                                                              FILED
                                                          OCTOBER 2, 2018
                                                     In the Office of the Clerk of Court
                                                    WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

STATE OF WASHINGTON,                         )        No. 35628-1-III
                                             )
                    Respondent,              )
                                             )
             v.                              )        PUBLISHED OPINION
                                             )
RUSSELL PAUL KASSNER,                        )
                                             )
                    Appellant.               )

      LAWRENCE-BERREY, C.J. — Russell Kassner appeals the superior court’s denial of

his CrR 7.8 motion to vacate his first degree child molestation conviction. We affirm.

                  KASSNER’S PLEA AND SUBSEQUENT MOTION

      Russell Kassner allegedly began sexually abusing one of his adopted sisters when

he was 10 and she was 4. The sexual abuse allegedly continued until Kassner was 17 and

his adopted sister was 11. While law enforcement investigated, Kassner turned 18.

      In late November 1995, the State charged Kassner in adult court with one count of

first degree child molestation, related to when he was 10, and one count of second degree

child rape, related to when he was 17.
No. 35628-1-III
State v. Kassner


       In March 1996, the parties reached a plea deal. Kassner agreed to plead guilty to

the older first degree child molestation charge, and the State agreed to dismiss the more

serious rape charge. The State also agreed to recommend a special sex offender

sentencing alternative (SSOSA) and to bring no further charges against Kassner arising

from the underlying investigation. That month, Kassner pleaded guilty to the older

charge and the State dismissed the more serious charge. In May 1996, the trial court

sentenced Kassner consistent with the State’s SSOSA recommendation.

       In June 2017, Kassner moved to vacate his 1996 first degree child molestation

conviction. Kassner argued that the trial court failed to conduct a hearing, as required by

RCW 9A.04.050, on whether he had sufficient capacity to commit the crime when he was

10. The trial court denied Kassner’s motion. It reasoned, “the defendant was charged in

adult court after he became an adult, he was represented by counsel, and he negotiated a

beneficial plea agreement that conveyed clear benefit to him.” Clerk’s Papers at 49. The

trial court also found that Kassner’s motion to vacate his conviction was not brought

within a reasonable time, and that granting the motion would work an injustice against the

State in having to prosecute a second degree child rape charge that was previously

dismissed through negotiations.

       Kassner timely appealed.


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No. 35628-1-III
State v. Kassner


                              KASSNER’S MOTION TO STRIKE

       Kassner filed a motion to strike “Attachment A” to the State’s brief. Attachment

A is a presentence investigation report. Kassner argued that the report was not part of the

record considered by the 2017 trial court. The State responded that the report was filed in

the confidential portion of the clerk’s record, but the report was lost when the record was

scanned years ago. The report contains an admission by 18-year-old Kassner that he had

begun molesting his adopted sister when he was 14 or 15, and she was 7 or 8.

       In denying Kassner’s motion, our court commissioner ruled:

               Mr. Kassner pleaded guilty before the report was compiled, but the
       court did not enter its judgment and sentence on that plea until after the
       report. The report is relevant to whether Mr. Kassner had the capacity to
       commit the crime under RCW 9A.04.050, even though he was an adult
       when convicted. Its timing may or may not be material and is subject to
       argument before the panel that decides this appeal. But for our purpose
       here, this Court has determined that the ends of justice are served by adding
       the report, whether or not it satisfies all the requirements of RAP 9.11(a) for
       additional evidence. See Sears v. Grange Ins. Ass’n, 111 Wn.2d 636, 640,
       762 P.2d 1141 (1988). It is evidence the superior court would have had
       when it considered Mr. Kassner’s motion to withdraw his plea, but for the
       happenstance of it being lost when the file was “back-saved.”

Comm’r’s Ruling, State v. Kassner, No. 35628-1-III (Wash. Ct. App. June 5, 2018), at 2-

3.

       Kassner moved to modify our commissioner’s ruling. We will address his motion

at the end of this opinion.

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No. 35628-1-III
State v. Kassner


                                        ANALYSIS

       Kassner argues that the trial court erred by denying his motion to vacate his 1996

first degree child molestation conviction.

