                                                                        FILED
                                                                    OCTOBER 25, 2016
                                                                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. 32221-1-111
                     Respondent,              )         (consolidated with
                                              )         33704-9-111)
       v.                                     )
                                              )
DAVID RANDALL PRIEST,                         )
                                              )
                     Appellant.               )         UNPUBLISHED OPINION
                                              )
                                              )
IN THE MATTER OF PERSONAL                     )
RESTRAINT OF                                  )
                                              )
DAVID RANDALL PRIEST.                         )
                                              )
                     Petitioner.              )

       FEARING, C.J. -David Randall Priest seeks, through a personal restraint petition,

relief from his January 13, 2014, convictions for possession of a stolen motor vehicle and

possession of stolen property in the third degree. Priest contends that the superior court

lacked jurisdiction over him and this prosecution because he is an enrolled member of the

Confederated Tribes of the Colville Nation and any crimes occurred solely on tribal land.
Nos. 32221-1-111; 33704-9-111
State v. Priest; In re Pers. Restraint of Priest


This court consolidated Priest's personal restraint petition with his direct appeal, in which

he challenges legal financial obligations imposed by the trial court. Because the only

evidence of possession of stolen property showed the property to be on reservation land,

we hold that the trial court lacked jurisdiction to entertain this prosecution against David

Priest. We vacate his convictions, judgment, and sentence. We need not and do not

address Priest's challenge to legal financial obligations.

                                           FACTS

       In June 2013, while investigating another crime, Omak Police Officer Michael

Morrison recovered stolen property belonging to James Barker. Officer Morrison

notified Barker, who reported that someone stole other items from his property, including

a blue and white 1985 Ford F-250 pickup truck.

       Later, while off-duty and driving on County Road 280, Officer Michael Morrison

saw a truck fitting the pickup's description at 1109 Lone Pine HUD Road, located on the

reservation of the Confederated Tribes of the Colville Nation. The United States holds

this reservation land in trust, or the land is an Indian allotment remaining under

restriction from alienation. As he drove along Lone Pine HUD Road, Officer Morrison

saw David Priest, whom he knew by sight, lift a tarp that covered the pickup. Officer

Morrison directed James Barker to drive by the Lone Pine HUD Road residence to

confirm his ownership of the Ford pickup. Barker did.




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State v. Priest; In re Pers. Restraint of Priest


       On June 16, 2013, Omak Officer Michael Morrison contacted Okanogan County

Sheriff Deputy Eric Mudgett, who obtained a search warrant for 1109 Lone Pine HUD

Road. In preparing the affidavit for the warrant, Deputy Mudgett contacted the Colville

Tribe and confirmed that Cheryl Priest, David Priest's sister, resided at the residence.

Upon arriving at 1109 Lone Pine HUD Road, law enforcement found Priest in a travel

trailer behind the house on the property. Priest told Deputy Mudgett that Garret Elsberg

brought the Ford F-250 to the property a few weeks earlier and asked Priest to perform

repairs on the pickup. Deputy Mudgett examined the pickup truck and confirmed it was

the same truck reported stolen by James Barker. The deputies also discovered other

personal property on the Lone Pine HUD Road property reported stolen by Barker,

including a tool box, a pressure washer, a shop vacuum, a dolly, a cooler, a gas can, and

some tie-down straps.

                                       PROCEDURE

       The State of Washington charged David Priest, in Okanogan Superior Court, with

possession of a stolen motor vehicle and possession of stolen property in the third degree.

A jury found Priest guilty of both crimes. The trial court sentenced Priest to fifty

months' confinement for possession of a stolen motor vehicle and 364 days' confinement

for possession of stolen property in the third degree. The superior court also ordered

Priest to pay $1,110.50 in legal financial obligations, including a $100.00 mandatory

deoxyribonucleic acid (DNA) collection fee. The court additionally ordered Priest to

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Nos. 32221-1-111; 33704-9-111
State v. Priest; In re Pers. Restraint of Priest


submit to a DNA collection unless "the Washington State Patrol crime laboratory already

has a sample ... for a qualifying offense." Clerk's Papers at 28.

       In a direct appeal, David Priest challenges the constitutionality of the mandatory

DNA collection fee, and he contends the trial court erred in imposing legal financial

obligations, without inquiring into his present or future ability to pay. In addition, Priest

filed a prose statement of additional grounds for review, in which he contends that the

trial court lacked jurisdiction to prosecute him because he is an enrolled member of the

Colville Tribe and all the acts supporting his convictions occurred on the Colville

Reservation. Priest also contends he received ineffective assistance of counsel because

his attorney, despite his request, failed to raise jurisdiction at trial and because his trial

attorney failed to call key witnesses.

