COLORADO COURT OF APPEALS                                         2017COA117


Court of Appeals No. 15CA0449
Mesa County District Court No. 07CR851
Honorable Valerie J. Robison, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Christopher Edward Butler,

Defendant-Appellant.


                              ORDER AFFIRMED

                                  Division II
                          Opinion by JUDGE DAILEY
                          Fox and Plank*, JJ., concur

                        Announced September 7, 2017


Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Andrew C. Heher, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1    In 2007, defendant Christopher Edward Butler was charged

 with and convicted of multiple criminal counts based on allegations

 that he had sexually assaulted a child, L.W., between January 1992

 and May 1995. He asserted that, inasmuch as the charges were

 brought more than twelve years later, they were barred by the

 applicable ten-year statute of limitations.

¶2    Butler had, however, been serving a Colorado sentence out-of-

 state from 1999 until 2006, and, by statute, Colorado’s limitations

 period was tolled, for up to five years, while a person was “absent

 from the state of Colorado.”

¶3    The issue presented in this case is whether a defendant is

 “absent” from the state for statute of limitations purposes when he

 or she has been transferred by the Colorado Department of

 Corrections (DOC) to an out-of-state facility to serve out the

 remainder of a Colorado sentence. Because we conclude that the

 person is absent from the state under those circumstances, we

 affirm the postconviction court’s denial of Butler’s Crim. P. 35(c)

 motion to vacate his convictions and sentences.




                                    1
                              I.    Background

¶4    In 1995, Butler was convicted in Colorado and sentenced to

 fourteen years imprisonment for sexually assaulting a child. In

 1999, the DOC placed Butler in a Minnesota prison pursuant to an

 agreement with Minnesota prison authorities. Butler served the

 remainder of his Colorado sentence in Minnesota and was

 discharged in 2006. A month after his release, he attempted to

 contact L.W., prompting L.W. to report the abuse he had allegedly

 suffered as a child to the police. As a result of L.W.’s report, Butler

 was charged and prosecuted in the present case.

¶5    At the time of the alleged crimes, Colorado’s statute of

 limitations provided a straightforward ten-year limitations period for

 prosecuting the crimes with which Butler was charged. § 18-3-

 411(2), C.R.S. 1995. In 2002, the General Assembly amended the

 applicable limitations period by extending it to ten years after a

 victim reaches the age of eighteen. Ch. 288, sec. 2, § 18-3-

 411(2)(b), 2002 Colo. Sess. Laws 1128.

¶6    Before his trial, Butler moved for dismissal on the ground that

 his prosecution was barred by the straightforward ten-year

 limitations period in effect at the time of the alleged offenses. The


                                    2
 prosecution responded that (1) the limitations period was no longer

 simply ten years, but, pursuant to the 2002 amendment, it was ten

 years after the victim reached the age of eighteen;1 or (2) in the

 alternative, the limitations period had been tolled while Butler was

 incarcerated in Minnesota.2 Without being more specific, the trial

 court denied Butler’s motion to dismiss with a handwritten notation

 “for the reasons cited by the prosecution.”

¶7    After a jury convicted Butler, the court sentenced him to

 lengthy, consecutive terms of imprisonment in the custody of the

 DOC. On direct appeal, Butler did not argue the statute of

 limitations issue, and a division of this court affirmed his



 1 As applied to this case, the period prescribed in the 2002 statute
 would not have expired until 2008. Because the 2002 amendment
 was enacted before the previous straightforward ten-year limitations
 period would have expired in this case, the 2002 amendment could
 have been applied here without violating ex post facto principles.
 People v. Hicks, 262 P.3d 916, 919-20 (Colo. App. 2011) (“[T]here is
 no ex post facto violation where the legislature extends the
 limitations period for prosecutions not yet time-barred as of the
 date of the extension.”).

 2 In its response, the prosecution noted that Butler had “requested
 that he be transferred to a facility outside the state of Colorado to
 serve his sentence near his family.” The trial court never
 determined whether Butler “requested” or otherwise “agreed to” the
 transfer.

                                    3
 convictions and sentences. See People v. Butler, (Colo. App. No.

 08CA2442, Apr. 5, 2012) (not published pursuant to C.A.R. 35(f)).

