       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                )       DIVISION ONE
                        Appellant,
                                                )       No. 68942-8-1
                   V.

                                                )       PUBLISHED OPINION                           tnrn',-
JOSEPH ALBERT PELTIER,
                                                                                               vP   '- . •—
                        Respondent.             )       FILED: September 16,         2013



        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 of the charges was filed within the

applicable limitation period.1


        1One count of second degree rape, alleged to have been committed against B.M., was
allegedly committed in September 1993. The other count of second degree rape, alleged to have
been committed against S.B., was allegedly committed in October 1993. The applicable statute
of limitations provided that, ifthe offense was reported within one 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).
No. 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 not filed within the applicable limitation period.2 The
stipulation agreement did not acknowledge, however, that the charges were time-

barred.


       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:

        If the defendant fails to appear for sentencing, or if prior to
        sentencing the defendant commits any new offense or violates any
        condition of release, the State may recommend a more severe
        sentence.
             If the defendant violates any other provision of this
       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 or greater charges based on pre-charging or pre-trial
        delay, statutes of limitations, mandatory joinder 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 of limitations 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 count of rape in the third degree was alleged to have been committed 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 RCW 9A.04.080(1 )(g) (1993).
No. 68942-8-1/3



superior court found Peltier guilty of the charges set forth in the 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. ]n

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 of the 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 second degree, and two counts of rape in the second degree.4
Peltier moved to dismiss the charges alleged in the second amended

information, asserting that, because the charges had been filed following the

expiration of the applicable statutory limitation periods, the court did not have

subject matter jurisdiction over the case.5

        3Although the superior court initially sentenced Peltier to 90 months of incarceration, it
later amended the judgment and sentence to provide for a shorter term of confinement.
        4The second amended information alleged that Peltier had committed the offenses of
rape of a child in the second degree and child molestation in the second degree against S.G. in
August 2001. It alleged that Peltier had committed one count of rape in the second degree
against J.D. in January 1995 and another count of rape in the second degree against S.B. in
October 1993. Three of the four charges alleged in the 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.
        5 In opposing the motion to dismiss, the State argued that the limitation 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 it was whether a

criminal statute of limitations is jurisdictional "such that it can or cannot be waived

when the parties are entering into their plea negotiations." The court agreed with

Peltier that Washington judicial authority indicated that a criminal statute of

limitations affects subject matter jurisdiction. 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 matter jurisdiction over that controversy. The trial court

understandably followed this authority in ordering the case dismissed. However,

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

holdings of these appellate court cases are no longer viable. Nevertheless, in

that same opinion, our Supreme Court made clear that a superior court judge has

no authority to sentence a defendant and enter judgment in a criminal case in

which the statutory limitation 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, thus rendering that information void. The superior court rejected this argument. It is
not at issue on appeal. The State additionally asserted that the charges should not be dismissed
because Peltier had, in the stipulation agreement, expressly waived any objection to the filing of
additional charges based on a statute of limitations claim. That is the issue argued by the State
on appeal.

                                               -4
No. 68942-8-1/5




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

as to the effect of our criminal statutes of limitation.6 However, through time,

such uncertainty has existed in other jurisdictions 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 Hawaii 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 matter jurisdiction. 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 of the Criminal Statute 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.3d 704, 708-09 (2007).7


       6We review de novo both questions of a court's subject matterjurisdiction, 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 without jurisdiction to try and sentence him. The State, by
        contrast, argues that the statute of limitations is an "affirmative equitable
        defense" that can be "waived."
No. 68942-8-1/6



       For over 30 years, an uninterrupted series of Court of Appeals decisions—

from all three divisions—adopted the first of these approaches: holding that the

expiration of a criminal statutory limitation period deprived the superior court of

subject matter jurisdiction over the charge.

       Recently, Division Three reaffirmed its view that, "[t]he statute of

limitations in a criminal case is jurisdictional." State v. Walker, 153 Wn. App.