       While his direct appeal was pending, David Priest moved the superior court to

vacate and set aside his judgment and sentence. Because Priest filed the motion more

than one year after the entry of the judgment and sentence, the trial court transferred the

motion to this court for consideration as a personal restraint petition. In his petition,

Priest again challenges the trial court's jurisdiction to prosecute him. This court

consolidated Priest's personal restraint petition with his direct appeal.

       After the State filed a responsive brief, David Priest filed a reply and motion to

accept additional evidence under RAP 9.1 l(a). Priest attached, to the motion, a

Certificate of Indian Blood, two print-outs of property records obtained from the

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Nos. 32221-1-111; 33704-9-111
State v. Priest; In re Pers. Restraint of Priest


Okanogan County Assessor's Office, and a letter from Okanogan County Assessor Scott

D. Furman. Priest asked that we accept the attachments as evidence for purposes of his

appeal. The State objected to Priest's motion and argued that Priest failed to satisfy five

of the six requirements of RAP 9 .11. The State also contended that this court should not

consider the attachments to the motion because they cannot be found in the original trial

court record.

       This court ordered a reference hearing and asked the superior court, by written

findings of fact, to answer the following questions:

              1. During what, if any dates, has David Priest been an enrolled
       member of the Confederated Tribes of the Colville Nation?
              2. Whether David Priest knowingly had possession of stolen
       property off the Confederate Tribes of the Colville territory, and, if so, what
       stolen property? Also, if so, when?
              3. Whether David Priest knowingly had possession of stolen motor
       vehicle off the Confederate Tribes of the Colville territory, and, if so,
       when?

Order for Reference Hearing, State v. Priest, No. 32221-1-111, consolidated with In

re Pers. Restraint of Priest, No. 33704-9-111 (Wash. Ct. App. April 25, 2016).

       During the reference hearing, Deputy Eric Mudgett testified that he never saw the

stolen car or property off the reservation. Deputy Mudgett testified that David Priest told

him that Garrett Elsberg delivered the stolen pickup truck to the reservation.

       After a reference hearing, the trial court entered the following findings of fact:

              1. The Defendant/Petitioner, DAVID RANDALL PRIEST
       (hereinafter referred to as "Priest"), was found guilty of the crimes of

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Nos. 32221-1-III; 33704-9-III
State v. Priest; In re Pers. Restraint of Priest


       Possessing a Stolen Motor Vehicle and Possessing Stolen Property in the
       Third Degree by a jury on the 6th day of December, 2013.
               2. Priest did not testify at the trial and the defense presented no
       witnesses. (From review of trial proceedings).
               3. David Priest testified at this Reference Hearing that he has been a
       member of the Colville Confederated Tribe since birth; however his
       Certificate ofIndian Blood does not bear a date of enrollment. Further he
       stated that his mother, Donna Mae Priest, was full (4/4) Colville and that
       his dad, William Virgil Priest, was a non-member. This information would
       lead this court to understand that David Priest would be 2/4 or one-half;
       however, the Certificate of Indian Blood disclosed 5/16. The Court finds
       that he is an enrolled member of the Colville Confederated Tribes, but
       cannot confirm the information that he was enrolled since birth. However
       the [c]ourt would find that he was enrolled at the time of these alleged
       offenses (June 2013) as he was an adult at the time.
               4. The residence and premises from which the Ford F250 pickup
       truck and various items of personal property were stolen or taken from was
       located at 62 Woods Road (property of James Lee Barker) which is located
       north of Omak (Okanogan county), Washington and NOT within the
       boundaries of the Confederated Tribes of the Colville Reservation. This
       locality lies west of the Okanogan River near the Omak airport.
               5. The Ford F250 pickup belonging to Romero Chavez (stored at
       James Lee Barker's premises) was initially viewed by Omak Police Officer
       Morrison after receiving information about a stolen truck while following
       up on and investigating other burglaries. Officer Morrison located the truck
       at 1109 Lone Pine HUD which lies east of Omak and is within the
       boundaries of the Colville Reservation. The residential property was
       determined to be tribal property and in the possession of Cheryl Priest who
       is Mr. Priest's sister. Officer Morrison turned the burglary investigation
       information over to Sgt. Mudgett of the Okanogan County Sheriff's Office
       due to jurisdictional concerns, since Barker's and Chavez's properties were
       outside the city limits of Omak and within county jurisdiction.
               6. David Priest did not reside at 1109 Lone Pine HUD, but in fact
       resided at 119 S. Cedar in the City of Omak which location is NOT within
       the boundaries of the Colville Tribes Reservation. This is the same address
       disclosed in his Certificate ofIndian Blood and testified in the Reference
       Hearing as being his address at the time of his arrest.
               7. The time frame for the burglaries and theft of property from the
       Barker property was approximately the second half of May 2013 and the

