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                                                                                      1114 MAR I I        AID R: '   iq

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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II


STATE OF WASHINGTON,                                                        No. 43040 -1 - II


                                Respondent,


       u



JOHNNIE GERARD BROWN,                                               UNPUBLISHED OPINION




        JOHANSON, J. —        Johnnie G. Brown appeals his jury conviction of one count of bail

jumping.    He argues that we should reverse his conviction because the criminal statute of

limitations -is jurisdictional -and- the three- year --
                                                      statute - of limitations expired. before_the -State_

commenced     prosecution.      We conclude that the criminal statute of limitations is not

jurisdictional, and remand to the trial court for an evidentiary hearing to determine if the statute

of limitations has expired.


                                                   FACTS


        In 2001, the State    charged   Brown     with   three   counts   of child rape and     incest.   State v.


Brown, _     Wn.   App. ,      312   P. 3d   1017, 1019 ( 2013).   1 After an initial jury venire was called


1 On November 19, 2013, we published an opinion affirming his convictions but vacating his
sentence because the trial court failed to consider a presentence report mandated by former RCW
9. 94A. 110 ( 2000). We     remanded   for resentencing. Brown, 312 P. 3d 1017.
No. 43040 -1 - II



and sworn in, Brown failed to appear for a subsequent court date and the trial court- issued a

warrant   for his    arrest    on   May   6, 2002.           Brown, 312 P. 3d             at   1019.   Brown was tried in absentia


and convicted on all three counts. Brown, 312 P. 3d at 1019.


          In August 2011, Brown was found in another state and extradited to Washington for

sentencing.       Brown, 312 P. 3d         at       1018 -19.        In early September, Brown appeared before Judge

Orlando     for sentencing. The State asked Judge Orlando to arraign Brown on. one count of bail


jumping, filed that day under a separate cause number, for failure to appear in court in May
2002. Richard Whitehead from the Department of Assigned Counsel ( DAC) was present, but he

                                                                                3
was not assigned or retained              to    represent          Brown.            Referring to the new bail jumping charge,

Whitehead     noted     that   he "   expect[ ed]'         the     statute      of   limitations ha[ d]   run   on   that."   Report of


Proceedings ( RP) ( Sept. 2, 2011)                   at    10.    Judge Orlando responded, "              It' s probably three years

from the time        you' re   found, as       opposed           to if   you are      absconding.      I think it would seem to toll


the   statute."      RP ( Sept. 2, 2011)              at    10 -11.       Brown was sentenced for the rape and incest


convictions.       Brown, 312 P. 3d            at    1019.        Judge Orlando declined to arraign Brown on the bail




          On September 6, Brown, now represented by Whitehead, appeared before Judge Steiner

for arraignment; without objection to lack of jurisdiction or on the basis of the statute of

limitations, Brown        pleaded not          guilty.           On October 10,          an omnibus order was entered.           In the


 omnibus order, Brown did not indicate his intent to raise subject matter jurisdiction or the statute



 2
     Judge Orlando       presided     over          Brown' s 2002 trial.                He also testified in Brown' s later bail
jumping     trial.   Because there. are several judges referred to in the record, we refer to each judge
by name for clarity.

 3 He later filed a notice of appearance in the case on September 8, 2011.

                                                                          Oil
No. 43040 -1 - II



of   limitations,     and      the line for " OTHER PRE -TRIAL MOTIONS"                     was   left blank.   Clerk' s


Papers ( CP) at 124.


         In early December, Judge, Cuthbertson heard pretrial motions for Brown' s bail jumping

trial.   Whitehead           represented     Brown.    Whitehead moved to dismiss the bail jumping charge as

violating CrR 4. 3( b),         the mandatory joinder rule. Judge Cuthbertson denied the motion.
                                                                         4
          Trial    on   the bail       jumping    charge   was   brief.      On the second day of trial, Whitehead

notified the State that he intended to call a witness who had seen Brown in Pierce County in

2008.    The State           argued   that Brown'    s witness   had   no relevant   testimony. Whitehead responded


that the testimony was relevant because the case was over nine years old, and the State was

required     to   prove at      trial why the     statute of   limitations had tolled    and not expired.   Whitehead


explained, "      I raised this at Mr. Brown' s arraignment up in Judge Felnagle' s Court on September

2nd."    RP ( Dec. 8, 2011)            at   17. He then corrected himself that it was Judge Orlando' s court, not


Judge Felnagle'         s.    The State argued that the statute of limitations was a legal issue that Judge

Orlando already          ruled on      at Brown' s    arraignment,    5 and the superior court' s ruling was the law of
             6—
the- case.        Judge -Cuthbertson- ruled-thatBrovM' switness- had - ot-been -timely disclosed; -stated - - -- -- --- -- - --
                                             -                       n



4 Because the substantive facts are not relevant to the arguments made on appeal, we do not
recount those facts here.

 5
  This appears to be a misstatement. Judge Orlando presided over Brown' s sentencing hearing
for his rape ana incest convictions when the State asked him to arraign Brown on the bail
jumping. But Judge Orlando specifically declined to arraign Brown and instead Judge Steiner
 later presided over the arraignment.