701, 705, 224 P.3d 814 (2009). Additionally, the court reaffirmed that, "[bjecause

a criminal statute of limitations is jurisdictional, unlike the statute of limitations in

a civil action, it cannot be waived." Walker, 153 Wn. App. at 705 n.2. This was

consistent with the 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 in the appellate

case law. More than 30 years ago, Division Two cited to out-of-state authority for

the proposition that, "a criminal statute of limitation 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).

       Two years later, Division Two reaffirmed Glover's validity, citing it for the

proposition that, "a statute of limitations is viewed differently in the criminal than

in the civil context. In the civil law, such a statute provides repose and a

limitation on remedies; in the 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 is jurisdictional." 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 is jurisdictional." State v. Fischer, 40 Wn. App. 506, 510, 699 P.2d 249

(1985). Several years later, we reiterated that, "the criminal statute of limitations

is jurisdictional and creates an absolute bar to prosecution." State v. Novotny, 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

greater crime commenced after the statute has run on the lesser offense." State

v. N.S.. 98 Wn. App. 910, 912, 991 P.2d 133 (2000). We did, however, note that,

"[sjome courts hold that the statute of limitations is an affirmative defense that

may be waived when the defendant seeks a jury instruction on a time-barred

lesser included offense; others find that it is jurisdictional and cannot be waived."

N.S., 98 Wn. App. at 915 n.12. We determined 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 of which were charged after the expiration of the limitation period

applicable to the respective offenses. Given the extensive Court of Appeals

decisional authority on the question, it is easy to see why the superior court

concluded that it did not have subject matter jurisdiction and ordered that the

charges be dismissed.

                                          IV


       Our Supreme Court has not often opined on the nature of criminal statutes

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 of limitation in criminal cases. Such
       statutes of limitation are matters of legislative grace; they are a
       surrendering by the sovereign of its right to prosecute. .. . [T]hey
       are measures of public policy only, and subject to the will of the
       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




                                           8
No. 68942-8-1/9



(2000). Stoudmire entered guilty pleas to two counts of indecent liberties,8 felony
offenses, was sentenced, and did not appeal from the judgment. 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 of the convictions.9 Stoudmire, 141 Wn.2d at 347.

        The State claimed that Stoudmire's PRP was time-barred.10 The Supreme

        8At the same time, Stoudmire entered guilty pleas to other, additional offenses. The
existence of those convictions is not material to the issues presented herein.
        9 In 1995, Stoudmire's first 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 a judgment and sentence in a
        criminal case may be filed more than one year after the judgment becomes final
        ifthe judgment and sentence is valid on its face and was rendered by a court of
        competent jurisdiction.
              (2) For the purposes of this section, "collateral attack" means any form of
        postconviction relief other 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 new trial, and a
        motion to arrest judgment.
             (3) For the 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 Court denies a timely petition
        for certiorari to review a decision affirming the conviction on direct appeal. The
        filing of a motion to reconsider denial of certiorari 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 of violating was
        unconstitutional on its face or as applied to the defendant's conduct;
              (3) The conviction was barred by double jeopardy under Amendment V of
        the United States Constitution or Article I, section 9 of the state Constitution;
             (4) The defendant pled not guilty and the evidence introduced at trial was
        insufficient to support the conviction;
            (5) The sentence imposed was in excess of the court's jurisdiction; or
            (6) There has been a significantchange in the law, whether substantive or
        procedural, which is material to the conviction, sentence, or other order entered

                                                   -9-
No. 68942-8-1/10



Court described the procedural question as follows:

      [Tjhis court now considers 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 criminal case may be filed more than one year after the
      judgment becomes final ifthe judgment and sentence is valid on its
      face and was rendered by a court of competent jurisdiction." RCW
      10.73.090(1). Petitioner claims the sentence was not valid on its
      face and the court was not one of competent jurisdiction.

Stoudmire, 141 Wn.2d at 352-53.

       Put simply, Stoudmire claimed that, because the applicable statutory

limitation period had expired prior to him being charged with indecent liberties,

the superior court had lost subject matter jurisdiction over the charges and was,

therefore, not a court of competent jurisdiction when he was sentenced and

judgment entered.

