People v. Butler , 431 P.3d 643 ( 2017 )

COLORADO COURT OF APPEALS 2017COA117
Court of Appeals No. 15CA0449
Mesa County District Court No. 07CR851
Honorable Valerie J. Robison, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Christopher Edward Butler,
Defendant-Appellant.
ORDER AFFIRMED
Division II
Opinion by JUDGE DAILEY
Fox and Plank*, JJ., concur
Announced September 7, 2017
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
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶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.
1
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
2
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
1 As applied to this case, the period prescribed in the 2002 statute
would not have expired until 2008. Because the 2002 amendment
was enacted before the previous straightforward ten-year limitations
period would have expired in this case, the 2002 amendment could
have been applied here without violating ex post facto principles.
People v. Hicks, 262 P.3d 916, 919-20 (Colo. App. 2011) (“[T]here is
no ex post facto violation where the legislature extends the
limitations period for prosecutions not yet time-barred as of the
date of the extension.”).
2 In its response, the prosecution noted that Butler had “requested
that he be transferred to a facility outside the state of Colorado to
serve his sentence near his family.” The trial court never
determined whether Butler “requested” or otherwise “agreed to” the
transfer.
3
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
3The basis of its decision was that the 2002 amendment was
ambiguous and, based on the rule of lenity, applied only to crimes
committed on or after the statute’s effective date. People v.
Summers, 208 P.3d 251, 259 (Colo. 2009).
4
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,
4 Abuse of process is a doctrine separate and apart from that of
successive petitions. See People v. Rodriguez, 914 P.2d 230, 253
(Colo. 1996). In 2004, the abuse of process doctrine was codified,
in an adapted form, in Crim. P. 35(c)(3)(VII).
5
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
6
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,
5 Indeed, courts in other states have found such arguments
persuasive. See State v. Peltier, 332 P.3d 457, 460 (Wash. 2014);
see also State v. Bowers, 709 A.2d 1255, 1264 n.7 (Md. 1998)
(“Although a few courts have held that the statute of limitations is
jurisdictional and cannot be waived, the vast majority of federal and
state courts have held that the statute of limitations is an
affirmative defense which can be waived.”).
7
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.
6“In contrast to personal jurisdiction, subject matter jurisdiction
may not be waived and can be raised at any stage in the
proceedings.” In re Marriage of Pritchett, 80 P.3d 918, 921 (Colo.
App. 2003).
8
¶ 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 modified the subject matter
jurisdiction of courts . . . .
251 P.3d at 509 (citation omitted).
¶ 20 We agree with the division in Wilson. Consequently, we
conclude that Butler was not barred by Crim. P. 35(c)(3)(VII) from
7 In pertinent part, section 16-5-401(12), C.R.S. 2016, provides as
follows:
The applicable period of limitations . . . shall
not apply to charges of offenses . . . brought to
facilitate the disposition of a case, or to lesser
included or non-included charges of offenses
or delinquent acts given to the court or a jury
at a trial on the merits, by the accused.
9
pursuing a statute of limitations claim in this postconviction
proceeding.
III. The Trial Court Had Jurisdiction Over the Case Because Butler’s
Absence From the State Tolled the Limitations Period
¶ 21 Butler contends that the postconviction court erred in ruling
that the trial court had subject matter jurisdiction for purposes of
the statute of limitations’ tolling provision because he was “absent
from the state of Colorado” while he was incarcerated in Minnesota
for his prior Colorado convictions. We disagree.
¶ 22 In support of his contention, Butler makes two assertions: (1)
the trial court erroneously interpreted the tolling provision to
encompass periods when persons are serving Colorado sentences in
other states’ facilities; and, in any event, (2) the prosecution was
required to — but did not — plead and prove to a jury that he was
“absent from the state.” We address each in turn.
A. The Trial Court Properly Interpreted the Tolling Provision
¶ 23 Statutory interpretation presents a question of law which we
review de novo. People v. Johnson, 2015 CO 70, ¶ 9.
