       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                       )
                                           )   No. 78963-5-I
                        Appellant,
                                           )   DIVISION ONE
              v.                           )
                                           )
REGINALD FREEBERG-BASKETT,                 )   UNPUBLISHED OPINION

                        Respondent.        )   FILED: October 14, 2019


       SMITH, J.   —   In December 2016, Reginald Freeberg-Baskett was convicted

in superior court of domestic violence assault. He received a one-year

suspended sentence, a condition of which required him not to have contact with

the victim, Gisele Blanchet, for two years. The superior court entered a no-

contact order to record the no-contact condition.

      The State later charged Freeberg-Baskett with violation of the no-contact

order, alleging that Freeberg-Baskett had prohibited contact with Blanchet on two

occasions in May 2018, i.e., after the term of Freeberg-Baskett’s suspended

sentence but before the expiration of the no-contact order. On Freeberg

Baskett’s motion, the trial court excluded evidence of the no-contact order,

effectively terminating the State’s case. The court relied on State v. Granath,

190 Wn.2d 548, 415 P.3d 1179 (201 8), in which our Supreme Court concluded

that a district court does not have authority under RCW 10.99.050 to issue a
No. 78963-5-1/2


domestic violence no-contact order that lasts longer than the defendant’s

suspended sentence.

       Because the no-contact order was expressly applicable to Freeberg

Baskett and to the crimes with which he was charged, the trial court erred by

excluding evidence of the no-contact order. Therefore, we reverse and remand

for further proceedings.

                                      FACTS

       In 2016, Freeberg-Baskett was convicted in King County Superior Court of

assault in the fourth degree—domestic violence (count 1) and attempted theft in

the third degree (count 2). On December 9, 2016, Freeberg-Baskett was

sentenced to 364 days’ imprisonment on count 1 and 90 days’ imprisonment on

count 2, to run concurrently. The court suspended the sentenced imprisonment

on certain conditions. One of those conditions was that Freeberg-Baskett be on

unsupervised probation for 12 months, i.e., through December 8, 2017. Another

was that Freeberg-Baskett have no contact with the victim, Blanchet, pursuant to

chapter 10.99 RCW. To that end, the court entered a domestic violence no-

contact order with a stated expiration date of December 9, 2018. In other words,

the term of the no-contact order was one year longer than the term of Freeberg

Baskett’s suspended sentence.

       In April 2017, Freeberg-Baskett was ordered to serve out his remaining

sentence in custody after he failed to comply with another condition of his

suspended sentence.

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No. 78963-5-1/3


       About a year later, according to probable cause statements, officers found

Freeberg-Baskett and Blanchet together on two occasions in May 2018, i.e., after

Freeberg-Baskett’s suspended sentence would have expired but before the

stated expiration of the no-contact order. The State subsequently charged

Freeberg-Baskett with two counts of domestic violence felony violation of a court

order. Freeberg-Baskett moved to dismiss the charges, arguing that under

Granath, the no-contact order was void and inapplicable to the charged crimes,

which occurred after the term of Freeberg-Baskett’s suspended sentence. The

State countered that under the collateral bar rule, Freeberg-Baskett was barred

from challenging the validity of the no-contact order in a proceeding for violation

of that order.

       The trial court concluded that the no-contact order was not void and

denied Freeberg-Baskett’s motion to dismiss. But it excluded evidence of the no-

contact order, reasoning that under Granath, the order was not enforceable”

and was therefore inapplicable to the crimes charged (quoting Granath, 190

Wn.2d at 557). The trial court later found, under RAP 2.2(b)(2), that “the

practical effect of the Court’s Order on Motion to Dismiss signed 8/31/18 is to

terminate the case.” The State appeals.

                                    ANALYSIS

       The State argues that the trial court erred by excluding evidence of the no

contact order. We agree.



                                          3
No. 78963-5-1/4


       We review rulings on the admissibility of evidence for abuse of discretion.

