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                                                                 R.
                                                                 Ronald  Carpenter
                                                                 Supreme Court Cierk



IN THE SUPREME COURT OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                   )      No. 89502-3
                                       )
                   Petitioner,         )
                                       )
v.                                     )
                                       )      En Bane
JOSEPH A. PEL TIER,                    )
                                       )
                   Respondent.         )      Filed         AUG 2 1 2014
                                       )
                                       )


      FAIRHURST, J.-This case is about whether a defendant can relinquish the

rights conferred by the statute of limitations in a pretrial agreement. We hold that a

defendant may expressly waive the criminal statute of limitations in a pretrial

agreement when the statute of limitations on the underlying charge has not yet run

at the time the defendant enters the agreement. We reverse.

      I.     FACTUAL BACKGROUND AND PROCEDURAL HISTORY

      The State charged Joseph A. Peltier on September 6, 2002 with two counts of

second degree rape (as to B.M. and S.B.), one count of second degree child

molestation (as to S.G.), and one count of second degree rape of a child (as to S.G.).
State v. Peltier, No. 89502-3

The crimes occurred between 1993 and 2001. On July 14, 2003, to accommodate a

negotiated settlement of his case, Peltier agreed to a stipulated trial on an amended

information charging him with third degree rape (as to B.M. and J.D., a victim not

referenced in the original information) and indecent liberties (as to S.B.). The

charges as to S.G. were dismissed. On January 28, 2004, the trial judge found Peltier

guilty and sentenced him. The statute of limitations on the four original charges had

not yet run, but the statute of limitations for the charges he was convicted of had

expired by January 1998, well before he was charged with and sentenced for them.

      The agreement upon stipulation that was part of the stipulated trial agreement

did not specifically mention the statute of limitations with regard to the charged

crimes, but it did contain the following provisions:

      6. AGREEMENT NOT TO CHALLENGE CONVICTION: The
      defendant agrees not to challenge the conviction for this crime, whether
      by moving to withdraw the stipulation, appealing the conviction, filing
      a personal restraint petition, or in any other way ....
      7. NON-COMPLIANCE WITH AGREEMENT: 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.

Clerk's Papers at 117 (emphasis added).



                                          2
State v. Peltier, No. 89502-3

       By August 30, 2008, the statute of limitations for all of the charges in the

original information had expired. In 2011, toward the end of Peltier's sentence, the

State filed a sexually violent predator (SVP) petition pursuant to chapter 71.09

RCW. After a trial the SVP petition was granted. Peltier then filed a personal

restraint petition (PRP) challenging the constitutionality of his original conviction.

The State did not dispute this PRP, and the Court of Appeals, Division One, ruled

that the original judgment and sentence for third degree rape and indecent liberties

was invalid on its face since both charges in the amended information were filed

beyond the statute of limitations. This PRP was granted, and the Court of Appeals

ordered the charges to be vacated and dismissed.

           On the same day these charges were dismissed, the State filed the second

amended information charging Peltier with some of the more serious charges from

the original information. The second amended information charges were rape in the

second degree (as to S.B.), rape of a child in the second degree (as to S.G.), child

molestation in the second degree (as to S.G.), and rape in the second degree (as to

J.D.). I

           Peltier moved to dismiss this second amended information since the statute of

limitations had now run. The State argued that Peltier waived his right to object to



           1
        Since the acts against J.D. were not charged in the original information, the State
recognizes this charge is improper and does not pursue its validity on appeal.
                                             3
State v. Peltier, No. 89502-3

the statute of limitations in the agreement upon stipulation, so the State had the right

to refile the charges. The trial court, relying on case law describing the statute of

limitations as jurisdictional, granted the motion to dismiss. The State appealed.

      The Court of Appeals, Division One, held that a criminal statute oflimitations

is not jurisdictional, but rather determine the court's statutory authority to hear a

case. State v. Peltier, 176 Wn. App. 732, 737, 309 P.3d 506 (2013). The Court of

Appeals held that since the statute of limitations had run, the trial court no longer

had the authority to sentence the defendant, and so it affirmed the trial court on these

different grounds. Id. The State sought review, which we granted. State v. Peltier,

179 Wn.2d 1014, 318 P.3d 279 (2014).

                             II.     ISSUE PRESENTED

       How do we characterize a criminal statute of limitations, and can a criminal

defendant waive the statute of limitations?