       In two sentences, the Supreme Court discounted this claim.

           A court does not lack subject matter jurisdiction 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 subject matter jurisdiction where the court has the
       authority to adjudicate the type of controversy in the action, and it
       does not lose subject matter jurisdiction merely by interpreting the
       law erroneously. State v. Moen, 129 Wn.2d 535, 545, 919 P.2d 69
       (1996).



       in a criminal or civil proceeding instituted by the state or local government, and
       either the legislature has expressly provided that the change in the law is to be
       applied retroactively, or a court, in interpreting a change in the law that lacks
       express legislative intent regarding retroactive application, determines that
       sufficient reasons exist to require retroactive application of the changed legal
       standard.


                                              -10-
No. 68942-8-1/11



Stoudmire, 141 Wn.2d at 353. This pronouncement and the cases cited in

support of it are 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 matter jurisdiction.

           Section 11 of the Restatement [(Second) of Judgments] defines
       subject matter jurisdiction: "Ajudgment may properly be rendered
       against a party only if the court has authority to adjudicate the rype
       of controversy involved in the action." (Italics ours.) We italicize
       the phrase "type of controversy" to emphasize its importance. A
       court or agency does not lack subject matter jurisdiction 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 concurrent jurisdiction in cases in equity.
       The superior court shall have originaljurisdiction in all cases at law which involve
       the title or 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 or as
       otherwise determined by law, or a lesser sum in excess of the jurisdiction granted
       to justices of the peace and other inferior courts, and in all criminal cases
       amounting to felony, and in all cases of misdemeanor not otherwise provided for
       by law; of actions of forcible entry and detainer; of proceedings in insolvency; of
       actions to prevent or abate a nuisance; of all matters of probate, of divorce, and
       for annulment of marriage; and for such special cases and proceedings as are
       not otherwise provided for. The superior court shall also have original jurisdiction
       in all cases and of all proceedings in which jurisdiction shall not have been by law
       vested exclusively in some other court; and said court shall have the power of
       naturalization and to issue papers therefor. They shall have such appellate
       jurisdiction in cases arising in justices' and other inferior courts in 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 their judges shall have power to issue writs of mandamus, quo
       warranto, review, certiorari, prohibition, and writs of habeas corpus, on petition by
       or on behalf of any person in actual custody in their respective counties.
       Injunctions and writs of prohibition and of habeas corpus may be issued and
       served on legal holidays and nonjudicial days.

                                               -11 -
No. 68942-8-1/12



             The term "subject matter jurisdiction" 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 matter jurisdiction merely by
         interpreting the law erroneously. Ifthe phrase is to maintain
         its rightfully sweeping definition, it must 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 matter jurisdiction when it attempts to
      decide a type of controversy over which it has no authority to
      adjudicate.
         [T]he focus must be on the words "type of controversy." If the
         type of controversy is within the subject matter jurisdiction,
         then all other defects or errors go to something other than
         subject matter jurisdiction.
      Robert J. Martineau, Subject Matter Jurisdiction 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 distinction between a

decision which exceeds jurisdiction and one which exceeds statutory

authority." 129 Wn.2d at 545. Thus, where a statute limited the time in

which a court could enter a restitution order, the court held that an

"untimely imposition of restitution 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 of subject matter jurisdiction.

                                         -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 of whether 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 with the issuance of two Supreme Court decisions. In Young v.

Clark, 149 Wn.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 matter jurisdiction.

