Appeals from the District Court of Cass County, East Central Judicial District, the Honorable Wickham Corwin, Judge.
Ryan J. Younggren, Assistant State's Attorney, Fargo, ND, for plaintiff and appellee; submitted on brief.
Lee M. Grossman, Valley City, ND, for defendant and appellant; submitted on brief.
Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Daniel J. Crothers, Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice.
[¶1] Carrie Jean Berg appeals from criminal judgments entered on guilty pleas for two counts of gross sexual imposition against a minor child. We affirm the district court's judgments. We conclude Berg waived her factual argument regarding the application of the statute of limitations, by voluntarily pleading guilty with knowledge of the factual dispute. We further decline to notice obvious error with regard to Berg's argument that the district court sentenced her in excess of a plea agreement she alleges existed.
[¶2] In 2012, a Fargo police detective investigated a disclosure by a minor child that his mother, Berg, had sexually molested him. During the investigation, the detective interviewed Berg's stepson, a young adult, who alleged Berg had also sexually molested him in 1997, when he was fourteen years old. Berg was charged with two counts of gross sexual imposition against the young adult. In a separate case, Berg was charged with one count of gross sexual imposition against the minor child. Berg initially pled not guilty in both cases. Berg moved to dismiss the case regarding the young adult, claiming the statute of limitations had run. The district court held two hearings on Berg's motion to dismiss. At the conclusion of the second hearing, the district court requested both parties submit briefs addressing whether the application of the statute of limitations was a question of fact for a jury or a question of law for the court. Subsequently, the district court concluded the application of the statute of limitations was a factual issue for the jury and denied Berg's motion to dismiss. On December 13, 2013, at a change of plea hearing, the State moved to amend the charges from AA felonies to A felonies, and moved to dismiss the second count involving the young adult. Berg pled guilty to one count of gross sexual imposition against the young adult and the district court dismissed the second count. Additionally, Berg pled guilty to one count of gross sexual imposition against the minor child. The State and Berg jointly recommended a sentence of five years of incarceration, with all but eighteen months suspended, and ten years of supervised probation. At the sentencing hearing on April 14, 2014, the court sentenced Berg to ten years of incarceration with five years suspended and ten years of supervised probation. Berg appealed.
[¶3] Berg argues the district court erred when it concluded the application of the statute of limitations was a factual issue for the jury. The State argues Berg waived the statute of limitations issue when she entered an unconditional plea of guilty. In the alternative, the State argues the district court did not err in concluding the application of the statute of limitations was a factual issue for the jury because factual issues existed as to when the offense was reported to law enforcement. Further, the State argues the application of the statute of limitations to this case requires the district court consider factual matters beyond the face of the information.
[¶4] The applicable statute of limitations for cases relating to the prosecution for sexual abuse of a minor provides:
A prosecution for violation of sections 12.1-20-03 through 12.1-20-08 or of section 12.1-20-11 if the victim was under eighteen years of age at the time the offense was committed must be commenced in the proper court within seven years after the commission of the offense or, if the victim failed to report the
offense within this limitation period, within three years after the offense was reported to law enforcement authorities.
N.D.C.C. § 29-04-03.1. " [T]he State must prove compliance with the statute of limitation by a preponderance of the evidence." State v. Tibor, 373 N.W.2d 877, 883 (N.D. 1985).
[¶5] Berg moved to dismiss, presumably under N.D.R.Crim.P. 12, on the grounds that the charges regarding the young adult were barred by the statute of limitations. The district court denied Berg's motion to dismiss the case in favor of a jury determination as to the application of the statute of limitations and scheduled the matter for trial. Thereafter, Berg voluntarily pled guilty, without reserving a challenge to the court's determination. " [G]enerally, voluntarily pleading guilty waives all nonjurisidictional defects allegedly occurring before the guilty plea." Bell v. State, 1998 ND 35, ¶ 14, 575 N.W.2d 211. However, " [i]t is a well-established rule that subject matter jurisdiction cannot be conferred by agreement, consent, or waiver; and jurisdictional defects are not waived by a plea of guilty." State v. Tinsley, 325 N.W.2d 177, 179 (N.D. 1982). " It is equally well established, however, that a guilty plea constitutes an admission of all the facts alleged in the information and an admission of all of the essential elements of the crime charged." Id. at 179-80. " [T]he statute of limitations in a criminal case is a jurisdictional fact which creates a bar to prosecution." State v. Hersch, 445 N.W.2d 626, 629 (N.D. 1989) (emphasis added). " Our decisions thus follow the rule that an information that shows on its face that the prosecution is barred by the statute of limitations fails to state a public offense and is noticeable for the first time on appeal." Id.
[¶6] In Hersch, the statute of limitations was not raised in the trial court and the defendant was allowed to raise the issue for the first time on appeal. Id. Like the present case, Hersch dealt with a factual dispute over the timing of the commission of the crimes alleged. Id. at 634. As noted in Hersch, " [w]hen there are issues of fact concerning whether the applicable statute of limitations has run, it is appropriate for the trial court to instruct the jury on the matter." Id. Hersch was granted a new trial on several charges, because failure to instruct the jury regarding the statute of limitations was obvious error. Id. at 635.
[¶7] This case is distinguishable from Hersch because here the statute of limitations issue was raised to the district court and the district court ruled it was an issue for the jury to decide. Unlike Hersch, Berg pled guilty prior to trial, so the district court did not have an opportunity to instruct a jury. Here, the applicable statute of limitations is dependent upon a factual determination of when the victim reported the offense. See N.D.C.C. § 29-04-03.1 (stating the prosecution " must be commenced in the proper court within seven years after the commission of the offense or, if the victim failed to report the offense within this limitation period, within three years after the offense was reported to law enforcement authorities" ).
[¶8] A defendant may knowingly waive a factual issue regarding jurisdiction by pleading guilty and admitting the facts alleged. See Tinsley, 325 N.W.2d at 181. Under N.D.R.Crim.P. 11(b)(3), " [b]efore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea."  " A factual
basis is a statement of facts to assure the defendant is guilty of the crime charged." State v. Bates, 2007 ND 15, ¶ 8, 726 N.W.2d 595. " To establish a factual basis for the plea, the court must ascertain that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty." Froistad v. State, 2002 ND 52, ¶ 19, 641 ...