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People v. Butler

Court of Appeals of Colorado, Second Division

September 7, 2017

The People of the State of Colorado, Plaintiff-Appellee,
v.
Christopher Edward Butler, Defendant-Appellant.

         Mesa County District Court No. 07CR851 Honorable Valerie J. Robison, Judge

          Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          ORDER AFFIRMED

          DAILEY JUDGE

         ¶ 1 In 2007, defendant Christopher Edward Butler was charged with and convicted of multiple criminal counts based on allegations that he had sexually assaulted a child, L.W., between January 1992 and May 1995. He asserted that, inasmuch as the charges were brought more than twelve years later, they were barred by the applicable ten-year statute of limitations.

         ¶ 2 Butler had, however, been serving a Colorado sentence out-of-state from 1999 until 2006, and, by statute, Colorado's limitations period was tolled, for up to five years, while a person was "absent from the state of Colorado."

         ¶ 3 The issue presented in this case is whether a defendant is "absent" from the state for statute of limitations purposes when he or she has been transferred by the Colorado Department of Corrections (DOC) to an out-of-state facility to serve out the remainder of a Colorado sentence. Because we conclude that the person is absent from the state under those circumstances, we affirm the postconviction court's denial of Butler's Crim. P. 35(c) motion to vacate his convictions and sentences.

         I. Background

         ¶ 4 In 1995, Butler was convicted in Colorado and sentenced to fourteen years imprisonment for sexually assaulting a child. In 1999, the DOC placed Butler in a Minnesota prison pursuant to an agreement with Minnesota prison authorities. Butler served the remainder of his Colorado sentence in Minnesota and was discharged in 2006. A month after his release, he attempted to contact L.W., prompting L.W. to report the abuse he had allegedly suffered as a child to the police. As a result of L.W.'s report, Butler was charged and prosecuted in the present case.

         ¶ 5 At the time of the alleged crimes, Colorado's statute of limitations provided a straightforward ten-year limitations period for prosecuting the crimes with which Butler was charged. § 18-3-411(2), C.R.S. 1995. In 2002, the General Assembly amended the applicable limitations period by extending it to ten years after a victim reaches the age of eighteen. Ch. 288, sec. 2, § 18-3-411(2)(b), 2002 Colo. Sess. Laws 1128.

         ¶ 6 Before his trial, Butler moved for dismissal on the ground that his prosecution was barred by the straightforward ten-year limitations period in effect at the time of the alleged offenses. The prosecution responded that (1) the limitations period was no longer simply ten years, but, pursuant to the 2002 amendment, it was ten years after the victim reached the age of eighteen;[1] or (2) in the alternative, the limitations period had been tolled while Butler was incarcerated in Minnesota.[2] Without being more specific, the trial court denied Butler's motion to dismiss with a handwritten notation "for the reasons cited by the prosecution."

         ¶ 7 After a jury convicted Butler, the court sentenced him to lengthy, consecutive terms of imprisonment in the custody of the DOC. On direct appeal, Butler did not argue the statute of limitations issue, and a division of this court affirmed his convictions and sentences. See People v. Butler, (Colo.App. No. 08CA2442, Apr. 5, 2012) (not published pursuant to C.A.R. 35(f)).

         ¶ 8 In 2014, Butler filed a Crim. P. 35(c) motion to vacate his convictions and sentences. Relying on People v. Summers, 208 P.3d 251 (Colo. 2009), he asserted that the underlying charges were barred by the application of the straightforward ten-year limitations period in effect when the crimes were committed. (Despite some language in the 2002 amendment stating otherwise, the supreme court in Summers interpreted the 2002 amendment as not applying to persons who, like Butler, committed their crimes before it was enacted. Id. at 259.)[3]

         ¶ 9 The People responded that (1) Butler's postconviction claim was barred by his failure to previously raise it when he had the opportunity to do so on direct appeal; and (2) in any event, even the straightforward ten-year limitations period had been tolled while he was incarcerated in Minnesota. Agreeing with the second of these arguments, the postconviction court denied Butler's motion for relief.

         II. Butler's Claim Was Not Barred By the Abuse of Process Rule

         ¶ 10 As an initial matter, the People contend that Butler was barred from pursuing his statute of limitations claim in a postconviction proceeding under the abuse of process rule. We disagree.