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Nos. 32221-1-III; 33704-9-III
State v. Priest; In re Pers. Restraint of Priest


       first two weeks of June 2013. Barker thought Chavez had removed the
       pickup truck and didn't immediately concern himself to the fact that it was
       gone. Further Barker had an elderly parent whom he cared for which took
       him away from his premises during that time frame. He was contacted by
       Omak Police, who found an old box of his bank checks during their
       investigation of several burglaries that alerted him to the initial burglary
       and theft at his premises.
                8. David Priest has an extensive criminal history of burglaries, theft,
       trafficking and possession of stolen property. He has thirteen convictions
       for crimes of dishonesty. He was then (June 19, 2013) out on bail and
       facing new criminal charges for Trafficking in Stolen Property in the First
       Degree (Three counts) and Possession of a Stolen Motor Vehicle (Two
       counts), which had been found at Shelly Priest's (ex sister in law) residence
       which was nearby the 1109 Lone Pine house. He was subsequently
       convicted in April 2014 on all five counts as the undersigned judge was the
       trial judge in that matter.
                9. David Priest related to Sgt. Mudgett that an individual known as
       Garrett Elsberg had brought the Ford F250 pickup to the Cheryl Priest's
       [sic] so David Priest could put it in working or running order. Further Mr.
       Priest told Sgt. Mudgett that he would get ahold of Els berg and have him
       contact the officer which never occurred. Elsberg had multiple warrants
       out for his arrest. However, this inability to start or run the pickup is
       contrary to the evidence submitted at trial by Mr. Chavez.and Mr. Barker
       who both knew the truck was operational. The photographs introduced at
       trial and the Reference Hearing show the truck being stripped and
       disassembled which is clearly contrary to the preliminary statement made to
       Sgt. Mudgett. No evidence was presented that Garrett Elsberg delivered
       the pickup except the self-serving statement of David Priest. A jury has the
       ability to determine the credibility of statements and whether it makes sense
       given the facts. Here the jury did not accept the facts of Mr. Priest as
       relayed to Sgt. Mudgett relative to Garrett Elsberg delivering the truck and
       personal property.
                10. Additionally David Priest talked about Garrett Elsberg being a
       person involved in drugs and other criminal activities when he had his
       initial contact with Sgt. Mudgett; yet David Priest provided no information
       about how Elsberg might be contacted or what specific repairs Elsberg had
       ask[ ed] Priest to do except get the pickup operational. All the statements
       and actions by Priest appeared to be contrary to the evidence and



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Nos. 32221-1-111; 33704-9-111
State v. Priest; In re Pers. Restraint ofPriest


       unreasonable given the situation along with the disclosures by Barker and
       Chavez.
               11. In addition to the Ford F250 pickup, other items of personal
       property were located and found at 1109 Lone Pine that had been stolen
       from Barker's premises including a cooler, cargo strap, gas can, tool box,
       pressure washer, shop vac, hand truck, and Troy-hilt mower. These items
       were not located in the pickup at Barker's property but in his shop and in
       his house from which they were taken. Thus Mr. Barker's premises had
       been burglarized.
               12. David Priest did not respond to Sgt. Mudgett's initial contact at
       the travel trailer, but did when Dep. Dave Rodriguez entered the trailer,
       went to the back bedroom area, and actually saw Mr. Priest present. He
       appeared to be hiding from law enforcement, but for Dep. Rodriguez'
       search of the trailer sleeping area.
               13. The Ford F250 truck was covered by a tarp, except for the rear
       portion, which hid items of personal property taken from the Barker
       property. This was to prevent others from seeing the items or to secret
       them.
               14. This court finds David Priest's prior criminal activities of theft,
       possessing stolen property, stripping or disassembling property or vehicles
       are factually related to the crimes he was charged with herein. While he did
       not testify at his trial, the jury is instructed on direct and circumstantial
       evidence along with witness credibility. Given that his claim to Sgt.
       Mudgett was that he was to repair and make operational the Ford F250, the
       clear evidence is contrary and unsupportive of his claim. Therefore the
       credibility of Mr. David Priest must be called into question, including the
       truthfulness of any statement given to law enforcement, and the jury found
       that he "knowingly" had possession of stolen property and possession of a
       stolen motor vehicle off the Colville Tribes Reservation between the last
       two weeks of May 2013 and the first two weeks of June 2013.

Suppl. Clerk's Paper at 108-11. (Emphasis in original).

                                 LAW AND ANALYSIS

       David Priest contends that the trial court lacked jurisdiction over his prosecution

for possession of a stolen motor vehicle and possession of stolen property in the third



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Nos. 32221-1-111; 33704-9-111
State v. Priest; In re Pers. Restraint ofPriest


degree. We agree.

