State v. Johnson

• Decision Date: 05 April 1988
• Docket Number: No. C1-87-1990,C1-87-1990
• Citation: 422 N.W.2d 14
• Parties: STATE of Minnesota, Respondent, v. Rodney Allen Emil JOHNSON, Appellant.
• Court: Minnesota Court of Appeals

Page 14

422 N.W.2d 14

STATE of Minnesota, Respondent, v. Rodney Allen Emil JOHNSON, Appellant.

No. C1-87-1990.

Court of Appeals of Minnesota.

April 5, 1988.

Review Denied May 16, 1988.

Syllabus by the Court

1. Appellant's guilty plea operated as a waiver of his statute of limitations defense. The statute of limitations defense is not jurisdictional.

2. Statute of limitations for intrafamilial sexual abuse was tolled due to active coercion of victim by perpetrator of crime.

Hubert H. Humphrey, III, Atty. Gen., Paul R. Kempainen, Sp. Asst. Atty. Gen., St. Paul, William P. Simons, Sp. Asst. Martin County Atty., Jackson, for respondent.

Marc Kurzman, Kurzman, Grant, Manahan, Bluth & Barker, Minneapolis, for appellant.

Heard, considered, and decided by WOZNIAK, C.J., and SEDGWICK and SCHUMACHER, JJ.

OPINION

WOZNIAK, Chief Judge.

Appellant Rodney Johnson pleaded guilty to three counts of First Degree Intrafamilial Sexual Abuse, involving sexual abuse of his daughter occurring in September, October, and November 1981. He was charged with these crimes in 1986, and disputes the timeliness of the complaint under the statute of limitations. We affirm.

FACTS

In January 1986, appellant's minor son disclosed (to workers at the treatment center the son was attending) the existence of nude pictures of his sister. He had discovered these pictures in 1978 or 1979 hidden under appellant's bed, when his sister would have been 11 or 12 years old. At the time, appellant was a member of the Minnesota State Highway Patrol.

At a February 6, 1986 group therapy session at the adolescent treatment center, the son disclosed his discovery to appellant. Appellant indicated he was "sick then," and did not deny taking the pictures. The treatment center reported the possibility of sexual abuse of the sister to the local police on February 21, 1986. The police investigated the report during the next two months.

Appellant's daughter, born April 29, 1966, was contacted and interviewed. She currently resides in California with her mother who was divorced from appellant in October 1983. Appellant moved out of the family's house in the summer of 1983, but then lived in a trailer house near the home and often stayed at the home until the time of the divorce. Appellant continued to visit the children on a monthly basis until they moved to California. The daughter indicated appellant sexually abused her, including numerous acts of sexual contact and penetration, from 1976 through 1982.

In April 1986, a complaint charging appellant with four counts of intrafamilial sexual abuse was filed, the dates of which were "1976 through 1982." Appellant moved for dismissal on the ground that the statute of limitations in effect at the time of the criminal acts had run, and that the information provided by the son was privileged, and therefore inadmissible.

At the omnibus hearing, the state filed several police investigative reports which were assembled by various law enforcement agencies. They included statements by appellant's ex-wife, the daughter he abused, and the son who initially revealed the information that led to the daughter's revelations. There also were statements of friends and acquaintances of appellant, all describing the manner in which he ran his household.

The trial court denied the motion to dismiss based on the statute of limitations. The court ruled the criminal charge was timely because the statute of limitations (seven years) at the time the acts were charged was applicable, rather than the statute (three years) in effect at the time of the acts. The court also specifically found that, pursuant to State v. Danielski, 348 N.W.2d 352 (Minn.Ct.App.1984), pet. for rev. denied (Minn. July 26, 1984), and State v. French, 392 N.W.2d 596 (Minn.Ct.App.1986): ¹

It is also clear that defendant effectively controlled the complaining witness by a course of conduct over many years of intimidation and threats such that she was compelled to hide the acts of defendant.

The trial court also denied the privilege claim.

After the court denied this motion, appellant pleaded guilty to three counts of first degree intrafamilial sexual abuse committed in September, October, and November 1981. The plea agreement provided appellant would plead guilty to three counts in return for the state dismissing all other counts. The state agreed to several other concessions in return for the guilty plea, including an agreement to limit possible incarceration to one year. The guilty plea transcript and plea agreement make no reference to preservation of any issues for appeal. There were no other conditions.

Appellant was sentenced to a term of 65 months, execution stayed on several conditions, including 20 years probation and one year incarceration in the county jail.

