authority to sentence on charges if convicted.” Id. at 297, 332 P.3d 457. 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, 332 P.3d 457 (citing Cowan v. Superior Court, 14 Cal.4th 367, 371, 926 P.2d 438, 58 Cal.Rptr.2d 458 (1996) ).

¶11 We...