       "Where the language of the constitution is clear, the words used
       therein should be given their plain meaning." City of Tacoma v.
       Taxpayers of City of Tacoma, 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 other court, presumably
       a court of limited jurisdiction. See Moore v. Perrott. 2 Wash. 1, 4,
       25 P.906 (1891) ("The language of the constitution is not that the
       superior courts shall have exclusive jurisdiction, but it gives to the
       superior courts universal original jurisdiction, leaving the legislature
       to carve out from that jurisdiction the jurisdiction 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 matter jurisdiction of

the superior court only where it simultaneously grants that subject matter

jurisdiction to some other court.12
       The Supreme Court then immediately applied this constitutional

principle in ruling that a statute that required a lawsuit against a county to


       12 See supra n.11.

                                         -13
No. 68942-8-1/14



be commenced in that county or one of the 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 matter jurisdiction unless it, at the same

time, assigns that subject matter jurisdiction to some other court.

Obviously, a statute of limitation does not do this.14 Thus, the Court of

        13 In so doing, the court overruled two cases that had held that noncompliance with such
statutes' requirements deprived the superior court of subject matter jurisdiction. See Cossel v.
Skagit 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 the Supreme Court's view that the legislature
cannot, by statute, simply eliminate superior court subject matter jurisdiction. We recently
summarized the law on this question.
        A party may raise a question of subject matter jurisdiction for the first time at any
        point in a proceeding, even on appeal. Cole fv. Harvevland. LLC, 163 Wn. App.
        199,] at 205-06, 258 P.3d 70 [(2011)]. Because the absence of subject matter
        jurisdiction is a defense that can never be waived, judgments entered by courts
        acting without subject matter jurisdiction must be vacated even if neither party
        initially objected to the court's exercise of subject matter jurisdiction and even if
        the controversy was settled years prior. Cole, 163 Wn. App. at 205, 258 P.3d 70;
        Shoop v. Kittitas County. 108 Wn. App. 388, 397-98, 30 P.3d 529 (2001), aff'd
        on other grounds. 149 Wn.2d 29, 65 P.3d 1194(2003).
             The consequences of a court acting without subject matter jurisdiction are
        "draconian and absolute." Cole, 163 Wn. App. at 205, 258 P.3d 70. "'If the
        phrase [subject matter jurisdiction] is to maintain its rightfully 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 of Major. 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 a judgment as 'void.'" Cote, 163 Wn. App. at 205, 258 P.3d 70.
        Judicial opinions sometimes "misleadingly" indicate that the court is dismissing
        an action for lack of subject matter jurisdiction when, in fact, the basis for the
        ruling is that "some threshold fact has not been established." Cole, 163 Wn. App.
        at 205, 258P.3d70.
            Indeed, "[a]s the United States Supreme Court has observed, 'jurisdiction' is
        a word of too many meanings." Cole. 163 Wn. 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." Arbauqh v. Y & H
        Corp.. 546 U.S. 500, 510, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006). Where
        the question of jurisdiction was not "central to the case" and thus did "not require
        close analysis," 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 matter jurisdiction 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 of subject matter jurisdiction 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 as jurisdictional 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 true jurisdictional conditions
       and nonjurisdictional limitations on causes of action." Reed Elsevier, 559 U.S. at
       161 (alteration in original) (citation omitted) (quoting Steel Co., 523 U.S. at 91;
       Kontrickv. 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" is often confused with a court's "authority" to rule in a particular
       manner,'" leading to "'improvident and inconsistent use of the term.'" 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 not lack subject matter jurisdiction solely
       because it may lack authority to enter a given order." Marlev, 125 Wn.2d at 539,
       886P.2d189.
            A court has subject matter jurisdiction where it has authority "to adjudicate
       the type of controversy involved in the action." Shoop, 108 Wn. App. at 393, 30
       P.3d 529. See also Cole. 163 Wn. App. at 209, 258 P.3d 70 ("The critical
       concept in determining whether a court has subject matter jurisdiction is the type
       of controversy."). Superior courts are granted broad original subject matter
       jurisdiction by Wash. Const, art. IV, § 6. Cole. 163 Wn. App. at 206, 258 P.3d 70.
       Exceptions to this broad jurisdictional grant "are to be narrowly construed." Cole,
       163 Wn. App. at 206, 258 P.3d 70. Superior courts have jurisdiction in "'all cases
       ... in which jurisdiction shall not have been by law vested exclusively in some
       other court,'" by an explicit act of Congress or the legislature. Hous. Auth. of City
       of Seattle v. Bin. 163 Wn. App. 367, 375, 260 P.3d 900 (2011) (quoting Wash.
       Const, art. IV, § 6).
           Superior courts possess "subject matter jurisdiction that cannot be whittled
       away by statutes." Shoop, 108 Wn. App. at 396, 30 P.3d 529. By protecting the
       superior courts' subject matter jurisdiction from statutory erosion, our state
       "constitution provides the foundation for an independent and coequal judicial
       branch of state government." Shoop. 108 Wn. App. at 396, 30 P.3d 529. "If the
       type of controversy is within the subject matter jurisdiction, then all other defects
       or errors go to something other than subject matter jurisdiction." Cole, 163 Wn.
        App. at 209, 258 P.3d 70.
In re Marriage of McDermott. No. 69107-4-1, 2013 WL 3756504 (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 matter jurisdiction.

