Personal Restraint Petition Of Jerry Lee Swagerty ( 2015 )

FILED
COURT OF APPEALS
DIVISION II
2015 JAN 2 I All 9: 06
S TA
BY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Personal Restraint Petition of No. 45862 -4 -II
JERRY LEE SWAGERTY,
Petitioner.
UNPUBLISHED OPINION
MELNICK, J. — Jerry L. Swagerty seeks relief from personal restraint imposed after he
pleaded guilty by amended information to rape of a child in the third degree, luring, burglary in
the second degree, and intimidating a witness. In his initial petition, Swagerty argued that he was
entitled to relief because ( 1) his sentence is erroneous, ( 2) he received ineffective assistance of
counsel, ( 3) the prosecuting attorney committed misconduct, and ( 4) judicial prejudice occurred.
We requested additional briefing that addressed the statutes of limitations governing the amended
charges. We find this issue dispositive and vacate and remand for dismissal of the convictions.
For this incident, the State may refile charges for which the statute of limitations has not run.
No. 45862 -4 -II
FACTS
On May 22, 2012, Swagerty was charged with rape of a child in the first degree and child
molestation in the first degree based on acts that occurred on or about February 14, 2004.
Deoxyribonucleic acid (DNA) testing of the victim' s underwear on April 11, 2012 established that
Swagerty had contact with her in 2004, when she was 10 years old. Because a conviction for rape
of a child in the first degree would be his third strike offense, Swagerty agreed to plead guilty on
January 4, 2013 to the amended charges of rape of a child in the third degree, luring, burglary in
the second degree, and intimidating a witness. 1 This plea allowed him to avoid a possible life
sentence as a persistent offender. Swagerty stipulated to offender scores of 9+ for his offenses and
to an exceptional sentence of 30 years that ran his individual sentences consecutively. He then
filed this timely petition challenging his convictions.
ANALYSIS
To be entitled to relief, a petitioner must show constitutional error that resulted in actual
and substantial prejudice or nonconstitutional error that resulted in a complete miscarriage of
justice. In re Cook, 114 Wash. 2d 802, 810 -13, 792 P.2d 506 ( 1990). The possibility that Swagerty
was charged after the statutes of limitations for his offenses expired implicates the complete
miscarriage of justice standard. In re Pers. Restraint of Stoudmire, 141 Wash. 2d 342, 355, 5 P.3d
1
Swagerty' s prior Washington convictions for robbery in the second degree ( two counts) and an
Oregon conviction for burglary in the first degree are also strike offenses. RCW 9. 94A.030( 32)( a),
37)( a).
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No. 45862 -4 -II
1240 ( 2000). This is because the expiration of the statute of limitations deprives a trial court of
authority to permit prosecution or enter judgment on the time -barred offense. Stoudmire, 141
Wash. 2d at 355.
In its supplemental response to this petition, the State concedes that the three -year statute
of limitations applicable to the amended charges of luring, burglary in the second degree, and
intimidating a witness expired before the filing of the amended information in 2013. See RCW
9A. 04. 080( 1)( h). The State argues, however, that the statute of limitations has not yet run on the
amended charge of rape of a child in the third degree.
When Swagerty allegedly committed his offenses in 2004, the three -year statute of
limitations applied to rape of a child in the third degree. Former RCW 9A. 04. 080( 1)( h) ( 1998).
A 2006 amendment postponed the running of the limitations period for sex offenses, including
rape of a child in the third degree, until one year from the date of the suspect' s identification by
DNA testing. LAWS OF 2006, ch. 132, § 1; see former RCW 9. 94A. 030( 38) ( 2002) ( rape of a child
in the third degree included in definition of sex offense). In 2009, the limitations period for child
rape and other sex offenses was further amended to allow prosecution up to the victim' s 28th
birthday and, in 2013, the limitations period was extended to the victim' s 30th birthday. LAws OF
2009, ch. 61, § 1; LAWS OF 2013, ch. 17, § 1.
A new limitations period applies to an offense if the prior period has not yet expired. State
v. Hodgson, 108 Wash. 2d 662, 666 -67, 740 P.2d 848 ( 1987); State v. Sutherland, 104 Wash. App. 122,
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134, 15 P.3d 1051 ( 2001). Because the initial three -year statute of limitations that applied to rape
of a child in the third degree had not expired when the statute was amended in 2006, this and the
subsequent extensions of the limitations period apply to the charge facing Swagerty.
Consequently, the amended charge of rape of a child in the third degree was not barred by the
statute of limitations when the State filed it in 2013.
Although the remaining amended charges were time barred, we reject Swagerty' s claim
that he is entitled to be resentenced for rape of a child in the third degree alone. We agree with the
State that his plea was an indivisible " package deal." See State v. Turley, 149 Wash. 2d 395, 400, 69
P.3d 338 ( 2003) ( plea agreement is indivisible when pleas to multiple counts were made at the
same time, described in one document, and accepted in a single proceeding).
The State contends that on remand, Swagerty may still plead guilty to the amended charges
as long as he agrees to waive the three -year statute of limitations that applies to all but the child
rape charge. The Supreme Court recently explained, however, that a defendant may expressly
waive a criminal statute of limitations only if he agrees to do so before the statute of limitations
has run on the underlying charge. State v. Peltier, 181 Wash. 2d 290, 298, 332 P.3d 457 ( 2014).
Because the statute of limitations has expired on three of the charges to which Swagerty pleaded
guilty, he may not now waive that limitations period.
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No. 45862 -4 -II
Accordingly, we must vacate Swagerty' s convictions and remand for entry of an order of
dismissal. The State may then refile any charges for which the statute of limitations has not yet
expired.2
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,
it is so ordered.
We concur:
w,
w
C
JHANSON, C. J.
2 The statute of limitations has not yet run on Swagerty' s original charges of rape of a child in the
first degree and child molestation in the first degree.
When these offenses allegedly occurred in
2004, the applicable limitations period expired three years after the victim' s 18th birthday. Former
RCW 9A.04. 080( 1)( c) ( 1998). As set forth above, the statute of limitations for these offenses as
well as the amended charge of rape of a child in the third degree has since been extended.
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