¶ 24 In interpreting a statute, our task is to ascertain and give
effect to the intent of the General Assembly. Dubois v. People, 211
10
P.3d 41, 43 (Colo. 2009). To discern the legislative intent, we look
first to the language of the statute itself, Summers, 208 P.3d at
253-54, reading words and phrases in context and construing them
according to rules of grammar and common usage, People v. Diaz,
2015 CO 28, ¶ 12.
¶ 25 When the statutory language is clear and unambiguous, “we
apply the words as written without resort to other rules of statutory
interpretation.” People v. Shores, 2016 COA 129, ¶ 16 (citing People
v. Van De Weghe, 2012 COA 204, ¶ 8). But “[w]hen the language of
a statute is susceptible of more than one reasonable understanding
and is therefore considered ambiguous,” People v. Jones, 2015 CO
20, ¶ 10, “a court must look beyond the language [of the statute]
and consider other factors, such as the statute’s legislative history
and the objective sought to be achieved by the legislation,” People v.
Lovato, 2014 COA 113, ¶ 23.
¶ 26 In 1995, the pertinent statute of limitations tolling provision
stated that
[t]he time limitations imposed by this section
shall be tolled if the offender is absent from the
state of Colorado, and the duration of such
absence, not to exceed five years, shall be
excluded from the computation of the time
11
within which any complaint, information, or
indictment must otherwise be filed or
returned.
§ 16-5-401(2), C.R.S. 1995.8
¶ 27 Butler argues that, because he was transferred to Minnesota
by the Colorado DOC, he was not “legally absent” from the state for
tolling purposes because (1) he did not travel out of state of his own
volition; (2) the Colorado DOC maintained “jurisdiction” over him
while he was incarcerated in Minnesota; and (3) a literal reading of
the word “absent” in the statute would lead to an illogical and
absurd result (i.e., that the DOC could circumvent statutes of
limitation at-will by transferring inmates out of state). We are not
persuaded.
¶ 28 We recognize that criminal statutes of limitations should
generally be construed liberally in favor of the defendant. People v.
Thoro Prods. Co., 70 P.3d 1188, 1196 (Colo. 2003). However, “the
principle of liberal construction . . . may not be invoked to alter the
plain meaning of a statute or to extend the application of its
provisions beyond the clear limits of their reach.” In re M.D.E.,
8 The current version of the statute of limitations contains a nearly
identical tolling provision. See § 16-5-401(2).
12
2013 COA 13, ¶ 16; see also People v. Dinkel, 2013 COA 19, ¶ 19
(“[T]he rule of lenity . . . may be employed only to resolve an
unyielding statutory ambiguity . . . .”) (emphasis added).
¶ 29 In common and ordinary usage, the term “absent” is
understood to mean “not present or not attending” or “being
elsewhere.” Webster’s Third New International Dictionary 6 (2002);
see People v. Serra, 2015 COA 130, ¶ 52 (“Courts may refer to
dictionary definitions to determine the plain and ordinary meaning
of undefined statutory terms.”) (citing Webster’s Third New
International Dictionary to define a term). Being in another state,
such as Minnesota, qualifies, on its face, as being “not present” in,
or “elsewhere” than, Colorado, and thus “absent” from Colorado.
¶ 30 The General Assembly did not include in the tolling provision
language contemplating a defendant’s reason for being out of the
state, nor whether the defendant was out of state voluntarily. Had
it wanted the statute to encompass such circumstances, it could
easily have included them. See Turbyne v. People, 151 P.3d 563,
567 (Colo. 2007) (“We do not add words to the statute . . . .”); A.C. v.
People, 16 P.3d 240, 243 (Colo. 2001) (an appellate court will not
create an exception to a statute that its plain meaning does not
13
suggest or demand); People v. Benavidez, 222 P.3d 391, 393-94
(Colo. App. 2009) (“[I]n interpreting a statute, we must accept the
General Assembly’s choice of language and not add or imply words
that simply are not there.”).
