IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Appellant,

v. JOSEPH ALBERT PELTIER, Respondent. NO. 68942-8-1 ORDER CORRECTING OPINION

In this case, the members of the court who joined in the majority opinion find that the majority opinion should be corrected, as follows: On page 16, in the first sentence of the second full paragraph, the word "superior" is deleted and the word "Supreme" is inserted in its place. The
sentence now reads: "The Supreme Court then considered the statute of
limitation claim on its merits."
It is so ORDERED. 

# DATEDthis V>a^ dayof $£o\twbz/ 2013.

D 

# tfrv^ i/^^^A^ c^

- v LEACH, C.J. 

# JIN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Appellant,

v. JOSEPH ALBERT PELTIER, Respondent. DIVISION ONE ^ cncr> No. 68942-8-1 C2 o% 

## PUBLISHED OPINION ^ f^.; z^t rep' '*"

- r~ FILED: September 16, 2013 & a'- Dwyer, J. — By amended information, the State charged Joseph Peltier with four felonies. The superior court dismissed the charges, ruling that the 

### applicable statutory limitation periods had expired prior to the charges being filed and that, accordingly, the court was without authority to proceed. We affirm.
I On September 6, 2002, the State charged Peltier with two counts of 

### second degree rape, one count of second degree child molestation, and one count of second degree rape of a child. Each ofthe charges was filed within the 

### applicable limitation period.1
1One countofsecond degree rape, alleged to have beencommitted againstB.M., was allegedly committed inSeptember 1993. The other count ofsecond degree rape, alleged to have been committed against S.B., was allegedly committed inOctober 1993. The applicable statute of limitations provided that, ifthe offense was reported withinone year after its commission, it could not be charged more than ten years following its commission. Former RCW 9A.04.080(1)(b)(iii)(A) (1993) (providing that violations of RCW 9A.44.050, rape in the second degree, "shall not be prosecuted more than ten years after their commission" if"reported to a law enforcement agency within one year" of commission). toNo. 68942-8-1/2
Peltier and the State subsequently stipulated to a bench trial on agreed 

### documentary evidence. Pursuant to the stipulation agreement, on July 14, 2003, the State filed an amended information charging Peltier with one count of rape in the third degree and one count of indecent liberties. The charges set forth in the 

### amended information were notfiled within the applicable limitation period.2 The stipulation agreement did not acknowledge, however, that the charges were timebarred.The stipulation agreement did provide that Peltier agreed not to challenge any conviction on the charged offenses, including by means of a personal restraint petition. The agreement further provided: Ifthe defendant fails to appear for sentencing, or ifprior to sentencing the defendant commits any new offense or violates any condition of release, the State may recommend a more severe sentence. Ifthe defendant violates any other provision ofthis agreement, the State may either recommend a more severe sentence, file additional or greater charges, or re-file charges that were dismissed. The defendant waives any objection to the filing of 

### additional orgreatercharges based on pre-charging or pre-trial delay, statutes oflimitations, mandatoryjoinder requirements, or double jeopardy. (Emphasis added.) 

### On January 28, 2004, based upon the agreed documentary evidence, the

The count of child molestation in the second degree and the count of rape of a child in the second degree were both alleged to have been committed against S.G. in August 2001. The applicable statute oflimitations provided that such offenses "shall not be prosecuted more than three years after the victim's eighteenth birthday or more than seven years after their commission, whichever is later." Former RCW 9A.04.080(1)(c) (1993). 2The countof rape in thethird degree was alleged to have beencommitted in September 1993 against B.M. and in January 1995 against J.D. The amended information alleged that Peltier committed the offense of indecent liberties in October 1993 against S.B. These offenses were subject to a three-year statutory limitation period. Former RCW9A.04.080(1 )(g)(1993).
-2-No. 68942-8-1/3 

### superior court found Peltier guilty ofthe charges set forth inthe amended information. The court sentenced Peltier to 77 months of incarceration.3 In 

### August 2011, Peltier filed a personal restraint petition challenging his convictions
as barred by the applicable statute of limitations. The State conceded that the 

### offenses were time-barred and, thus, that the resulting judgment was invalid. In
re Pers. Restraint of Peltier, noted at 166 Wn. App. 1023, 2012 WL 432258, at *1. We accepted the State's concession, granted Peltier's petition, vacated his convictions, and remanded to the superior court for dismissal ofthe charges. Peltier. 2012 WL 432258, at *1. On March 29, 2012, the superior court dismissed the charges set forth in the amended information. On that same day, the State filed a second amended information, charging Peltier with one count of rape of a child in the second degree, one count of child 

### molestation in the seconddegree, andtwo counts of rapein the seconddegree.4 Peltier moved to dismiss the charges alleged in the second amended information, asserting that, because the charges had been filed following the expiration ofthe applicable statutory limitation periods, the court did not have 

### subject matterjurisdiction overthecase.5
3Although the superiorcourt initially sentencedPeltierto 90months ofincarceration, it later amended thejudgment and sentence to provide for a shorter term of confinement. 4The second amended information alleged thatPeltier hadcommitted the offensesof rape of a child in the second degree and child molestation in the second degree against S.G. in August 2001. Italleged that Peltier had committed one count ofrape inthe second degree against J.D. inJanuary 1995 and another count ofrape in the second degree against S.B. in October 1993. Three of the four charges alleged inthe second amended information—involving S.B. and S.G.—were identical to three of the four charges in the State's original information filed in September 2002. 5In opposing the motion todismiss, the Stateargued that thelimitation periods applicable to the three offenses involving S.B. and S.G., all of which were charged in the original information, were tolled because this court dismissed the charges alleged in the first amended
-3-No. 68942-8-1/4


### The superior court determined that the issue before itwas whether a criminal statute of limitations isjurisdictional "such that itcan or cannot be waived 

