James v. Galetka

• Decision Date: 03 September 1998
• Docket Number: No. 961767-CA,961767-CA
• Citation: 965 P.2d 567
• Parties: 351 Utah Adv. Rep. 16 Steven Ray JAMES, Petitioner and Appellant, v. Henry GALETKA, Warden; State of Utah, Respondents and Appellees.
• Court: Utah Court of Appeals

Page 567

965 P.2d 567

351 Utah Adv. Rep. 16

Steven Ray JAMES, Petitioner and Appellant, v. Henry GALETKA, Warden; State of Utah, Respondents and Appellees.

No. 961767-CA.

Court of Appeals of Utah.

Sept. 3, 1998.

Mark T. Ethington, Day, Shell & Liljenquist, L.C., Murray, for Petitioner and Appellant.

Jan Graham, Atty. Gen., and Thomas B. Brunker, Asst. Atty. Gen., Salt Lake City, for Respondents and Appellees.

Before DAVIS, P.J., and BENCH and JACKSON, JJ.

OPINION

DAVIS, Presiding Judge:

Defendant appeals from the dismissal of his petition for extraordinary relief, arguing that because the statute of limitations had run on a charge of tampering with evidence, a second degree felony, that charge should not have been included in a plea bargain arrangement wherein defendant also pleaded guilty to manslaughter, also a second degree felony. We affirm.

FACTS

Defendant was arrested on October 23, 1986, and charged with first degree murder. ¹ On May 1, 1989, a jury convicted defendant of first degree murder and the trial court sentenced him to life imprisonment. The Utah Supreme Court reversed and remanded the case for a new trial. See State v. James, 819 P.2d 781 (Utah 1991). However, before trial, the parties commenced plea negotiations. The State offered to allow defendant to plead guilty to two second degree felonies in exchange for its agreement to not retry defendant on the original murder charge. The State also told defendant that a single second degree felony would not be sufficient.

Originally, the State and defendant agreed to allow defendant to plead guilty to manslaughter and perjury. However, according to defendant, his counsel discovered that the statute of limitations barred the perjury plea. Consequently, the parties substituted evidence tampering for perjury as the additional second degree felony. Defendant claims that at no time did his counsel specifically tell him that the statute of limitations had also run on the tampering with evidence charge, and at no time during sentencing did the trial court raise that issue. Defendant pleaded guilty to these two charges and was sentenced on September 8, 1993, to two consecutive one to fifteen year terms. He was also ordered to pay restitution to the victim's mother for the cost of burying their son and to reimburse Cache County in the sum of $160,000.

On May 24, 1996, defendant filed a petition for extraordinary relief, pursuant to Rule 65B of the Utah Rules of Civil Procedure. Defendant asked the trial court to dismiss the tampering with evidence conviction on the basis that it was barred by the four year statute of limitations for felonies. Defendant also argued that his counsel was ineffective for not advising him that the tampering with evidence charge was barred by the statute of limitations, and that the order of $160,000 in restitution violated Utah Code Ann. § 77-32a-2 (1995). The State moved to dismiss the petition as untimely because it was filed one year and fifteen days after the effective date of the one year statute of limitations of Utah Code Ann. § 78-12-31.1 (1995). However, after a hearing, the trial court excused defendant's failure to timely file, ² concluded that all defendant's post-conviction claims were meritless, and dismissed the petition. The court stated:

Having determined that the statute of limitations found in section 78-35a-107 does not bar the post-conviction claims, the Court nevertheless concludes that [defendant]'s claims should be dismissed. Here [defendant] knowingly and voluntarily entered into an agreement with the State to plead guilty to one count of Manslaughter and one count of Tampering with [Evidence], and in exchange for that plea, the State dismissed the capital charge against him. As a result of the plea agreement, [defendant] was sentenced to serve two consecutive 15-year terms rather than a possible life sentence had he been convicted of the capital offense.

In making the plea agreement, [defendant] waived any defenses he may have had to the crimes to which [h]e pled and he accepted the judgment of guilty for those offenses. Accordingly, the Court concludes that [defendant]'s plea of guilty to the tampering charge waived any right [defendant] may have had to attack the conviction, and he is therefore collaterally barred from seeking habeas corpus relief at this time.

Defendant appeals from the dismissal of this petition.

ISSUES AND STANDARD OF REVIEW

Defendant argues the trial court erred as a matter of law by concluding: (1) that defendant knowingly and voluntarily waived the statute of limitation bar to a crime that he pleaded guilty to as part of a plea bargain agreement; (2) that defendant was not denied effective assistance of counsel when defendant's appointed counsel failed to advise him that the statute of limitations had run on the tampering with evidence charge and allowed defendant to plead guilty to that charge; and (3) that defendant was not inappropriately assessed $160,000 in restitution.