¶8    In 2014, Butler filed a Crim. P. 35(c) motion to vacate his

 convictions and sentences. Relying on People v. Summers, 208 P.3d

 251 (Colo. 2009), he asserted that the underlying charges were

 barred by the application of the straightforward ten-year limitations

 period in effect when the crimes were committed. (Despite some

 language in the 2002 amendment stating otherwise, the supreme

 court in Summers interpreted the 2002 amendment as not applying

 to persons who, like Butler, committed their crimes before it was

 enacted. Id. at 259.)3

¶9    The People responded that (1) Butler’s postconviction claim

 was barred by his failure to previously raise it when he had the

 opportunity to do so on direct appeal; and (2) in any event, even the

 straightforward ten-year limitations period had been tolled while he

 was incarcerated in Minnesota. Agreeing with the second of these




 3The basis of its decision was that the 2002 amendment was
 ambiguous and, based on the rule of lenity, applied only to crimes
 committed on or after the statute’s effective date. People v.
 Summers, 208 P.3d 251, 259 (Colo. 2009).

                                   4
  arguments, the postconviction court denied Butler’s motion for

  relief.

       II.    Butler’s Claim Was Not Barred By the Abuse of Process Rule

¶ 10         As an initial matter, the People contend that Butler was barred

  from pursuing his statute of limitations claim in a postconviction

  proceeding under the abuse of process rule. We disagree.

¶ 11         Under one part of the abuse of process rule, a court is

  generally required to “deny any claim that could have been

  presented in an appeal previously brought[.]” Crim. P. 35(c)(3)(VII).4

  Because Butler’s statute of limitations claim could have been — but

  was not — brought on direct appeal, this part of the abuse of

  process rule would appear to apply.

¶ 12         However, there are several exceptions to the abuse of process

  rule, see Crim. P. 35(c)(3)(VII)(a)-(e), one of which is of particular

  import here: “[A]ny claim that the sentencing court lacked subject

  matter jurisdiction” may be pursued in a postconviction proceeding,




  4 Abuse of process is a doctrine separate and apart from that of
  successive petitions. See People v. Rodriguez, 914 P.2d 230, 253
  (Colo. 1996). In 2004, the abuse of process doctrine was codified,
  in an adapted form, in Crim. P. 35(c)(3)(VII).

                                         5
  notwithstanding the fact that it could have been previously brought

  in a direct appeal, Crim. P. 35(c)(3)(VII)(d).

¶ 13   “[D]espite their deep roots and pervasive nature, criminal

  statutes of limitations are not constitutionally mandated; rather,

  they are subject to legislative choice and can be amended or even

  repealed altogether.” Frank B. Ulmer, Note, Using DNA Profiles to

  Obtain “John Doe” Arrest Warrants and Indictments, 58 Wash. & Lee

  L. Rev. 1585, 1612 (2001) (footnote omitted); see also 1 Charles E.

  Torcia, Wharton’s Criminal Law § 92 (15th ed. 1993) (“At common

  law, there was no limitation of time within which a criminal

  prosecution had to be commenced; a time limitation is therefore a

  creature only of statute.”).

¶ 14   That said, our case law is clear: a claimed statute of

  limitations violation in a criminal case implicates the court’s subject

  matter jurisdiction. See People v. Cito, 2012 COA 221, ¶ 32; People

  v. Wilson, 251 P.3d 507, 509 (Colo. App. 2010) (citing People v.

  Verbrugge, 998 P.2d 43, 44 (Colo. App. 1999)). Consequently,

  Butler’s claim is not barred by the abuse of process rule.

¶ 15   We reject, as unpersuasive, the People’s argument that

  Butler’s statute of limitations claim does not present an issue of


                                      6
  subject matter jurisdiction. If we were writing on a clean slate, we

  might well be receptive to their argument.5 But we are not writing

  on a clean slate.