                                   III.   ANALYSIS

       We review de novo a trial court's decision on a question ofthe court's subject

matter jurisdiction and on questions of law. Dougherty v. Dep 't of Labor & Indus.,

150 Wn.2d 310,314,76 P.3d 1183 (2003); Robb v. City of Seattle, 176 Wn.2d 427,

433, 295 P.3d 212 (2013).

       The question of whether a defendant can waive a criminal statute of

limitations is a question of first impression for this court. Traditionally, whether a


                                            4
State v. Peltier, No. 89502-3

criminal statute oflimitations can be waived depends on the characterization of these

statutes. A guilty plea waives all defenses other than the failure of the information

to charge an offense. In re Habeas Corpus of Garrison, 75 Wn.2d 98, 101, 449 P.2d

92 (1968). But, a guilty plea "'does not preclude an appeal where collateral

questions, such as the validity of the statute, the sufficiency of the information, the

jurisdiction of the court, or the circumstances under which the plea was made, are

raised."' State v. Phelps, 113 Wn. App. 347,352, 57 P.3d 624 (2002) (quoting State

ex rel. Fisher v. Bowman, 57 Wn.2d 535,536,358 P.2d 316 (1961)). If a statute of

limitations is jurisdictional, it is not subject to waiver. One cannot consent to a court

having or not having subject matter jurisdiction.

      Washington case law from the Court of Appeals specifically says that a

criminal statute of limitations is jurisdictional. This holding first appears in State v.

Glover, 25 Wn. App. 58, 61, 604 P.2d 1015 (1979). Relying on only out of state

authority, the Glover court said, "Unlike the situation in civil cases, 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.' It is jurisdictional." Id. (citation

omitted) (quoting State v. Fogel, 16 Ariz. App. 246, 248,492 P.2d 742, 744 (1972)).

Two years later in State v. Eppens, Division Two reaffirmed Glover, saying, "We

note first 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


                                            5
State v. Peltier, No. 89502-3

remedies; in the criminal law, such statutes create an absolute bar to prosecution."

30 Wn. App. 119, 124, 633 P.2d 92 (1981) (citing Glover, 25 Wn. App. at 61).

      These phrases from Glover and Eppens have been repeated throughout

subsequent cases. State v. Ansell, 36 Wn. App. 492, 496, 675 P.2d 614 (1984) ("The

statute of limitation is jurisdictional."); State v. Fischer, 40 Wn. App. 506,510,699

P.2d 249 (1985) ("[A] criminal statute of limitation is jurisdictional."); State v.

Bryce, 41 Wn. App. 802, 807, 707 P.2d 694 (1985) ("We reasoned that because a

criminal statute of limitation is jurisdictional, an information which charges a crime

beyond the statute of limitations is void on its face, and therefore, there is nothing to

which an amendment can relate back."); State v. Novotny, 76 Wn. App. 343, 345

n.1, 884 P.2d 1336 (1994) ("Because the criminal statute of limitations is

jurisdictional and creates an absolute bar to prosecution, Novotny correctly argues

that he may raise the challenge for the first time on appeal." (citation omitted)); State

v. N.S., 98 Wn. App. 910, 914-15, 991 P.2d 133 (2000) ("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."' (footnote omitted) (quoting Glover, 25 Wn. App. at 61)); Phelps, 113

Wn. App. at 357; State v. Walker, 153 Wn. App. 701, 705, 224 P.3d 814 (2009)

("The statute of limitations in a criminal case is jurisdictional.").




