State v. Eppens

• Decision Date: 05 August 1981
• Docket Number: No. 3511-II,3511-II
• Citation: 30 Wn.App. 119,633 P.2d 92
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Edwin F. EPPENS, Appellant.

Page 119

30 Wn.App. 119

633 P.2d 92

The STATE of Washington, Respondent, v. Edwin F. EPPENS, Appellant.

No. 3511-II.

Court of Appeals of Washington, Division 2.

Aug. 5, 1981.

Stephen M. Boyle, Bellevue, for appellant.

Richard A. Strophy, Chief Criminal Deputy Pros. Atty., Olympia, for respondent.

PETRICH, Judge.

This case involves an injured worker who continued to receive state total disability benefits for several years after he began working summers as a commercial fisherman. The worker, defendant Edwin Eppens, was subsequently convicted of seven counts of grand larceny and sentenced to concurrent terms on each count. His appeal raises a question of first impression in this state: whether amending a criminal information by adding counts after the statute of limitations has run impermissibly broadens the charge so that the relation back doctrine may not apply. We hold that it does, and vacate three of the seven convictions, and affirm the remaining four.

There is no dispute as to the facts, which we summarize briefly. Edwin Eppens was a truck driver. In 1971 he was seriously injured in a work-related accident. As a result of his injuries, he was unable to work. He therefore filed a claim for and subsequently began receiving time loss compensation benefits provided by the industrial insurance program administered by the Department of Labor and Industries (Department) under RCW 51.32. As required by that program, each month defendant submitted a certificate of disability to the Department in Olympia. In these certificates he stated he was not working. The lower portion of each certificate contained his doctor's certification that defendant was disabled.

In the summer of 1973, however, defendant obtained a commercial fishing license in the name of his 16-year-old stepson and began to fish commercially on his own boat. During each succeeding summer, the trial court found, defendant worked as a self-employed commercial fisherman while continuing to submit monthly certificates claiming total disability. During that period, the Department relied on these certificates and each month paid defendant $485 in benefits. When the Department learned defendant had been working as a commercial fisherman, it terminated his benefits. It also provided the information to the Thurston County Prosecutor, which led to the prosecution giving rise to this appeal.

An information charging defendant with two counts of grand larceny and one count of first degree theft was filed on June 1, 1977. Count I covered the period June 1, 1974 to March 10, 1975. Count II covered the period June 22, 1975 to June 20, 1976. Count III covered the period July 1, 1976 to October 26, 1976. The information was first amended August 31, 1977, to charge two counts of grand larceny. ¹ Count I covered May 26 to September 30, 1974. Count II covered June 22 to September 20, 1975. In November 1977, the prosecutor again amended the information to charge seven counts of grand larceny, four counts covering the summer of 1974 from June through September, and three counts covering the summer of 1975. ²

The case went to trial in February 1978. After the prosecution presented its case to the jury, defendant waived his right to a jury trial and submitted the case to the court without presenting evidence other than the incomplete testimony of his physician, called out of order during the State's case in chief. The court convicted defendant and imposed concurrent, partially suspended sentences. ³ From these convictions and sentences defendant appeals on a number of legal grounds.

The most important issue in this case is one we mentioned but did not need to address in State v. Glover, 25 Wash.App. 58, 61, 604 P.2d 1015 (1979). We now consider the effect of amending a criminal information after the statute of limitations has run to include additional counts of the identical crime alleged to have occurred within the time frame described in a timely filed information. RCW 10.01.020 (repealed 1975). The original information, filed June 1, 1977, and charging crimes beginning with June 1, 1974, was filed within the appropriate statute of limitations. State v. Levesque, 5 Wash.2d 631, 106 P.2d 309 (1940). An information may be amended after the limitation period has passed so long as the original information was timely filed. See Patterson v. Municipal Court, 17 Cal.App.3d 84, 94 Cal.Rptr. 449, 451 (1971); Harris v. State, 229 So.2d 670 (Fla.D.C.App.1969); State v. Glover, supra.

