IN CLERKS OFFICE This opinion was filed for record
at tf: UO~ on OJ 2->l 22Jy
I
~~ci~
SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In re the Matter of the Personal )
Restraint of ) No. 91268-8
)
)
JERRY LEE SWAGERTY, ) EnBanc
)
Petitioner. ) Filed OCT 2 7 2016
)
_______________________ )
GONZALEZ, J.--.Jerry Lee Swagerty raped a child in 2004, but he was
not identified until DNA (deoxyribonucleic acid) tests were done in 2012.
Well within the relevant statutes oflimitations, Swagerty was charged with
first degree rape of a child and first degree child molestation. Because of his
criminal history, he faced a life sentence if convicted as charged. In order to
avoid a life sentence, Swagerty pleaded guilty to four lesser offenses in
2013. However, the statute of limitations had run on three ofthe amended
charges. Swagerty seeks to vacate those three convictions and be
resentenced only on the one remaining charge. We hold that a criminal
defendant may expressly waive an expired statute of limitations on lesser
In re Pers. Restraint ofSwagerty, No. 91268-8
charges during plea negotiations to take advantage of a favorable plea offer.
Accordingly, we reverse the Court of Appeals in part and remand to the trial
court with direction to allow Swagerty a choice of two options: (1) he may
withdraw his personal restraint petition, effectively keeping to the plea
bargain he made, or (2) he may keep the victory he won at the Court of
Appeals and move to vacate the 2013 judgment and sentence, and the State
will have the opportunity to refile the original charges.
BACKGROUND
In 2004, a young, developmentally disabled girl went to a grocery
store with her father. State's Resp. to Pet'r's Pers. Restraint Pet., App. Fat
1-2 (State's Resp.). When the girl went to the front of the store to get a cart,
a man offered her $10 to help him find his girlfriend. I d. at 1. The girl left
the store with the man, who led her to a nearby alley and molested her. I d.
Ten minutes later, the girl returned to her father, and her father immediately
contacted the police. I d. Although police investigated the case and
collected evidence, no arrest was made. Id. at 2. In 2012, the Washington
State Patrol crime lab conducted DNA testing on a sample taken from the
victim's underwear that identified Swagerty as a match. !d.
Shortly after the DNA testing, the State charged Swagerty with first
degree rape of a child and first degree child molestation for the 2004
2
In re Pers. Restraint of Swagerty, No. 91268-8
incident. State's Resp., App. Bat 1-2. Plea bargaining was conducted in the
shadow of a potential life sentence for Swagerty as a persistent offender.
See RCW 9.94A.570; see also State's Resp., App. A at 4. In 2013, Swagerty
pleaded guilty to third degree child rape, luring, second degree burglary, and
intimidating a witness. State's Resp., App. A at 3-4. Swagerty's statement
on plea of guilty makes clear he pleaded to the amended charges in order to
take advantage of the State's offer for a sentence other than life without the
possibility of parole. Id., App. Cat 9. Swagerty did not, however, explicitly
waive the statute of limitations. As part of the plea agreement, the State
agreed to recommend a 30-year exceptional sentence. Suppl. Br. ofPet'r,
Ex. 2. The court accepted the recommendation and imposed the exceptional
sentence, finding that the victim, a 10-year-old developmentally disabled
girl, was particularly vulnerable or incapable of resistance. State's Resp.,
App. D at 2-3.
Swagerty filed this timely personal restraint petition pro se. Division
Two, without appointing counsel for Swagerty, requested additional briefing
from the State to address the statute of limitations for the amended charges.
Suppl. Br. ofPet'r, Ex. 5. In response, the State conceded that the three-year
statute of limitations had expired for the amended charges of luring, burglary
in the second degree, and intimidating a witness. Suppl. Resp. per Court's
3
In re Pers. Restraint ofSwagerty, No. 91268-8
Request at 1-2; see In Re Pers. Restraint of Swagerty, No. 45862-4-II
(Wash. Ct. App. Jan. 21, 2015),
http://www .courts. wa.govI opinions/pdf/D2 %2045 862-4-
II%20%20Unpublished%200pinion.pdf. Division Two determined the
amended charge of rape of a child in the third degree was not barred by the
statute oflimitations when the State amended the charges in 2013. Id. at 4.
Because Swagerty's plea was an "indivisible 'package deal,"' Division Two
vacated all his current convictions, remanded for an order of dismissal, and
noted that the State "may then refile any charges for which the statute of
limitations has not yet expired." I d. at 5. Division Two did not rule on any
of the other issues Swagerty raised.
Swagerty moved for discretionary review, arguing, among other
issues, that his case should be remanded to the trial court for resentencing on
the single remaining amended charge that is not time barred. We granted
review and directed the clerk to appoint counsel for Swagerty. Order, In re
Pers. Restraint ofSwagerty, No. 91268-8 (Wash. Dec. 9, 2015).
ANALYSIS
1. EXPIRED STATUTE OF LIMITATIONS
We recognize that Division Two's opinion vacating Swagerty's
convictions potentially puts him in a worse position than if he had not filed
4
In re Pers. Restraint ofSwagerty, No. 91268-8
his personal restraint petition because the State is able to refile the original,
more serious charges against Swagerty. Given that the court below raised
the statute of limitations issue sua sponte and did not appoint counsel, and
given that it is not clear to us that Swagerty understood the import of the
issue the Court of Appeals raised sua sponte, this resolution is troubling and
leads us to consider other remedies that may be available.
To receive relief on collateral review, Swagerty must show either a
constitutional error that resulted in actual and substantial prejudice or a
nonconstitutional error that "constitute[] 'a fundamental defect which
inherently results in a complete miscarriage of justice."' In re Pers.
