                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     November 14, 2017
               Plaintiff-Appellee,

v                                                                    No. 333613
                                                                     Jackson Circuit Court
JAMES FRANCIS RAPP,                                                  LC No. 15-004521-FC

               Defendant-Appellant.


Before: M. J. KELLY, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.

PER CURIAM.

        Defendant appeals by right1 his convictions, following a no contest plea, of three counts
of first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(b), and three counts of
second-degree criminal sexual conduct (CSC II), MCL 750.520c(1)(c). The trial court sentenced
defendant to concurrent terms of 240 to 480 months’ imprisonment for the CSC I convictions
and 120 to 180 months’ imprisonment for the CSC II convictions. We affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        Defendant was an ordained Catholic priest who served also as a teacher, maintenance
supervisor, and wrestling coach at Lumen Christi Catholic High School (Lumen Christi) in
Jackson, Michigan from 1981 to 1986. Defendant resigned from Lumen Christi on February 17,
1986. Defendant left the State of Michigan that year, and was officially placed on “sabbatical”
status by the Catholic Church; however, defendant actually spent from September 8, 1986 to


1
  Our constitution currently provides that an appeal from a plea of guilty or no contest shall be by
leave granted. See Const 1963, art 1, § 20; see also MCR 7.203(B). However, before its
amendment in 1994, our constitution provided persons who pleaded guilty or no contest an
appeal by right. See Const 1963, art 1, § 20 (before amendment by 1994 PA 374, effective
November 27, 1994). The offenses to which defendant pleaded no contest occurred before the
1994 amendment; therefore, defendant is entitled to an appeal by right from his sentences. See
People v Kaczmarek, 464 Mich 478, 482; 628 NW2d 484 (2001) (noting that the amendment
applies to “criminal prosecutions for crimes committed on or after” the effective date of the
amendment).


                                                -1-
October 8, 1986 in a residential mental health treatment facility for priests in Suitland, Maryland.
Defendant then received in-patient therapy at a facility in California until June 1987. Defendant
was apparently diagnosed with and treated for “ephebophilia.”2 Following his release from these
facilities, he was assigned by the Church to positions in various states, including serving as a
priest and teacher from 1990 to 1998 in Duncan, Oklahoma. On December 17, 1999, defendant
was arrested in Oklahoma and soon thereafter was convicted under a plea agreement of two
counts of lewd molestation of adolescent male victims. Defendant was sentenced to 20 years’
imprisonment.

        In the spring of 2013, two other men independently reported to the Jackson County
Sheriff’s Department that defendant had sexually assaulted them while he was their teacher at
Lumen Christi. At the time of the sexual assaults, both of these victims were 15 years old.
Further investigation revealed several other victims who alleged that defendant had also
assaulted them during the period in which he was employed at Lumen Christi. On May 20,
2015, defendant was extradited to the State of Michigan and charged with 19 counts of criminal
sexual conduct.

        Defendant moved to dismiss the charges, arguing that they were barred by the six-year
statute of limitations that was in effect at the time the criminal acts were committed. He
contended that applying an amended statute of limitations3 to his case violated the Ex Post Facto
Clause of the United States Constitution4 and the Michigan Constitution. 5 Additionally,
defendant argued that he was prejudiced by the 29-year delay between the acts charged and his
arrest. The trial court denied defendant’s motion to dismiss the charges, holding that the
limitation period was tolled during the period in which defendant did not reside in the State of
Michigan, and rejected defendant’s prearrest delay argument, holding that defendant had failed
to show that the delay had caused him to suffer actual and substantial prejudice.

        Thereafter, the parties reached an agreement under which defendant entered a plea of no
contest to three counts of CSC I and three counts of CSC II, and agreed to a prison sentence of
20 to 40 years. During the plea hearing, the parties stipulated that three instances of CSC I and




2
  The term “ephebophilia” denotes a preference for post-pubescent adolescent sexual partners.
See Terry, Sexual Offenses and Offenders: Theory, Practice, and Policy (Boston: Cengage
Learning, 2d ed, 2013), 49. Ephebophilia is not included as a disorder in the Diagnostic and
Statistical Manual of Mental Disorders, Fifth Edition (DSM V) issued by the American
Psychiatric Association. See id.
3
  The statute had been amended to eliminate a statute of limitations for CSC I and to lengthen the
statute of limitations for CSC II.
4
    US Const, art I, § 10.
5
    Const 1963, art 1, § 10.


                                                -2-
three instances of CSC II had occurred between August 1, 1981 and February 28, 19866 at
Lumen Christi.

       Defendant was sentenced as stated. This appeal followed.

                               II. STATUTE OF LIMITATIONS

       Defendant argues that the charges against him were barred by the statute of limitations
and that the trial court therefore erred by denying his motion to dismiss. We disagree. 7 We
review for an abuse of discretion a trial court’s ruling on a motion to dismiss. People v
Nicholson, 297 Mich App 191, 196; 822 NW2d 284 (2012). An abuse of discretion occurs when
the “decision falls outside the range of principled outcomes.” Id. “A trial court necessarily
abuses its discretion when it makes an error of law.” People v Waterstone, 296 Mich App 121,
132; 818 NW2d 432 (2012).