¶ 31 Other states with similar provisions have held that absence
from the state alone is sufficient to toll the limitations period,
regardless of whether it was voluntary or due to imprisonment in
another state, and regardless of the ease with which the state could
apprehend the defendant or return him from out of state. See State
v. Stillings, 778 P.2d 406, 408-10 (Mont. 1989) (rejecting
defendant’s argument that during his incarceration in another state
for a Montana conviction, he was “still under Montana jurisdiction”
and holding that “mere absence of the criminal defendant from the
state is sufficient to toll the statute of limitations”);9 see also State
v. Lee, 948 P.2d 641, 648 (Kan. 1997) (“[A]bsent from the state”
tolling provision unambiguously required only “that ‘the accused is
9 The Montana tolling statute provided, in pertinent part, that the
period of limitation does not run during “any period in which the
offender is not usually and publicly resident within this state.” See
State v. Stillings, 778 P.2d 406, 409 (Mont. 1989). The Stillings
court interpreted that to mean, as here, “absent” from the state.
See id.14
absent from the state’ in order to toll the statute of limitations,
regardless of whether the absence is voluntary or involuntary.”
(quoting State v. Hill, 64 P.2d 71, 73 (Kan. 1937))), disapproved of
on other grounds by State v. Gunby, 144 P.3d 647 (Kan. 2006); State
v. Canton, 308 P.3d 517, 519-24 (Utah 2013) (The phrase “out of
the state” in the tolling statute focuses on a person’s physical
presence within or without the state’s territorial boundaries, and
not on abstract constructs of “legal presence.”); State v. Newcomer,
737 P.2d 1285, 1290 (Wash. Ct. App. 1987) (rejecting the argument
that a statute of limitations should not have been tolled as a result
of the defendant’s incarceration in another state because he was
“available” to Washington authorities through the Interstate
Agreement on Detainers).10
¶ 32 That Butler was sent out of state by the DOC (i.e., not of his
own free will, nor to evade the law) and that the DOC maintained
10Butler points out factual distinctions between these cases and his
own — namely, that these cases (except for Stillings) involve
defendants serving out-of-state sentences for crimes committed in
that other state, as opposed to being transferred and serving a
sentence in one state for an offense committed in another. This
distinction, however, does not diminish the main conclusion that
the tolling provisions in each case concerned only the physical
location of a defendant when determining whether he was “absent,”
and not why or how such absence occurred.
15
jurisdiction over him while he was in Minnesota (per contractual
agreements between state correctional facilities) do not change the
fact that he was actually “absent” from the state of Colorado.
¶ 33 Butler asserts that such a literal reading of the statute leads
to an absurd result, that is, DOC authorities could circumvent
statutes of limitations at-will by transferring defendants out of
state. Butler points out that this action would defeat the purpose of
statutes of limitation — to protect individuals from defending
themselves against stale charges. See Higgins v. People, 868 P.2d
371, 373 (Colo. 1994).
¶ 34 While it is true that “[a] statutory interpretation leading to an
illogical or absurd result will not be followed,” Frazier v. People, 90
P.3d 807, 811 (Colo. 2004), we do not perceive an absurd result
from our interpretation. There is — and, under the facts, can be —
no suggestion that the DOC transferred Butler to circumvent an
otherwise applicable limitations period. This follows because law
enforcement, much less the DOC, had no reason to suspect Butler
of the crimes charged here until after he had been released from
incarceration in Minnesota.
16
¶ 35 Further, as noted by the postconviction court, the provision
limiting the tolling “not to exceed five years” prevents the statute’s
purpose from being thwarted indefinitely. To the extent that
Butler’s policy arguments may highlight shortcomings in the
statute, that does not mean the result is absurd or illogical. “If a
statute gives rise to undesirable results, the legislature must
determine the remedy. Courts may not rewrite statutes to improve
them.” Dep’t of Transp. v. City of Idaho Springs, 192 P.3d 490, 494
(Colo. App. 2008) (citation omitted).