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 matter jurisdiction because it accepted 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. A judgment 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 of the "documents of the plea agreement" in

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

had run, the judgment was invalid on its face. Stoudmire, 141 Wn.2d at

354.


       The superior court then considered the statute of limitation claim on

its merits.

       We now consider 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 of limitation.
       The State may offer evidence that although on its face the statute
       of limitation would bar prosecution, the statute did not in fact expire
       because petitioner was out of the state for a sufficient length of
       time. RCW 9A.04.080(2). Here, however, the State concedes that
       the prosecution on these charges exceeded the statute of limitation.
       State's Resp. at 5-6. Nevertheless, the State argues that
       Stoudmire is not entitled to relief because his guilty plea waives any
        challenge to the charging dates in counts I and II. State's Second
        Resp. at 8. The State cites Garrison v. Rhav. 75 Wn.2d 98, 101,
        449 P.2d 92 (1968): "A plea of guilty, 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 of charges 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 of personal 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 relief on these two charges.

Stoudmire, 141 Wn.2d at 354-55.

       The quoted passage contains several important statements. First,

it envisions 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. Of course, 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 of limitations defense by pleading guilty. This is a winning argument in

the federal courts. See United States v. Soriano-Hernandez, 310 F.3d 1099,

1104 (8th Cir. 2002) (entry of guilty plea precluded defendant from 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). It was not a winning argument in our Supreme Court.

       Third, in the course of rejecting the claim of waiver, the Supreme

Court indicated that Stoudmire was without the power to affect the

superior court's authority over him. It noted 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 in the 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 of the statutory limitation period as an

occurrence which barred prosecution and deprived the superior court of

authority to sentence the defendant—hence, also depriving it of authority

to enter judgment.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 "result[ing] 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
three ways in which courts have approached statutes of limitation. Cf. Kerby, 156 P.3d at 708-09.

                                             -18-
No. 68942-8-1/19



       In a criminal case, if a judge cannot enter judgment upon a guilty

plea or a jury's verdict, the case should be dismissed. In Peltier's

prosecution, the superior court judge did not err by so ordering.

      Affirmed.




                                                 L^Wv^6- ,



We concur:




 t£C4i&&       C~




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


       Cox, J. (concurring in the result) - I concur in the result that the majority reaches.

I write separately because I conclude that Peltier's waiver of the statute of limitations

does not implicate the superior court's subject matter jurisdiction: the authority to

adjudicate this type of controversy, three felony 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 matter jurisdiction in criminal

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

act."3 One type ofjurisdiction, the type at issue in this case, is "subject matter
jurisdiction."4 "A court has subject matter jurisdiction where the court has the authority
to adjudicate the type of controversy in the action . . . ."5
       As the majority points out, our state constitution provides that "[t]he superior court

shall have original jurisdiction ... in all criminal cases amounting to felony . . . ."6 This


       1 In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 353, 5 P.3d 1240 (2000).
       2 Brief of Appellant at 8.
      3 ZDI Gaming. Inc. v. State ex rel. Wash. State Gambling Comm'n, 173 Wn.2d
608, 616, 268 P.3d 929 (2012).
      4 Outsource 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 matter jurisdiction over the "type of controversy" at issue in this case.