                                            6
State v. Peltier, No. 89502-3

      But despite the use of the term, a criminal statute oflimitations does not affect

a court's subject matter jurisdiction. In In re Personal Restraint of Stoudmire, 141

Wn.2d 342, 353, 5 P.3d 1240 (2000), we emphasized the difference between a

tribunal's lack of subject matter jurisdiction and its lack of authority. There, a

defendant pleaded guilty to two charges of indecent liberties and was sentenced. !d.

at 34 7. He then challenged his convictions in a PRP, taking issue with the fact that

the statute of limitations had run on the offenses with which he was charged. In

discussing whether the defendant was entitled to relief from his convictions, the

court said:

             A court does not lack subject matter jurisdiction solely because
      it may lack authority to enter a given order. Marley v. [Dep 't] ofLabor
      & 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).

!d. at 353. Our constitution gives original jurisdiction to the superior court in all

criminal cases amounting to a felony. WASH. CONST. art. IV, § 6. A statute of

limitations does not take away that fundamental right of the superior courts to hear

that type of controversy; it only limits the time in which the court can exercise that

authority. Peltier, 176 Wn. App. at 744-45.

       In Stoudmire, the statute of limitations had run on the underlying charges by

the time Jerrod Stoudmire was sentenced. Because of this, the court held that the


                                           7
State v. Peltier, No. 89502-3

charges were beyond the statutory authority of the court. Stoudmire, 141 Wn.2d at

3 55. The court said, '" [A] plea bargaining agreement cannot exceed the statutory

authority given to the courts."' I d. (alteration in original) (internal quotation marks

omitted) (quoting In re Pers. Restraint of Moore, 116 Wn.2d 30, 38, 803 P.2d 300

( 1991 )). "Because the statute of limitations bars prosecution of charges commenced

after the period prescribed in the statute, the sentencing court exceeded its authority."

Id. The expiration of a criminal statute of limitations does not deprive a court of

subject matter jurisdiction; its expiration deprives a court of authority to enter

judgment. Since the court had no authority to sentence, Stoudmire could not consent

to be charged or waive any objection to the untimely charging. Id. But this case is

distinguishable from Stoudmire. Here, the statute of limitations had not run on the

underlying charges at the time Peltier entered the stipulated agreement, meaning the

court still had the authority to sentence him.

       When a statute of limitations has not run and the court still has authority to

sentence on charges if convicted, a defendant may waive the statute of limitations if

he or she so chooses. This waiver must be express. Generally, criminal defendants

can waive rights that exist for their own benefit, and this is no different. Cowan v.

Superior Court, 14 Cal. 4th 367, 926 P.2d 438, 439, 58 Cal. Rptr. 2d 458 (1996). If

it proves more advantageous for a defendant to waive a statute oflimitations that has

not expired, he or she should be able to do so. Peltier, 176 Wn. App. at 738; State v.


                                            8
State v. Peltier, No. 89502-3

N.S., 98 Wn. App. at 912-13. This will allow a defendant to plead guilty to lesser

charges instead of standing trial on greater ones and facing a lengthy prison sentence.

Accordingly, a defendant may expressly waive any objections to timeliness when

the statute of limitations has not yet run on the underlying charges and the court thus

still has authority to sentence on the charges if convicted.

      Here, the statute of limitations on the four greater charges were all still valid

at the time Peltier entered the stipulated agreement in exchange for being charged

with the two lesser crimes. In the agreement upon stipulation he expressly waived

his right to object to the expiration of the statute of limitations if his subsequent

challenge of the agreement led to the refiling of the original charges. Peltier

challenged the agreement, and the State refiled the original charges. Even though the

statute of limitations has run on the refiled charges, the stipulation upon agreement

was executed when the court still had the authority to sentence and so the waiver

therein is valid. Peltier is precluded from objecting to the refiling of the original

charges based on untimeliness.

                                IV.    CONCLUSION

       A statute of limitations does not affect a court's subject matter jurisdiction; it

affects the authority of a court to sentence a defendant for a crime. A defendant may

expressly waive a criminal statute oflimitations when he or she agrees to do so when

the statute of limitations has not yet run on the underlying charges. At that time, the


                                            9
State v. Peltier, No. 89502-3

court has authority over the charges so an express waiver is effective and will be

upheld. Peltier waived the statute of limitations when the charges were still valid.

We reverse the Court of Appeals and the trial court and hold that the State may refile

the original charges.




                                          10
State v. Peltier, No. 89502-3




 WE CONCUR:




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