¶ 36 Finally, Butler argues that the trial court’s interpretation of
“absent” should be rejected because the result of such an
interpretation is unconstitutional. Butler did not, however, present
any of his constitutional arguments to either the trial court or the
postconviction court. Although we have the discretion to review
unpreserved challenges to a statute’s constitutionality, we do so
“only where doing so would clearly further judicial economy.”
People v. Houser, 2013 COA 11. Because Butler did not raise his
constitutional arguments until appeal of the postconviction ruling,
and because he “does not explain, nor do we discern, how our
addressing his . . . challenge could promote judicial economy,” we
17
decline to address the merits of his argument. See People In
Interest of L.C., 2017 COA 82, ¶ 19.
¶ 37 Consequently, we, like the postconviction court, conclude that
the applicable ten-year limitations period was tolled while Butler
was in Minnesota.
B. Butler’s Prosecution Was Not Barred or Otherwise
Subject to Reversal Because of Pleading and Proof Requirements
¶ 38 Butler asserts that the People were nonetheless required to
plead and prove to a jury beyond a reasonable doubt the facts of the
tolling exception. We perceive no grounds for vacating his
convictions and sentences.
1. Pleading the Tolling Exception
¶ 39 In Bustamante, 138 Colo. at 103, 329 P.2d at 1016, the
supreme court said that
time is material and must be alleged in an
indictment or information when the crime
alleged to have been committed is one which
the statute of limitations bars from
prosecution after the period prescribed. When
the time so alleged shows on the face of the
charge that it is barred by the statute of
limitations, it is necessary that the indictment
or information expressly allege one or more of
the exceptions provided by the statute,
otherwise the application of the statute is
automatic.
18
See also id. (quoting with approval People v. McGee, 36 P.2d 378,
379 (Cal. 1934), overruled on other grounds by Cowan v. Superior
Court, 926 P.2d 438, 441 (Cal. 1996), for the proposition that
“where the pleading of the state shows that the period of the statute
of limitations has run, and nothing is alleged to take the case out of
the statute, for example, that the defendant has been absent from
the state, the power to proceed in the case is gone”).
¶ 40 Butler argues that the prosecution’s failure to plead his
absence from the state in the information deprived the court of
jurisdiction to proceed. This follows, he says, because without such
an allegation, the information on its face described offenses
committed beyond the applicable ten-year limitation period. Under
the circumstances of this case, we must disagree.
¶ 41 At the time Butler was charged, the charges appeared timely
on their face. Per the 2002 amendment to the statute of limitations,
the limitations period was ten years after the victim reached age
eighteen, or, as applicable here, 2008. Inasmuch as Butler was
charged in 2007 — when the victim in this case was twenty-seven
(and thus, within ten years after reaching age eighteen) — the
19
charges, on their face, appeared to fall squarely within the
limitations period. Only now, in hindsight (i.e., since Summers was
decided), is it apparent that the limitations period for Butler’s
charges was governed by the straightforward ten-year period
provided in the statute of limitations in effect from 1992 through
1995.
¶ 42 Moreover, the People argued as an alternative ground that the
case was, in any event, timely brought because whatever
limitations period applied was tolled while Butler was absent from
the state of Colorado. Because the court denied Butler’s motion “for
the reasons cited by the prosecution” (emphasis added), the court
implicitly adopted both of the People’s positions. The court’s
adoption of the People’s first position (i.e., the applicability of the
2002 amendment to the statute of limitations) made superfluous,
however, any apparent need to plead Butler’s absence from the
state as a ground for tolling the applicable limitations period.
¶ 43 Butler asserts that, regardless of what was apparent in 2007,
there can be no question now that the 2002 amendment to the
statute of limitations was inapplicable to his case and that the
information does not allege facts (i.e., his absence from the state)
20
that would have brought his case within the applicable ten-year
statute of limitations. Consequently, he insists, the case must be
dismissed.