In support of the continuing validity of the amended information, the State relies on the relation back doctrine, embodied in CR 15(c) and applicable to criminal cases, see State v. Smith, 16 Wash.App. 425, 432, 558 P.2d 265 (1976). Under this rule, an amended pleading relates back to the filing date of its predecessor so long as the claim in the pleading "arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading ..." CR 15(c). Objecting to the use of the relation back doctrine, defendant relies on cases invoking procedural rules we have held no longer apply. See Olson v. Roberts & Schaeffer Co., 25 Wash.App. 225, 227, 607 P.2d 319 (1980), and e. g., Ennis v. Ring, 49 Wash.2d 284, 300 P.2d 773 (1956). Absent an intervening deficiency, then, the relation back doctrine should apply to the pleadings in this case. We therefore consider whether the amendments to Counts II through IV after the limitation period broadened the charge and thus barred relation back. ⁴

Before addressing this question, however, we first respond to the State's contention that the concurrent sentence doctrine should be applied in this case, as it was in State v. Rice, 24 Wash.App. 562, 603 P.2d 835 (1979). The State's position is that where conviction on one count charged in an information is valid and concurrent sentences are imposed, the appellate court may not consider the validity of the conviction on other counts, citing Rice. The concurrent sentence doctrine, however, is not a jurisdictional bar. Benton v. Maryland, 395 U.S. 784, 791, 89 S.Ct. 2056, 2060, 23 L.Ed.2d 707 (1969). It is a matter of judicial convenience and discretion. Barnes v. United States, 412 U.S. 837, 848 n.16, 93 S.Ct. 2357, 2364 n.16, 37 L.Ed.2d 380 (1973). Under the doctrine, as we said in Rice, the appellate court "need not consider the validity" of multiple convictions when the sentences imposed are concurrent. We are, however, free to do so. See United States v. Clizer, 464 F.2d 121, 125 (9th Cir.), cert. denied, 409 U.S. 1086, 93 S.Ct. 697, 34 L.Ed.2d 673 (1972), and e. g., Chaifetz v. United States, 366 U.S. 209, 81 S.Ct. 1051, 6 L.Ed.2d 233 (1961) (memorandum opinion vacating conviction on one of several counts where Court of Appeals, having affirmed conviction on one of the other counts, had found it unnecessary to consider the count vacated by the Supreme Court). Furthermore, Rice is distinguishable because there we were dealing with two counts arising out of the same event, namely assault and rape, while here we are dealing with several acts of larceny, each independent of the others.

We now choose to consider the validity of the several convictions this case imposed despite the concurrent sentences. We note first 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 bar to prosecution. State v. Glover, 25 Wash.App. at 61; accord, Benes v. United States, 276 F.2d 99, 108-109 (6th Cir. 1960). See, State v. Steensland, 33 Idaho 529, 195 P. 1080, 1081 (1921).

Secondly, we note the general rule is that the court will not find reversible error in the amendment of an information unless specific prejudice is shown. State v. Aleshire, 89 Wash.2d 67, 71, 568 P.2d 799 (1977). In the past, our courts have refused to find prejudice where a defendant was convicted on multiple counts instead of one when, as here, the sentences were concurrent. State v. Linden, 171 Wash. 92, 103, 17 P.2d 635 (1932). More recently, however, the court has indicated that where one of several connected convictions is invalid and the sentences are concurrent, there may be prejudice.

Conviction in itself, even without imposition of sentence, carries an unmistakable onus which has a punitive effect and the presence of multiple convictions is apt to affect the minimum sentence set by the parole board.

State v. Johnson, 92 Wn.2d 671, 679, 600 P.2d 1249 (1979), cert. denied, 446 U.S. 948, 100 S.Ct. 2179, 64 L.Ed.2d 819 (1980). In addition to the effect multiple convictions might have on time actually spent in prison, we also consider the heavy stigma which attends each conviction. This stigma is one of the reasons our courts require proof beyond a reasonable doubt before imposing it. See discussion in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The November amendment charged in four counts what had been charged as one count in the August amendment. Convicted on all four counts, the defendant faces a potential longer minimum prison term and substantially increased stigma. The amendments to Count I of the first amended information thus broadened the original charge. The relation back doctrine may not be used in such circumstances. We therefore hold that the amendment to Count I of the first amended information to charge four counts is invalid as to all but Count I of the second amended information.

Defendant raises a further objection to the second amended information on the grounds that it is duplicitous. He contends that the State has charged in seven counts what is only one offense under a common scheme or plan. Whether a series of takings from the same owner is one crime or a series of independent crimes is a question for the trier of fact. State v. Vining, 2 Wash.App. 802, 472 P.2d 564 (1970), 53 A.L.R.3d...