County District Court No. 07CR851 Honorable Valerie J.
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Andrew C.
Heher, Deputy State Public Defender, Denver, Colorado, for
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
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
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.
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; or (2) in the alternative,
the limitations period had been tolled while Butler was
incarcerated in Minnesota. Without being more specific, the trial
court denied Butler's motion to dismiss with a
handwritten notation "for the reasons cited by the
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.)
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.
Butler's Claim Was Not Barred By the Abuse of Process
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
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).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
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. 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
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
19 In Wilson, a division of this court recognized
[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