The standard of review for a conclusion of law is one of correctness, giving no particular deference to the trial court's decision. See Landes v. Capital City Bank, 795 P.2d 1127, 1129 (Utah 1990).

ANALYSIS

Pursuant to his petition for extraordinary relief and on appeal, defendant first challenges his guilty plea to evidence tampering, arguing that the criminal statute of limitations rendered that plea illegal. Defendant argues he should not have to serve the sentence for the tampering with evidence conviction because it was barred by the statute of limitations. Additionally, defendant contends that he did not waive the right to assert the bar because the statute of limitations is jurisdictional and cannot be waived even by entering a guilty plea. However, if this court holds that the statute of limitations can be waived, defendant argues he did not waive the bar because he did not do so knowingly and voluntarily. He claims his attorney did not inform him or the court of the applicable statute of limitations and that he would be waiving it by pleading guilty.

Here, the statute of limitations for prosecution of criminal offenses provides, in relevant part:

(1) Except as otherwise provided, a prosecution for:

(a) a felony or negligent homicide shall be commenced within four years after it is committed ....

....

(2) A prosecution is commenced upon the finding and filing of an indictment by a grand jury or upon the filing of a complaint or information.

Utah Code Ann. § 76-1-302 (1990) (emphasis added). It is undisputed that it was more than four years after the criminal incident when the amended information charging evidence tampering was filed. Notwithstanding, the State asserts the trial court properly ruled that defendant waived the statute of limitations bar when he pleaded guilty to evidence tampering. We agree. However, to address the waiver issue we must initially determine whether the statute of limitations is jurisdictional. This issue is one of first impression in Utah.

"To try a person for the commission of a crime, the trial court must have jurisdiction of both the subject matter and the person of the defendant." 21 Am.Jur.2d Criminal Law § 338 (1981). Here, there is no concern regarding personal jurisdiction over defendant; the issue is whether a statute of limitations' bar implicates subject matter jurisdiction.

Jurisdiction of the subject matter is derived from the law. It can neither be waived nor conferred by consent of the accused. Objection to the jurisdiction of the court over the subject matter may be urged at any stage of the proceedings, and the right to make such an objection is never waived.

Id. § 339. Although subject matter jurisdiction may not be waived, see State ex rel. E.G.T., 808 P.2d 138, 139 (Utah Ct.App.1991) (stating, "a jurisdictional defect cannot be waived"), nonjurisdictional issues may be waived by a guilty plea, see State v. Parsons, 781 P.2d 1275, 1278 (Utah 1989) ("The general rule applicable in criminal proceedings, and the cases are legion, is that by pleading guilty, the defendant is deemed to have admitted all of the essential elements of the crime charged and thereby waives all nonjurisdictional defects, including alleged pre-plea constitutional violations."); State v. Sery, 758 P.2d 935, 938 (Utah Ct.App.1988) ("The common law rule [is] that a voluntary guilty plea is a waiver of the right to appeal all nonjurisdictional issues, including alleged pre-plea constitutional violations."). Examples of such nonjurisdictional issues that may be waived by a guilty plea "involve ... a number of important rights, including the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination." Salazar v. Warden, Utah State Prison, 852 P.2d 988, 991 (Utah 1993).

In civil cases, a statute of limitations must be pleaded as an affirmative defense, or it is waived. See Utah R. Civ. P. 8(c); Staker v. Huntington Cleveland Irrigation Co., 664 P.2d 1188, 1190 (Utah 1983). Statutes of limitation are therefore not jurisdictional in the civil context. See American Coal Co. v. Sandstrom, 689 P.2d 1, 4 (Utah 1984), overruled in part on other grounds by State v. South, 924 P.2d 354 (Utah 1996).

Statutes of limitations have been passed to limit the time for commencement of most criminal proceedings, the point at which a court first receives jurisdiction over the offense.

Statutes of limitations in criminal cases are considered ... a surrendering by the sovereign of its right to prosecute. They create a bar to prosecution and are therefore not merely statutes of repose as they are in civil cases. A criminal statute of limitations is not a mere limitation upon the remedy, but one upon the power of the sovereign to act against the accused.

21 Am.Jur.2d Criminal Law § 223 (1981) (footnotes omitted). In State v. Crank, 105 Utah 332, 142 P.2d 178 (1943), the Utah Supreme Court elaborated on the effect of a criminal statute...