State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). The trial court

abuses its discretion when it applies an incorrect legal analysis or commits

another error of law. State v. Tobin, 161 Wn.2d 517, 523, 166 P.3d 1167 (2007).

       The trial court serves a gate-keeping role in a proceeding for violation of a

court order. State v. Miller, 156 Wn.2d 23, 24, 123 P.3d 827 (2005); City of

Seattle v. May, 171 Wn.2d 847, 854, 256 P.3d 1161(2011). “[T]he trial court’s

gate-keeping role includes excluding orders that are void, orders that are

inapplicable to the crime charged   .   .   .   and orders that cannot be constitutionally

applied to the charged conduct (e.g., orders that fail to give the restrained party

fair warning of the relevant prohibited conduct).” M~y~ 171 Wn.2d at 854. Here,

and as further discussed below, the trial court committed an error of law by

excluding the no-contact order as inapplicable to the crimes with which Freeberg

Baskett was charged. Also, as discussed below, we are not persuaded by any of

Freeberg-Baskett’s proffered alternative justifications for the trial court’s

exclusion of the no-contact order. Therefore, reversal is required.

       An order is inapplicable to the crime charged if “the order either does not

apply to the defendant or does not apply to the charged conduct.” Jyj.?y, 171

Wn.2d at 854. Here, the order was applicable to both Freeberg-Baskett and the

conduct with which he was charged in that it expressly directed Freeberg-Baskett

not to “knowingly enter, remain, or come within 500           .   .   .   feet   .   .   .   of [Blanchet] or




                                                  4
No. 78963-5-1/5


[her] residence, school, workplace, [or] vehicle” until December 9, 2018.1

Therefore, the trial court erred by excluding it as inapplicable.

           Freeberg-Baskett disagrees and offers a number of justifications for the

trial court’s exclusion of the no-contact order. None of them are persuasive.

           Freeberg-Baskett first relies on Miller to argue that an order is inapplicable

not just when it does not apply to the defendant or the charged conduct, but also

when it ‘is not issued by a competent court, is not statutorily sufficient, is vague

or inadequate on its face, or otherwise will not support a conviction of violating

the order.” Miller, 1 56 Wn.2d at 31. He then relies on Granath to argue that the

no-contact order was inapplicable within the meaning of Miller. But his reliance

on Miller and Granath is misplaced.

       In Miller, our Supreme Court held that the validity of a no-contact order is

neither an express nor implied element of the crime of violating a no-contact

order. Miller, 156 Wn.2d at 29. After reaching its holding, the court

acknowledged that there were several Court of Appeals cases “which deemed

validity an ‘implied element.” Miller, 156 Wn.2d at 29. Thus, “out of respect for

the opinions of the Court of Appeals[,]” Miller, 156 Wn.2d at 29, the court

engaged in a closer examination of two of those cases: City of Seattle v.

Edwards, 87 Wn. App. 305, 941 P.2d 697 (1997), and State v. Marking, 100 Wn.

App. 506, 997 P.2d 461 (2000). Although the Miller court overruled Edwards and



       IThe no-contact order contains an exception for third-party contact for
arranging child visitation, but that exception is not at issue here.
                                             5
No. 78963-5-1/6


Marking to the extent that they held that the validity of a no-contact order was an

element of the crime of violating the no-contact order, it stated that it was

“inclined to believe that the Court of Appeals reached appropriate results in

Marking and Edwards.” Miller, 156 Wn.2d at 31. It then characterized the issues

with the no-contact orders in those cases as relating to the “‘applicability” of the

order to the crime charged and, as Freeberg-Baskett correctly points out, stated

that ‘[am order is not applicable to the charged crime if it is not issued by a

competent court, is not statutorily sufficient, is vague or inadequate on its face, or

otherwise will not support a conviction of violating the order.” Miller, 156 Wn.2d

at 31.