 6 The prosecutor was not the same prosecutor who had appeared for Brown' s hearing on
 September 2 in front of Judge Orlando, so he apparently did not know exactly what had
 transpired:
                        State]:       If Superior Court has made a ruling on it, which they obviously
          have because we are all here right now, then I think it' s the law of the case, and I
                                                                                '
          don' t see that this witness has any relevance for the jury. Certainly, he could
                                                                  3
No. 43040- 1- 11



Brown' s whereabouts were not relevant, and granted the State' s motion to exclude the witness.


After additional argument, Judge Cuthbertson responded that Judge Orlando had already ruled

on the jurisdictional issue.


        Whitehead did not call any witnesses at trial, but did make an offer of proof of Brown' s

whereabouts      during   the time   period   at   issue.   The next morning, the jury returned a guilty

verdict.




           That same day, Whitehead filed a motion to dismiss for lack of jurisdiction, arguing that

the statute of limitations of three years for bail jumping had expired, the statute of limitations in a

criminal case was jurisdictional, and the State bore the burden of establishing that sufficient time

had tolled. The parties argued the motion at sentencing a few months later. The court implicitly

denied the motion and sentenced Brown. Brown appeals.

                                                    ANALYSIS


           Brown argues that his conviction must be reversed because the three -year statute of

limitations is jurisdictional, and the State failed to meet its burden to prove that the statute had

been- tolled.-   The Stateargues -
                                 that _
                                      the-statute- of l-
                                                       imitations is not jurisdictional, prior -
                                                                                               Court -o--- --- - - - - --

Appeals     cases   that hold contrary   are erroneous, and     the   statute was   tolled   in Brown' s   case.   We


agree with the State that the statute of limitations is not jurisdictional, but we remand for an

evidentiary hearing to determine whether the statute of limitations had tolled.




            file] a declaration that would probably be something that an appellate court could
           use on the issue of the Statute of Limitations, which Mr. Whitehead has raised.
 RP ( Dec. 8, 2011) at 18.

                                                            0
No. 43040 -1 - II



                                                      STANDARD OF REVIEW


         We review de novo questions of a court' s subject matter jurisdiction and pure questions

of   law. State     v.   Peltier, 176 Wn.       App.     732, 737   n. 6,   309 P. 3d 506 ( 2013) (   citing Robb v. City of

Seattle, 176 Wn.2d 427, 433, 295 P. 3d 212 ( 2013);                     Cole v. Harveyland, LLC, 163 Wn. App. 199,

205, 258 P. 3d 70 ( 2011)), review granted, No. 89502 -3 ( Wash. Feb. 5, 2014).


                                                           DISCUSSION


         The statute of limitations for criminal cases is found in RCW. 9A.04. 080, which provides,

             1) Prosecutions for criminal offenses shall not be commenced after the periods
         prescribed in this section.


                         h)   No other felony may be prosecuted more than three years after its
         commission....

                         2)   The periods of limitation prescribed in subsection'( 1) of this section
         do not run during any time when the person charged is not usually and publicly
         resident within this state.


Subsection ( 2) is known            as   the   tolling   provision.     State v. Willingham, 169 Wn.2d 192, 194 -95,

234 P. 3d 211 ( 2010).


         Bail jumping falls under RCW 9A.04.080( 1)( h) because it is a felony and is not otherwise

provided      for in the      statute.   See   also   RCW 9A.76. 170. Here, the State' s information alleged that


Brown jumped bail in                May    2002.         Therefore, Brown' s bail jumping charge could not be

prosecuted later than May 2005 unless the statute of limitations had tolled.

                              A. THE STATUTE OF LIMITATIONS IS NOT JURISDICTIONAL

          Brown argues that we must dismiss the charges because the statute of limitations is

jurisdictional; absent proof that the statute was tolled, the superior court.did not have jurisdiction

 and   his   case    must      be dismissed       with    prejudice.        We follow Division One of this court and


 acknowledge that the state constitution grants superior courts original jurisdiction over criminal



                                                                    5
No. 43040 -1 - II



felony   matters, and a statute cannot             defeat       what   the   constitution grants.      Accordingly, we agree

that the criminal statute of limitations is not jurisdictional.

