IN CLERKS OFFICE                                  This opinion was filed for record
                                             at    tf: UO~         on   OJ 2->l 22Jy
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                                                      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
