Branson v. State

NANCY STEFFEN RAHMEYER, Judge.

Albert R. Branson (“Appellant”) seeks relief from the denial of his Rule 24.035¹ motion; he claims his trial counsel was ineffective in failing to advise him that he had a statute of limitations defense to both of the original charges of forcible rape and the amended charges of incest. We affirm.

We review the motion court’s decision to determine if the judgment is clearly erroneous. Rule 24.035(k); Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). A judgment will be found clearly erroneous if, upon review of the entire record, the appellate court is left with the definite and firm belief that a mistake has been made. Id. Because Appellant’s convictions resulted from a guilty plea, claims of ineffective assistance of counsel are only relevant as they affect the voluntariness and understanding with which the plea was made. Holland v. State, 954 S.W.2d 660, 661 (Mo.App. E.D.1997). We should not reverse if the motion court reached the right result, even if it was for the wrong reason. Walker v. State, 34 S.W.3d 297, 301 n. 5 (Mo.App. S.D.2000). Furthermore, because the statute of limitations is nonjurisdictional and can be waived, a voluntary guilty plea waives the statute of limitations defense. Longhibler v. State, 832 S.W.2d 908, 911 (Mo. banc 1992).

On May 9, 2002, Appellant was charged by two separate informations with two counts of forcible rape, a class A felony, in violation of Section 566.030, RSMo Cum. Supp.1992,² both charges stemming from events which occurred in June 1993. The máximum penalty on each charge was life in prison. Pursuant to a plea agreement, on May 30, 2002, the State amended the information to charge Appellant with two counts of incest in violation of Section 568.020, RSMo 1986.³ During his guilty plea proceeding, Appellant stated he knew what offenses he was charged with, the range of punishment for his offenses, and his guilt of the offenses with the victim, his daughter. He represented to the court that he had enough time to discuss the two cases with his counsel, was satisfied with her representation, and had no questions about the charges. He also stated he understood the recommendation of the State to be two consecutive five-year sentences on the amended charges. The court found a factual basis for the guilty pleas, accepted the pleas and found them to be made voluntarily, intelligently and understanding^; it then sentenced Appellant in accordance with the State’s recommendations to two consecutive terms of imprisonment of five years each for a total of ten years.

Appellant’s sole argument on appeal is that he was misinformed on the correct statute of limitations for the initial charges and he would not have pled guilty to the lesser charges had he known the correct statute of limitations. Therefore, to be successful in this appeal, Appellant must prevail on his argument that the statute of limitations for the original charges had run prior to the time of the charges. Due to changes in the statute of limitations on sexual offenses,⁴ Appellant’s ancillary argument is that any subsequent change in the statute of limitations was a violation of the ex post facto provisions of the Missouri and U.S. Constitutions.

The victim was born in 1975; at the time of the charged offense, the victim was seventeen years old. Appellant argues Section 556.037, with the ten-year statute of limitations, does not apply to the charges of forcible rape in this case because the victim was not “seventeen years of age or under”; rather, Appellant argues that Section 556.036.2(1),⁵ with a three-year statute of limitations, applies because forcible rape was not a class A felony or murder.⁶ Under Appellant’s analysis, in June of 1996, the appropriate three-year statute of limitations for “other felonies” under Section 556.036 would have expired because the victim was not seventeen years of age or under in June of 1993. Only if the victim was seventeen years of age or under would the class A felony of Section 556.036.1 or the “unlawful sexual offense” of Section 556.037 statute of limitations apply.

The narrow issue then becomes whether the victim was seventeen years of age or under after the actual date of her seventeenth birthday. Under Appellant’s analysis, for the entire year after her seventeenth birthday, the victim was over the age of seventeen. Appellant does not cite to any Missouri cases supporting the proposition that the victim was seventeen years of age only on her birthday, but rather cites to cases from Rhode Island, Iowa and Colorado to maintain his proposition. With due respect for our fellow state courts, we find that analysis to be strained.

Section 556.037, RSMo Cum.Supp.1992 uses the words “seventeen years of age or under.” It is difficult for us to fathom that the legislature intended the word “seventeen” by itself to have no meaning. Had the legislature intended that victims be “under the age of seventeen,” it could have done so.⁷ We find support for our analysis in the fact that no Missouri court has interpreted any of the statutes regarding the sexual abuse of minors in the manner promoted by Appellant. For instance, the crime of sexual abuse in the second degree which was in effect at the time of the offenses entailed subjecting another person to sexual contact when the other person was twelve or thirteen years old. See Section 566.110 RSMo 1992. Using Appellant’s argument, the legislature created a crime in Section 566.110, which could occur only on the person’s actual birth date of twelve or thirteen years of age. The resulting effect would be that sexual abuse in the second degree could not occur the day after a personas twelfth birthday or up until the child’s thirteenth birthday but could occur on the child’s thirteenth birthday.⁸ We cannot reach such a result on the basis of what is claimed to be an imprecisely drafted criminal statute. Furthermore, we cannot find trial counsel ineffective for analyzing the appropriate statute of limitations consistent with previous Missouri cases involving similarly worded statutes.

