State v. Berg, 2015 ND 61

Berg pled guilty to one count of gross sexual imposition against the young adult and one count against the minor child; the district court dismissed the second count and sentenced accordingly.
The State and Berg debated whether the statute of limitations issue was a jury question or a legal issue; the district court initially treated it as a factual issue for the jury.
ND law requires prosecution within seven years after the offense or, if not reported, within three years after reporting to law enforcement; the issue centers on when reporting occurred.
Berg moved to dismiss the young adult charges as time-barred; after hearings, the district court determined the statute of limitations question was factual and referred it to a jury but Berg later pled guilty.
The sentencing involved a nonbinding recommendation; Berg argues the court should have followed a plea agreement that she alleges existed, while the State contends the agreement was nonbinding; the court ultimately varied from the recommendation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the statute of limitations issue was properly decided.	Berg contends the timing issue should be determined by the jury.	State contends Berg waived the issue by pleading guilty and the court could decide it.	Waived; plea admitted facts and jurisdictional issue resolved by guilty plea.
Whether Berg waived the statute of limitations by pled guilty.	Berg argues the pleading did not waive the timing dispute.	State asserts a guilty plea admits the facts and that limitations issue was resolved.	Waived; guilty plea constituted a waiver of the factual dispute.
Whether Berg’s sentence exceeded the nonbinding plea recommendation.	Berg seeks remand to sentence per the recommendation.	State argues the recommendation was nonbinding and court can impose a harsher sentence.	Not error; court could impose a harsher sentence under a nonbinding recommendation.

State v. Tibor, 373 N.W.2d 877 (ND 1985) (prosecution burden to prove statutes of limitations by preponderance; facially facially shows bar)
State v. Hersch, 445 N.W.2d 626 (ND 1989) (statute of limitations as jurisdictional fact; jury instruction appropriate)
State v. Tinsley, 325 N.W.2d 177 (ND 1982) (guilty plea admits facts; jurisdictional issues may be affected)
State v. Bates, 2007 ND 15 (ND 2007) (factual basis for plea may be inferred from record; Rule 11(b)(3) considerations)
Mackey v. State, 2012 ND 159 (ND 2012) (Rule 11(b)(3) factual basis may be shown by record)
Bay v. State, 2003 ND 183 (ND 2003) (nonbinding sentence recommendation may be fulfilled without withdrawing plea)
Pixler, 2010 ND 105 (ND 2010) (post-plea withdrawal only for manifest injustice)
State v. Glaser, 2015 ND 31 (ND 2015) (plea factual basis may be established from entire record)
State v. Hersch, 445 N.W.2d 626 (ND 1989) (jurisdictional fact; instruction necessity noted)