¶ 16   Nearly sixty years ago, the supreme court held that a statute

  of limitations challenge is jurisdictional in nature. See Bustamante

  v. Dist. Court, 138 Colo. 97, 107, 329 P.2d 1013, 1018 (1958) (“[T]he

  statute of limitations in a criminal case is not merely a defense that

  may be asserted at the trial as in civil matters, but denies

  jurisdiction to prosecute an offense not committed within the period

  limited.”), overruled in part on other grounds by Cty. Court v. Ruth,

  194 Colo. 352, 575 P.2d 1 (1977). Since that time, divisions of our

  court have characterized the “jurisdictional” nature of the issue in

  Bustamante as one involving “subject matter” jurisdiction. See,

  e.g., Wilson, 251 P.3d at 509; Verbrugge, 998 P.2d at 44-46,

  superseded by § 16-5-401(12) as stated in People v. Lowry, 160 P.3d

  396, 397 (Colo. App. 2007); see also People v. Ware, 39 P.3d 1277,

  5 Indeed, courts in other states have found such arguments
  persuasive. See State v. Peltier, 332 P.3d 457, 460 (Wash. 2014);
  see also State v. Bowers, 709 A.2d 1255, 1264 n.7 (Md. 1998)
  (“Although a few courts have held that the statute of limitations is
  jurisdictional and cannot be waived, the vast majority of federal and
  state courts have held that the statute of limitations is an
  affirmative defense which can be waived.”).

                                     7
  1279 (Colo. App. 2001) (“Under Colorado law, the statute of

  limitations in criminal matters operates as a jurisdictional bar to

  prosecution that cannot be waived.”).6

¶ 17   There is, of course, good reason for this. We cannot ignore the

  supreme court’s characterization of a statute of limitations

  challenge as one presenting a “jurisdictional” issue. People v.

  Gladney, 250 P.3d 762, 768 n.3 (Colo. App. 2010) (the court of

  appeals is bound to follow supreme court precedent); see People v.

  Novotny, 2014 CO 18, ¶ 26 (The supreme court “alone can overrule

  [its] prior precedents concerning matters of state law . . . .”). And

  because there are but two types of “jurisdictional” issues, i.e.,

  “personal” jurisdiction and “subject matter” jurisdiction, Circuit

  Court v. Lee Newspapers, 332 P.3d 523, 533 (Wyo. 2014), and

  Butler’s claim has nothing to do with “personal” jurisdiction, it

  follows that the supreme court in Bustamante was addressing a

  matter of “subject matter” jurisdiction.




  6“In contrast to personal jurisdiction, subject matter jurisdiction
  may not be waived and can be raised at any stage in the
  proceedings.” In re Marriage of Pritchett, 80 P.3d 918, 921 (Colo.
  App. 2003).


                                     8
¶ 18     Finally, we reject the People’s assertion that the

  nonjurisdictional nature of Butler’s claim is demonstrated by

  section 16-5-401(12), C.R.S. 2016, which, the People say, allows a

  defendant to “waive” a statute of limitations defense. Section 16-5-

  401(12), however, says nothing about “waiver”; instead, it makes a

  limitations period inapplicable in certain situations.7

¶ 19     In Wilson, a division of this court recognized that

               [b]ecause subject matter jurisdiction is
               established by the constitution and statutes,
               the General Assembly can change the scope of
               subject matter jurisdiction by amending
               statutes. In enacting section 16-5-401(12), the
               General Assembly modified the subject matter
               jurisdiction of courts . . . .

  251 P.3d at 509 (citation omitted).

¶ 20     We agree with the division in Wilson. Consequently, we

  conclude that Butler was not barred by Crim. P. 35(c)(3)(VII) from


  7   In pertinent part, section 16-5-401(12), C.R.S. 2016, provides as

  follows:

               The applicable period of limitations . . . shall
               not apply to charges of offenses . . . brought to
               facilitate the disposition of a case, or to lesser
               included or non-included charges of offenses
               or delinquent acts given to the court or a jury
               at a trial on the merits, by the accused.

                                       9
  pursuing a statute of limitations claim in this postconviction

  proceeding.

  III.    The Trial Court Had Jurisdiction Over the Case Because Butler’s
               Absence From the State Tolled the Limitations Period

¶ 21      Butler contends that the postconviction court erred in ruling

  that the trial court had subject matter jurisdiction for purposes of

  the statute of limitations’ tolling provision because he was “absent

  from the state of Colorado” while he was incarcerated in Minnesota

  for his prior Colorado convictions. We disagree.

¶ 22      In support of his contention, Butler makes two assertions: (1)

  the trial court erroneously interpreted the tolling provision to

  encompass periods when persons are serving Colorado sentences in

  other states’ facilities; and, in any event, (2) the prosecution was

  required to — but did not — plead and prove to a jury that he was

  “absent from the state.” We address each in turn.