¶ 44 The supreme court has held that a trial court has jurisdiction
to consider — and grant — a Crim. P. 7(e) motion to amend an
information to bring the alleged offenses within the period
prescribed by the statute of limitations. People v. Bowen, 658 P.2d
269, 270 (Colo. 1983); see also Cervantes v. People, 715 P.2d 783,
786 (Colo. 1986) (“Crim. P. 7(e) is to be construed liberally to avoid
the dismissal of cases for technical irregularities in an information
that can be cured through amendment.”); People v. Metcalf, 926
P.2d 133, 139 (Colo. App. 1996) (recognizing that “[t]he Bowen
court held that a trial court may permit the amendment of an
information to allege that an offense occurred within the period of
limitations”).
¶ 45 Here, we perceive the substance of the second part of the
prosecution’s pretrial response to Butler’s motion to dismiss as the
functional equivalent of a request, if necessary, to amend the
information to cure the jurisdictional defect, as was the case in
Bowen, 658 P.2d at 270, by including an “exception,” i.e., Butler’s
21
absence from the state. Because such an amendment would not
have charged a different offense or prejudiced Butler’s substantial
rights, it would have been permissible. See Metcalf, 926 P.2d at
139.
¶ 46 We acknowledge that the prosecution did not expressly make,
nor did the trial court expressly grant, a motion to amend the
information, but the court accepted the People’s tolling position and
undoubtedly would have done what was necessary to implement it
had the court realized that the People’s initial position was
erroneous. What would have been necessary, in that event, would
have been an amendment to the information.
¶ 47 In our view, the court’s ruling, slim as it was, was sufficient to
credit the tolling rationale as a basis for its jurisdiction, and the
court was not deprived of jurisdiction simply because it did not then
require that the information be amended accordingly. Because the
court’s ruling on the tolling ground could only be given effect, if
necessary, by approving an amendment to the information, we
construe the court’s action as having had that effect. See Grynberg
v. Karlin, 134 P.3d 563, 567 (Colo. App. 2006) (finding that a
district court, despite failing to expressly grant or deny defendant’s
22
motion, implicitly denied the motion because it “considered and
discussed the motion during the hearing, and . . . denial of that
motion was an inevitable corollary of the court’s [other] ruling[s]”);
see also Zoline v. Telluride Lodge Ass’n, 732 P.2d 635, 638 (Colo.
1987) (discussing cases from other jurisdictions that have adopted
the same rule that “the determination of a motion need not always
be expressed but may be implied”) (citation omitted).
¶ 48 Thus, we conclude that, under the circumstances here, the
prosecution’s failure to plead Butler’s absence from the state did
not deprive the court of jurisdiction to proceed.
2. Proving the Tolling Exception
¶ 49 If a trial court’s jurisdiction depends on the resolution of
disputed facts, the issue should be submitted to the jury with an
appropriate instruction unless the “uncontested facts
overwhelmingly support jurisdiction.” People v. Cullen, 695 P.2d
750, 751 (Colo. App. 1984). Consistent with this rule, a trial court
can resolve a statute of limitations tolling issue prior to trial,
without submitting it to a jury, if it can be decided based on
undisputed facts. Cito, ¶¶ 29-32.
23
¶ 50 Here, Butler argues that the facts were disputed regarding
whether he was “absent” in fact and law from the state. The fact of
Butler’s incarceration in Minnesota was not disputed; only the legal
significance of this fact. Thus, the determination of whether this
constituted being “absent” under the statute was a legal
determination for the court to make based on undisputed facts.
¶ 51 To the extent that Butler argues a jury determination was
required under Apprendi v. New Jersey, 530 U.S. 466 (2000), we
disagree. The rationale in Apprendi applies to elements of a crime
or to sentencing factors which are the functional equivalent of
elements of a crime. See id. at 510. Butler cites no authority for
the proposition that a statute of limitations is either. And, indeed,
it appears it is not. See, e.g., People v. Linder, 42 Cal. Rptr. 3d 496,
502-03 (Cal. Ct. App. 2006) (the Apprendi line of cases does not
apply because a statute of limitations is not an element of an
underlying charge, and extending a limitations period does not
increase a defendant’s punishment).
IV. Conclusion
¶ 52 The order is affirmed.
JUDGE FOX and JUDGE PLANK concur.
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