         But six years later, in j~y, our Supreme Court clarified the meaning of

“applicability.” jyj.~y involved application of the collateral bar rule, which generally

“prohibits a party from challenging the validity of a court order in a proceeding for

violation of that order.” jyj.~y, 171 Wn.2d at 852. The issue before our Supreme

Court in jyj~y was whether the collateral bar rule prohibits a defendant from

challenging the validity of a domestic violence protection order in a prosecution

for violation of that order. jyj~y, 171 Wn.2d at 851. The court ultimately held that

the rule did bar such a challenge with regard to the no-contact order at issue in

~y, which failed to expressly recite a statutorily required finding that the

defendant was likely to resume acts of domestic violence. ~y, 171 Wn.2d at

855 & n.6.



                                           6
No. 78963-5-1/7


       The court then observed that although the collateral bar rule generally

precludes challenges to the validity of an order in a proceeding for violation of

that order, the rule does not bar challenges to the applicability of an order. M?y,

171 Wn.2d at 855. The jy~y court explained, however, that Miller’s ‘discussion

of the applicability of orders              .   .   .   was an effort to harmonize that case with the

results in   .   .   .   Edwards   .   .   and Marking.” ~ 171 Wn.2d at 853-54. And,

although it acknowledged that “some language in Miller may be capable of being

read more broadly when viewed in isolation,” the .f~y court clarified that an order

is inapplicable when it “either does not apply to the defendant or does not apply

to the charged conduct.” j~y, 171 Wn.2d at 854. In short, after .f~y, an order is

inapplicable only when it does not apply to the defendant or to the charged

conduct. Therefore, Freeberg-Baskett’s reliance on Miller to suggest that

applicability refers to something broader is misplaced.

       Freeberg-Baskett’s reliance on Granath is also misplaced. In Granath, the

defendant, Wendy Granath, was convicted in King County District Court of two

domestic violence offenses. Granath, 190 Wn.2d at 550. The district court

sentenced Granath to 364 days in jail with 334 days suspended for 24 months.

Granath, 190 Wn.2d at 550. As a condition of her suspended sentence, Granath

was prohibited from contacting the victim, her estranged husband. Granath, 190

Wn.2d at 550. The district court issued a separate no-contact order under RCW

10.99.050, reflecting its directive that Granath not contact her estranged

husband. Granath, 190 Wn.2d at 550. The term of the no-contact order was five

                                                                7
No. 78963-5-1/8


years, i.e., three years longer than Granath’s 24-month suspended sentence.

Granath, 190 Wn.2d at 550.

       After Granath completed her sentence in December 2014, she moved to

vacate the no-contact order, arguing that it ended when she was no longer

subject to the underlying no-contact condition of the sentence. Granath, 190

Wn.2d at 550. The district court denied Granath’s motion, reasoning that “it ‘had

lawful authority to issue a separate order under [chapter] 1 0.99 [RCW], which is a

stand-alone provision.” Granath, 190 Wn.2d at 550 (alterations in original).

       Our Supreme Court ultimately disagreed with the district court. It

explained that under the plain language of the relevant statute, RCW 10.99.050,

“[t]he only reason a court is permitted to issue an order of no-contact in this

context is to record a condition of the sentence.” Granath, 190 Wn.2d at 555

(emphasis added). The court thus concluded that the district court should have

granted Granath’s motion to vacate, rejecting the State’s argument that RCW

10.99.050 independently authorizes a district court to issue a domestic violence

no-contact order. Granath, 190 Wn.2d at 554-55, 557.

       In short, Granath held that the district court erred by failing to vacate its

earlier no-contact order because, under the plain language of RCW 10.99.050, a

district court does not have authority to enter a domestic violence no-contact

order whose term exceeds the length of the underlying sentence. Granath, 190

Wn.2d at 557. But Granath did not address whether such a no-contact order

may be excluded, based on inapplicability, in a proceeding for violation of that

                                           8
No. 78963-5-1/9


order. Therefore, Granath does not support Freeberg-Baskett’s argument that

the no-contact order entered in his case is ‘inapplicable” under j~y.