Restraint of Cook, 114 Wn.2d 802, 810-12, 792 P.2d 506 (1990) (quoting
Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 3d 417
(1962)).
Generally, plea agreements, so long as they are voluntarily and
intelligently made with an understanding of the consequences, are both
encouraged and enforced. In re Pers. Restraint of Breedlove, 138 Wn.2d
298, 310, 979 P.2d 417(1999)(citing State v. Perkins, 108 Wn.2d 212, 216,
737 P.2d 250 (1987)). However, a plea agreement "'cannot exceed the
statutory authority given to the courts.'" In re Pers. Restraint of Moore, 116
5
In re Pers. Restraint of Swagerty, No. 91268-8
Wn.2d 30, 38, 803 P.2d 300 (1991) (quoting In re Pers. Restraint of
Gardner, 94 Wn.2d 504,507,617 P.2d 1001 (1980)).
The pre filing expiration of a statute of limitations for a crime affects
the authority of the court to enter a judgment and sentence, but it has been
found to be is a statutory defect, not a jurisdictional one. In re Pers.
Restraint ofStoudmire, 141 Wn.2d 342, 355, 5 P.3d 1240 (2000). Generally
speaking, statutory errors must be raised at trial or, at the latest, in a timely
collateral challenge, to be considered. See generally In re Pers. Restraint of
Coats, 173 Wn.2d 123, 140, 267 PJd 324 (2011). Some errors are
exempted from that time bar including, at least since Stoudmire, claims that
the statute of! imitations had run before the charges were filed. Stoudmire,
141 Wn.2d at 353-54. We have held that the statute oflimitations "bars
prosecution of charges commenced after the period prescribed in the
statute," id. at 355, and "limits ... the time in which the court can exercise"
its authority to enter judgment on an offense to those cases that were
properly filed. State v. Peltier, 181 Wn.2d 290, 297, 332 P.3d 457 (2014).
In Stoudmire, we found that it was a complete miscarriage of justice to allow
someone to be restrained on time-lapsed charges. 141 Wn.2d at 354-55:
The continuing vitality of Stoudmire has not been questioned in this case.
With one notable exception, once the statute of limitations expires for a
6
In re Pers. Restraint of Swagerty, No. 91268-8
crime, the State lacks the authority to charge a defendant and the court lacks
the authority to sentence a defendant under a plea agreement based on
untimely charges. !d.; cf Peltier, 181 Wn.2d at 298.
Since Stoudmire, we have also held that a defendant may waive a
statute of limitations. See Peltier, 181 Wn.2d at 298. Peltier entered a
stipulated trial agreement where he was found guilty of two amended
charges rather than the four original charges. I d. at 292. Although the
statute of limitations had expired on the two amended charges, his stipulated
trial agreement included a waiver on the statute of limitations if a subsequent
challenge of the agreement led to the refiling of the original charges. Jd. at
292-93. After Peltier's convictions were vacated, we held the State could
refile the original charges, even though the limitations period had passed,
because a defendant may expressly waive the statute of limitations when the
statute of limitations has not yet run on the underlying charges. !d. at 298.
Before the statute of limitations expires, the court "still has authority to
sentence on charges if convicted." I d. at 297. Notably, we also reasoned:
If it proves more advantageous for a defendant to waive a statute of
limitations that has not expired, he or she should be able to do so.
This will allow a defendant to plead guilty to lesser charges instead of
standing trial on greater ones and facing a lengthy prison sentence.
!d. at 297-98 (citations omitted). "Generally, criminal defendants can waive
rights that exist for their own benefit," including a statute of limitations. I d.
7
In re Pers. Restraint o,j'Swagerty, No. 91268-8
at 297 (citing Cowan v. Superior Court, 14 Cal. 4th 367, 371, 926 P.2d 438
(1996)).
We recognize that in Peltier, we were faced with an agreement that
was executed before the relevant statute of limitations had passed, and that
our holding specifically concerned that factual scenario. Peltier, 181 Wn.2d
at 292, 298. But we see no principled reason why under Peltier, a defendant
could not agree to waive a lapsed statute of limitation on lesser charges to
avoid greater charges. 1 Based on Peltier, we conclude that as long as the
statute of limitations has not yet run at the time of charging on the original,
more serious charges, the defendant may knowingly and expressly waive an
expired statute of limitations on lesser charges to take advantage of a
beneficial plea offer. The defendant may execute this waiver after
consulting with counsel as part of plea negotiations. 2
1
In dissent, Justice Stephens suggests that the principled reason is Stoudmire and Peltier
themselves. See dissent (Stephens, J.) at 8. But whether a defendant could make this
waiver was before neither court, and thus neither decided it. "Questions which merely
lurk in the record, neither brought to the attention of the court nor ruled upon, are not to
be considered as having been so decided as to constitute precedents." Webster v. Fall,
266 U.S. 507,511,45 S. Ct. 148,691. Ed. 411 (1925) (citing New v. Oklahoma, 195
U.S. 252, 256,25 S. Ct. 68,49 L. Ed. 182 (1904)).
2
Nothing in this opinion should be taken to suggest that the State has the authority to ·
initiate prosecution after the relevant statute of limitations has lapsed or that it would be
an appropriate arrow in the prosecutorial quiver to overcharge a defendant with an
unlapsed charge in order to induce a plea to a lesser lapsed one. See Stoudmire, 141
Wn.2d at 355. Nor should it be taken to suggest that the statute of limitations can be
impliedly waived.