### when the parties are entering into their plea negotiations." The court agreed with Peltier thatWashington judicial authority indicated that a criminal statute of limitations affects subject matterjurisdiction. Accordingly, the superior court 

### granted Peltier's motion to dismiss the charges alleged in the second amended information. The court thereafter denied the State's motion for reconsideration. The State appeals.
II 

### For over 30 years, Washington's Courts of Appeal have consistently held 

### that the expiration of a statutory limitation period, in a criminal case, deprives the trial court of subject matterjurisdiction over that controversy. The trial court 

### understandablyfollowed this authority in ordering the case dismissed. However,


### an opinion of our Supreme Court, issued 13years ago, indicates that the 

### holdings ofthese appellate court cases are nolongerviable. Nevertheless, in that same opinion, our Supreme Court made clear that a superiorcourtjudge has
noauthority to sentence a defendant and enterjudgment in a criminal case in which the statutorylimitation period expired before the charge was brought. Thus, we affirm the order of dismissal, albeit on a different basis than that relied upon by the trial court. information, thusrendering thatinformation void. Thesuperiorcourt rejected thisargument. It is 

### not at issueonappeal. The Stateadditionally asserted thatthe chargesshould not bedismissed becausePeltier had, in the stipulation agreement, expressly waived anyobjection to thefiling of 

### additional charges based ona statute oflimitations claim. That istheissue argued by theState on appeal.No. 68942-8-1/5



### It is disconcerting that, 124 years after statehood, there exists uncertainty 

### as to the effect ofourcriminal statutes oflimitation.6 However, through time, such uncertainty has existed in otherjurisdictions as well. Courts approach criminal statutes of limitations in one of three ways. First is the view that the statute of limitations is a jurisdictional limit on the subject matter of a court that cannot be waived or forfeited; second is the view that a defendant may 

### "waive" the defense so long as he or she does so voluntarily, intelligently, and knowingly after consulting with counsel; finally, some courts hold that the statute of limitations is a defense that is "forfeited" if not affirmatively raised in the trial court. See State v. Timoteo, 87 Hawai'i 108, 952 P.2d 865, 877 (1997) (Ramil, J., dissenting); State v. Pearson, 858 S.W.2d 879, 886 (Tenn.1993); Padie v. State. 594 P.2d 50, 55-57 (Alaska 1979). Historically, courts took the first approach, that is, that once the statute of limitations ran, a court lacked subject matterjurisdiction. Timoteo, 952 P.2d at 877 (Ramil, J., dissenting); see also People v. Verbruqqe. 998 P.2d 43, 45-46 (Colo.Ct.App.1999) (holding that, because the statute of limitations had run, the trial court had no jurisdiction to enter a conviction even though the defendant requested an instruction on the offense). Over time, however, courts have moved away from the jurisdictional view and toward deciding that a defendant may waive the defense if it is beneficial to him or her. See Timoteo. 952 P.2d at 877-78 (Ramil, J., dissenting); Adlestein, [Conflict ofthe CriminalStatute of Limitations with lesser Offenses at Trial, 37 Wm. &Mary L. Rev., 199, 259, 291 (1995)]. This appears to be because the primary policy of a criminal statute of limitations, to protect the defendant, is not served by strict adherence to a jurisdictional approach. 

### State v. Kerbv. 141 N.M. 413, 156 P.3d704, 708-09 (2007).7
6Wereview de novo both questions ofa court's subjectmatterjurisdiction, Cole v. Harvevland, LLC. 163 Wn. App. 199, 205, 258 P.3d 70 (2011), and pure questions of law, Robb v. City of Seattle. 176 Wn.2d 427, 433, 295 P.3d 212 (2013). 7The issue presented in Kerby was the same as the issue presented herein. Defendant claims that the statute of limitations is "jurisdictional" and, thus, the district court was withoutjurisdiction to try and sentence him. The State, by contrast, argues that the statute of limitations is an "affirmative equitable defense" that can be "waived." -5-No. 68942-8-1/6
For over 30 years, an uninterrupted series of Court ofAppeals decisions— from all three divisions—adopted the first ofthese approaches: holding that the expiration of a criminal statutory limitation period deprived the superior court of subject matterjurisdiction over the charge. Recently, Division Three reaffirmed its view that, "[t]he statute of 

### limitations in a criminal case isjurisdictional." State v. Walker, 153 Wn. App. 701, 705, 224 P.3d 814 (2009). Additionally, the court reaffirmed that, "[bjecause 

### a criminal statute of limitations isjurisdictional, unlike the statute of limitations in a civil action, it cannot be waived." Walker. 153 Wn. App. at 705 n.2. This was 

### consistent withthe court's holding, 25 years previously, that a criminal "statute of 

### limitation is jurisdictional." State v. Ansell. 36 Wn. App. 492, 496, 675 P.2d 614 (1984).

### The Walker court's pronouncements were well-supported inthe appellate


### case law. More than 30 years ago, Division Two cited to out-of-state authority for the proposition that, "a criminal statute oflimitation is not merely a limitation upon 

### the remedy, but is a 'limitation upon the power of the sovereign to act against the accused.' State v. Foqel. 16 Ariz.App. 246, 248, 492 P.2d 742, 744 (1972). It is 

### jurisdictional." State v. Glover, 25 Wn. App. 58, 61, 604 P.2d 1015 (1979). Twoyears later, Division Two reaffirmed Glover's validity, citing it for the 

### proposition that, "a statute oflimitations is vieweddifferently in the criminal than in the civil context. In the civil law, such a statute provides repose and a 

### limitation on remedies; inthe criminal law, such statutes create an absolute bar
Kerbv, 156 P.3d at 707-08.No. 68942-8-1/7



### to prosecution." State v. Eppens. 30 Wn. App. 119, 124, 633 P.2d 92 (1981). Four years later, Division Two cited Glover for the proposition that, "a criminal statute of limitation isjurisdictional." State v. Brvce. 41 Wn. App. 802, 807, 707 

### P.2d 694 (1985). Subsequently, Division Two reaffirmed its adherence to the 

### holdings in Glover and Eppens. State v. Kirk. 64 Wn. App. 788, 789 n.1, 828 P.2d 1128 (1992). It later cited Glover with approval in State v. Phelps. 113 Wn. App. 347, 357, 57 P.3d 624 (2002). 