        Absent waiver, “a defendant may not be charged with or . . . tried on [a] time-barred
offense.” People v Burns, 250 Mich App 436, 442; 647 NW2d 515 (2002). In a criminal case, a
statute of limitations defense is “a nonjurisdictional, waivable affirmative defense.” Id. at 439.

         MCL 767.24 sets out various periods of limitation regarding when criminal charges may
be filed. In this case, the parties agreed that the charged offenses occurred between August 1,
1981 and February 28, 1986. At the time of the charged offenses, the applicable statute of
limitation for first-degree and-second-degree criminal sexual conduct crimes was “6 years after
the commission of the offense; but any period during which the party charged was not usually
and publicly resident within this state shall not be reckoned as part of the time within which the
respective indictments shall be found and filed.” MCL 767.24 (prior to amendment by 1987 PA
255) (emphasis added). Effective on March 30, 1988, the limitation period was expanded to “6
years after the commission of the offense or by the victim’s twenty-first birthday, whichever is
later” if the victim was under 18 years of age when the offense was committed. MCL 767.24(1)
(as amended by 1987 PA 255).8 After the 1987 amendment, MCL 767.24(1) also provided that
“any period during which the party charged did not usually and publicly reside within the state


6
  Defendant resigned from Lumen Christi in a letter dated February 17, 1986. It is not clear from
the record before this Court what the significance is of the February 28, 1986 date, apart from
representing the end date of the month of February 1986.
7
  Defendant arguably waived the right to assert a statute of limitations defense by entering an
unconditional no contest plea. See People v Allen, 192 Mich App 592, 602; 481 NW2d 800
(1992). However, because this issue impacts defendant’s claim for ineffective assistance of
counsel, and the issue is one of law for which the necessary facts have been presented, we will
nonetheless review the issue. See People v Giovannini, 271 Mich App 409, 414-415; 722 NW2d
237 (2006).
8
  “The Legislature’s intent in amending the statute was to provide added protection to minor
victims of sexual assaults” who “do not speak out until after a six-year period of limitation has
run,” as well as to facilitate the prosecution of CSC offenders. Budnick, 197 Mich App at 24-25.


                                               -3-
shall not be considered part of the time within which the respective indictments shall be found
and filed.”

        Effective May 2, 2001, the statute was again amended to allow criminal prosecution for
first-degree criminal sexual conduct to be brought at any time. MCL 767.24(1) (as amended by
2001 PA 6). The amended statute permitted charges for second-degree criminal sexual conduct
to be filed “ten years after the offense is committed or by the alleged victim’s twenty-first
birthday, whichever is later.” MCL 767.24(2)(a).9

        An amendment to a criminal statute generally may not “revive . . . charge[s] for which
the limitations period had already run.” See People v Blackmer, 309 Mich App 199; 870 NW2d
579 (2015). However, a statute of limitations does not run during a period in which it was tolled
for nonresidence. Id. The assaults in this case occurred between August 1, 1981 and
February 28, 1986 at Lumen Christi. The records in this case established that defendant “was not
usually and publicly resident within” the State of Michigan from, at the latest, September 8, 1986
to May 20, 2015, at which time he was extradited to Michigan to face the charges in this case.
Because defendant was not a resident within the State of Michigan from September 8, 1986 to
May 20, 2015, the limitations period was tolled for that time and the six-year limitations period
had not run when defendant was charged. Accordingly, the trial court did not abuse its discretion
by denying defendant’s motion to dismiss.

        Defendant also argues that his involuntary residence in Oklahoma by virtue of
incarceration should not toll the statute of limitations. This Court rejected a similar argument in
Blackmer, 309 Mich App at 200, in which the defendant argued that because he was incarcerated
in the State of Indiana, the statute of limitations had not been tolled for crimes that had occurred
in the State of Michigan. Id. at 200. This Court rejected that argument, holding that the plain
statutory language of MCL 767.24 provides that the statute of limitations is tolled when the
defendant lives outside of the State of Michigan, whether voluntarily or otherwise. Id. at 201-
202. The fact that defendant was incarcerated outside the State of Michigan for other criminal
actions and therefore was unable during that time to return to the State of Michigan is irrelevant.
The statute of limitations was tolled during the period of his nonresidence, and the trial court did
not err by declining to dismiss the charges against defendant on this ground.

                                   III. PREARREST DELAY

       Defendant further argues that the charges against him should have been dismissed on due
process grounds because of the delay in his arrest. We disagree. “A challenge to a prearrest
delay implicates constitutional due process rights, which this Court reviews de novo.” People v
Cain, 238 Mich App 95, 108; 605 NW2d 28 (1999).