8
In re Pers. Restraint ofSwagerty, No. 91268-8
In the present case, the statute of limitations had expired on three of
the four charges that were part of Swagerty's plea agreement before he was
charged. Swagerty, slip op. at 4. Swagerty did not expressly waive the
expired statute of limitations on the lesser charges. Thus, the trial court
exceeded its authority in entering judgment. "'When a sentence has been
imposed for which there is no authority in law, the trial court has the power
and duty to correct the erroneous sentence."' In re Pers. Restraint of Carle,
93 Wn.2d 31, 33, 604 P.2d 1293 (1980) (emphasis omitted) (quoting McNutt
v. Delmore, 47 Wn.2d 563, 565, 288 P.2d 848 (1955)). Under Stoudmire,
Swagerty has met the common law threshold requirements for relief on a
personal restraint petition.
Under RAP 12.2, we find two appropriate remedies for this invalid
judgment. Swagerty may withdraw his personal restraint petition and
effectively ratify his agreement, knowing now the implications of the statute
of limitations. Alternatively, Swagerty may insist on the relief he is entitled
to: accept the vacation of his convictions on all four charges and risk
recharging and a life sentence. We leave the choice to Swagerty on remand
to the trial court.
We stress that we are taking this step in large part because the court
below did not appoint counsel. Division Two accepted Swage1ty's petition
9
In re Pers. Restraint of Swagerty, No. 91268-8
and requested additional briefing on the statute of limitations issue.
Presumably, the chief judge also determined Swagerty's issues were not
"frivolous," as the petition was referred to a panel of judges for
determination on the merits of the statute of limitations claim. See RAP
16.11(b). Under RCW 10.73.150(4), counsel "shall be provided ... to
prosecute a collateral attack after the chief judge has determined that the
issues raised by the petition are not frivolous." But see RAP 16.15(h)
(providing "the court may provide for the appointment of counsel at public
expense for services in the appellate court" (emphasis added)). Without the
assistance of counsel, it is possible that Swagerty did not adequately
understand the consequences of the argument he pursued. After conferring
with his appointed appellate counsel, he may choose to withdraw his
personal restraint petition.
Swagerty's second option is to accept the Court of Appeals' vacation
of all convictions on all four charges that were part of an indivisible plea
agreement. This remedy for an invalid plea agreement allows both parties to
start over and "place[ s] the parties back in the position they were in before
they entered into the agreement." in re Pers. Restraint o,(Thompson, 141
Wn.2d 712,730, 10 P.3d 380 (2000). However, if Swagerty chooses this
10
In re Pers. Restraint ofSwagerty, No. 91268-8
option, the State will still be able to refile the original charges as the statute
of limitations has not yet run on those charges. 3
We specifically reject the remedy Swagerty requests: resentencing
only on the third degree child rape charge. This would be an unreasonable
windfall for Swagerty, allowing him to negotiate a deal with the State that
would spare him a life sentence and then repudiate that deal to his benefit.
We recognize that was the remedy given in Stoudmire, but Stoudmire almost
exclusively concerned whether the petition could be heard at all, not the
remedy should we reach the merits. Stoudmire, 141 Wn.2d at 348-54.
Further, as the State argues, Swagerty's plea was an "indivisible 'package
deal'" under our court's post-Stoudmire decision in State v. Turley, 149
Wn.2d 395, 69 P.3d 338 (2003). The defendant in Turley pleaded guilty to
two crimes after relying on the State's erroneous representations that there
was not a mandatory community placement requirement for one of the
3
In 2004, the statute of limitations for rape of a child in the first degree and child
molestation in the first degree allowed prosecution for three years after the victim's 18th
birthday. Former RCW 9A.04.080(l)(c) (2004). The statute oflimitations was extended
twice more: in 2009, to allow prosecution up to the victim's 28th birthday, and in 2013,
to allow prosecution lmtil the victim's 30th birthday. LAWS OF 2009, ch. 61, § 1; LAWS
OF 2013, ch. 17, § I. A new limitations period applies to an offense if the prior period
has not expired. State v. Hodgson, 108 Wn.2d 662, 666-67, 740 P.2d 848 (1987).
Because the initial time limit had not expired when the legislature subsequently amended
the statute of limitations for those crimes, the original charges were not barred in 2012
when Swagerty was originally charged and would not be barred now as the victim has not
yet reached her 3Oth birthday.
11
In re Pers. Restraint of Swagerty, No. 91268-8
charges. I d. at 396. The trial court allowed him to withdraw his guilty plea
as to that single charge. Id. at 397. We reversed, holding that when a
defendant pleads guilty "to multiple counts or charges at the same time, in
the same proceedings, and in the same document, the plea agreement will be
treated as indivisible, absent objective evidence of a contrary intent in the
agreement." Id. at 402. Here, Swagerty entered a guilty plea to multiple
charges at the same time, during the same proceeding, and in the same
document. We hold that Swagerty's plea agreement is indivisible under
Turley and that given the fact there is no discussion in either the Stoudmire
briefs or the Stoudmire opinion of whether the plea agreement was
indivisible or what the consequences of indivisibility would be, the relief
granted there does not govern the relief appropriate here.
Swagerty contends that resentencing on the single charge is required
based on a double jeopardy opinion, State v. Knight, 162 Wn.2d 806, 174
P.3d 1167 (2008). In Knight, the defendant was originally charged with five
crimes and pleaded to three under a plea agreement. I d. at 809. However,
two of her convictions violated the double jeopardy clause by punishing a
single conspiracy twice. I d. at 81 0-11. Even though we assumed Knight's
plea agreement was indivisible under Turley, we held that vacating a single
12
In re Pers. Restraint of Swagerty, No. 91268-8
conviction that violated double jeopardy was the appropriate remedy as
Knight did not need to withdraw her entire guilty plea. Id. at 813.
