State v. Petrucelli

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 88-479


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Steven J. Petrucelli                         Unit No. 1, Windsor Circuit

                                             October Term, 1990


George F. Ellison, J.

Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
   Attorney General, Montpelier, for plaintiff-appellee

Walter M. Morris, Jr., Defender General, and Henry Hinton, Appellate
   Defender, Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Gibson, Dooley and Morse, JJ., and Peck, J. (Ret.),
          Specially Assigned


     MORSE, J.  The sole issue in this interlocutory appeal is whether 1
V.S.A. { 214(b)(2) prohibits retroactive application of an amendment to 13
V.S.A. { 4501(c), which lengthened the statute of limitations for sexual
assault from three years to six years.  We hold that it does not and remand
for trial.
     On March 27, 1987, the State filed an information charging defendant
with two counts of sexual assault of a minor.  The alleged offenses
occurred in 1983, four years before the information was filed.  In 1983, the
statute of limitations for sexual assault, then found in 13 V.S.A. { 4501,
was three years.  In 1985, the statute of limitations was amended, extending
the limitation period to six years.  13 V.S.A. { 4501(c).  Thus, at the time
the limitation period was extended, the original three-year limitation had
not yet run out on defendant's alleged offenses.
     Defendant filed a motion to dismiss on the ground that 1 V.S.A. {
214(b)(2), prohibiting retroactive application of a statutory amendment,
barred his prosecution because the original limitations period of three
years had run.  The trial court denied defendant's motion to dismiss but
granted his motion for permission to file this interlocutory appeal.
     1 V.S.A. { 214(b)(2) provides that
              The amendment or repeal of an act or statutory
         provision, [except where a penalty is reduced], shall
         not . . . [a]ffect any right, privilege, obligation or
         liability acquired, accrued or incurred prior to the
         effective date of the amendment or repeal . . . .

The issue is whether a criminal defendant acquires a "right, privilege,
obligation, or liability" under the statute of limitations in effect at the
time of the offense.
     Other states examining the issue have declined to find that criminal
defendants acquire, at the time of an alleged offense, a right to the
statute of limitations then in effect.  See, e.g., State v. Nagle, 226 N.J.
Super. 513, 545 A.2d 182 (App. Div. 1988); Commonwealth v. Johnson, 520 Pa.
165, 553 A.2d 897 (1989); State v. Hodgson, 108 Wash. 2d 662, 740 P.2d 848
(1987).  In Johnson, the court explained that, when a statute of limitations
was lengthened before the original time period had run against a defendant,
the defendant
         acquired no right to an acquittal on that ground. . . .
         [A]n act of limitation is an act of grace purely on the
         part of the legislature. . . . The state makes no
         contract with criminals, at the time of the passage of
         an act of limitation, that they shall have immunity from
         punishment if not prosecuted within the statutory
         period.  Such enactments are measures of public policy
         only.  They are entirely subject to the mere will of
         the legislative power, and may be changed or repealed
         altogether, as that power may see fit to declare.

520 Pa. at 169, 553 A.2d  at 899 (quoting Commonwealth v. Duffy, 96 Pa. 506,
514 (1880))(emphasis in original).  See also id. at 170, 553 A.2d at
900(citing cases from other jurisdictions).
     In distinguishing the extension of a statute of limitations that has
not expired from one that has, Judge Learned Hand wrote
         Certainly it is one thing to revive a prosecution
         already dead, and another to give it a longer lease on
         life.  The question turns upon how much violence is done
         to our instinctive feelings of justice and fair play.
         For the state to assure a man that he had become safe
         from its pursuit, and thereafter to withdraw its
         assurance, seems to most of us unfair and dishonest.
         But, while the chase is on, it does not shock us to have
         it extended beyond the time first set, or, if it does,
         the stake forgives it.

Falter v. United States, 23 F.2d 420, 425-26 (2d Cir. 1928).
     The cases are in accord that a wrongdoer may accrue or acquire a right
to escape prosecution only after the statute of limitations in effect at the
time of the offense has run and not before.
     Here the statute of limitations in effect at the time of the offense
had not run against defendant when it was amended and lengthened; he had no
"right" that could be affected by the change in the limitations period.
Likewise, as a criminal defendant, he had no "privilege" or "obligation"
that could be affected by such a change.  Consequently, 1 V.S.A. { 214(b)(2)
simply does not apply.
     Defendant points to State v. Matthews, 131 Vt. 521, 524, 310 A.2d 17,
20 (1973), where, construing 1 V.S.A. { 214(b)(3), we held that criminal
"liability" is incurred at the time the offense is committed.  This holding,
however, does not help defendant.  In Matthews, we held that { 214 is a
"saving clause," intended to reverse the common-law rule that, when a
criminal statute is repealed, all prosecutions that were initiated under the
statute but had not reached a final disposition were abated.  Id. at 523,
310 A.2d  at 19.  As a result of the saving clause, a criminal irrevocably
incurs liability at the time of the offense: not even the repeal of the
statute imposing that liability affects that liability.  The wrongdoer
remains forever liable.  A change in the statute of limitations likewise
cannot "affect" defendant's liability.  Rather, once the statute of
limitations in effect at the time of the alleged offense runs out -- without
being extended -- a criminal, by grace of the legislature, is granted a
right to be free of prosecution despite continuing liability.  For a
criminal wrongdoer, the attaching of rights and liabilities occur at
different times.  Liability is fixed at the time of the offense, but the
right to freedom from prosecution is fixed at the time the statute of
limitations in effect runs out.
     Our interpretation of { 214(b)(2) is not contrary to the well-
established rule that new criminal legislation has only prospective
application.  It is merely the converse of the proposition that a person
without constructive notice that certain behavior is unlawful cannot be
punished by a law enacted afterward.  A person who has lawful notice that
certain activity is proscribed incurs liability upon the doing of it.  In
this sense, the state of the substantive criminal law at the time of the
offense is critical for determining liability.
     Finally, defendant argues that Stewart v. Darrow, 141 Vt. 248, 448 A.2d 788 (1982), makes the statute of limitations in effect at the time the crime
is committed govern.  In Stewart, to the extent that { 214(b)(2) was
addressed, the Court concluded that an amendment to a statute of limitations
cannot be applied retroactively if it affects a "right."  141 Vt. at 252,
448 A.2d  at 790.  This decision, however, does not contradict Matthews.
     We distinguish Stewart because dissimilar policies are at work in the
criminal and civil fields.  In the civil context, statutes of limitation
represent complex balancing between a plaintiff's interest in a meaningful
opportunity to achieve a remedy and a defendant's interest in finality -- a
balance evidenced, for example, by the discovery rule and the rule of
repose.  See Lillicrap v. Martin, No. 86-443 (Vt. July 14, 1989 and Mar. 1,
1991).  On the other hand, when a crime is committed, there is no discovery
rule, but the balance between the defendant's and State's (or victim's)
interests may be adjusted through legislative lengthening of the statute of
limitations.
     Moreover, in the civil context, particularly in the field of tort law,
risk-spreading devices, such as insurance, require some reasonable measure
of predictability.  Although tortfeasors, as a class, have a legitimate
economic stake in predicting the period of potential liability -- a stake
ultimately shared by plaintiffs, as a class, to the extent that their
remedies are delivered by insurers -- criminal wrongdoers have no comparable
stake, at least not in any sense society would define as legitimate.  As
discussed previously, criminal liability is ongoing and a criminal wrongdoer
has no right to avoid prosecution until the most recent statute of
limitations has run.


     The certified question is answered in the negative.

                                        FOR THE COURT:



                                        Associate Justice