9
  Although there have been subsequent amendments to MCL 767.24 in 2002, 2004, 2005, 2011,
and 2012, they did not affect the applicable statute of limitation for criminal sexual conduct
crimes.


                                                -4-
        “Michigan applies a balancing test to determine if a prearrest delay requires reversing a
defendant’s conviction because the state may have an interest in delaying a prosecution that
conflicts with a defendant’s interest in a prompt adjudication of the case.” Id. at 108. This Court
has adopted a three-part analysis in determining whether a prearrest delay requires reversal on
due process grounds:

         [I]n order to establish a due process violation in the context of prearrest delay a
         defendant must first demonstrate prejudice. The prosecutor then bears the burden
         of persuading the court that the reason for the delay was sufficient to justify
         whatever prejudice results. In evaluating the reason for the delay, the court may
         consider the explanation for the delay, whether the delay was deliberate, and
         whether undue prejudice attached to the defendant. [Id. at 109 (quotation marks
         and citations omitted).]

A defendant must show “actual and substantial prejudice,” which “requires more than
generalized allegations.” People v Patton, 285 Mich App 229, 237; 775 NW2d 610 (2009).

        Defendant argues that the prearrest delay deprived him of the ability to show, by way of
documentary evidence, that the allegations were untrue and that he was not “present at the
specific location on the specific date of the alleged events.” But defendant does not specifically
identify any documentary evidence that would have established an alibi for him. Defendant thus
has failed to articulate any actual and substantial prejudice resulting from the prearrest delay.
Merely alleging the existence of documentary evidence that may have exonerated him is not
sufficient. Patton, 285 Mich App at 237.10

                        IV. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant also argues that his trial counsel was ineffective for securing an unconditional
plea because the plea waived an appealable statute of limitations issue. Defendant neither raised
this issue before the trial court in a motion for a new trial nor requested a Ginther11 hearing; our
review therefore is limited to mistakes apparent from the record. People v Heft, 299 Mich App
69, 80; 829 NW2d 266 (2012).

        A criminal defendant has the fundamental right to the effective assistance of counsel.
United States v Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657 (1984). To establish
ineffective assistance of counsel, the defendant must show that: (1) counsel’s performance “fell
below the objective standard of reasonableness” under the prevailing professional norms, and (2)



10
  Defendant also contends that there was no reason for the delay because one of the victims filed
a civil complaint against him and the church in the mid-1990s. Defendant’s argument that the
local authorities were aware of the criminal assaults in the mid-1990s is not supported by the
record, but even presuming for the sake of argument that it were true, defendant has still failed to
establish actual and substantial prejudice.
11
     People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                 -5-
there is “reasonable probability that, but for the counsel’s unprofessional error, the result of the
proceeding would have been different.” People v Toma, 462 Mich 281, 302-303; 613 NW2d 694
(2000) (quotation marks and citation omitted); see also People v Hoag, 460 Mich 1, 6; 594
NW2d 57 (1999). In order to meet the second requirement, a defendant must show that
counsel’s error was so serious that it deprived the defendant of a fair trial. People v LeBlanc,
465 Mich 575, 578; 640 NW2d 246 (2002).

        Counsel is not ineffective for failing to raise futile or meritless objections. People v Buie,
298 Mich App 50, 66; 825 NW2d 361 (2010). For the reasons described earlier in this opinion,
defendant’s motion to dismiss was properly denied by the trial court. Even if defendant had
entered a conditional plea that would have allowed for an appeal of the statute of limitations
issue, the result would have been the same. Accordingly, defendant has not demonstrated that he
was provided with ineffective assistance of counsel.

                                          V. SENTENCE

        Defendant also contends that his maximum sentence of 40 years’ imprisonment was
unreasonable and disproportionate. This Court reviews the sentence imposed on a defendant for
an abuse of discretion. Cain, 238 Mich App at 130. “[A] given sentence can be said to
constitute an abuse of discretion if that sentence violates the principle of proportionality, which
requires sentences imposed by the trial court to be proportionate to the seriousness of the
circumstances surrounding the offense and the offender.” People v Milbourn, 435 Mich 630,
636; 461 NW2d 1 (1990). “A defendant who pleads nolo contendere with the knowledge of the
sentence, who later seeks appellate sentence relief . . . must expect to be denied relief on the
ground that the plea demonstrates the defendant’s agreement that the sentence is proportionate to
the offense and the offender.” People v Cobbs, 443 Mich 276, 285; 505 NW2d 208 (1993); see
also People v Wiley, 472 Mich 153, 154; 693 NW2d 800 (2005).

        In this case, defendant pleaded to the charges and agreed to a prison sentence of 20 to 40
years. Therefore, defendant waived any appellate review of the sentence and may not argue on
appeal that his agreed-upon sentence was disproportionate. Id.

       Affirmed.



                                                              /s/ Michael J. Kelly
                                                              /s/ Amy Ronayne Krause
                                                              /s/ Mark T. Boonstra




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