         A.   The Trial Court Properly Interpreted the Tolling Provision

¶ 23      Statutory interpretation presents a question of law which we

  review de novo. People v. Johnson, 2015 CO 70, ¶ 9.

¶ 24      In interpreting a statute, our task is to ascertain and give

  effect to the intent of the General Assembly. Dubois v. People, 211



                                       10
  P.3d 41, 43 (Colo. 2009). To discern the legislative intent, we look

  first to the language of the statute itself, Summers, 208 P.3d at

  253-54, reading words and phrases in context and construing them

  according to rules of grammar and common usage, People v. Diaz,

  2015 CO 28, ¶ 12.

¶ 25   When the statutory language is clear and unambiguous, “we

  apply the words as written without resort to other rules of statutory

  interpretation.” People v. Shores, 2016 COA 129, ¶ 16 (citing People

  v. Van De Weghe, 2012 COA 204, ¶ 8). But “[w]hen the language of

  a statute is susceptible of more than one reasonable understanding

  and is therefore considered ambiguous,” People v. Jones, 2015 CO

  20, ¶ 10, “a court must look beyond the language [of the statute]

  and consider other factors, such as the statute’s legislative history

  and the objective sought to be achieved by the legislation,” People v.

  Lovato, 2014 COA 113, ¶ 23.

¶ 26   In 1995, the pertinent statute of limitations tolling provision

  stated that

            [t]he time limitations imposed by this section
            shall be tolled if the offender is absent from the
            state of Colorado, and the duration of such
            absence, not to exceed five years, shall be
            excluded from the computation of the time


                                    11
             within which any complaint, information, or
             indictment must otherwise be filed or
             returned.

  § 16-5-401(2), C.R.S. 1995.8

¶ 27   Butler argues that, because he was transferred to Minnesota

  by the Colorado DOC, he was not “legally absent” from the state for

  tolling purposes because (1) he did not travel out of state of his own

  volition; (2) the Colorado DOC maintained “jurisdiction” over him

  while he was incarcerated in Minnesota; and (3) a literal reading of

  the word “absent” in the statute would lead to an illogical and

  absurd result (i.e., that the DOC could circumvent statutes of

  limitation at-will by transferring inmates out of state). We are not

  persuaded.

¶ 28   We recognize that criminal statutes of limitations should

  generally be construed liberally in favor of the defendant. People v.

  Thoro Prods. Co., 70 P.3d 1188, 1196 (Colo. 2003). However, “the

  principle of liberal construction . . . may not be invoked to alter the

  plain meaning of a statute or to extend the application of its

  provisions beyond the clear limits of their reach.” In re M.D.E.,


  8 The current version of the statute of limitations contains a nearly
  identical tolling provision. See § 16-5-401(2).

                                    12
  2013 COA 13, ¶ 16; see also People v. Dinkel, 2013 COA 19, ¶ 19

  (“[T]he rule of lenity . . . may be employed only to resolve an

  unyielding statutory ambiguity . . . .”) (emphasis added).

¶ 29   In common and ordinary usage, the term “absent” is

  understood to mean “not present or not attending” or “being

  elsewhere.” Webster’s Third New International Dictionary 6 (2002);

  see People v. Serra, 2015 COA 130, ¶ 52 (“Courts may refer to

  dictionary definitions to determine the plain and ordinary meaning

  of undefined statutory terms.”) (citing Webster’s Third New

  International Dictionary to define a term). Being in another state,

  such as Minnesota, qualifies, on its face, as being “not present” in,

  or “elsewhere” than, Colorado, and thus “absent” from Colorado.

¶ 30   The General Assembly did not include in the tolling provision

  language contemplating a defendant’s reason for being out of the

  state, nor whether the defendant was out of state voluntarily. Had

  it wanted the statute to encompass such circumstances, it could

  easily have included them. See Turbyne v. People, 151 P.3d 563,

  567 (Colo. 2007) (“We do not add words to the statute . . . .”); A.C. v.

  People, 16 P.3d 240, 243 (Colo. 2001) (an appellate court will not

  create an exception to a statute that its plain meaning does not


                                    13
  suggest or demand); People v. Benavidez, 222 P.3d 391, 393-94

  (Colo. App. 2009) (“[I]n interpreting a statute, we must accept the

  General Assembly’s choice of language and not add or imply words

  that simply are not there.”).

