Lucero v. State

2016 UT App 50THE UTAH COURT OF APPEALS
RANDY JAMES LUCERO,
Appellant,
v.
STATE OF UTAH,
Appellee.
Memorandum Decision
No. 20150197-CA
Filed March 10, 2016
Third District Court, West Jordan Department
The Honorable Kara L. Pettit
No. 130404567
Herschel Bullen, Attorney for Appellant
Sean D. Reyes and Mark C. Field, Attorneys
for Appellee
SENIOR JUDGE RUSSELL W. BENCH authored this Memorandum
Decision, in which JUDGES GREGORY K. ORME and STEPHEN L.
ROTH concurred. 1
BENCH, Senior Judge:
¶1 Randy James Lucero appeals from the district court’s
order granting the State’s motion for summary judgment,
denying his cross-motion for summary judgment, and
dismissing his petition for post-conviction relief. In his petition,
Lucero argued that his trial counsel rendered constitutionally
ineffective assistance of counsel by failing to raise a defense
based on the statute of limitations. The district court concluded
1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
Lucero v. State
that Lucero had no such defense and that his trial counsel
therefore was not ineffective. We affirm.
¶2 In 2010, Lucero was charged with four first-degree
felonies. These charges included one count of rape of a child for
an incident that occurred in June 2003 and three counts of
aggravated sexual abuse of a child for incidents that occurred in
June 2003 and in January 1999 through January 2000. The
incidents of abuse “were first reported to law enforcement in or
about 2010.”
¶3 After being bound over on the charges, Lucero reached a
plea agreement with the State. On June 21, 2011, Lucero pleaded
guilty to an amended count of attempted aggravated sexual
abuse of a child, a first-degree felony, and one count of sexual
abuse of a child, a second-degree felony. The other first-degree
felony counts were dismissed upon entry of Lucero’s guilty plea.
Lucero was sentenced. Afterward, he never attempted to
withdraw his plea, nor did he file an appeal.
¶4 In March 2013, Lucero filed a petition seeking post-
conviction relief pursuant to the Post-Conviction Remedies Act
(the PCRA). Lucero argued that he was entitled to relief because
his trial counsel’s failure to recognize and assert a statute of
limitations defense constituted ineffective assistance of counsel.
The State responded by moving for summary judgment, arguing
that the statute of limitations that Lucero invoked did not begin
to run until 2010, when the incidents were first reported to law
enforcement, and that Lucero’s trial counsel therefore did not
miss any legitimate affirmative defense. 2 Lucero also moved for
summary judgment. The district court agreed with the State,
2. The State also moved for summary judgment on the ground
that Lucero’s petition was time-barred, but the district court
ultimately determined that the petition was timely. The State
does not challenge that determination or the facts supporting it.
20150197-CA 2 2016 UT App 50Lucero v. State
granted its motion for summary judgment, and dismissed
Lucero’s petition. Lucero appeals.
¶5 “[W]e review a grant of summary judgment for
correctness, granting no deference to the [lower] court.” Ross v.
State, 2012 UT 93, ¶ 18, 293 P.3d 345 (second alteration in
original) (citation and internal quotation marks omitted). In
reviewing a grant of summary judgment, we will affirm the
district court’s decision “when the record shows that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Id. (citation and
internal quotation marks omitted); see also Utah R. Civ. P. 56(a).
¶6 On appeal, Lucero contends that the district court
erroneously concluded that he lacked a statute of limitations
defense. Because of this erroneous conclusion, he argues, the
district court further erred in determining that his trial counsel
did not perform deficiently by failing to raise a statute of
limitations defense. The State counters that Lucero’s trial
counsel’s performance was adequate because Lucero did not
have any valid defense grounded in the statute of limitations.
¶7 Under the PCRA, a criminal defendant may obtain post-
conviction relief if he establishes that he received ineffective
assistance of counsel. See Utah Code Ann. § 78B-9-104(1)(d)
(LexisNexis 2012). To prevail, Lucero must establish both prongs
of an ineffective assistance of counsel claim articulated in
Strickland v. Washington, 466 U.S. 668 (1984). First, he must show
that “counsel’s performance was deficient.” Id. at 687. Counsel’s
performance, however, is not deficient “if counsel refrains from
making futile objections, motions, or requests.” Layton City v.
Carr, 2014 UT App 227, ¶ 19, 336 P.3d 587 (citation and internal
quotation marks omitted). Second, Lucero must show that his
counsel’s “deficient performance prejudiced the defense.”