       Freeberg-Baskett next argues that the trial court properly excluded the no-

contact order because it was void. He contends that the order was void

because, under Granath, the issuing court lacked authority to issue a no-contact

order exceeding the length of Freeberg-Baskett’s suspended sentence. For the

reasons that follow, we are not persuaded by Freeberg-Baskett’s argument.

       As discussed, the collateral bar rule “prohibits a party from challenging the

validity of a court order in a proceeding for violation of that order.” ~ 171

Wn.2d at 852. However, “[ajn exception exists for orders that are void[,]” and

“the trial court’s gate-keeping role includes excluding orders that are void.” M~y,

171 Wn.2d at 852, 854.

       But “a court enters a void order only when it lacks personal jurisdiction or

subject matter jurisdiction over the claim.” Marley v. Dept of Labor & Indus., 125

Wn.2d 533, 541, 886 P.2d 189 (1994). And, here, Freeberg-Baskett states that

he “is not challenging the subject matter or personal jurisdiction of the court.”

Therefore, the no-contact order was not void.

       Freeberg-Baskett disagrees, relying on Mead School District No. 354 v.

Mead Education Association, 85 Wn.2d 278, 534 P.2d 561 (1975), to argue that

an order is void not only when the issuing court lacks jurisdiction, but also when it

lacks authority to issue “the type of order.” Although our Supreme Court did, in

Mead, refer to a court’s jurisdiction in terms of its authority to issue a particular

                                           9
No. 78963-5-1/10


type of order, Mead, 85 Wn.2d at 284, it has since explained that

‘[tjhe.   .   .   distinction between ‘jurisdiction of the subject matter’ and ‘the power or

authority to render the particular judgment’ rests on an antiquated understanding

of subject matter jurisdiction.” Statev. Posey, 174 Wn.2d 131, 138, 272 P.3d

840 (2012). And, as discussed, it concluded in Marley that “a court enters a void

order only when it lacks personal jurisdiction or subject matter jurisdiction over

the claim.” Marley, 125 Wn.2d at 541. Therefore, we are not persuaded by

Freeberg-Baskett’s argument that an order can be void even when the issuing

court possesses jurisdiction.

          To this end, Freeberg-Baskett argues, despite his claim that he “is not

challenging the subject matter or personal jurisdiction of the court,” that the

issuing court lacked jurisdiction to enter a no-contact order whose term exceeded

the term of his underlying sentence. He relies on Granath and on State v.

Holmberq, 53 Wn. App. 609, 768 P.2d 1025 (1989), to support his argument. But

because Freeberg-Baskett’s argument ignores the distinction between statutory

authority and subject matter jurisdiction, his reliance on these cases is

misplaced.

          In Holmberq, the question before the court was whether, under RCW

9.95.230, a trial court had authority to revoke probation based on a violation that

occurred after the end of the probationary period but before an order terminating

probation was entered. Holmberq, 53 Wn. App. at 612. And, as discussed, the

issue in Granath was whether, under RCW 10.99.050, a district court has

                                                10
No. 78963-5-Ill I


authority to enter a no-contact order whose term exceeds the term of the

underlying sentence. Granath, 190 Wn.2d at 551. In both cases, the reviewing

court held that the trial courts were without authority under the relevant statutes.

Holmberg, 53 Wn. App. at 613; Granath, 190 Wn.2d at 557. But “[a] court does

not lack subject matter jurisdiction merely because it may lack authority to enter a

given order.” In re Pers. Restraint of Smalls, 182 Wn. App. 381, 387-88, 335

P.3d 949 (2014). Rather, “[a] court lacks subject matter jurisdiction when it

attempts to decide a type of controversy that it has no authority to decide.”