       A.     STANDARD OF REVIEW

       The trial court’s denial of a motion to vacate under CrR 7.8 is reviewed for an

abuse of discretion. State v. Ellis, 76 Wn. App. 391, 394, 884 P.2d 1360 (1994). A trial

court abuses its discretion when its decision is “‘manifestly unreasonable, or exercised on

untenable grounds, or for untenable reasons.’” State v. McCormick, 166 Wn.2d 689, 706,

213 P.3d 32 (2009) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d

775 (1971)). A trial court’s decision is based on untenable grounds when the decision is

contrary to law. City of Kennewick v. Day, 142 Wn.2d 1, 15, 11 P.3d 304 (2000).

       B.     JURISDICTION TO ENTER 1996 CONVICTION

       Kassner argues that the trial court committed legal error when it failed to conclude

that his 1996 conviction was invalid for lack of jurisdiction. We disagree.

               In adopting Washington Constitution, article IV, section 6, the
       people of this state granted the superior courts original jurisdiction “in all
       criminal cases amounting to felony” and in several other enumerated types
       of cases and proceedings. In these enumerated categories where the
       constitution specifically grants jurisdiction to the superior courts, the
       legislature cannot restrict the jurisdiction of the superior courts.

State v. Posey, 174 Wn.2d 131, 135, 272 P.3d 840 (2012).

                                              4
No. 35628-1-III
State v. Kassner


       First degree child molestation is a class A felony. RCW 9A.44.083(2). For this

reason, the trial court had jurisdiction to convict Kassner of this crime.

       Kassner argues that the trial court’s jurisdiction was limited to determining

whether, at 10 years of age, he had the capacity to commit a crime; and, until that

question was answered, the trial court lacked jurisdiction to convict him of the crime.

Kassner’s argument is predicated on our decision in State v. Golden, 112 Wn. App. 68, 47

P.3d 587 (2002).

       George Golden was 10 years old when he pleaded guilty in juvenile court to arson.

Id. at 71. The court entered a disposition without first conducting a capacity

determination as provided by RCW 9A.04.050.1 Id. at 72. Years later, Golden sought to

vacate his conviction on the basis that the juvenile court lacked jurisdiction to enter a

conviction. Id. at 71-72. We agreed, and held:

               When a capacity or competency determination is required by the
       statute creating jurisdiction, the failure to comply does not deprive the court
       of jurisdiction over the subject matter or the person. But it does deprive the
       court of the authority to act.



       1
           RCW 9A.04.050 provides in relevant part:
       Children of eight and under twelve years of age are presumed to be
       incapable of committing crime, but this presumption may be removed by
       proof that they have sufficient capacity to understand the act or neglect, and
       to know that it was wrong.

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No. 35628-1-III
State v. Kassner


              The juvenile court, therefore, had jurisdiction solely to conduct a
       capacity hearing. Until that was done, the court had no authority to do
       anything but dismiss the charge. RCW 10.73.090 does not, therefore, time-
       bar the motion for relief of judgment.

Id. at 77 (citations omitted).

       When we decided Golden, Washington law recognized three elements for every

valid judgment: jurisdiction of the subject matter, jurisdiction of the person, and the

power or authority to render the particular judgment. See State v. Werner, 129 Wn.2d

485, 493, 918 P.2d 916 (1996). Werner was overruled six years ago by Posey, 174 Wn.2d

at 138-40.

       In Posey, the court noted that Werner’s distinction between “subject matter

jurisdiction” and “the power or authority to render the particular judgment” rested on “an

antiquated understanding of subject matter jurisdiction.” Id. at 138. To the extent Golden

holds that RCW 9A.04.050 is a statute that deprives the court of jurisdictional “authority

to act,” it is overruled by Posey.

       We conclude the 1996 trial court had jurisdiction to convict Kassner of first degree

child molestation, despite not first finding that he, at the age of 10, had the capacity to




                                               6
No. 35628-1-111
State v. Kassner


commit a crime. The 2017 trial court did not err in denying Kassner' s motion to vacate

his conviction. 2

       Affirmed.




                                                 Lawrence-Berrey, C.J.
                                                                                 c..~.
WE CONCUR:




Pennell, J.




       2
        Because the presentence investigation report is not necessary to decide the issues
on review, we decline to allow the additional evidence. RAP 9.1 l(a)(l). We therefore
grant Kassner' s motion to modify and strike Attachment A and all references to it from
the State's brief.

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