### Division One followed suit in 1985, observing that, "[a] criminal statute of 

### limitation isjurisdictional." State v. Fischer. 40 Wn. App. 506, 510, 699 P.2d 249 

### (1985). Several years later, we reiterated that, "thecriminal statute oflimitations 

### isjurisdictional and creates an absolute bar to prosecution." State v. Novotnv. 76 Wn. App. 343, 345 n.1, 884 P.2d 1336 (1994). 

### Six years later, we reversed a defendant's conviction, holding "that a defendant cannot be convicted of a lesser offense upon a prosecution for a 

### greatercrime commenced afterthe statute has run on the lesseroffense." State
v. N.S.. 98Wn. App. 910, 912, 991 P.2d 133 (2000). Wedid, however, note that, 

### "[sjome courts hold that the statute oflimitations is an affirmative defense that 

### may bewaived when thedefendant seeks ajury instruction on a time-barred lesser included offense; others find that it is jurisdictional and cannot be waived." 

### N.S.. 98Wn. App. at 915 n.12. Wedetermined that we did not need to "address this contentious issue" in order to resolve the case. N.S., 98 Wn. App. at 915
n.12.

7-No. 68942-8-1/8
Our uncertainty was not a permanent condition. Two years ago, we quoted Glover, 25 Wn. App. at 61, for the proposition that, "[a] criminal statute of limitations presents a jurisdictional bar to prosecution. It is not merely a limitation upon the remedy, but a 'limitation upon the power of the sovereign to act against the accused.'" State v. Dash. 163 Wn. App. 63, 67, 259 P.3d 319 (2011) (internal quotation marks omitted). The second amended information filed in Peltier's prosecution alleged four crimes, all ofwhich were charged after the expiration ofthe limitation period 

### applicable to the respective offenses. Given the extensive Court ofAppeals 

### decisional authority on the question, it is easy to see why the superior court concluded that it did not have subject matterjurisdiction and ordered that the charges be dismissed.
IV 

### Our Supreme Court has not often opined on the nature of criminalstatutes of limitation. It has noted, however, that, 

### [a]s a general proposition, it may be stated that there is no such thing as a common law statute oflimitation incriminal cases. Such statutes of limitation are matters of legislative grace; they are a 

### surrendering bythe sovereign of its right to prosecute. . . . [Tjhey are measures of public policy only, and subject to the will ofthe Legislature as such. State v. Hodgson. 108 Wn.2d 662, 667, 740 P.2d 848 (1987) (footnotes omitted). 

### This brings us to the seminal case in resolving the issues presented in this appeal, In re Personal Restraint of Stoudmire. 141 Wn.2d 342, 5 P.3d 1240

8No. 68942-8-1/9 

### (2000). Stoudmire enteredguilty pleas totwo counts ofindecent liberties,8 felony offenses, was sentenced, and did not appeal from thejudgment. Stoudmire. 141 Wn.2d at 347. In 1999, Stoudmire filed a personal restraint petition (PRP), claiming that—because he was charged with the indecent liberty offenses after the expiration of the applicable statutory limitation period—he was entitled to 

### vacation ofthe convictions.9 Stoudmire. 141 Wn.2d at 347. 

### The State claimed that Stoudmire's PRP was time-barred.10 The Supreme
8Atthe same time, Stoudmire entered guilty pleastoother, additional offenses. The existence of those convictions is not material to the issues presented herein. 9In 1995, Stoudmire'sfirst PRP had been dismissed. Stoudmire, 141 Wn.2d at 347. 10 RCW 10.73.090 provides: (1) No petition or motion for collateral attack on ajudgment and sentence in a criminal case may be filed more than one year after the judgment becomes final ifthe judgment and sentence isvalid on its face and was rendered by a court of competentjurisdiction. (2) For the purposes of this section, "collateral attack" means any form of postconviction reliefother than a direct appeal. "Collateral attack" includes, but is not limited to, a personal restraint petition, a habeas corpus petition, a motion to vacate judgment, a motion to withdraw guilty plea, a motion for a newtrial, and a motion to arrestjudgment. (3) Forthe purposes of this section, a judgment becomes final on the last of the following dates: (a) The date it is filed with the clerk of the trial court; (b) The date that an appellate court issues its mandate disposing of a timely direct appeal from the conviction; or (c) The date that the United States Supreme Courtdenies a timely petition for certiorari to review a decision affirming the conviction on direct appeal. The filing of a motion to reconsider denial ofcertiorari does not prevent a judgment from becoming final. RCW 10.73.100 provides: The time limit specified in RCW 10.73.090 does not apply to a petition or motion that is based solely on one or more of the following grounds: (1)Newly discovered evidence, ifthe defendant acted with reasonable diligence in discovering the evidence and filing the petition or motion; (2) The statute that the defendant was convicted ofviolating was unconstitutional on its face or as applied to the defendant's conduct; (3) The conviction was barred by double jeopardy under AmendmentV of the United States Constitution or Article I, section 9 of the state Constitution; (4) The defendant pled notguilty and the evidence introduced at trial was insufficient to support the conviction; (5) The sentence imposed was inexcess of the court'sjurisdiction; or (6) There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order enteredNo. 68942-8-1/10
Court described the procedural question as follows: 

### [T]his court nowconsiders whether petitioner is entitled to relief from his two convictions for indecent liberties because the statute of limitations had run. As an initial matter, this court must determine 

### whether this claim is subject to the time bar in RCW 10.73.090 since Stoudmire's second PRP was not filed within the one-year 

### time period. That time bar presupposes two conditions: "No petition or motion for collateral attack on a judgment and sentence in a criminalcase may be filed more than one year after the 

### judgment becomes final ifthe judgment and sentence isvalid on its face and was rendered by a court ofcompetentjurisdiction." RCW 

### 10.73.090(1). Petitioner claims the sentence was notvalid on its face and the court was not one ofcompetentjurisdiction. Stoudmire, 141 Wn.2d at 352-53. 