SmaIls, 182 Wn. App. at 387; see also In re Marriage of Buecking, 179 Wn.2d

438, 448, 316 P.3d 999 (2013) (“Subject matter jurisdiction’ refers to a court’s

ability to entertain a type of case, not to its authority to enter an order in a

particular case.”). Here, Freeberg-Baskett does not contend that the superior

court, which entered the original no-contact order, lacked authority to decide the

type of controversy before it, i.e., a nonfelony criminal case. Therefore,

Freeberg-Baskett’s argument fails.

       Freeberg-Baskett next points to the following language from Granath to

argue that the no-contact order was void: “The no-contact order issued in this

case was not enforceable after Granath completed her suspended sentence in

December 2014, and the district court should have granted her motion to vacate.”

Granath, 190 Wn.2d at 557 (emphasis added). But, as discussed, Granath was

an appeal from a district court’s denial of a motion to vacate. Granath did not

hold that a no-contact order that exceeds the length of a suspended sentence is

                                           11
No. 78963-5-1112


void such that it can be collaterally attacked in a later proceeding—it held only

that such an order is erroneous. Therefore, Freeberg-Baskett’s reliance on the

Granath court’s language regarding enforceability is misplaced. See jy.~y, 171

Wn.2d at 852-53 (explaining that an order can be collaterally attacked based only

on an argument that it is absolutely void, not based on an argument that the

order is merely erroneous).

       Freeberg-Baskett next suggests that allowing the State to criminalize the

violation of a no-contact order that is invalid under Granath would offend due

process in that defendants would not have clear notice of how the law applies to

them. He again attempts to analogize this case to Holmberq, where Division

Two held that a court does not have statutory authority under RCW 9.95.230 to

modify or revoke probation for violations occurring outside of the probationary

period. Holmberq, 53 Wn. App. at 613. But the Holmberg court’s analysis rested

on its interpretation of the relevant statute. Holmberg, 53 Wn. App. at 612.

Unlike this case, Holmberg did not involve an alleged violation of a court order

that expressly applied to the defendant and to the charged conduct.

Furthermore, although the no-contact order entered in this case may have been

erroneous under Granath, it gave Freeberg-Baskett clear notice of what conduct

was prohibited. Freeberg-Baskett’s argument is unpersuasive.

      As a final matter, Freeberg-Baskett contends that “each individual

defendant should not have to specifically take additional steps [to] remove an

invalid order when the court has lost jurisdiction” and that “[t]o adopt such a

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No. 78963-5-1/13


policy would mean that hundreds, if not thousands, of defendants.           .   .   would have

[to] move to remove invalid orders.” He asserts that “{t]his is an

unreasonable   .   .   .   expectation given that many [are] indigent and have no legal

education to know an order terminating probation must be rendered for a court to

lose its ability to impose a suspended sentence” and that “[m]ost individuals

would assume an order is unenforceable when the court has lost jurisdiction.”

       But these contentions ignore the competing interests of the victims of the

“hundreds, if not thousands” of defendant-abusers to whom Freeberg-Baskett

refers. These victims rely on no-contact orders for protection from their abusers

and should be able to take those orders at face value. If we were to accept

Freeberg-Baskett’s argument that a no-contact order that is longer than the

underlying sentence automatically becomes void or inapplicable as soon as the

underlying sentence expires, victims would not know that affirmative steps must

be taken to obtain continuing protection even though the no-contact order

already entered by the court appears to remain in effect. Indeed, in light of

victims’ competing interests, it is not unreasonable to expect defendants like

Freeberg-Baskett to do as the defendant in Granath did, i.e., move to vacate or

modify a domestic violence no-contact order entered under ROW 10.99.050 to

the extent that its term outlasts the term of the underlying sentence. Therefore,

Freeberg-Baskett’s argument is unpersuasive.




                                               13
No. 78963-5-1/14


      We reverse and remand for further proceedings.




WE CONCUR:



      L1i   ~,     i~




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