RANDY JAMES LUCERO, Appellant, v. STATE OF UTAH, Appellee.
No. 20150197-CA
THE UTAH COURT OF APPEALS
March 10, 2016
2016 UT App 50
Senior Judge Russell W. Bench authored this Memorandum Decision, in which Judges Gregory K. Orme and Stephen L. Roth concurred.
Memorandum Decision. Third District Court, West Jordan Department. The Honorable Kara L. Pettit. No. 130404567. Herschel Bullen, Attorney for Appellant. Sean D. Reyes and Mark C. Field, Attorneys for Appellee.
¶1 Randy James Lucero appeals from the district court’s order granting the State’s motion for summary judgment, denying his cross-motion for summary judgment, and dismissing his petition for post-conviction relief. In his petition, Lucero argued that his trial counsel rendered constitutionally ineffective assistance of counsel by failing to raise a defense based on the statute of limitations. The district court concluded
¶2 In 2010, Lucero was charged with four first-degree felonies. These charges included one count of rape of a child for an incident that occurred in June 2003 and three counts of aggravated sexual abuse of a child for incidents that occurred in June 2003 and in January 1999 through January 2000. The incidents of abuse “were first reported to law enforcement in or about 2010.”
¶3 After being bound over on the charges, Lucero reached a plea agreement with the State. On June 21, 2011, Lucero pleaded guilty to an amended count of attempted aggravated sexual abuse of a child, a first-degree felony, and one count of sexual abuse of a child, a second-degree felony. The other first-degree felony counts were dismissed upon entry of Lucero’s guilty plea. Lucero was sentenced. Afterward, he never attempted to withdraw his plea, nor did he file an appeal.
¶4 In March 2013, Lucero filed a petition seeking post-conviction relief pursuant to the Post-Conviction Remedies Act (the PCRA). Lucero argued that he was entitled to relief because his trial counsel’s failure to recognize and assert a statute of limitations defense constituted ineffective assistance of counsel. The State responded by moving for summary judgment, arguing that the statute of limitations that Lucero invoked did not begin to run until 2010, when the incidents were first reported to law enforcement, and that Lucero’s trial counsel therefore did not miss any legitimate affirmative defense.2 Lucero also moved for summary judgment. The district court agreed with the State,
¶5 “[W]e review a grant of summary judgment for correctness, granting no deference to the [lower] court.” Ross v. State, 2012 UT 93, ¶ 18, 293 P.3d 345 (second alteration in original) (citation and internal quotation marks omitted). In reviewing a grant of summary judgment, we will affirm the district court’s decision “when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. (citation and internal quotation marks omitted); see also
¶6 On appeal, Lucero contends that the district court erroneously concluded that he lacked a statute of limitations defense. Because of this erroneous conclusion, he argues, the district court further erred in determining that his trial counsel did not perform deficiently by failing to raise a statute of limitations defense. The State counters that Lucero’s trial counsel’s performance was adequate because Lucero did not have any valid defense grounded in the statute of limitations.
¶7 Under the PCRA, a criminal defendant may obtain post-conviction relief if he establishes that he received ineffective assistance of counsel. See
¶8 Lucero contends that his counsel performed deficiently by failing to recognize and assert a statute of limitations defense. When Lucero committed the offenses, from 1999 to 2003, Utah Code section 76-1-303.5 provided that a prosecution for rape of a child or aggravated sexual abuse of a child could be brought “within four years after the report of the offense to a law enforcement agency.” See
¶9 Lucero asserts that he was entitled to be prosecuted under section 303.5, the relevant statute of limitations in effect at the time of the offenses, and that the repeal of section 303.5 in 2008 constituted the expiration of the limitations period with regard to crimes committed between 1999 and 2003. Consequently, Lucero argues, he had a vested right to assert a statute of limitations defense and therefore section 301 could not operate retroactively to allow a prosecution to begin after 2008.
¶10 A “long-standing rule of statutory construction [is] that a legislative enactment which alters the substantive law or affects vested rights will not be read to operate retrospectively unless the legislature has clearly expressed that intention.” State v. Green, 2005 UT 9, ¶ 23, 108 P.3d 710 (citation and internal quotation marks omitted). Consistent with this principle, Utah law provides that “a statutory amendment enlarging a statute of limitations will extend the limitations period applicable to a crime already committed only if the amendment becomes effective before the previously applicable statute of limitations has run, thereby barring prosecution of the crime.” State v. Lusk, 2001 UT 102, ¶ 26, 37 P.3d 1103. Thus, “a legislative amendment enlarging a limitation period may be applied retroactively to
“The general and well-established principle of law is that statutes prescribing limitations relate to remedies; and that the legislature has power to increase the time in which an action may be brought. In that connection it should be observed that if the statute has run on a cause of action, so that it is dead, it cannot be revived by any such statutory extension. But if the cause of action is still alive, the new enactment can extend the time in which it may be brought.”
Id. (quoting Del Monte Corp. v. Moore, 580 P.2d 224, 225 (Utah 1978)).
¶11 The supreme court applied these principles in State v. Green, 2005 UT 9, 108 P.3d 710. There, the defendant was charged in April 2000 with the rape of a child that occurred in January 1986. Id. ¶¶ 4, 17. On appeal, the supreme court rejected the defendant’s argument that the statute of limitations barred prosecution. Id. ¶¶ 14, 62. The court explained that in 1986, the statute of limitations authorized prosecution for rape of a child where the prosecution is initiated within one year after the offense is reported to law enforcement so long as no more than eight years has elapsed since the time of the offense. Id. ¶ 16. Under this statute, the eight-year maximum span would have elapsed in January 1994. Id. ¶ 17. But “[i]n 1991, the legislature replac[ed] the eight-year statute of limitations with a limitations period permitting prosecution of sexual abuse of a child anytime
¶12 This case is analytically similar to Green. As the district court correctly explained, although the statute of limitations in effect at the time of Lucero’s offenses was repealed and replaced in 2008, “‘a legislative amendment enlarging a limitation period may be applied retroactively to crimes committed before the amendment where the limitations defense has not accrued to the defendant before the amendment becomes effective.‘” (Quoting Lusk, 2001 UT 102, ¶ 28.) Further, the district court correctly determined that, as in Green, the limitations defense had not accrued to Lucero as the limitations period had not yet expired—let alone been triggered—“because it is undisputed that [the crimes] had not been reported to a law enforcement agency at the time of the repeal” of the earlier statute in 2008. Thus, the 2008 enactment enlarging the limitations period retroactively applied to the crimes Lucero committed before 2008. Because that 2008 enactment, codified in section 301, permitted the State to commence a prosecution for rape of a child or aggravated sexual abuse of a child “at any time,” the applicable statute of limitations did not bar the charges brought against Lucero in 2010.3 See
¶14 Because any motion to dismiss the charges against Lucero on limitations grounds would have been futile, Lucero’s trial counsel did not perform deficiently. See Layton City, 2014 UT App 227, ¶ 19. And because Lucero cannot establish the deficient performance prong of his ineffective
¶15 In sum, the district court correctly determined that because Lucero had no defense grounded in the statute of limitations, Lucero’s trial counsel did not render constitutionally deficient performance by failing to raise such a defense. On that basis, the district court correctly granted the State’s motion for summary judgment, denied Lucero’s cross-motion for summary judgment, and dismissed Lucero’s petition for post-conviction relief. Accordingly, we affirm.