### Putsimply, Stoudmire claimed that, because the applicable statutory 

### limitation period hadexpired priorto him being chargedwith indecent liberties, 

### thesuperior court had lost subject matterjurisdiction overthecharges and was, therefore, not a court of competentjurisdiction when he was sentenced and judgment entered. 

### In two sentences, the Supreme Court discounted this claim. A court does not lack subject matterjurisdiction solely because 

### it may lack authority to enter a given order. Marlev v. Department of Labor & Indus.. 125 Wn.2d 533, 539, 886 P.2d 189 (1994). A 

### court has subjectmatterjurisdiction where the court has the 

### authority to adjudicate the type ofcontroversy in the action, and it does not lose subject matterjurisdiction merely byinterpreting the 

### law erroneously. State v. Moen, 129Wn.2d 535, 545, 919P.2d 69 (1996).

in a criminal orcivil proceeding instituted by the state orlocal government, and 

### eitherthelegislature hasexpressly provided thatthechange in thelaw isto be applied retroactively, oracourt, in interpreting a change in thelaw thatlacks 

### express legislative intent regarding retroactive application, determines that sufficient reasons existtorequire retroactive application ofthe changed legal standard. -10-No. 68942-8-1/11
Stoudmire. 141 Wn.2d at 353. This pronouncement and the cases cited in support of itare quite important to the issues we face in this case. Our constitution provides that, "[t]he superior court shall have original jurisdiction
... in all criminal cases amounting to felony. . . ." 

### Wash. Const, art. IV, § 6.11 In Marlev. our Supreme Court discussed at length the difference between a tribunal's lack of authority and a tribunal's lack of subject matterjurisdiction. Section 11 ofthe Restatement [(Second) of Judgments] defines 

### subject matterjurisdiction: "Ajudgment may properly be rendered against a party only ifthe court has authority to adjudicate the type 

### of controversyinvolved in the action." (Italics ours.) We italicize the phrase "type ofcontroversy" to emphasize its importance. A 

### court or agency does not lack subject matterjurisdiction solely because it may lack authority to enter a given order.

11 Wash. Const, art. IV, § 6 provides in full: Superior courts and district courts have concurrentjurisdiction in cases in equity. The superior court shall have originaljurisdiction in allcases at law whichinvolve the titleor possession of real property, or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases in which the demand or the value of the property in controversy amounts to three thousand dollars oras otherwise determined bylaw, or a lesser sum inexcess of thejurisdiction granted to justices of the peace and other inferior courts, and in all criminal cases amounting tofelony, and in all cases of misdemeanor not otherwiseprovided for by law; of actions offorcible entryand detainer; of proceedingsin insolvency; of actions to prevent or abate a nuisance; ofall matters of probate, ofdivorce, and forannulment of marriage; and for such special cases and proceedings as are not otherwiseprovided for. The superior court shall also have originaljurisdiction in allcases and of all proceedings inwhichjurisdiction shall not have been by law vested exclusively in some othercourt; and said court shall have the powerof naturalization and to issue papers therefor. They shall have such appellate jurisdiction in cases arising injustices' and otherinferiorcourtsin their respective counties as may be prescribed by law. They shall always be open, except on nonjudicial days, and their process shall extend to all parts of the state. Said courts and theirjudges shall have power to issue writs ofmandamus, quo warranto, review, certiorari, prohibition, and writs ofhabeas corpus, on petition by or on behalf of any person in actual custody in their respective counties. Injunctions and writs ofprohibition and of habeas corpus may be issued and served on legal holidays and nonjudicial days.
-11

-No. 68942-8-1/12
The term "subject matterjurisdiction" is often confused with a court's "authority" to rule in a particular manner. This has led to improvident and inconsistent use of the term.

. . . Courts do not lose subject matterjurisdiction merely by 

### interpreting the law erroneously. Ifthe phrase is to maintain its rightfully sweeping definition, itmust not be reduced to signifying that a court has acted without error. 

### (Footnote omitted.) In re Major. 71 Wn. App. 531, 534-35, 859 P.2d 1262(1993). A tribunal lacks subject matterjurisdiction when itattempts to 

### decide a type of controversy over which ithas no authority to adjudicate. 

### [T]he focus must be on the words "type of controversy." Ifthe 

### type of controversy is within the subject matterjurisdiction, then all other defects or errors go to something other than subject matterjurisdiction. 

### Robert J. Martineau, Subject MatterJurisdiction as a New Issue on 

### Appeal: Reining in an Unruly Horse, 1988 BYU L. Rev. 1, 28.
Marlev. 125 Wn.2d at 539. 

### Similarly, in Moen. the court stressed "[t]he distinctionbetween a decision which exceeds jurisdiction and one which exceeds statutory 

### authority." 129 Wn.2d at 545. Thus, where a statute limited the timein which a court could enter a restitution order, the court held that an 

### "untimely imposition ofrestitution as a condition of a sentence is not a jurisdictional defect." Moen. 129 Wn.2d at 545. 

