State v. Gum

• Decision Date: 06 March 2007
• Docket Number: No. 1 CA-CR 06-0683 PRPC.,1 CA-CR 06-0683 PRPC.
• Citation: 214 Ariz. 397,153 P.3d 418
• Parties: STATE of Arizona, Respondent, v. Edward Harry GUM, Petitioner.
• Court: Arizona Court of Appeals

153 P.3d 418

214 Ariz. 397

STATE of Arizona, Respondent, v. Edward Harry GUM, Petitioner.

No. 1 CA-CR 06-0683 PRPC.

Court of Appeals of Arizona, Division 1, Department D.

March 6, 2007.

Terry Goddard, Attorney General By Randall M. Howe, Chief Counsel, Criminal Appeals Section, Phoenix, and Sheila Sullivan Polk, Yavapai County Attorney By Dennis

M. McGrane, Deputy County Attorney, Prescott, Attorneys for Respondent.

Sherman Jensen, P.C. By Sherman Jensen, Prescott, Attorney for Petitioner.

OPINION

WINTHROP, Presiding Judge.

¶ 1 Petitioner Edward Harry Gum seeks review of the trial court's order denying post-conviction relief. For the reasons that follow, we grant review but deny relief. We hold that, because the statute of limitations in effect at the time of the commission of Gum's acts had not expired when the legislature extended the statute of limitations, Gum's prosecution was not time-barred.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 On September 14, 1991, two young women were sexually assaulted at gunpoint. The ordeal lasted almost an hour, during which time the victims were forced to perform various sexual acts with the assailant and with each other. The victims reported these crimes to police immediately. Despite their best efforts, police were not able to identify the assailant, and the crimes remained unsolved until 2004.

¶ 3 In March 2002, Gum was serving a prison sentence for an unrelated crime when the Arizona Department of Corrections drew a sample of his blood.¹ The sample was sent to the Department of Public Safety Crime Lab for a DNA profile. After the profile was completed, law enforcement personnel discovered that it matched the DNA profile created from semen samples collected from the two 1991 sexual assault victims. This profile had been entered into the national database known as the Combined DNA Index System, commonly referred to as "CODIS."

¶ 4 Within months of this discovery, Gum was indicted. Ultimately, the parties resolved the case by plea agreement. Gum pled guilty to two counts of sexual assault with two prior felony convictions, class 2 non-dangerous but repetitive offenses. The trial court accepted the plea and later sentenced Gum to consecutive terms of twenty-eight years' imprisonment on each count.

¶ 5 Gum timely commenced his "Rule 32 of-right" post-conviction relief proceeding, and appointed counsel filed a petition for post-conviction relief. See generally Ariz. R.Crim. P. 32. Gum claimed that his prosecution was barred by the applicable statute of limitations. He also claimed that his attorney was ineffective because she had erroneously advised him that the prosecution was not barred by the statute of limitations, and consequently persuaded him to accept the State's plea offer.

¶ 6 The statute of limitations in effect when Gum committed the 1991 crimes, A.R.S. § 13-107 (1989), stated in relevant part:

§ 13-107. Time limitations

....

B. Except as otherwise provided in this section, prosecutions for [] offenses [other than homicide, misuse of public monies, or falsification of public records] must be commenced within the following periods after actual discovery by the state or the political subdivision having jurisdiction of the offense or discovery by the state or such political subdivision which should have occurred with the exercise of reasonable diligence, whichever first occurs:

1. For a class 2 through 6 felony, seven years.

Gum argued that the limitations period began running in September 1991, upon law enforcement's discovery of the offenses, and expired seven years later in September 1998.

¶ 7 The State opposed the petition and argued that the prosecution was not barred because the limitations period began to run on the date of the discovery of the offender, rather than on the date of the discovery of the offenses. The State argued in part that the running of the statute of limitations had been tolled during the time Gum's identity was unknown, contending that the lack of identification was the equivalent of having "no reasonably ascertainable place of abode within the state," and thus triggering the tolling effect found in § 13-107(D). Alternatively, the State argued that, even if the limitations period commenced when authorities discovered the offenses, the legislature's 1997 amendment to § 13-107 applied to Gum's case and tolled the running of the statute. That amendment added a new subsection (E) that provides: "The period of limitation does not run for a serious offense as defined in § 13-604 during any time when the identity of the person who commits the offense or offenses is unknown." See 1997 Ariz. Sess. Laws, ch. 135, § 1. Sexual assault is one of the offenses listed as a "serious offense" in § 13-604. See A.R.S. § 13-604(W)(4)(e) (Supp.2006).²

¶ 8 Gum filed a reply, and after considering the pleadings, the trial court phrased the issues as follows:

[W]hen does the statute of limitation[s] commence pursuant to § 13-107(B) as a matter of law? Secondarily, if the State failed to commence prosecution within seven years of the commencement date as initially determined, does § 13-107(D) toll the statute of limitations so long as defendant's identity is unknown to law enforcement?