Double jeopardy is a constitutional limitation on the power of the
court to place a person in jeopardy multiple times for the same offense. See
State v. Babic, 140 Wn.2d 250,260,996 P.2d 610 (2000). A statute of
limitations is a legislatively imposed limit on the time in which charges may
be brought. See Stoudmire, 141 Wn.2d at 355. The extraordinary remedy in
Knight has been applied only to other cases involving double jeopardy
violations as a result of plea agreements. See State v. Hughes, 166 Wn.2d
675, 681 n.5, 689, 212 P.3d 558 (2009); In re Pers. Restraint ofFrancis, 170
Wn.2d 517,531-32,242 P.3d 866 (2010); see also State v. League, 167
Wn.2d 671, 233 P.3d 493 (2009). It does not apply here.
2. REMAINING ISSUES
Swagerty raised other issues in his personal restraint petition and his
.motion for discretionary review, 4 some of which merit this court's review.
' ' '
First, Swagerty argues that the State's charges of two first degree
crimes, rape and child molestation, for one single alleged act violates double
4
Swagerty also raises claims of prosecutorial misconduct, judicial misconduct, actual
innocence, and various. due process violations. Swagerty devoted insufficient argument
on these claims to warrant our review. Due to the lack of briefing, we decline to reach
these issues. See Saunders v. Lloyd's a,{ London, 113 Wn.2d 330,345,779 P.2d 249
(1989) (declining to reach arguments not supported by adequate argument and authority).
13
In re Pers. Restraint of Swagerty, No. 91268-8
jeopardy. However, jeopardy does not attach until a trial-like proceeding
begins before a trier of fact to determine guilt or innocence. State v.
Cockrell, 102 Wn.2d 561, 567, 689 P.2d 32 (1984) (citing Serfass v. United
States, 420 U.S. 377,391,95 S. Ct. 1055,43 L. Ed. 2d 265 (1975)).
Because Swagerty never went to trial or entered a guilty plea on those
charges, jeopardy never attached. Swagerty's double jeopardy rights were
not violated.
Next, Swagerty argues that his defense counsel was ineffective. A
review of the record indicates defense counsel made tactical decisions to
secure a plea agreement given the evidence against Swagerty. It.is difficult
to imagine what evidence or strategy could have overcome the documented
presence of Swagerty's DNA in the victim's underwear, and Swagerty
identifies none. Even if counsel's assistance was deficient, Swagerty has
failed to show any prejudice. Swagerty's ineffective assistance of counsel
claim fails.
Finally, Swagerty argues that his criminal history is inaccurate and
certain convictions should not have counted as strikes under the Persistent
Offender Accountability Act of the Sentencing Reform Act of 1981 because
the crimes should have been considered the "same criminal conduct." Ch.
9.94A RCW. Legal errors in offender score calculations may be raised for
14
In re Pers. Restraint ofSwagerty, No. 91268-8
the first time on collateral review when the error is apparent on the face of
the judgment and sentence "without further elaboration." In re Pers.
Restraint of Goodwin, 146 Wn.2d 861, 866, 873-74, 50 P.3d 618 (2002).
But whether Swagerty's prior convictions were for the same criminal
conduct is not evident on the face of the judgment and sentence without
further elaboration. Instead, it was a matter of fact and trial judge discretion.
See In re Pers. Restraint of Shale, 160 Wn.2d 489, 494-95, 158 P.3d 588
(2007) (citing State v. Nitsch, 100 Wn. App. 512, 520-23, 997 P.2d 1000)
(noting that because the same criminal conduct inquiry involves both factual
determinations and the exercise of discretion, if a defendant fails to bring
this to the court's attention, she waives the challenge to her offender score)).
Swagerty's bare allegation of error is not sufficient to overcome the time bar
here.
CONCLUSION
We hold that a criminal defendant may expressly waive an expired
statute of limitations during plea negotiations to receive the benefit of a
better sentence on a different charge. We reverse the Court of Appeals in
part and remand this case to the trial court with direction to allow Swagerty
the choice of withdrawing his personal restraint petition or accepting the
vacated judgment and sentence for his convictions. If Swagerty chooses the
15
In re Pers. Restraint of Swagerty, No. 91268-8
latter, the State may refile any original charges for which the statute of
limitations have not yet expired.
16
In re Pers. Restraint ofSwagerty, No. 91268-8
WE CONCUR:
17
In re Pers. Restraint of Swagerty (Jerry Lee)
No. 91268-8
OWENS, J. (dissenting) - Jerry Lee Swagerty's convictions rested on a plea
agreement containing three time-barred charges for which he did not waive the
expired statute of limitations. I would affirm the Court of Appeals' finding that this
issue is dispositive, and that we must vacate Swagerty's judgment and sentence.
Since the majority offers Swagerty a choice of options, as opposed to simply vacating
his sentence as our case law directs us to do, I must respectfully dissent.
ANALYSIS
Swagerty asks us to hold that three of the four convictions in his plea
agreement are unlawful since the statute of limitations for the charges had expired
when he entered into the deal, even though pleading to those charges allowed him to
avoid greater charges. He asks us to resentence him to only the remaining charge that
In re Pers. Restraint of Swagerty, No. 91268-8
Owens, J., Dissenting
was not time barred. Since the plea agreement is both invalid and indivisible, I would
vacate and remand for dismissal of Swagerty's convictions.
The majority allows Swagerty a choice of either withdrawing his personal
restraint petition to maintain the plea agreement in place or to keep his victory at the
Court of Appeals and enjoy vacation of his convictions. I disagree with that approach
because our case law provides for only one remedy: vacating the invalid plea
agreement. I recognize that vacating Swagerty's convictions may result in the State's
decision to refile the original charge of first degree child rape, which might subject
him to a life sentence as a persistent offender. However, it was this plea agreement
that enabled Swagerty to avoid a life sentence. That he sought to challenge it was his
prerogative.