### The words used by the Supreme Court in Stoudmire. coupled with the cases it cited as authority, give a clear impression that the court did not believe that a statute—and, after all, a statute of limitation is simply a 

### statute—can divest the superior court ofsubject matterjurisdiction.

-12-No. 68942-8-1/13
Because the time-bar question was decided on another basis, however, the Supreme Court did not "reach the issue ofwhether the trial court had 

### jurisdiction," Stoudmire. 141 Wn.2d at 354, and its observations cannot be treated as a holding. Nevertheless, any doubt as to the court's intention dissipated three 

### years later withthe issuance of two Supreme Court decisions. InYoung v. Clark. 149Wn.2d 130, 65 P.3d 1192 (2003), the court explained the 

### constitution's limitation upon the legislature's power to limit or eliminate superior court subject matterjurisdiction. 

### "Where the language ofthe constitution is clear, the words used therein should be given their plain meaning." Citv ofTacoma v. Taxpayers of City ofTacoma. 108 Wn.2d 679, 706, 743 P.2d 793 

### (1987). On its face, article IV, section 6 allows the legislature to limit the superior court's jurisdiction in certain matters, provided it vests authority over such matters in some othercourt, presumably a court oflimitedjurisdiction. See Moore v. Perrott, 2 Wash. 1, 4, 

### 25 P.906 (1891) ("Thelanguage of the constitution is not that the superior courts shall have exclusivejurisdiction, but it gives to the 

### superior courts universal originaljurisdiction, leaving the legislature to carve outfrom thatjurisdiction thejurisdiction of the justices of the peace, and any other inferior courts that may be created."). Young. 149 Wn.2d at 133-34. Thus, the legislature may, by statute, 

### impinge on the constitutionally-established subject matterjurisdiction of the superior court only where itsimultaneously grants that subject matter 

### jurisdiction to someothercourt.12 The Supreme Court then immediately applied this constitutional 

### principle in ruling that a statute that required a lawsuitagainst a county to

12 See supra n.11. -13-No. 68942-8-1/14
be commenced in that county or one ofthe two nearest counties related only to venue, and did not restrict "the trial court's subject matter 

### jurisdiction." Shoop v. Kittitas County. 149 Wn.2d 29, 37, 65 P.3d 1194 

### (2003).13 Thus, for a decade, the law has been that a statute may not divest a superior court of subject matterjurisdiction unless it, at the same time, assigns that subject matterjurisdiction to some other court. 

### Obviously, a statute oflimitation doesnot do this.14 Thus, theCourt of
13 In so doing, thecourtoverruled two cases thathad held thatnoncompliance with such statutes' requirements deprived the superior court of subject matterjurisdiction. See Cossel v. Skaait County. 119 Wn.2d 434, 834 P.2d 609 (1992); Avdelotte v. Audette. 110 Wn.2d 249, 750 P.2d 1276(1988). 

### 14 Appellate court decisions have adopted theSupreme Court's view thatthelegislature cannot, by statute, simply eliminate superior court subject matterjurisdiction. We recently summarized the law on this question. A party may raise a question of subject matterjurisdiction for the first time at any point in a proceeding, even on appeal. Cole[v. Harvevland, LLC, 163Wn. App. 199,] at 205-06, 258 P.3d 70 [(2011)]. Because the absence of subject matter jurisdiction is a defense that can never bewaived, judgments entered by courts actingwithout subject matterjurisdiction must be vacated even ifneither party initially objected to the court's exercise ofsubject matter jurisdiction and even if the controversy was settled years prior. Cole, 163Wn. App. at 205, 258 P.3d 70; Shoop v. Kittitas County. 108 Wn. App. 388, 397-98, 30 P.3d 529 (2001), affd on other grounds. 149 Wn.2d 29, 65 P.3d 1194 (2003). The consequences of a court acting withoutsubject matterjurisdiction are "draconian and absolute." Coje, 163 Wn. App. at 205, 258 P.3d 70. "'Ifthe phrase [subject matter jurisdiction] is tomaintain itsrightfully sweeping definition, it must not be reduced to signifying that a court has acted without error.'" Marlev v.Dep't of Labor & Indus.. 125 Wn.2d 533, 539, 886 P.2d 189 (1994) (quoting in re Marriage ofMajor. 71 Wn. App. 531, 534-35, 859 P.2d 1262 (1993)). Thus, appellate courts should "use caution when asked to characterize an issue as 'jurisdictional' or ajudgmentas 'void.'" Coje, 163Wn. App. at 205, 258 P.3d70. Judicial opinions sometimes "misleadingly" indicate that the court is dismissing an action for lack of subject matterjurisdiction when, in fact, the basis for the ruling is that "somethreshold fact has not been established." Cole, 163Wn. App. at 205, 258P.3d70. Indeed, "[a]s the United States Supreme Court has observed, 'jurisdiction' is a word of too many meanings." Cole, 163Wn. App. at 208, 258 P.3d 70 (quoting Steel Co. v. Citizens for a Better Env't. 523 U.S. 83, 90, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998)). That Court has noted that it and other courts have "sometimes been profligate" in using the term "jurisdiction." Arbaugh v. Y &H Corp., 546 U.S. 500, 510, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006). Where the question ofjurisdiction was not"central to the case" and thus did "not require closeanalysis," courts have "sometimes mischaracterized claim-processing rules
-14-No. 68942-8-1/15 Appeals decisional authority holding that a statute of limitation can deprive
a superior court of subject matterjurisdiction no longer appears viable.
V To recall, the State's argument in this appeal is that we should treat 