¶ 31   Other states with similar provisions have held that absence

  from the state alone is sufficient to toll the limitations period,

  regardless of whether it was voluntary or due to imprisonment in

  another state, and regardless of the ease with which the state could

  apprehend the defendant or return him from out of state. See State

  v. Stillings, 778 P.2d 406, 408-10 (Mont. 1989) (rejecting

  defendant’s argument that during his incarceration in another state

  for a Montana conviction, he was “still under Montana jurisdiction”

  and holding that “mere absence of the criminal defendant from the

  state is sufficient to toll the statute of limitations”);9 see also State

  v. Lee, 948 P.2d 641, 648 (Kan. 1997) (“[A]bsent from the state”

  tolling provision unambiguously required only “that ‘the accused is


  9 The Montana tolling statute provided, in pertinent part, that the
  period of limitation does not run during “any period in which the
  offender is not usually and publicly resident within this state.” See
  State v. Stillings, 778 P.2d 406, 409 (Mont. 1989). The Stillings
  court interpreted that to mean, as here, “absent” from the state.
  See id.

                                      14
  absent from the state’ in order to toll the statute of limitations,

  regardless of whether the absence is voluntary or involuntary.”

  (quoting State v. Hill, 64 P.2d 71, 73 (Kan. 1937))), disapproved of

  on other grounds by State v. Gunby, 144 P.3d 647 (Kan. 2006); State

  v. Canton, 308 P.3d 517, 519-24 (Utah 2013) (The phrase “out of

  the state” in the tolling statute focuses on a person’s physical

  presence within or without the state’s territorial boundaries, and

  not on abstract constructs of “legal presence.”); State v. Newcomer,

  737 P.2d 1285, 1290 (Wash. Ct. App. 1987) (rejecting the argument

  that a statute of limitations should not have been tolled as a result

  of the defendant’s incarceration in another state because he was

  “available” to Washington authorities through the Interstate

  Agreement on Detainers).10

¶ 32   That Butler was sent out of state by the DOC (i.e., not of his

  own free will, nor to evade the law) and that the DOC maintained

  10Butler points out factual distinctions between these cases and his
  own — namely, that these cases (except for Stillings) involve
  defendants serving out-of-state sentences for crimes committed in
  that other state, as opposed to being transferred and serving a
  sentence in one state for an offense committed in another. This
  distinction, however, does not diminish the main conclusion that
  the tolling provisions in each case concerned only the physical
  location of a defendant when determining whether he was “absent,”
  and not why or how such absence occurred.

                                     15
  jurisdiction over him while he was in Minnesota (per contractual

  agreements between state correctional facilities) do not change the

  fact that he was actually “absent” from the state of Colorado.

¶ 33   Butler asserts that such a literal reading of the statute leads

  to an absurd result, that is, DOC authorities could circumvent

  statutes of limitations at-will by transferring defendants out of

  state. Butler points out that this action would defeat the purpose of

  statutes of limitation — to protect individuals from defending

  themselves against stale charges. See Higgins v. People, 868 P.2d

  371, 373 (Colo. 1994).

¶ 34   While it is true that “[a] statutory interpretation leading to an

  illogical or absurd result will not be followed,” Frazier v. People, 90

  P.3d 807, 811 (Colo. 2004), we do not perceive an absurd result

  from our interpretation. There is — and, under the facts, can be —

  no suggestion that the DOC transferred Butler to circumvent an

  otherwise applicable limitations period. This follows because law

  enforcement, much less the DOC, had no reason to suspect Butler

  of the crimes charged here until after he had been released from

  incarceration in Minnesota.




                                     16
¶ 35   Further, as noted by the postconviction court, the provision

  limiting the tolling “not to exceed five years” prevents the statute’s

  purpose from being thwarted indefinitely. To the extent that

  Butler’s policy arguments may highlight shortcomings in the

  statute, that does not mean the result is absurd or illogical. “If a

  statute gives rise to undesirable results, the legislature must

  determine the remedy. Courts may not rewrite statutes to improve

  them.” Dep’t of Transp. v. City of Idaho Springs, 192 P.3d 490, 494

  (Colo. App. 2008) (citation omitted).