ISSUES

1. Has appellant waived his right to appeal the statute of limitations issue?

2. Were these charges brought within the applicable statute of limitations?

ANALYSIS

1. A guilty plea by a counseled defendant operates as a waiver of all nonjurisdictional defects arising prior to the entry of the plea. State v. Ford, 397 N.W.2d 875, 878 (Minn.1986); State v. Lothenbach, 296 N.W.2d 854, 857 (Minn.1980). The correct procedure for obtaining review of pretrial criminal orders without going to trial was outlined in Lothenbach. The defendant could plead not guilty, stipulate the facts, waive the jury trial, and appeal any judgment of conviction. Id., 296 N.W.2d at 857-58 (citing Lefkowitz v. Newsome, 420 U.S. 283, 290 n. 7, 95 S.Ct. 886, 890 n. 7, 43 L.Ed.2d 196 (1975)).

Unless appellant's statute of limitations defense is jurisdictional, he has waived appellate review of this issue. The Minnesota Supreme Court has not directly ruled on the question of whether the statute of limitations defense is jurisdictional. In State v. Tupa, 194 Minn. 488, 495, 260 N.W. 875, 878 (1935), the court addressed the issue of whether a defendant had waived the criminal statute of limitations defense. The Tupa court found the defendant had not waived the defense, and proceeded to the merits of the claim. The trial court did not, however, specifically rule on whether the statute of limitations defense was jurisdictional.

The federal courts have addressed the issue of whether the statute of limitations defense is jurisdictional and when it may be waived. The clear consensus, and the modern trend, holds that the defense is in the nature of an affirmative defense, and hence is nonjurisdictional. See United States v. Walsh, 700 F.2d 846, 855 (2nd Cir.1983) (statute of limitations defense not jurisdictional, waived by failure to assert it at trial; may not be asserted for first time on appeal); United States v. Doyle, 348 F.2d 715, 718 (2nd Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965) (defendant may not raise issue of statute of limitations after pleading guilty to offense in question); United States v. Parrino, 203 F.2d 284, 286-87 (2nd Cir.1953) (same); United States v. Karlin, 785 F.2d 90, 92-93 (3rd Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 1351, 94 L.Ed.2d 522 (1987) (defense not jurisdictional, waived if not presented to trial court); United States v. Williams, 684 F.2d 296, 299 (4th Cir.1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 739, 74 L.Ed.2d 961 (1983) (defense not jurisdictional, may be waived at defendant's request); United States v. Meeker, 701 F.2d 685, 687 (7th Cir.), cert. denied, 464 U.S. 826, 104 S.Ct. 96, 78 L.Ed.2d 102 (1983) (defense not jurisdictional, waived by failure to present it to trial court); United States v. Akmakjian, 647 F.2d 12, 14 (9th Cir.), cert. denied, 454 U.S. 964, 102 S.Ct. 505, 70 L.Ed.2d 380 (1981) (defense not jurisdictional, waived unless raised at trial); United States v. Wild, 551 F.2d 418, 421-23 (D.C.Cir.1977) (statute of limitations an affirmative defense, not jurisdictional; written waiver valid); accord, Biddinger v. Commissioner of Police, 245 U.S. 128, 135, 38 S.Ct. 41, 43, 62 L.Ed. 193 (1917) ("The statute of limitations is a defense and must be asserted on the trial by the defendant in criminal cases."); but see Benes v. United States, 276 F.2d 99, 109 (6th Cir.1960) (defense jurisdictional; dicta); Waters v. United States, 328 F.2d 739, 743 (10th Cir.1964) (relying on Benes ). State courts have split on this issue. See State v. Littlejohn, 199 Conn. 631, 639-40, 508 A.2d 1376, 1380-81 (1986) (collecting cases from a number of jurisdictions).

We have decided to join the majority of federal circuits in adopting the nonjurisdictional view of the statute of limitations defense. We do this for a number of reasons.

First, the rule makes sense in a case of this type, where the defense may be met with a showing by the state that the statute of limitations is tolled for factual reasons. If the defense were jurisdictional, a defendant could raise it for the first time on appeal. However, as in this case, a specific factual finding (of active coercion by defendant) by the trial court would toll the statute of limitations. If appellant could raise this issue for the first time on appeal, this factual issue would not have been addressed in the trial court, and this court would be forced to remand for a determination of the facts. Thus, holding this defense to be jurisdictional would make little sense.

Second, as noted in several cases, it hardly makes sense for the appellant to be allowed to waive important constitutional rights but be foreclosed from waiving the statute of limitations. See Wild, 551 F.2d at 424-25, Littlejohn, 199 Conn. at 640-41, 508 A.2d at 1381.

Finally, Minnesota case law supports such a result. Tupa certainly implies such a defense may be waived; the case discusses at length whether the defendant waived the defense. See also State v. Rigg, 250 Minn. 370, 375, 84 N.W.2d 640, 645 (1957) (defendant who pleads guilty while represented by competent counsel waives all defenses other than that information charges no...