### the running of a statutory limitation period as not divesting the superior court ofsubject matterjurisdiction over a felony offense, and that we should hold that a defendant can waive the protections of a statute of

or elements of a cause of action asjurisdictional limitations." Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161, 130 S. Ct. 1237, 176 L. Ed. 2d 18 (2010). These mischaracterizations can lead to "'drive-by jurisdictional rulings,' which too easily can miss the 'critical difference[s]' between truejurisdictional conditions and nonjurisdictional limitations oncauses ofaction." Reed Elsevier, 559 U.S. at 161 (alteration in original) (citation omitted) (quoting Steel Co.. 523 U.S. at 91; Kontrick v. Ryan. 540 U.S. 443, 456, 124 S. Ct. 906, 157 L. Ed. 2d 867 (2004)). Similarly, our own Supreme Court has noted that "'[t]he term "subject matter jurisdiction" isoften confused with a court's"authority" torule in a particular manner,'" leading to "'improvident and inconsistent use of theterm.'" Marlev, 125 Wn.2d at 539, 886 P.2d 189 (quoting Major, 71 Wn. App. at 534-35, 859 P.2d 1262). Indeed, a "court or agency does notlack subject matter jurisdiction solely because itmay lack authority to enter a given order." Marlev, 125Wn.2d at 539, 886P.2d 189. Acourt has subject matterjurisdiction where it has authority "toadjudicate the type ofcontroversy involved in the action." Shoop, 108Wn. App. at 393, 30 P.3d 529. See also Cole, 163 Wn. App. at 209, 258 P.3d 70 ("Thecritical conceptin determining whethera courthas subjectmatterjurisdiction is the type ofcontroversy."). Superior courts are granted broadoriginal subject matter 

### jurisdiction byWash. Const, art. IV, § 6.Cole. 163 Wn. App. at206, 258 P.3d 70. Exceptions to thisbroadjurisdictional grant"are to be narrowly construed." Cole, 163Wn. App. at 206, 258 P.3d 70. Superior courts havejurisdiction in "'all cases

... in whichjurisdiction shall not have been bylaw vested exclusively in some other court,'" by an explicit act ofCongress or the legislature. Hous. Auth. ofCity of Seattle v. Bin. 163Wn. App. 367, 375, 260 P.3d 900 (2011) (quoting Wash. Const, art. IV, § 6). Superiorcourts possess "subjectmatterjurisdiction that cannot be whittled away by statutes." Shoop, 108Wn. App. at 396, 30P.3d 529. By protecting the superiorcourts' subject matterjurisdiction from statutory erosion, our state "constitution provides the foundation for an independent and coequaljudicial branch ofstate government." Shoop. 108Wn. App. at 396, 30 P.3d 529. "Ifthe 

### type ofcontroversy iswithin thesubject matterjurisdiction, then all otherdefects orerrors go to something otherthansubject matterjurisdiction." Cole, 163 Wn. App. at 209, 258 P.3d 70. Inre Marriage of McDermott. No. 69107-4-1, 2013 WL3756504 (Wash. App. July 15, 2013), * at 3-4 (footnotes omitted).
-15-No. 68942-8-1/16
limitation (as Peltier did here). The Stoudmire. Young, and Shoop 

### decisions all support the State's position on subject matterjurisdiction. But what the Supreme Court giveth, the Supreme Court also taketh away. In Stoudmire, the court did not need to resolve the question of 

### subject matterjurisdiction because itaccepted Stoudmire's second argument—that the judgment in his case was invalid on its face and, hence, his PRP was not time-barred. 141 Wn.2d at 354. Ajudgment is invalid on its face when "without further elaboration" the conviction's 

### infirmities are apparent from the judgment itself or from any document 

### signed as part of a plea agreement. Stoudmire. 141 Wn.2d at 353. Because a review ofthe "documents ofthe plea agreement" in 

### Stoudmire's case indicated that he was charged after the limitation period 

### had run, thejudgmentwas invalid on itsface. Stoudmire. 141 Wn.2d at
354. 

### The superior court then considered the statute oflimitation claim on
its merits. 

### We nowconsider the merits of petitioner's claim that he is entitled to relief from his two convictions for indecent liberties because he 

### was charged beyond the time allowed by the statute oflimitation. The State mayoffer evidence that although on itsface the statute oflimitation would bar prosecution, the statute did notin fact expire 

### because petitionerwas out of the state for a sufficient length of time. RCW 9A.04.080(2). Here, however, the State concedes that 

### theprosecution on these charges exceeded the statute oflimitation. State's Resp. at 5-6. Nevertheless, the State argues that Stoudmire is not entitled to reliefbecause his guilty plea waives any 

### challenge to the charging dates in counts Iand II. State's Second Resp. at 8. The State cites Garrison v. Rhav. 75Wn.2d 98, 101, 449 P.2d 92 (1968): "A plea ofguilty, voluntarily made, waives the
-16-No. 68942-8-1/17 

### right to trial and all defenses other than that the complaint, information, or indictment charges no offense." However, that rule was distinguished in a later case: "'[A] plea bargaining agreement 

### cannot exceed the statutory authority given to the courts.'" In re Personal Restraint of Moore, 116 Wn.2d 30, 38, 803 P.2d 300 

### (1991) (quoting In re Personal Restraint of Gardner. 94 Wn.2d 504, 507, 617 P.2d 1001 (1980)). Because the statute of limitations bars 

### prosecution ofcharges commenced after the period prescribed in the statute, the sentencing court exceeded its authority. Petitioner must also meet the requirements of In re Personal Restraint of Fleming. 129 Wn.2d 529, 532, 919 P.2d 66 (1996) (quoting In re Personal Restraint of Cook, 114 Wn.2d 802, 812, 792 P.2d 506 

### (1990)): "In order to obtain relief by way ofpersonal restraint petition
... a person must establish (1) he or she is being 

### unlawfully restrained, (2) due to a 'fundamental defect which inherently results in a complete miscarriage of justice.'" On these charges the court exceeded its authority, and we find petitioner's 

### restraint on these charges to result in a complete miscarriage of justice. Petitioner is entitled to reliefon these two charges. Stoudmire. 141 Wn.2d at 354-55. 