         In Peltier, Division One explained,


                    For over 30 years, Washington' s Courts of Appeal have consistently held
         that the expiration of a statutory limitation period, in a criminal case, deprives the
         trial   court    of subject matter         jurisdiction       over    that controversy.        The trial court

         understandably followed this authority in ordering the                          case   dismissed. However,
         an opinion of our Supreme Court, issued 13 years ago [ In re Personal Restraint of
         Stoudmire, 141 Wn.2d 342, 5 P. 3d 1240 ( 2000)], indicates that the holdings of
         these    appellate       court    cases    are    no    longer      viable.    Nevertheless, in that same
         opinion, our Supreme Court made clear that a superior court judge has no
         authority to sentence a defendant and enter judgment in a criminal case in which
         the statutory limitation           period expired        before the        charge was    brought.      Thus, we
         affirm the order of dismissal, albeit on a different basis than that relied upon by
         the trial court.


176 Wn.      App.    at   737.     Division One           explained        the Stoudmire    case: "    Put simply, Stoudmire

claimed that, because the applicable statutory limitation period had expired prior to him being

charged with indecent liberties, the superior court had lost subject matter jurisdiction over the

charges and was, therefore, not a court of competent jurisdiction when he was sentenced and

judgment      entered."          Peltier,    176 Wn.        App.       at    742.      The Supreme Court has disagreed,


explaining,


                     A court does not lack subject matter jurisdiction solely because it may
           lack authority to        enter    a    given    order.      A court has subject matter jurisdiction
           where the court has the authority to adjudicate the type of controversy in the
           action, and it does not lose subject matter jurisdiction merely by interpreting the
           law erroneously."

Peltier,    176 Wn.        App.     at    743 (   citations     omitted) (     quoting Stoudmire,         141   Wn.2d at 353).


 Because the state constitution gives superior courts original jurisdiction in felony cases, superior

 courts have subject matter jurisdiction over all felony proceedings; a statute, such as a statute of

 limitations,    cannot    take away that jurisdiction. Peltier, 176 Wn.                   App.   at   743 -45. Instead, when a




                                                                       0
No. 43 040 -1 - II



statute of limitations runs, the court no longer has statutory authority to enter a judgment or
                                          7
sentence against      the   defendant.        Peltier, 176 Wn. App. at 750. The Peltier court determined that

the statute of limitations does not present a jurisdictional issue. Peltier, 176 Wn. App. at 747.

          Peltier and Stoudmire make clear that the statute of limitations is not a jurisdictional issue

in Washington. Because the statute of limitations is not a jurisdictional issue, we next consider


the appropriate remedy here.

                                                       B. REMEDY


          Brown asks us to dismiss his. conviction because the State failed to prove at trial that the

statute   of   limitations    was   tolled.     The State asks us to remand for an evidentiary hearing on

tolling of the statute of limitations. Remand is the appropriate remedy here.

          In State    v.    Walker, 153 Wn.         App.   701,   708, 224 P. 3d 814 ( 2009), the record was


incomplete because neither party had the opportunity to present evidence at the superior court

about whether        the   statute of   limitations had    run.   Division Three explained that while typically


the remedy would be for a defendant to bring a personal restraint petition, it believed that remand
for the superior courtto-consider the -
                                      statute of limitations- challenges- was -
                                                                              the most-efficient-use - - - -

 of judicial resources.       Walker, 153 Wn. App. at 709 ( citing RAP 7. 38). 9


7 The Peltier court discussed that a statute of limitations argument is not waived because if the
statute of limitations has expired, then the superior court has lost its statutory authority to enter
judgment in that case. 176 Wn. App. at 749 -50. Likewise, Brown has not waived his statute of
 limitations argument here.

 8
     RAP 7. 3     provides, "   The appellate court has the authority to determine whether a matter is
 properly before it, and to perform all acts necessary or appropriate to secure the fair and orderly
 review of a case.         The Court of Appeals retains authority to act in a case pending before it until
 review is accepted by the Supreme Court, unless the Supreme Court directs otherwise."
 9
     It further   explained   that "[   t]he trial court shall grant the parties a reasonable time to gather and
 present evidence on the issue of whether Mr. Walker was not `publicly and usually resident' in
                                                              7
No. 43040 -1 - II



          Here, the record shows that Judge Cuthbertson mistakenly believed that Judge Orlando

had previously       ruled on    the    tolling    of    the   statute      of    limitations.   After argument from counsel


regarding the statute of limitations, Judge Cuthbertson responded that Judge Orlando had already

ruled on the jurisdictional issue. But the record shows that no evidentiary hearing was held, and

Judge Orlando did not rule on the tolling.of the statute of limitations. At Brown' s first scheduled

sentencing hearing on the child sex offense convictions regarding the newly - iled bail jumping
                                                                            f

offense,   Judge Orlando        noted        that "[   the statute of limitations is] probably three years from the

time you' re found, as opposed to if you are absconding. I think it would seem to toll the statute."

