Court of Appeals of Arizona, Second Division, Department B
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF MARICOPA COUNTY Cause No. CR2010133988001DT Honorable Susanna C. Pineda, Judge
William G. Montgomery, Maricopa County Attorney By Andrea L. Kever Phoenix, Attorneys for Respondent
Bruce Peterson, Maricopa Legal Advocate By Thomas J. Dennis Phoenix Attorneys for Petitioner.
VIRGINIA C. KELLY, Presiding Judge
¶1Pierre Banda petitions this court for review of the trial court's order denying relief on all but one of the claims he raised in his of-right petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. He argues on review that, because the protection of the statute of limitations is jurisdictional, the court erred in concluding he had waived the application of the statute to an offense to which he had pled guilty and for which the limitations period had elapsed. Banda additionally argues the court erred in rejecting his claim that trial counsel had been ineffective in failing to raise the statute of limitations before he pled guilty. We will not disturb the court's ruling unless it clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Banda has not met his burden of establishing such abuse here.
¶2Banda pled guilty to sexual conduct with a minor under the age of fifteen and two counts of attempted child molestation. The trial court sentenced him to a twenty-three year prison term on the conviction of sexual conduct with a minor under the age of fifteen and imposed lifetime probation on the attempted child molestation convictions.
¶3Banda sought post-conviction relief, arguing his guilty plea to one count of attempted child molestation was invalid because the limitations period within which he could be charged for that offense had expired; the imposition of lifetime probation for that conviction was improper; and, trial counsel had been ineffective in failing to raise the preceding claims. The state conceded the limitations period had lapsed as to one count of attempted child molestation and agreed that conviction and probation term should be vacated.
¶4The trial court, however, concluded Banda had waived any defense based on the applicable statute of limitations because he had not raised it before pleading guilty. But the court agreed it was not permitted to impose lifetime probation for that count, vacated the term of probation, and scheduled a resentencing for that count. It rejected Banda's claim of ineffective assistance of counsel, concluding he "can show no prejudice" because his sentence had been corrected.
¶5Banda sought reconsideration, arguing the trial court was not permitted to find he had waived the statute-of-limitations defense without giving him an opportunity to address that issue. He also asserted the court had "mischaracterize[d]" his claim of ineffective assistance of counsel by applying that claim only to the sentencing error. The court denied Banda's motion for reconsideration, and this petition for review followed.
¶6On review, Banda first asserts the trial court violated his due process rights by concluding he had waived a statute-of-limitations defense without first giving him an opportunity to address that issue. Even if we agreed with Banda that the court's sua sponte waiver determination implicated due process concerns, any error plainly was harmless as Banda has had the opportunity both in his motion for reconsideration and this petition for review to argue the court erred in finding he had waived the defense. Cf. State v. Pena, 209 Ariz. 503, ¶ 15, 104 P.3d 873, 877 (App. 2005) (error harmless if "absent the error, the court would have reached the same result ").
¶7Banda next argues that, because the period prescribed by a statute of limitations is jurisdictional in Arizona, he is permitted to raise it pursuant to Rule 32.1(b), which permits relief if "[t]he court was without jurisdiction to render judgment or to impose sentence." He contends the trial court improperly "disagree[d]" with our decision in Taylor v. Cruikshank, 214 Ariz. 40, 148 P.3d 84 (App. 2006), by determining "that a statute of limitations claim is not jurisdictional."
¶8We agree with Banda that Arizona has adopted the minority rule that a statute of limitations implicates the court's jurisdiction and thus limits "the power of the sovereign to act against the accused." Id. ¶ 9, quoting State v. Fogel, 16 Ariz.App. 246, 248, 492 P.2d 742, 744 (1972). But that does not mean Banda did not waive the protection of the limitations period under the statute by pleading guilty. Banda's plea agreement stated that he waived "any and all motions, defenses, objections, or requests which he has made or raised, or could assert hereafter, to the court's judgment against him and imposition of a sentence upon him consistent with this agreement." Despite any jurisdictional implications, the statute of limitations remains an affirmative defense; the defendant is required to "present reasonable evidence that a statutory period has expired" before the state then must demonstrate "by a preponderance of the evidence that it has not." Id. And, our supreme court has stated that an affirmative defense may be waived. State v. King, 158 Ariz. 419, 425 n.6, 763 P.2d 239, 245 n.6 (1988), citing United States v. Wild, 551 F.2d 418 (D.C. Cir. 1977) (concluding statute-of-limitations defense may be waived).
¶9Banda is correct that the court's statement in King that a statute-of- limitations defense may be waived is dicta. But it is consistent with "a plethora of courts" that have addressed that question. State v. Jackson, 208 Ariz. 56, ¶ 22, 90 P.3d 793, 799 (App. 2004) (collecting cases). And, despite Banda's contrary suggestion, the waiver of a statute-of-limitations defense is consistent with the general rule that the limitations period prescribed by statute implicates the court's jurisdiction over the person for that offense, but not subject matter jurisdiction. As this court explained in Jackson, the jurisdictional effect of the statute of limitations cannot be compared to subject matter or "territorial" jurisdiction. Id. ¶¶ 21, 23. Subject matter jurisdiction, unlike personal jurisdiction, cannot be waived and may be raised at any time. Id. ¶ 21. Thus, we concluded that, because the statute of limitations did not involve subject matter jurisdiction, the state was not required to "prove beyond a reasonable doubt that prosecution was timely commenced." Id. ¶ 23. It necessarily follows that, because the jurisdictional implications of the statute of limitations involve personal and not subject matter jurisdiction, the lapsing of the limitations period as a defense is subject to waiver.
¶10Our conclusion is bolstered further by the policy behind statutes of limitations. As we noted in Jackson, "[i]n general, 'a statute of limitations reflects a legislative judgment that, after a certain time, no quantum of evidence is sufficient to convict. And that judgment typically rests, in large part, upon evidentiary concerns—for example, concern that the passage of time has eroded memories or made witnesses or other evidence unavailable.'" Id. n.5, 90 P.3d at 796 n.5, quoting Stogner v. California, 539 U.S. 607, 615 (2003). Such evidentiary concerns evaporate when a defendant admits as part of a guilty plea that he or she had committed the offense. And that policy justification does not implicate subject matter jurisdiction because it does not involve the court's "statutory or constitutional power to hear and determine a particular type of case, " State v. ...