Strickland, 466 U.S. at 687. A failure to make the required
showing of either prong under Strickland “defeats the
ineffectiveness claim.” Id. at 700.
20150197-CA 3 2016 UT App 50Lucero v. State
¶8 Lucero contends that his counsel performed deficiently by
failing to recognize and assert a statute of limitations defense.
When Lucero committed the offenses, from 1999 to 2003, Utah
Code section 76-1-303.5 provided that a prosecution for rape of a
child or aggravated sexual abuse of a child could be brought
“within four years after the report of the offense to a law
enforcement agency.” See Utah Code Ann. § 76-1-303.5 (Lexis
1999). But in 2008, the Utah Legislature repealed section 303.5
and extended the limitations period for these particular crimes.
Act of Feb. 11, 2008, ch. 129, §§ 1, 3, 2008 Utah Laws 1143, 1143–
44. The revised statute of limitations, found in Utah Code section
76-1-301, allowed the State to commence a prosecution for rape
of a child or aggravated sexual abuse of a child “at any time.”
Utah Code Ann. § 76-1-301(9), (15) (LexisNexis 2008).
¶9 Lucero asserts that he was entitled to be prosecuted under
section 303.5, the relevant statute of limitations in effect at the
time of the offenses, and that the repeal of section 303.5 in 2008
constituted the expiration of the limitations period with regard
to crimes committed between 1999 and 2003. Consequently,
Lucero argues, he had a vested right to assert a statute of
limitations defense and therefore section 301 could not operate
retroactively to allow a prosecution to begin after 2008.
¶10 A “long-standing rule of statutory construction [is] that a
legislative enactment which alters the substantive law or affects
vested rights will not be read to operate retrospectively unless
the legislature has clearly expressed that intention.” State v.
Green, 2005 UT 9, ¶ 23, 108 P.3d 710 (citation and internal
quotation marks omitted). Consistent with this principle, Utah
law provides that “a statutory amendment enlarging a statute of
limitations will extend the limitations period applicable to a
crime already committed only if the amendment becomes
effective before the previously applicable statute of limitations
has run, thereby barring prosecution of the crime.” State v. Lusk,
2001 UT 102, ¶ 26, 37 P.3d 1103. Thus, “a legislative amendment
enlarging a limitation period may be applied retroactively to
20150197-CA 4 2016 UT App 50Lucero v. State
crimes committed before the amendment where the limitations
defense has not accrued to the defendant before the amendment
becomes effective.” Id. ¶ 28. “Conversely, a legislative enactment
extending a statute of limitations will not be retroactively
applied to a crime committed if prosecution of that crime would
already be precluded by the running of the previously applicable
statute of limitations.” Id. ¶ 29. The Utah Supreme Court has
distilled this concept as follows:
“The general and well-established principle of law
is that statutes prescribing limitations relate to
remedies; and that the legislature has power to
increase the time in which an action may be
brought. In that connection it should be observed
that if the statute has run on a cause of action, so
that it is dead, it cannot be revived by any such
statutory extension. But if the cause of action is still
alive, the new enactment can extend the time in
which it may be brought.”
Id. (quoting Del Monte Corp. v. Moore, 580 P.2d 224, 225 (Utah
1978)).
¶11 The supreme court applied these principles in State v.
Green, 2005 UT 9, 108 P.3d 710. There, the defendant was
charged in April 2000 with the rape of a child that occurred in
January 1986. Id. ¶¶ 4, 17. On appeal, the supreme court rejected
the defendant’s argument that the statute of limitations barred
prosecution. Id. ¶¶ 14, 62. The court explained that in 1986, the
statute of limitations authorized prosecution for rape of a child
where the prosecution is initiated within one year after the
offense is reported to law enforcement so long as no more than
eight years has elapsed since the time of the offense. Id. ¶ 16.
Under this statute, the eight-year maximum span would have
elapsed in January 1994. Id. ¶ 17. But “[i]n 1991, the legislature
replac[ed] the eight-year statute of limitations with a limitations
period permitting prosecution of sexual abuse of a child anytime
20150197-CA 5 2016 UT App 50Lucero v. State
within four years after the report of the offense to a law
enforcement agency.” Id. ¶ 18 (second alteration in original)
(emphasis, citation, and internal quotation marks omitted).
“[B]ecause the amendment was enacted in 1991, three years
before the initial statute of limitations would have expired,” id.