RP ( Sept. 2, 2011)      at   10 -11.    But this        was    simply        a   passing   comment.     The sentencing hearing

ended without further discussion of the statute of limitations and there were no further hearings

in front    of   Judge Orlando          on    the issue.        Based on the record, the trial court was under the

                                                                                                        io
erroneous       belief that Judge Orlando had             made a prior            controlling ruling.


          We     agree with    Walker'       s rationale   regarding          remand.       Because we are an error -correcting


court, and there is no ruling on the tolling of the statute of limitations for us to review, we

remand -to the superior -
                        court foran evidentiary- hearing -to -determine -whether -the -statute- of - - - -

limitations was tolled.




Washington during the charging period and enter appropriate findings of fact and conclusions of
 law,   which should     be transmitted to this                court.       If the court dismisses any counts, Mr. Walker
 should    be   resentenced and     any       aggrieved        party    can   file   a new appeal   from that judgment. If the

trial court does not grant any relief, Mr. Walker' s counsel can seek permission by motion to brief
 any    challenges   to the   court' s   findings       and conclusions."             Walker, 153 Wn. App. at 709 ( footnote
 omitted).



 io After some confusion at the trial level, the parties agree on appeal that Judge Orlando did not
 previously rule on the tolling of the statute of limitations.
                                                                        8
No. 43040 -1 - II



                                                           BURDEN OF PROOF


           Both   parties ask      this   court    to   provide procedural guidance on remand.                      Because this issue


has not been fully briefed by both parties, we are reluctant to do so, and we lack a ruling to

review.




           The parties argue that a threshold question is whether the State bears the burden to prove

that the   statute was        tolled.     Brown argues that because the statute of limitations is jurisdictional,


the State bears the burden to               prove       jurisdiction     at   trial.   But we rejected Brown' s argument that


the statute of limitations is jurisdictional, and Brown presents no alternative argument. The State

argues that the statute of limitations is not . urisdictional but instead is an affirmative defense.
                                              j

Therefore,      according to the State, Brown should bear the burden to prove the, statute of

limitations has expired. But Brown neither briefed nor discussed who has the burden of proof in

the     event   we   determined that the                 statute    of   limitations is        not   jurisdictional.       Because this


important issue is          neither     directly   before    us (   there has been        no   ruling   at   the trial   court   level),   nor




has it been fully briefed by both parties, we decline to fully address who bears the burden to

prove tolling under - CW 9A-. 4-. 80. - - - - -- _ -- - -- — - -_-
                    R       0 0

           RCW 9A.04. 080 does not assign the burden of establishing whether the statute was, or

was not,     tolled.        Walker, 153 Wn.         App.     at   706.   In Walker, Division Three of this court held the


proponent of an exception to the statute should bear the burden of proving that the exception

 exists.    153 Wn.         App.   at   707.     But the    court noted, "        That is especially the case where, as here,

 that   exception      is   critical    to the   court' s   jurisdiction."             Walker, 153 Wn. App. at 707 ( emphasis

 added).    Therefore, the court concluded that when a statute of limitations issue is raised, the State

 bears the burden of establishing that sufficient time is tolled to permit the prosecution to proceed.

 Walker, 153 Wn. App. at 707.

                                                                         0
No. 43040 -1 - II



           The State argues that we should disagree with Walker and hold that the defendant has the

burden of proving that he was not usually and publicly a resident within this state because other

jurisdictions have apparently done                so.   The State   explains   that "[   i]mposing the burden on the

State would have the absurd result of nullifying the tolling provision in the majority of cases."

Br.   of   Resp' t   at   26.   It is   worth   noting- that Walker   was abrogated        in   part   by Peltier.   Peltier



disagreed with Walker' s underlying position that the statute of limitations is jurisdictional. Since

the ruling in Peltier, it is unclear whether the Walker court will continue to place the burden of

proving     a nonjurisdictional statute of          limitations   exception on   the State.      We refrain from giving

an advisory opinion on this issue for the reasons given above.

           We remand for proceedings consistent with this opinion.


           A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.

                                                                                                             0




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