### The quoted passage contains several importantstatements. First, itenvisions that the sole issue on which the State could present evidence 

### to rebut the conclusion that the prosecution was barred was the issue of 

### tolling. Ofcourse, ifthe limitation period was tolled, it may not have expired. Thus, the provision of the statute may not have been violated. But this is far different from presenting evidence that a defendant waived the benefits of a limitation period that had actually expired. Nothing in Stoudmire would allow for that. 

### Second, the State urged that Stoudmire had waived—or forfeited—his statute oflimitations defense by pleadingguilty. This is a winning argument in the federal courts. See United States v. Soriano-Hernandez. 310 F.3d 1099, 

### 1104 (8th Cir. 2002) (entry ofguilty pleaprecluded defendantfrom asserting
-17-No. 68942-8-1/18

statute of limitation defense); United States v. Littlefield. 105 F.3d 527, 528 (9th Cir. 1997) (same); Acevedo-Ramos v. United States. 961 F.2d 305, 308 (1st Cir. 1992) (same); United States v. Parrino. 212 F.2d 919, 922 (2nd Cir. 1954) (same). Itwas not a winning argument in our Supreme Court. Third, in the course of rejecting the claim ofwaiver, the Supreme Court indicated that Stoudmire was without the power to affect the 

### superior court's authority over him. Itnoted that a "'plea bargain 

### agreement cannot exceed the statutory authority given to the courts,'" and held that, because "the statute of limitations bars prosecution of charges 

### commenced after the period prescribed inthe statute, the sentencing court 

### exceeded its authority." Stoudmire. 141 Wn.2d at 355 (internal quotation marks omitted) (quoting Moore. 116 Wn.2d at 38). Thus, the Supreme Court viewed the expiration ofthe statutory limitation period as an


### occurrence which barred prosecution and deprived the superior court of 

### authority to sentence the defendant—hence, also depriving it ofauthority 

### toenterjudgment.15 Finally, the Supreme Court described the act of the superior court 

### judge in sentencing the defendant and entering judgment on the guilty pleas and subsequent sentences as "resulting] in a complete miscarriage of justice." Stoudmire, 141 Wn.2d at 355.

15 Thus, the New Mexico Supreme Courtwas incorrect in observing that there are only threeways in which courts haveapproached statutes oflimitation. Cf Kerby, 156P.3d at708-09.
-18-No. 68942-8-1/19
In a criminal case, if a judge cannot enterjudgment upon a guilty plea or a jury's verdict, the case should be dismissed. In Peltier's prosecution, the superior courtjudge did not err by so ordering.
Affirmed.

We concur: 

# </c>ei>e>4,l CT

19-State v. Peltier No. 68942-8-1 Special Concurrence 

### Cox, J. (concurring in the result) - Iconcur in the result that the majorityreaches. Iwrite separately because Iconclude that Peltier's waiver of the statute of limitations 

### does not implicate the superior court's subject matterjurisdiction: the authority to 

### adjudicate this type of controversy, threefelony prosecutions.1 Rather, the superior court does not have the authority to enforce such a waiver. It is on this latter basis that affirming the superior court is correct. SUBJECT MATTER JURISDICTION The State correctly identifies the first question that we must decide: whether the statute of limitations restricts the superior court's subject matterjurisdiction in criminal 

### cases.2 The answer to thisquestion is no. The term "jurisdiction" is used to "describe the fundamental power of courts to 

### act."3 One type of jurisdiction, thetype at issue in this case, is "subject matter jurisdiction."4 "A court has subjectmatterjurisdiction where the court has the authority 

### toadjudicate thetype of controversyin theaction
. . . ."5 As the majority points out, our state constitution provides that "[t]he superior court 

### shall have originaljurisdiction
... in all criminal cases amounting tofelony
. . . ."6 This

1 In re Pers. Restraint of Stoudmire. 141 Wn.2d 342, 353, 5 P.3d 1240 (2000). 

### 2BriefofAppellant at 8. 3ZDI Gaming, Inc. v. State ex rel. Wash. State Gambling Comm'n. 173 Wn.2d 608, 616, 268 P.3d 929 (2012). 

### 4Outsource Servs. Mgmt.. LLC v. Nooksack Bus. Corp.. 172 Wn. App. 799, 809, 292 P.3d 147 (2013) (citing ZDI Gaming. Inc.. 173 Wn.2d at 617-18). 5 Stoudmire. 141 Wn.2d at 353. 

### 6Wash. Const, art. IV, § 6.No. 68942-8-1

case is a prosecution for three felonies. Thus, there is no question that the superior court had subject matterjurisdiction over the "type of controversy" at issue in this case. The superior court was not divested of subject matterjurisdiction when itdecided whether itcould enforce Peltier's express waiver of the statute of limitations for the new charges in the second amended information. In re Personal Restraint of Stoudmire is 

### instructive on thispoint.7 There, Jerrod Stoudmire argued that his second personal restraint petition 

### entitled him torelief.8 He claimed his two indecent liberties convictions were "charged beyond thetime allowed by the statute oflimitations."9 The supreme court first considered a procedural question: whether "the sentence was not valid on its face andthe [superior] court was not one of competent 

### jurisdiction."10 In addressing these two questions, thecourtfirst stated: A court does not lack subject matterjurisdiction solely because 

### itmay lack authority to enter a given order. A court has subject matter jurisdiction where the court has the authority to adjudicate the type of controversy in the action, and itdoes not lose subject matter 

### jurisdiction merely by interpreting thelaw erroneously.111] The supreme court decided that the record before itestablished that the 

### sentence was notvalid on its face.12 Having decided this, the courtdeclined to reach the second part of the procedural question: whether the trial court had subject matter 

### jurisdiction.13 Thecourtthenproceeded to address the merits ofthepetition, concluding

7 141 Wn.2d 342, 5 P.3d 1240 (2000). 