As the majority noted, Swagerty was not charged until about eight years after
he assaulted his 10-year-old victim. He faced charges of first degree child rape and
first degree child molestation. He faced life imprisonment because a conviction of
first degree child rape would have been his third strike, so he agreed to a deal with the
State to plead guilty to amended charges of third degree child rape, luring, second
degree burglary, and intimidating a witness. Although the statute of limitations for
the three latter charges had expired, Swagerty pleaded guilty to and received a 30-year
sentence for the four lesser charges rather than the life sentence he might otherwise
have received. Swagerty argued that since the statute of limitations had expired on
2
In re Pers. Restraint of Swagerty, No. 91268-8
Owens, J., Dissenting
three of those charges, he should be resentenced on only the remaining charge in his
plea agreement for third degree child rape. This remedy is not available, and as
explained below, several rules together direct us to the proper remedy: to vacate the
entire plea agreement.
First, we have held that courts cease to have authority to enter judgment on an
offense where the statute of limitations has expired. In re Pers. Restraint of
Stoudmire, 141 Wn.2d 342, 354-55, 5 P.3d 1240 (2000); State v. Peltier, 181 Wn.2d
290,297, 332 P.3d 457 (2014). In Stoudmire, we held that the defendant's restraint
on expired charges resulted "in a complete miscarriage of justice." 141 Wn.2d at 355.
Here, the State concedes that three of the four charges were subject to statutes of
limitation that had expired before Swagerty was sentenced. In Peltier, we said that
defendants may expressly waive a statute of limitations to his or her own advantage
(to plead guilty to a lesser charge, for instance), but that this waiver must occur before
the limit has expired while the court still has authority to sentence on those charges.
181 Wn.2d at 297-98. Here, Swagerty did not expressly waive the statute of
limitations. Since the convictions rest on expired charges without waiver, Swagerty's
continued restraint based on those three charges would be unlawful. Swagerty asks
that we vacate those three convictions and resentence him as to the remaining
unexpired charge. However, the next important rule instructs us as to why that is not
the appropriate remedy.
3
In re Pers. Restraint of Swagerty, No. 91268-8
Owens, J., Dissenting
Our case law directs us to find that Swagerty's plea agreement is indivisible,
meaning that we cannot invalidate only a portion of it. Since the statute of limitations
had expired on three of the four charges, those convictions are contrary to our law.
Under our law, one problematic charge in a plea agreement can spoil the whole bushel
when it is indivisible. State v. Turley, 149 Wn.2d 395, 402, 69 P.3d 338 (2003). In
Turley, we concluded that such agreements were indivisible where they are set forth in
one document during the same proceeding and at the same time. Id. Thus, although
the limitations period had not expired for the crime of third degree child rape,
Swagerty's plea agreement is a "'package deal."' Id. at 400. The majority agrees that
the plea agreement is indivisible. However, the majority would offer Swagerty a
choice between either maintaining his plea agreement or vacating his convictions.
I disagree with that approach because our case law instructs that the proper
remedy is to vacate the entire plea agreement. Plea agreements "function[] as a
contract" and as such, we have held that standard contract law applies to them. State
v. Barber, 170 Wn.2d 854, 859, 248 P.3d 494 (2011). As with other contracts, in the
case of a mutual mistake regarding information in the plea agreement, the proper
remedy is to rescind the contract. I d. at 873. When a conviction rests on an invalid
plea agreement, the proper remedy is to vacate the conviction to "place the parties
back in the position they were in before they entered into the agreement." In re Pers.
Restraint of Thompson, 141 Wn.2d 712, 730, 10 P.3d 380 (2000). Here, both parties
4
In re Pers. Restraint of Swagerty, No. 91268-8
Owens, J., Dissenting
were mistaken as to the applicable statute of limitations. Thus, the proper remedy is
to rescind the contract, that is, to withdraw the plea agreement entirely.
The majority is correct that withdrawing this plea would subject Swagerty to
the State's choice to refile the original, greater charge, but vacating the convictions is
the remedy available under our law. Both the State and Swagerty will be placed back
in the position that they were in before they entered into the agreement. Not only is
that the legally accurate outcome, but it is important to bear in mind that Swagerty
himself challenged the validity of these convictions. Rather than face a potential life
sentence with the original charge of first degree child rape, Swagerty accepted the
benefit of the plea agreement. That was his choice. He then chose to challenge the
validity of those convictions in spite of that benefit. It is no failure of justice to give
Swagerty what he asked for. I would affirm the Court of Appeals.
CONCLUSION
I disagree with the majority's approach in offering Swagerty the option to keep
his plea agreement in place because it is contrary to our law. Since our law plainly
supports vacating the entire plea, I would affirm the Court of Appeals and vacate
Swagerty's judgment and sentence. I must respectfully dissent.
5
In re Pers. Restraint of Swagerty, No. 91268-8
Owens, J., Dissenting
·g '
··-~
6
In re Personal Restraint ofSwagerty (Jerry Lee)
No. 91268-8
STEPHENS, J. (dissenting)-The majority recognizes, as it must, that "the
trial court exceeded its authority in entering judgment" on three of the four charges
in Jerry Lee Swagerty's plea agreement because the statute oflimitations had expired
on those charges before Swagerty accepted the agreement. Majority at 9. While the
consequence of that recognition may be unappealing to the majority, it is not in doubt
under our precedent. The clear holdings of In re Personal Restraint of Stoudmire,
141 Wn.2d 342, 5 P.3d 1240 (2000), and State v. Knight, 162 Wn.2d 806, 174 P.3d
1167 (2008), require vacation of the invalid charges and resentencing on the
remaining valid charge. The majority's rejection of this remedy is based on its
misinterpretation of State v. Peltier, 181 Wn.2d 290, 332 P.3d 457 (2014), and
misapplication of State v. Turley, 149 Wn.2d 395, 69 P.3d 338 (2003). I respectfully
In re Pers. Restraint of Swagerty (Jerry Lee), 91268-8 (Stephens, J., dissenting)
dissent. I would hold that our decisions in Stoudmire, Peltier, and Knight require us
to vacate the charges for which the statute of limitations had run, and remand for
resentencing on the one remaining charge_!
