                                                                                                         FILED
                                                                                                 COURT OF APPEALS
                                                                                                       DIVISION II

                                                                                                2015 JAN 2 I     All 9: 06
                                                                                                S TA

                                                                                                 BY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                 DIVISION II

 In re the Personal Restraint Petition of                                             No. 45862 -4 -II


 JERRY LEE SWAGERTY,


                                       Petitioner.


                                                                                UNPUBLISHED OPINION




           MELNICK, J. —         Jerry L. Swagerty seeks relief from personal restraint imposed after he

pleaded guilty by amended information to rape of a child in the third degree, luring, burglary in

the second degree, and intimidating a witness. In his initial petition, Swagerty argued that he was

entitled   to   relief   because ( 1) his   sentence   is   erroneous, (   2) he received ineffective assistance of


counsel, (   3) the prosecuting attorney committed misconduct, and ( 4) judicial prejudice occurred.

We requested additional briefing that addressed the statutes of limitations governing the amended

charges.     We find this issue dispositive and vacate and remand for dismissal of the convictions.

For this incident, the State may        refile charges      for   which   the   statute of   limitations has   not run.
No. 45862 -4 -II



                                                        FACTS


           On May 22, 2012, Swagerty was charged with rape of a child in the first degree and child

molestation in the first degree based on acts that occurred on or about February 14, 2004.

Deoxyribonucleic acid (DNA) testing of the victim' s underwear on April 11, 2012 established that

Swagerty had contact with her in 2004, when she was 10 years old. Because a conviction for rape

of a child in the first degree would be his third strike offense, Swagerty agreed to plead guilty on

January 4, 2013 to the amended charges of rape of a child in the third degree, luring, burglary in

the second degree, and intimidating a witness. 1 This plea allowed him to avoid a possible life

sentence as a persistent offender. Swagerty stipulated to offender scores of 9+ for his offenses and
to   an exceptional sentence of     30   years   that   ran   his individual   sentences   consecutively.   He then


filed this timely petition challenging his convictions.

                                                   ANALYSIS


           To be entitled to relief, a petitioner must show constitutional error that resulted in actual

and substantial prejudice or nonconstitutional error that resulted in a complete miscarriage of


justice. In    re   Cook, 114 Wn.2d 802, 810 -13, 792 P. 2d 506 ( 1990).           The possibility that Swagerty

was charged after the statutes of limitations for his offenses expired implicates the complete


miscarriage of justice standard. In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 355, 5 P. 3d




1
 Swagerty' s prior Washington convictions for robbery in the second degree ( two counts) and an
Oregon conviction for burglary in the first degree are also strike offenses. RCW 9. 94A.030( 32)( a),
    37)( a).



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No. 45862 -4 -II



1240 ( 2000).     This is because the expiration of the statute of limitations deprives a trial court of


authority to    permit prosecution or enter            judgment        on    the time -barred   offense.   Stoudmire, 141


Wn.2d at 355.


        In its supplemental response to this petition, the State concedes that the three -year statute


of limitations applicable to the amended charges of luring, burglary in the second degree, and

intimidating    a witness expired       before the       filing   of   the   amended   information in 2013. See RCW


9A. 04. 080( 1)( h). The State argues, however, that the statute of limitations has not yet run on the


amended charge of rape of a child in the third degree.


         When Swagerty allegedly committed his offenses in 2004, the three -year statute of

limitations    applied   to   rape of a child      in the third degree. Former RCW 9A. 04. 080( 1)( h) ( 1998).


A 2006 amendment postponed the running of the limitations period for sex offenses, including

rape of a child in the third degree, until one year from the date of the suspect' s identification by

DNA testing. LAWS OF 2006,             ch.   132, § 1;   see   former RCW 9. 94A. 030( 38) ( 2002) ( rape        of a child




in the third degree included in definition             of sex offense).        In 2009, the limitations period for child


rape and other sex offenses was further amended to allow prosecution up to the victim' s 28th

birthday and, in 2013, the limitations period was extended to the victim' s 30th birthday. LAws OF

2009,   ch.   61, § 1; LAWS     OF   2013,   ch.   17, § 1.


         A new limitations period applies to an offense if the prior period has not yet expired. State


v. Hodgson, 108 Wn.2d 662, 666 -67, 740 P.2d 848 ( 1987); State v. Sutherland, 104 Wn. App. 122,




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No. 45862 -4 -II



134, 15 P. 3d 1051 ( 2001).     Because the initial three -year statute of limitations that applied to rape


of a child in the third degree had not expired when the statute was amended in 2006, this and the


subsequent extensions of the limitations period apply to the charge facing Swagerty.

Consequently, the amended charge of rape of a child in the third degree was not barred by the

statute of limitations when the State filed it in 2013.


        Although the remaining amended charges were time barred, we reject Swagerty' s claim
that he is entitled to be resentenced for rape of a child in the third degree alone. We agree with the


State that his   plea was an   indivisible " package deal."   See State v. Turley, 149 Wn.2d 395, 400, 69

P. 3d 338 ( 2003) ( plea agreement is indivisible when pleas to multiple counts were made at the


same time, described in one document, and accepted in a single proceeding).

        The State contends that on remand, Swagerty may still plead guilty to the amended charges

as long as he agrees to waive the three -year statute of limitations that applies to all but the child

rape charge.     The Supreme Court recently explained, however, that a defendant may expressly

waive a criminal statute of limitations only if he agrees to do so before the statute of limitations

has run   on   the underlying   charge.   State v. Peltier, 181 Wn.2d 290, 298, 332 P. 3d 457 ( 2014).


Because the statute of limitations has expired on three of the charges to which Swagerty pleaded

guilty, he may not now waive that limitations period.




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No. 45862 -4 -II



         Accordingly, we must vacate Swagerty' s convictions and remand for entry of an order of

dismissal.   The State may then refile any charges for which the statute of limitations has not yet

expired.2

         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.




 We concur:



    w,
                    w
                                  C
   JHANSON, C. J.




2 The statute of limitations has not yet run on Swagerty' s original charges of rape of a child in the
first degree   and child molestation      in the first degree.
                                                        When these offenses allegedly occurred in
2004, the applicable limitations period expired three years after the victim' s 18th birthday. Former
RCW 9A.04. 080( 1)(     c) (   1998).   As set forth above, the statute of limitations for these offenses as
well as the amended charge of rape of a child in the third degree has since been extended.

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