Relying on State v. Jackson, 208 Ariz. 56, 90 P.3d 793 (App.2004), the trial court concluded that the limitations period does not begin to run until authorities have discovered, or could have discovered with the exercise of reasonable diligence, the identity of the offender. Finding that Gum stated a colorable claim as to whether the authorities could have earlier discovered his identity with the exercise of reasonable diligence, the court set an evidentiary hearing.

¶ 9 Because the court also found that Gum had made a "prima facie showing" that the limitations period had expired, the State had the burden of proof at the evidentiary hearing to establish that authorities had exercised reasonable diligence in attempting to ascertain Gum's identity. See id. at 63, ¶ 26, 90 P.3d at 800 (holding that once a defendant presents reasonable evidence that the limitations period has expired, the State bears the burden to prove that it has not). At the hearing, the State called the detective and patrol officer who were involved in the investigation of the 1991 offenses. These officers testified about the efforts made to solve the crimes.

¶ 10 After the hearing, the trial court issued its findings of fact and conclusions of law. The court found that the State had exercised reasonable diligence in its attempts to identify Gum. The court also found that the limitations period did not begin to run until after the State had identified Gum through CODIS. As a consequence, the court concluded that Gum's prosecution, which had commenced only four months later, was not time-barred. Gum filed a motion for rehearing, which was denied. He then timely filed this petition for review, and the State filed a response.

¶ 11 Two months after the State filed its response, Gum filed a motion for expedited consideration based on an opinion issued by another panel of this court, Taylor v. Cruikshank, 214 Ariz. 40, 148 P.3d 84 (App. 2006). In Taylor, the court held that, pursuant to the applicable statute of limitations, the time period begins to run upon discovery of the offense and not upon discovery of the offender. Id. at 47, ¶ 27, 148 P.3d at 91. Over the State's opposition, we granted Gum's motion to expedite. Although we agree with Taylor's holding that the applicable limitations period begins to run upon discovery of the offense and not upon discovery of the offender,³ we reach a different resolution. For the reasons discussed below, we conclude that the 1997 amendment to § 13-107 extended the limitations period, and thus Gum's prosecution was not time-barred.

ANALYSIS

¶ 12 As indicated, the issue in Taylor was whether the limitations period in the applicable statute of limitations began to run from the date law enforcement personnel discovered that an offense had been committed or began to run from the date law enforcement personnel discovered the identity of the offender. The Taylor court began its analysis with the proposition that the "applicable statute of limitation is the statute in effect when the offenses were committed in 1994." 214 Ariz. at 42, ¶ 8, 148 P.3d at 86. The court succinctly noted:

The parties agree that the applicable statute of limitation is the statute in effect when the offenses were committed in 1994. We agree as well. See Martin v. Superior Court, 135 Ariz. 99, 100, 659 P.2d 652, 653 (1983) (absent expressed intent to apply criminal statutes of limitation retroactively, statutes apply to offenses committed after effective date of statutory changes); State v. Jackson, 208 Ariz. 56, [59] n. 3, [¶ 10,] 90 P.3d 793, 796 n. 3 (App.2004) (same); State v. Escobar-Mendez, 195 Ariz. 194, [198] n. 6, [¶ 19,] 986 P.2d 227, 231 n. 6 (App.1999) (same); see also A.R.S. § 1-244 (no statute is retroactive unless it expressly says so).

Id. After a thorough analysis, the Taylor court found that the limitations period began to run on the date law enforcement personnel discovered that the offense had been committed. Id. at 45, ¶ 19, 148 P.3d at 89. Because the applicable seven-year period had expired before commencement of the prosecutions,⁴ the court held that the prosecutions were barred. Id. at 47, ¶ 29, 148 P.3d at 91.

¶ 13 We believe, however, that the 1997 amendment applies to cases in which the existing limitations period had not yet expired on the amendment's effective date,⁵ and hold that it extends the limitations period in such cases. Application of the 1997 amendment to cases with an unexpired limitations period does not constitute an impermissible "retroactive" application of the law, nor is the law as applied ex post facto.⁶ Furthermore, we do not believe that such an application runs afoul of the Arizona opinions or statute cited in Taylor.

A. Constitutional...