### 8JU at 345. 9Id, at 354. 10 Id at 353 (emphasis added). 

### 11 Id. (citations omitted). 12 Id. at 354. 13 Id.No. 68942-8-1 that the superior court exceeded its authority by permitting convictions based on 

### charges beyond the time allowed by thestatute oflimitations.14 Stoudmire was decided on the basis that the court did not have the authority to 

### enforce a waiver ofthe statute of limitations.15 Itwas not decided on the basis of 

## subjectmatterjurisdiction. The courtexpressly declined to reach the latterquestion.16 The parties both rely on Stoudmire. but for different purposes. Neither party cites it forthe proposition that subject matterjurisdiction was the basis ofthat court's
decision. 

### The majority opinion in this case states that an "uninterrupted series of Court of Appeals decisions" hold that "the expiration of a criminal statutory limitation period deprived the superior court ofsubject matterjurisdiction over the charge." Iread the

cases on which the majority relies differently. 

### For example, in State v. Walker. Division Three of this court stated, without 

## further analysis, that "[t]he statute oflimitations in acriminal case isjurisdictional."17 In doing so, the court relied on State v. Eppens.18 But a close reading ofthat casereveals
no reference tosubject matterjurisdiction.19 Rather, the case merely states that"a 

## statute oflimitations is viewed differently in the criminal than in the civil context."20

14 JdL at 354-55 15 lU at 355. 

### 16 Id,at 354. 17 153Wn. App. 701, 705, 224 P.3d 814 (2009). 18 Id. (citing State v. Eppens, 30 Wn. App. 119, 124, 633 P.2d 92 (1981)). 

### 19 Eppens, 30 Wn. App. at 124. 20 Id.No. 68942-8-1 Likewise, the two other cases on which Walker relies do not discuss subject 

### matterjurisdiction.21 In State v. Glover, Division Two stated: "[A] criminal statute of limitation is not merely a limitation upon the remedy, but is a 'limitation upon the power 

### ofthesovereign to act againstthe accused.'"22 Moreover, in a footnote in that case, the court stated: "We are not, at this point, faced with the problem of a possible waiver of 

### thelimitation period, and therefore do not reach such issue in this opinion."23 Ifthe Glover court believed itwas addressing subject matterjurisdiction, it is unlikely that it 

### would have spoken ofwaiver in the footnote. That is because lack of subject matter 

## jurisdiction is not something litigants have the powerto waive.24 Either acourt has subject matterjurisdiction oritdoes not.25 Also, in State v. Phelps. Division Two considered whether the trial court could 

### order a seven-year extension of the statute of limitations in Donald Bradford Phelps's 

### sentence.26 The courtexplained that "the State has not been able to demonstrate any 

## statutory authority allowing the sentencing courtto extend the statute oflimitations."27 Because the court's sentencing authority is limited to that expressly provided for by statute, the court concluded that "the extension ofthe statute of limitations for seven



### 21 Walker. 153Wn. App. at 705 n.2 (citing State v. Glover. 25 Wn. App. 58, 61- 62, 604 P.2d 1015 (1979); State v. Phelps. 113 Wn. App. 347, 357, 57 P.3d 624 (2002)). 

### 22 25 Wn. App. 58, 61, 604 P.2d 1015 (1979) (quoting State v. Fogel, 16Ariz. App. 246, 248, 492 P.2d 742 (1972)). 

### 23 JU at 62 n.3. 24 Skagit Surveyors and Eng'rs. LLC v. Friends of Skagit County. 135 Wn.2d 542, 556, 958 P.2d 962 (1998). 

### 25 JU 26 113Wn. App. 347, 350, 57 P.3d 624 (2002). 27 Id. at 357.No. 68942-8-1 

### years . . . [was] void and [could not] stand."28 Nowhere in this opinion is there any reference to subject matterjurisdiction. In sum, Iconclude these cases decide whether a court has authority to make a decision, not whether a court has subject matterjurisdiction. For these reasons, I conclude that the superior court's subject matterjurisdiction to decide matters in this criminal case was unaffected by the statute of limitations.
WAIVER OF STATUTE OF LIMITATIONS The second question is whether a court has the authority to enforce an express waiver of the statute of limitations in a criminal case. I conclude that it does not. 

### Again, Stoudmire isinstructive.29 There, Stoudmire argued that he was entitled to relief because two indecent liberties convictions were "charged beyond the time 

### allowed by thestatute oflimitations."30 The Stateargued thatStoudmire wasnot 

## entitled to reliefbecause "his guilty plea waive[d] any challenge" to thesecharges.31 The supreme court agreed with Stoudmire. 

### The court explained that a "plea bargaining agreement cannot exceed the 

### statutory authority given to thecourts."32 Thus, thesentencing courtexceeded its authority when it enforced the plea agreement's waiverprovision and entered 

## convictions for two charges thatwere barred by the statute oflimitations.33

28 jcL 29 Stoudmire, 141 Wn.2d at 354-55. 30 Id. at 354. 31kL 32 Id. at 355. 33 Id.No. 68942-8-1 Notably, the supreme court did not use the term "jurisdiction" when itagreed with Stoudmire's argument. Instead, the supreme court explained that the trial court 

### "exceeded its authority."34 Here, we are bound by Stoudmire's holding. The trial court did not have the 

### authority to enforce Peltier's express waiver ofthe statute of limitations in his plea 

### agreement. The 2003 agreement stated that Peltier waived "any objection to the filing of additional or greater charges based on . .. statutes of limitations." Likethe plea 

### agreement in Stoudmire, this provision of the agreement exceeded the statutory 

### authority ofthecourts toenforce.35 For this latter reason, Iconcur in the result that the majority reaches. Affirming the trial court, on the basis that itlacked authority, is the proper result.

34 id 35 id. 6 

# Ocfc)