        We review de novo whether a particular court has jurisdiction. Shoop v. Kittitas

County, 149 Wn.2d 29, 33, 65 P.3d 1194 (2003). A petitioner who raises a

nonconstitutional error as a basis for relief in a personal restraint petition must show that

the error alleged constitutes a fundamental defect that inherently results in a complete

miscarriage of justice. In re Pers. Restraint of Cook, 114 Wn.2d 802, 811, 792 P.2d 506

(1990).

        It is axiomatic that a party may challenge a court's subject matter jurisdiction at

any time, including for the first time on appeal or through a collateral attack. RAP

2.5(a)(l); RAP 16.4(c)(l); Matheson v. City of Hoquiam, 170 Wn. App. 811,819,287

P.3d 619 (2012); Wesley v. Schneckloth, 55 Wn.2d 90, 94; 346 P.2d 658 (1959). The

Washington Supreme Court explained over fifty years ago: if a court lacks jurisdiction,

"any judgment entered is void ab initio and is, in legal effect, no judgment at all." Wesley

v. Schneckloth, 55 Wn.2d at 93-94. We conclude that a petitioner who can demonstrate

the court of conviction lacked jurisdiction to convict him has identified a "fundamental

defect" entitling him to relief in a personal restraint petition. Jurisdiction is essential to

due process. State v. LG Elecs., Inc., 185 Wn. App. 394, 410, 341 P.3d 346 (2015), ajf'd,

186 Wn.2d 169, 375 P.3d 1035 (2016).

        Article IV, section 6 of the Washington State Constitution provides, in relevant

part:

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Nos. 32221-1-III; 33704-9-III
State v. Priest; In re Pers. Restraint ofPriest


               The superior court shall have original jurisdiction .. ; in all criminal
       cases amounting to felony, and in all ·cases of misdemeanor not otherwise
       provided for by law. . . . 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[.]

David Priest's petition turns on whether the State's jurisdiction to prosecute him has been

"vested exclusively in some other court." WASH. CONST. art. IV, § 6.

       The Confederated Tribes of the Colville Nation is a tribe "acknowledged to have

the immunities and privileges available to federally recognized Indian Tribes." Indian

Entities Recognized and Eligible to Receive Services from the United States Bureau of

Indian Affairs, 81 Fed. Reg. 5,019-02 (Jan. 29, 2016). The State of Washington does not

have criminal or civil jurisdiction over "Indians when on their tribal lands or allotted

lands within an established Indian reservation and held in trust by the United States or

subject to a restriction against alienation imposed by the United States," save for eight

enumerated legal issues, none of which apply here. RCW 37.12.010. However, the State

may assume civil or criminal jurisdiction if a tribe asks it to do so pursuant to RCW

37.12.021.

       The Colville Tribe originally invoked the State's assumption of jurisdiction under

RCW 37.12.021. Nevertheless, the State of Washington retroceded all civil and criminal

jurisdiction back to the tribe in 1987. LAWS OF 1986, ch. 267 § 2. Thus, if David Priest

was an enrolled member of the Colville Tribe and possessed stolen property solely on

"tribal lands or allotted lands within an established Indian reservation and held in trust by

                                              10
Nos. 32221-1-111; 33704-9-111
State v. Priest; In re Pers. Restraint ofPriest


the United States," the State did not have jurisdiction to prosecute him. RCW 37.12.010;

State v. Clark, 178 Wn.2d 19, 25, 308 P.3d 590 (2013).

       The trial court found that David Priest was an enrolled member of the Colville

Tribe during the time of the crimes. The trial court also found that 1109 Lone Pine HUD

Road, where the car and property were found, is on the Colville Reservation. The trial

court convicted Priest only of possession crimes. The State has forwarded no evidence

that David Priest possessed either the stolen car or other stolen items off the reservation.

The State presented no testimony as to what, if any, purloined property David Priest

possessed outside the reservation, and, if so, where he possessed the property and on

what date or dates he possessed the property.

       In finding of fact 14 of the reference hearing, the trial court determined that the

jury, who found Priest guilty of the possession crimes, also found that he "knowingly"

possessed the stolen property off the Colville Tribes Reservation between the last two

weeks of May 2013 and the first two weeks of June 2013. We find no such finding in the

record and the trial court did not cite to the record for that finding. The jury was never

asked to determine the location of the crimes.

       David Priest moves this court to deny the State an award of appeal costs. Since

we rule in favor of Priest on the merits the motion is moot.




                                             11
Nos. 32221-1-111; 33704-9-111
State v. Priest; In re Pers. Restraint ofPriest


                                      CONCLUSION

       We vacate the convictions of David Priest for possession of a stolen motor vehicle

and possession of stolen property in the third degree.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:

 . ff
lf::w
Lawrence-Berrey, J.




                                             12