¶ 36   Finally, Butler argues that the trial court’s interpretation of

  “absent” should be rejected because the result of such an

  interpretation is unconstitutional. Butler did not, however, present

  any of his constitutional arguments to either the trial court or the

  postconviction court. Although we have the discretion to review

  unpreserved challenges to a statute’s constitutionality, we do so

  “only where doing so would clearly further judicial economy.”

  People v. Houser, 2013 COA 11. Because Butler did not raise his

  constitutional arguments until appeal of the postconviction ruling,

  and because he “does not explain, nor do we discern, how our

  addressing his . . . challenge could promote judicial economy,” we


                                     17
  decline to address the merits of his argument. See People In

  Interest of L.C., 2017 COA 82, ¶ 19.

¶ 37     Consequently, we, like the postconviction court, conclude that

  the applicable ten-year limitations period was tolled while Butler

  was in Minnesota.

           B.    Butler’s Prosecution Was Not Barred or Otherwise
       Subject to Reversal Because of Pleading and Proof Requirements

¶ 38     Butler asserts that the People were nonetheless required to

  plead and prove to a jury beyond a reasonable doubt the facts of the

  tolling exception. We perceive no grounds for vacating his

  convictions and sentences.

                     1.   Pleading the Tolling Exception

¶ 39     In Bustamante, 138 Colo. at 103, 329 P.2d at 1016, the

  supreme court said that

              time is material and must be alleged in an
              indictment or information when the crime
              alleged to have been committed is one which
              the statute of limitations bars from
              prosecution after the period prescribed. When
              the time so alleged shows on the face of the
              charge that it is barred by the statute of
              limitations, it is necessary that the indictment
              or information expressly allege one or more of
              the exceptions provided by the statute,
              otherwise the application of the statute is
              automatic.


                                     18
  See also id. (quoting with approval People v. McGee, 36 P.2d 378,

  379 (Cal. 1934), overruled on other grounds by Cowan v. Superior

  Court, 926 P.2d 438, 441 (Cal. 1996), for the proposition that

  “where the pleading of the state shows that the period of the statute

  of limitations has run, and nothing is alleged to take the case out of

  the statute, for example, that the defendant has been absent from

  the state, the power to proceed in the case is gone”).

¶ 40   Butler argues that the prosecution’s failure to plead his

  absence from the state in the information deprived the court of

  jurisdiction to proceed. This follows, he says, because without such

  an allegation, the information on its face described offenses

  committed beyond the applicable ten-year limitation period. Under

  the circumstances of this case, we must disagree.

¶ 41   At the time Butler was charged, the charges appeared timely

  on their face. Per the 2002 amendment to the statute of limitations,

  the limitations period was ten years after the victim reached age

  eighteen, or, as applicable here, 2008. Inasmuch as Butler was

  charged in 2007 — when the victim in this case was twenty-seven

  (and thus, within ten years after reaching age eighteen) — the



                                    19
  charges, on their face, appeared to fall squarely within the

  limitations period. Only now, in hindsight (i.e., since Summers was

  decided), is it apparent that the limitations period for Butler’s

  charges was governed by the straightforward ten-year period

  provided in the statute of limitations in effect from 1992 through

  1995.

¶ 42   Moreover, the People argued as an alternative ground that the

  case was, in any event, timely brought because whatever

  limitations period applied was tolled while Butler was absent from

  the state of Colorado. Because the court denied Butler’s motion “for

  the reasons cited by the prosecution” (emphasis added), the court

  implicitly adopted both of the People’s positions. The court’s

  adoption of the People’s first position (i.e., the applicability of the

  2002 amendment to the statute of limitations) made superfluous,

  however, any apparent need to plead Butler’s absence from the

  state as a ground for tolling the applicable limitations period.

¶ 43   Butler asserts that, regardless of what was apparent in 2007,

  there can be no question now that the 2002 amendment to the

  statute of limitations was inapplicable to his case and that the

  information does not allege facts (i.e., his absence from the state)


                                      20
  that would have brought his case within the applicable ten-year

  statute of limitations. Consequently, he insists, the case must be

  dismissed.