In Stoudmire, we held that once the statute oflimitations has run on a charge,
the court loses its authority to enter judgment. See 141 Wn.2d at 355. We explained,
"[T]he statute oflimitations bars prosecution of charges commenced after the period
prescribed in the statute." Id. Although the court does not lose subject matter
jurisdiction over the case, once the limitations period expires, the court lacks the
authority to enter judgment on that charge. See id. at 353, 355. We also recognized,
"'[A] plea bargaining agreement cannot exceed the statutory authority given to the
courts."' Id. at 355 (emphasis added) (alteration in original) (internal quotation
marks omitted) (quoting In re Pers. Restraint ofMoore, 116 Wn.2d 30, 38,803 P.2d
300 (1991)). A defendant may not consent to be charged for a crime for which the
statute oflimitations has run because the court lacks authority to enter judgment for
that crime. See id. Where a defendant pleads guilty to crimes with expired statutes
oflimitations, the necessary remedy is to vacate those convictions without disturbing
1 I join Part 2
of the majority and agree with its resolutions of the other issues in this
case. Majority at 13-15.
-2-
In re Pers. Restraint of Swagerty (Jerry Lee), 91268-8 (Stephens, J., dissenting)
the rest of the plea. See id. at 355, 356-57. As discussed in more detail below, we
reiterated these principles in Peltier. 181 Wn.2d at 296-98.
The case before us is governed by these principles. Swagerty pleaded guilty
to four counts: third degree child rape, luring, second degree burglary, and
intimidating a witness. See State's Resp. to Pet'r's Pers. Restraint Pet., App. A at 3-
4 (State's Resp.). The three-year statute of limitations for luring, second degree
burglary, and intimidating a witness expired well before he was charged with those
crimes. See RCW 9A.04.080(1 )(h); State's Resp., App. A at 3-4. The court did not
have authority to enter judgment on those crimes, and Swagerty could not expand
the court's authority by pleading guilty or waiving the already lapsed limitation
period. See Stoudmire, 141 Wn.2d at 354-55; Peltier, 181 Wn.2d at 296-97.
The majority recognizes that a court does not have the authority to enter
judgment once the statute oflimitations expires. See majority at 6 ("once the statute
oflimitations expires for a crime, the State lacks the authority to charge a defendant
and the court lacks the authority to sentence a defendant under a plea agreement"),
9 ("the trial court exceeded its authority in entering judgment" on the three charges
with expired statutes oflimitations). And it purports not to overrule Stoudmire. Id.
at 6 ("The continuing vitality of Stoudmire has not been questioned in this case.").
Nonetheless, the majority attempts to avoid the result required under Stoudmire by
-3-
In re Pers. Restraint of Swagerty (Jerry Lee), 91268-8 (Stephens, J., dissenting)
arguing that a criminal statute oflimitations is only a "legislatively imposed limit on
the time in which charges may be brought." !d. at 13. This statement contradicts
our long-standing recognition that a limitations period limits not only the time in
which charges must be brought, but also the very authority of a court to enter
judgment on untimely charges. See Stoudmire, 141 Wn.2d at 355. A limitation on
the court's authority-be it constitutional or validly imposed by the legislature-is
a limitation on its power. The source of the restriction is irrelevant.
The majority misreads Peltier to "conclude that as long as the statute of
limitations has not yet run at the time of charging on the original, more serious
charges, the defendant may lmowingly and expressly waive an expired statute of
limitations on lesser charges to take advantage of a beneficial plea offer." Majority
at 8. In Peltier, the defendant was charged with four serious crimes. 181 Wn.2d at
292. He entered into a "stipulated agreement in exchange for being charged
with ... two lesser crimes." !d. at 298. The agreement provided that if Peltier
challenged the conviction, '"the State may either recommend a more severe
sentence, file additional or greater charges, or re-file charges that were dismissed.
The defendant waives any objection to the filing of additional or greater charges
based on ... statutes of limitations."' !d. at 293. The majority characterizes this as
"a waiver on the statute of limitations if a subsequent challenge of the agreement led
-4-
In re Pers. Restraint of Swagerty (Jerry Lee), 91268-8 (Stephens, J., dissenting)
to the refiling of the original charges." Majority at 7. This characterization is
overbroad. The agreement waived Peltier's objection to the future lapse of a then
unexpired statute oflimitations. It did not (and under Stoudmire it could not) waive
an objection to a statute oflimitations that had already run.
When Peltier entered into the agreement, the statute oflimitations had not yet
run on the four original charges. Peltier, 181 Wn.2d at 292. But it had run on the
lesser charges to which Peltier pleaded guilty and on which the court entered
judgment. !d. When Peltier subsequently challenged his convictions, the Court of
Appeals followed Stoudmire and vacated the convictions on the untimely lesser
charges. See id. at 293; In re Pers. Restraint ofPeltier, noted at 166 Wn. App. 1023,
2012 WL 432258, at *1 (2012). This result was so obvious under Stoudmire that the
State did not object; thus, the lesser charges were not before us in Peltier. See
Peltier, 181 Wn.2d at 293.
The issue before this court concerned the State's refiling of some of the
original, more serious charges. !d. at 293. Peltier moved to dismiss these charges
because by then the applicable statute oflimitations had run. I d. "The State argued
that Peltier waived his right to object to the statute of limitations in the agreement
upon stipulation, so the State had the right to refile the charges." !d. at 293-94.