       The superior court was not divested of subject matter jurisdiction when it decided

whether it could 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 this point.7

       There, Jerrod Stoudmire argued that his second personal restraint petition

entitled him to relief.8 He claimed his two indecent liberties convictions were "charged
beyond the time allowed by the statute of limitations."9
       The supreme court first considered a procedural question: whether "the

sentence was not valid on its face and the [superior] court was not one of competent

jurisdiction."10 In addressing these two questions, the court first stated:
               A court does not lack subject matter jurisdiction solely because
       it may 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 it does not lose subject matter
       jurisdiction merely by interpreting the law erroneously.^1]
       The supreme court decided that the record before it established that the

sentence was not valid on its face.12 Having decided this, the court declined to reach
the second part of the procedural question: whether the trial court had subject matter

jurisdiction.13 The court then proceeded to address the merits of the petition, concluding


       7 141 Wn.2d 342, 5 P.3d 1240 (2000).
       8]g\ 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 the statute of limitations.14
       Stoudmire was decided on the basis that the court did not have the authority to

enforce a waiver of the statute of limitations.15 It was not decided on the basis of

subject matter jurisdiction. The court expressly declined to reach the latter question.16
       The parties both rely on Stoudmire, but for different purposes. Neither party cites

it for the proposition that subject matter jurisdiction was the basis of that 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 of subject matter jurisdiction over the charge." I read 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 of limitations in a criminal case is jurisdictional."17 In
doing so, the court relied on State v. Eppens.18 But a close reading of that case reveals
no reference to subject matter jurisdiction.19 Rather, the case merely states that "a
statute of limitations is viewed differently in the criminal than in the civil context."20




       14 Id, at 354-55
       15 Id, at 355.
       16 Id, at 354.
       17 153 Wn. App. 701, 705, 224 P.3d 814 (2009).
       18 jd, (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

matter jurisdiction.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

of the sovereign to act against the 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

the limitation period, and therefore do not reach such issue in this opinion."23 If the
Glover court believed it was addressing subject matter jurisdiction, it is unlikely that it

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

jurisdiction is not something litigants have the power to waive.24 Either a court has
subject matter jurisdiction or it does 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 court explained that "the State has not been able to demonstrate any

statutory authority allowing the sentencing court to extend the statute of limitations."27
Because the court's sentencing authority is limited to that expressly provided for by

statute, the court concluded that "the extension of the statute of limitations for seven




       21 Walker, 153 Wn. 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. 16 Ariz.
App. 246, 248, 492 P.2d 742 (1972)).
       23 id, 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 id,
       26 113 Wn. 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 matter jurisdiction.

       In sum, I conclude these cases decide whether a court has authority to make a

decision, not whether a court has subject matter jurisdiction. For these reasons, I

conclude that the superior court's subject matter jurisdiction 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 is instructive.29 There, Stoudmire argued that he was entitled
to relief because two indecent liberties convictions were "charged beyond the time

allowed by the statute of limitations."30 The State argued that Stoudmire was not
entitled to relief because "his guilty plea waive[d] any challenge" to these charges.31
The supreme court agreed with Stoudmire.

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

statutory authority given to the courts."32 Thus, the sentencing court exceeded its
authority when it enforced the plea agreement's waiver provision and entered

convictions for two charges that were barred by the statute of limitations.33




       28 id,
       29
            Stoudmire, 141 Wn.2d at 354-55.
       30 Id. at 354.
       31 Id.
       32
            Id. at 355.
       33 Id.
No. 68942-8-1


       Notably, the supreme court did not use the term "jurisdiction" when it agreed 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 of the 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." Like the plea

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

authority of the courts to enforce.35
       For this latter reason, I concur in the result that the majority reaches. Affirming

the trial court, on the basis that it lacked authority, is the proper result.




                                                                     £&Xj




       34 id,
       35 id.