         ¶ 11 Under one part of the abuse of process rule, a court is generally required to "deny any claim that could have been presented in an appeal previously brought[.]" Crim. P. 35(c)(3)(VII).[4]Because Butler's statute of limitations claim could have been - but was not - brought on direct appeal, this part of the abuse of process rule would appear to apply.

         ¶ 12 However, there are several exceptions to the abuse of process rule, see Crim. P. 35(c)(3)(VII)(a)-(e), one of which is of particular import here: "[A]ny claim that the sentencing court lacked subject matter jurisdiction" may be pursued in a postconviction proceeding, notwithstanding the fact that it could have been previously brought in a direct appeal, Crim. P. 35(c)(3)(VII)(d).

         ¶ 13 "[D]espite their deep roots and pervasive nature, criminal statutes of limitations are not constitutionally mandated; rather, they are subject to legislative choice and can be amended or even repealed altogether." Frank B. Ulmer, Note, Using DNA Profiles to Obtain "John Doe" Arrest Warrants and Indictments, 58 Wash. & Lee L. Rev. 1585, 1612 (2001) (footnote omitted); see also 1 Charles E. Torcia, Wharton's Criminal Law § 92 (15th ed. 1993) ("At common law, there was no limitation of time within which a criminal prosecution had to be commenced; a time limitation is therefore a creature only of statute.").

         ¶ 14 That said, our case law is clear: a claimed statute of limitations violation in a criminal case implicates the court's subject matter jurisdiction. See People v. Cito, 2012 COA 221, ¶ 32; People v. Wilson, 251 P.3d 507, 509 (Colo.App. 2010) (citing People v. Verbrugge, 998 P.2d 43, 44 (Colo.App. 1999)). Consequently, Butler's claim is not barred by the abuse of process rule.

         ¶ 15 We reject, as unpersuasive, the People's argument that Butler's statute of limitations claim does not present an issue of subject matter jurisdiction. If we were writing on a clean slate, we might well be receptive to their argument.[5] But we are not writing on a clean slate. ¶ 16 Nearly sixty years ago, the supreme court held that a statute of limitations challenge is jurisdictional in nature. See Bustamante v. Dist. Court, 138 Colo. 97, 107, 329 P.2d 1013, 1018 (1958) ("[T]he statute of limitations in a criminal case is not merely a defense that may be asserted at the trial as in civil matters, but denies jurisdiction to prosecute an offense not committed within the period limited."), overruled in part on other grounds by Cty. Court v. Ruth, 194 Colo. 352, 575 P.2d 1 (1977). Since that time, divisions of our court have characterized the "jurisdictional" nature of the issue in Bustamante as one involving "subject matter" jurisdiction. See, e.g., Wilson, 251 P.3d at 509; Verbrugge, 998 P.2d at 44-46, superseded by § 16-5-401(12) as stated in People v. Lowry, 160 P.3d 396, 397 (Colo.App. 2007); see also People v. Ware, 39 P.3d 1277, 1279 (Colo.App. 2001) ("Under Colorado law, the statute of limitations in criminal matters operates as a jurisdictional bar to prosecution that cannot be waived.").[6]

         ¶ 17 There is, of course, good reason for this. We cannot ignore the supreme court's characterization of a statute of limitations challenge as one presenting a "jurisdictional" issue. People v. Gladney, 250 P.3d 762, 768 n.3 (Colo.App. 2010) (the court of appeals is bound to follow supreme court precedent); see People v. Novotny, 2014 CO 18, ¶ 26 (The supreme court "alone can overrule [its] prior precedents concerning matters of state law . . . ."). And because there are but two types of "jurisdictional" issues, i.e., "personal" jurisdiction and "subject matter" jurisdiction, Circuit Court v. Lee Newspapers, 332 P.3d 523, 533 (Wyo. 2014), and Butler's claim has nothing to do with "personal" jurisdiction, it follows that the supreme court in Bustamante was addressing a matter of "subject matter" jurisdiction.

         ¶ 18 Finally, we reject the People's assertion that the nonjurisdictional nature of Butler's claim is demonstrated by section 16-5-401(12), C.R.S. 2016, which, the People say, allows a defendant to "waive" a statute of limitations defense. Section 16-5-401(12), however, says nothing about "waiver"; instead, it makes a limitations period inapplicable in certain situations.[7]

         ¶ 19 In Wilson, a division of this court recognized that

[b]ecause subject matter jurisdiction is established by the constitution and statutes, the General Assembly can change the scope of subject matter jurisdiction by amending statutes. In enacting section 16-5-401(12), the General Assembly ...

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