-5-
In re Pers. Restraint of Swagerty (Jerry Lee), 91268-8 (Stephens, J., dissenting)
This court began its analysis by reiterating the principles from Stoudmire: a
statute of limitations is not jurisdictional, but its expiration deprives the court of
authority to enter judgment. !d. at 296-97. The court then explained why Peltier
was different from Stoudmire.
In Stoudmire, the statute of limitations had run on the underlying charges by
the time Jerrod Stoudmire was sentenced. Because of this, the court held that
the charges were beyond the statutory authority of the court. . . . Since the
court had no authority to sentence, Stoudmire could not consent to be charged
or waive any objection to the untimely charging. But this case is
distinguishable from Stoudmire. Here, the statute of limitations had not run
on the underlying charges at the time Peltier entered the stipulated
agreement, meaning the court still had the authority to sentence him.
!d. at 297 (citation omitted).
The court held, "When a statute oflimitations has not run and the court still
has authority to sentence on charges if convicted, a defendant may waive the statute
oflimitations if he or she so chooses. This waiver must be express." !d. The court
reiterated that a defendant may waive the statute oflimitations only if it "has not yet
run ... and the court thus still has authority to sentence on the charges if convicted."
!d. at 298; see also id. ("the stipulation upon agreement was executed when the court
still had the authority to sentence and so the waiver therein is valid"; "A defendant
may expressly waive a criminal statute of limitations when he or she agrees to do so
when the statute of limitations has not yet run on the underlying charges. At that
time, the court has authority over the charges, so an express waiver is effective and
-6-
In re Pers. Restraint of Swagerty (Jerry Lee), 91268-8 (Stephens, J., dissenting)
will be upheld."). Peltier expressly waived any statute oflimitations defense to the
original charges before they expired. I d. The State could therefore refile the original
charges. !d.
The majority declares that if a defendant can agree to waive an unexpired
limitations period, "we see no principled reason why under Peltier, a defendant
could not agree to waive a lapsed statute of limitation on lesser charges to avoid
greater charges." Majority at 8. But the principled reason is the holding of
Stoudmire, and the court in Peltier distinguished Stoudmire on this very basis.
Peltier makes clear that the case before us is squarely governed by Stoudmire. 181
Wn.2d at 297. 2 Like the defendant in Stoudmire, Swagerty pleaded guilty to charges
after the statute of limitations had run. At the time he entered his plea agreement,
2
The majority asserts-without citation-that neither Stoudmire nor Peltier
considered the waiver question before us. Majority at 8 n.l. In fact, waiver was the central
issue, as the State in each case argued that defendant's guilty plea agreement expressly
waived the statute of limitations. See Stoudmire, 141 Wn.2d at 354 ("[T]he State argues
that Stoudmire is not entitled to relief because his guilty plea waives any challenge to the
charging dates in cmmts I and II."); Peltier, 181 Wn.2d at 293-94 ("The State argued that
Peltier waived his right to object to the statute of limitations in the agreement upon
stipulation."). This court in Stoudmire squarely held that the defendant could not waive
the statute oflimitations because '"a plea bargaining agreement cannot exceed the statutory
authority given to the courts."' Stoudmire, 141 Wn.2d at 355 (quoting Moore, 116 Wn.2d
at 38). Later explaining why this holding did not require invalidating Peltier's plea to then-
timely charges, the court recognized that Stoudmire addressed the issue of waiver and held
that a defendant "could not consent to be charged or waive any objection to the untimely
charging." Peltier, 181 Wn.2d at 297. The majority clearly disagrees with the holding in
Stoudmire, but it cannot substantiate its assertion that no such holding exists.
-7-
In re Pers. Restraint of Swagerty (Jerry Lee), 91268-8 (Stephens, J., dissenting)
the court did not have authority to enter judgment for those crimes. Contrary to the
majority's conclusion, under our precedent Swagerty could not waive the expired
statute of limitations and belatedly expand the court's authority. See id.; Stoudmire,
141 Wn.2d at 354-55. 3
Based on the clear holdings of Stoudmire and Peltier, the three charges for
which the statute of limitations had run must be vacated and Swagerty should be
resentenced on the single remaining charge. The majority and the Court of Appeals
view this result as unjust, and seek to avoid it by characterizing the plea as indivisible
under Turley. See majority at 8-10; In re Pers. Restraint of Swagerty, No.
45862-4-11, slip op. at 4 (Wash. Ct. App. Jan. 21, 2015) (unpublished),
http://www.courts.wa.gov/opinions/pdf/D2%2045862-4-II%20%20Unpublished%
200pinion.pdf. Turley, however, is inapplicable because Swagerty is not seeking to
withdraw his plea. 4 See Knight, 162 Wn.2d at 813 (holding Turley did not prevent
3
Even if the court had the authority to enter judgment on untimely charges based
on a defendant's waiver, Peltier requires an express waiver. See 181 Wn.2d at 298.
Swagerty did not expressly waive the statute of limitations. If we were to now recognize
an implied waiver-apparently based on a defendant taking advantage of a good plea
bargain-we would have to overrule both Stoudmire and Peltier, something the majority
does not do.
4
Swagerty appears to advocate for a variety of remedies in his pro se filings. See,
e.g., Am. Pers. Restraint Pet. at 9. However, as the case is presented to us by counsel, it is
clear that Swagerty is not seeldng withdrawal of his plea, but rather vacation of the three
invalid charges and resentencing on the remaining charge. See Suppl. Br. ofPet'r at 15;
Wash. Supreme Court oral argument, In re Pers. Restraint ofSwagerty, No. 91268-8 (May
-8-
In re Pers. Restraint of Swagerty (Jerry Lee), 91268-8 (Stephens, J., dissenting)
the court from vacating a single conviction obtained through an indivisible plea
agreement where the defendant did "not seek to withdraw her guilty pleas").