¶ 20, the supreme court concluded that the revised statute of
limitations had retroactive application to the charges against the
defendant, id. ¶ 22. And because the initial statute of limitations
had not expired or been triggered before the effective date of the
1991 amendment, the supreme court concluded that the charge
was not barred. Id. ¶¶ 23–24, 54.
¶12 This case is analytically similar to Green. As the district
court correctly explained, although the statute of limitations in
effect at the time of Lucero’s offenses was repealed and replaced
in 2008, “‘a legislative amendment enlarging a limitation period
may be applied retroactively to crimes committed before the
amendment where the limitations defense has not accrued to the
defendant before the amendment becomes effective.’” (Quoting
Lusk, 2001 UT 102, ¶ 28.) Further, the district court correctly
determined that, as in Green, the limitations defense had not
accrued to Lucero as the limitations period had not yet expired—
let alone been triggered—“because it is undisputed that [the
crimes] had not been reported to a law enforcement agency at
the time of the repeal” of the earlier statute in 2008. Thus, the
2008 enactment enlarging the limitations period retroactively
applied to the crimes Lucero committed before 2008. Because
that 2008 enactment, codified in section 301, permitted the State
to commence a prosecution for rape of a child or aggravated
sexual abuse of a child “at any time,” the applicable statute of
limitations did not bar the charges brought against Lucero in
2010. 3 See Utah Code Ann. § 76-1-301(9), (15) (LexisNexis 2008).
3. The district court determined, in the alternative, that “even if
the statute of limitations was a substantive right that vested at
(continued…)
20150197-CA 6 2016 UT App 50Lucero v. State
¶13 Lucero’s attempt to distinguish his case from Green hinges
on the questionable assertion that the repeal of section 303.5
equated to the expiration of the limitations period. According to
Lucero, once section 303.5 “was repealed[,] any right to
prosecute under [section] 303.5 was extinguished” and the
statute of limitations was “not extended” by section 301.
However, Lucero provides little support for this proposition. As
a consequence, we are not persuaded that this case presents
anything other than a straightforward application of settled law.
Under that settled law, the State’s cause of action against Lucero
for his crimes was “still alive” as of the 2008 amendment of
section 301. See Lusk, 2001 UT 102, ¶ 29 (citation and internal
quotation marks omitted). We therefore conclude that the
district court correctly determined “as a matter of law based
upon the undisputed facts that [Lucero] did not have an
affirmative defense that the . . . charges were barred by the
statute of limitations.”
¶14 Because any motion to dismiss the charges against Lucero
on limitations grounds would have been futile, Lucero’s trial
counsel did not perform deficiently. See Layton City v. Carr, 2014
UT App 227, ¶ 19, 336 P.3d 587. And because Lucero cannot
establish the deficient performance prong of his ineffective
(…continued)
the time the crimes were committed, the charges were filed
within the former statute of limitations that required charges to
be filed within four years from when the abuse was reported to
law enforcement” under section 303.5. See Utah Code Ann. § 76-
1-303.5 (Lexis 1999). Because the offenses were committed
between 1999 and 2003 and because it is “undisputed that the
offenses were first reported to law enforcement in or about
2010,” we agree with the district court’s assessment that “the
charges were filed well within the four year statute of limitations
previously set forth” in section 303.5. See id.20150197-CA 7 2016 UT App 50Lucero v. State
assistance of counsel claim, his claim fails. See Strickland v.
Washington, 466 U.S. 668, 700 (1984). 4
¶15 In sum, the district court correctly determined that
because Lucero had no defense grounded in the statute of
limitations, Lucero’s trial counsel did not render constitutionally
deficient performance by failing to raise such a defense. On that
basis, the district court correctly granted the State’s motion for
summary judgment, denied Lucero’s cross-motion for summary
judgment, and dismissed Lucero’s petition for post-conviction
relief. Accordingly, we affirm.
4. Lucero also briefly argues that his “guilty plea was not entered
knowingly, intelligently and voluntarily” due to his trial
counsel’s ineffectiveness “during the negotiation of his plea . . .
[and] entry thereof.” He argues his counsel was ineffective
because counsel advised him that he had “no appeal and no
possible remedy” and because counsel failed to file a motion to
dismiss or to withdraw the plea. However, this argument
depends upon the proposition that Lucero had a meritorious
defense based on the statute of limitations. Because we have
concluded that Lucero in fact had no statute of limitations
defense, his challenge to his plea also fails.
20150197-CA 8 2016 UT App 50