¶ 44   The supreme court has held that a trial court has jurisdiction

  to consider — and grant — a Crim. P. 7(e) motion to amend an

  information to bring the alleged offenses within the period

  prescribed by the statute of limitations. People v. Bowen, 658 P.2d

  269, 270 (Colo. 1983); see also Cervantes v. People, 715 P.2d 783,

  786 (Colo. 1986) (“Crim. P. 7(e) is to be construed liberally to avoid

  the dismissal of cases for technical irregularities in an information

  that can be cured through amendment.”); People v. Metcalf, 926

  P.2d 133, 139 (Colo. App. 1996) (recognizing that “[t]he Bowen

  court held that a trial court may permit the amendment of an

  information to allege that an offense occurred within the period of

  limitations”).

¶ 45   Here, we perceive the substance of the second part of the

  prosecution’s pretrial response to Butler’s motion to dismiss as the

  functional equivalent of a request, if necessary, to amend the

  information to cure the jurisdictional defect, as was the case in

  Bowen, 658 P.2d at 270, by including an “exception,” i.e., Butler’s


                                    21
  absence from the state. Because such an amendment would not

  have charged a different offense or prejudiced Butler’s substantial

  rights, it would have been permissible. See Metcalf, 926 P.2d at

  139.

¶ 46     We acknowledge that the prosecution did not expressly make,

  nor did the trial court expressly grant, a motion to amend the

  information, but the court accepted the People’s tolling position and

  undoubtedly would have done what was necessary to implement it

  had the court realized that the People’s initial position was

  erroneous. What would have been necessary, in that event, would

  have been an amendment to the information.

¶ 47     In our view, the court’s ruling, slim as it was, was sufficient to

  credit the tolling rationale as a basis for its jurisdiction, and the

  court was not deprived of jurisdiction simply because it did not then

  require that the information be amended accordingly. Because the

  court’s ruling on the tolling ground could only be given effect, if

  necessary, by approving an amendment to the information, we

  construe the court’s action as having had that effect. See Grynberg

  v. Karlin, 134 P.3d 563, 567 (Colo. App. 2006) (finding that a

  district court, despite failing to expressly grant or deny defendant’s


                                      22
  motion, implicitly denied the motion because it “considered and

  discussed the motion during the hearing, and . . . denial of that

  motion was an inevitable corollary of the court’s [other] ruling[s]”);

  see also Zoline v. Telluride Lodge Ass’n, 732 P.2d 635, 638 (Colo.

  1987) (discussing cases from other jurisdictions that have adopted

  the same rule that “the determination of a motion need not always

  be expressed but may be implied”) (citation omitted).

¶ 48   Thus, we conclude that, under the circumstances here, the

  prosecution’s failure to plead Butler’s absence from the state did

  not deprive the court of jurisdiction to proceed.

                     2.   Proving the Tolling Exception

¶ 49   If a trial court’s jurisdiction depends on the resolution of

  disputed facts, the issue should be submitted to the jury with an

  appropriate instruction unless the “uncontested facts

  overwhelmingly support jurisdiction.” People v. Cullen, 695 P.2d

  750, 751 (Colo. App. 1984). Consistent with this rule, a trial court

  can resolve a statute of limitations tolling issue prior to trial,

  without submitting it to a jury, if it can be decided based on

  undisputed facts. Cito, ¶¶ 29-32.




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¶ 50   Here, Butler argues that the facts were disputed regarding

  whether he was “absent” in fact and law from the state. The fact of

  Butler’s incarceration in Minnesota was not disputed; only the legal

  significance of this fact. Thus, the determination of whether this

  constituted being “absent” under the statute was a legal

  determination for the court to make based on undisputed facts.

¶ 51   To the extent that Butler argues a jury determination was

  required under Apprendi v. New Jersey, 530 U.S. 466 (2000), we

  disagree. The rationale in Apprendi applies to elements of a crime

  or to sentencing factors which are the functional equivalent of

  elements of a crime. See id. at 510. Butler cites no authority for

  the proposition that a statute of limitations is either. And, indeed,

  it appears it is not. See, e.g., People v. Linder, 42 Cal. Rptr. 3d 496,

  502-03 (Cal. Ct. App. 2006) (the Apprendi line of cases does not

  apply because a statute of limitations is not an element of an

  underlying charge, and extending a limitations period does not

  increase a defendant’s punishment).

                             IV.   Conclusion

¶ 52   The order is affirmed.

       JUDGE FOX and JUDGE PLANK concur.


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