Swagerty asks us to "vacate the three counts [for which the statute oflimitations had
run] and remand for resentencing on count 1." Suppl. Br ofPet'r at 15. This is the
same remedy we provided in Stoudmire. See 141 Wn.2d at 356 (vacating
convictions where the statute of limitations ran before charging, and remanding for
resentencing on the remaining counts). Knight also supports this remedy and, as an
analogous case, aptly explains why the indivisibility of the plea is irrelevant.
In Knight, the defendant entered an indivisible plea agreement and agreed to
plead guilty to three crimes. 162 Wn.2d at 809, 813. She then appealed, arguing
that two of the convictions violated double jeopardy. Id. at 809. The question before
the court was whether "a single conviction can be vacated for a double jeopardy
violation without rejecting an indivisible plea agreement." Id. at 810. We held,
"[V]acating a conviction is the proper remedy when the conviction violates double
jeopardy, even when entered pursuant to an indivisible plea agreement." I d. at 808.
10, 2016), at 14 min., 36 sec. to 14 min., 52 sec., audio recording by TVW, Washington
State's Public Affairs Network, http://www.tvw.org ("Mr. Swagerty's very clearly not
done that [sought to withdraw his plea]. Even the State knows that Mr. Swagerty has not
done that [sought to withdraw his plea] .... [T]he State says he's not asking to withdraw
his plea, he's not challenging his plea. And on that one thing, the State is absolutely
right.").
-9-
In re Pers. Restraint of Swagerty (Jerry Lee), 91268-8 (Stephens, J., dissenting)
The court explained that double jeopardy prevents the court from entering
"'multiple convictions for the same offense."' Id. at 813 (quoting State v. Womac,
160 Wn.2d 643, 658, 160 P .3d 40 (2007) ). "The proper remedy for double jeopardy
violations ... is vacating the offending convictions." Id. at 812. This was true even
when the conviction was entered pursuant to a plea agreement, where that agreement
did not waive double jeopardy protections. See id. at 813. "[T]he plea agreement
has no bearing on the ability of the court to vacate a conviction entered pursuant to
the guilty plea itself, because the plea itself need not be disturbed." Id. at 812.
Because Knight did not seek to withdraw her guilty pleas, and her plea agreement
did not waive double jeopardy protections, "the indivisibility of the plea agreement
ha[d] no bearing on our analysis." Id. at 813. The court vacated the conviction that
violated double jeopardy, even though it was entered into as part of an indivisible
plea agreement. I d.
Statutes oflimitations, like double jeopardy, limit the power of the court. See
Stoudmire, 141 Wn.2d at 355. Although double jeopardy is a constitutional
limitation, and statutes oflimitations are legislatively imposed, they both restrict the
court's authority to enter judgment against the defendant. There is nothing in the
reasoning of Knight's holding that limits it to cases of double jeopardy, particularly
in light of the continuing validity of Stoudmire and Peltier. Because the court lacked
-10-
In re Pers. Restraint of Swagerty (Jerry Lee), 91268-8 (Stephens, J., dissenting)
the authority to enter judgment against Swagerty on three of the convictions at the
time he entered into the plea agreement, we must vacate those charges and remand
for resentencing on the remaining valid conviction.
The majority resists this clear mandate from binding precedent and instead
offers Swagerty the choice of either withdrawing his personal restraint petition or
withdrawing his entire plea. See majority at 8-10. Neither option is tenable. The
former impermissibly expands the authority of the court to enter judgment against a
defendant once the statute of limitations has already run. See Peltier, 181 Wn.2d at
297; Stoudmire, 141 Wn.2d at 355. The latter forces Swagerty to face the very peril
he specifically sought to avoid by entering into the plea agreement. Cf State v. Hall,
162 Wn.2d 901, 177 P.3d 680 (2008) (holding double jeopardy prohibits the State
from moving to vacate a criminal conviction against the defendant's objection). I
share the majority's dissatisfaction with a result that seems to give Swagerty a
windfall, but I believe an occasional unsatisfying outcome is the acceptable cost of
consistently applying settled legal rules. Moreover, I am confident that this situation
need not arise again. The parties and trial courts in future cases can assure that plea
agreements conform to the limits of judicial authority and contain appropriate
express waiver provisions. I respectfully dissent.
-11-
In re Pers. Restraint of Swagerty (Jerry Lee), 91268-8 (Stephens, J., dissenting)
-12-
In re Pers. Restraint of Swagerty (Jerry Lee)
No. 91268-8
MADSEN, C.J. (concurring in dissent)-! agree with Justice Stephens that In re
Personal Restraint ofStoudmire, 141 Wn.2d 342, 5 P.3d 1240 (2000), State v. Peltier,
181 Wn.2d 290, 332 P.3d 457 (2014), and State v. Knight, 162 Wn.2d 806, 174 P.3d
1167 (2008), require us to vacate the charges for which the statute of limitations had run.
I disagree, however, that the sole remedy is to remand for resentencing on the remaining
charge. Rather, for the vacated lesser charges, the State could refile the original charges
for which the statute of limitations had not run before Jerry Swagerty accepted the plea
agreement. Vacating a plea agreement places the parties "back in the position they were
in before they entered into the agreement." In re Pers. Restraint of Thompson, 141
Wn.2d 712, 730, 10 P.3d 380 (2000). Therefore, Swagerty could face the original
charges for which the statute of limitations had not run.
Accordingly, I respectfully dissent.
No. 91268-8
Madsen, C.J., concurring in dissent
2