At the time of the initial charges, as a violation of Section 556.087, RSMo Cum.Supp.1992, the statute of limitations was ten years if the person was seventeen years of age or under. The victim was seventeen years of age. The initial charges were properly brought within ten years of the events.⁹

We find the motion court reached the correct result in that the statute of limitations for the crimes of forcible rape had not expired at the time of Appellant’s plea for incest and, therefore, Appellant did not have ineffective assistance of counsel at the time of his pleas.¹⁰ The denial of Appellant’s Rule 24.035 motion is affirmed.

PREWITT, J., concurs and files concurring opinion. GARRISON, P.J., dissents and files dissenting opinion.

1 . All rule references are to Supreme Court Rules (2003), unless otherwise stated.

2 . 1. A person commits the crime of forcible rape if he has sexual intercourse with another person without that person’s consent by the use of forcible compulsion.

2. Forcible rape or an attempt to commit forcible rape as described in subsection 1 of this section or rape as described in subsection 3 of this section is a felony for which the authorized term of imprisonment, including both prison and conditional terms, is life imprisonment or a term of years not less than five years, unless in the course thereof the actor inflicts serious physical injury on any person, displays a deadly weapon or dangerous instrument in a threatening manner or subjects the victim to sexual intercourse or deviate sexual intercourse with more than one person, in which cases forcible rape or an attempt to commit forcible rape is a class A felony.

3. A person commits the crime of rape if he has sexual intercourse with another person to whom he is not married who is less than fourteen years old.

Section 566.030 RSMo Cum.Supp.1992 has since been amended.

3 . 1. A person commits the crime of incest if he marries or purports to marry or engages in sexual intercourse or deviate sexual intercourse with a person he knows to be, without regard to legitimacy:

(1) His ancestor or descendant by blood or adoption; or

(2) His stepchild, while the marriage creating that relationship exists; or

(3) His brother or sister of the whole or half-blood; or

(4)His uncle, aunt, nephew or niece of the whole blood.

2. For purposes of this section:

(1) "Sexual intercourse" means any penetration, however slight, of the female sex organ by the male sex organ;

(2) “Deviate sexual intercourse” means any act of sexual gratification between persons not lawfully married to one another, involving the genitals of one person and the mouth, tongue or anus of another.

3. Incest is a class D felony.

Section 568.020 RSMo 1986.

4 . Section 556.037, RSMo Cum.Supp.1992 states:

The provisions of section 556.036, to the contraiy notwithstanding, prosecutions for unlawful sexual offenses involving a person seventeen years of age or under must be commenced within ten years after commission of the offense.

This section was amended in 1997 to read as follows:

The provisions of section 556.036, to the contrary notwithstanding, prosecutions for unlawful sexual offenses involving a person eighteen years of age or under must be commenced within ten years after the victim reaches the age of eighteen, (emphasis added).

5 . Section 556.036, RSMo 1986 states, in pertinent part:

1. A prosecution for murder or any class A felony may be commenced at any time.

2. Except as otherwise provided in this section, prosecutions for other offenses must be commenced within the following periods of limitation:

(1) For any felony, three years.

6 . In March 2002, Section 556.036 was amended to include forcible rape in the provisions allowing a prosecution to commence at any time.

7 . See Section 566.100 RSMo 1986 which described sexual abuse in the first degree as subjecting another person who is less than twelve years old to sexual contact. (Emphasis added.)

8 . Likewise, see Section 566.040 RSMo 1986, which defined one claim of sexual assault in the first degree as having sexual intercourse with another person "who is fourteen or fifteen years old.” Section 566.050 RSMo 1986 involves the crime of sexual assault in the second degree if, being seventeen years old or more, he has sexual intercourse with another person to whom he is not married, who is sixteen years old. Apparently, sexual assault in the second degree could only have occurred on a person's sixteenth birthday.

9 . As to Appellant’s additional argument that he was not told by his attorney he had a possible defense based on the statute of limitations, we note his attorney testified at the evidentiary hearing she investigated whether there was a possible statute of limitations defense available to Appellant and concluded that the charges against him were of the nature that the ten-year statute of limitations was applicable. The credibility of the witnesses is the responsibility of the motion court in a postconviction relief matter. Sage v. State, 978 S.W.2d 489, 490 (Mo.App. S.D.1998). The trial judge may believe or disbelieve all, part, or none of the testimony of any witness, and may disbelieve testimony even when un-contradicted. In re Marriage of Gerhard, 985 S.W.2d 927, 930 (Mo.App. S.D.1999). We defer to the determination of the trial court on issues of credibility. Id.

10 . On this basis, we need not and do not address Appellant’s claims regarding a violation of the ex post facto clauses of the United States and Missouri Constitutions.