IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) ) No. 78963-5-I Appellant, ) DIVISION ONE v. ) ) REGINALD FREEBERG-BASKETT, ) UNPUBLISHED OPINION
Respondent. ) FILED: October 14, 2019
SMITH, J. — In December 2016, Reginald Freeberg-Baskett was convicted
in superior court of domestic violence assault. He received a one-year
suspended sentence, a condition of which required him not to have contact with
the victim, Gisele Blanchet, for two years. The superior court entered a no-
contact order to record the no-contact condition.
The State later charged Freeberg-Baskett with violation of the no-contact
order, alleging that Freeberg-Baskett had prohibited contact with Blanchet on two
occasions in May 2018, i.e., after the term of Freeberg-Baskett’s suspended
sentence but before the expiration of the no-contact order. On Freeberg
Baskett’s motion, the trial court excluded evidence of the no-contact order,
effectively terminating the State’s case. The court relied on State v. Granath,
190 Wn.2d 548, 415 P.3d 1179 (201 8), in which our Supreme Court concluded
that a district court does not have authority under RCW 10.99.050 to issue a No. 78963-5-1/2
domestic violence no-contact order that lasts longer than the defendant’s
suspended sentence.
Because the no-contact order was expressly applicable to Freeberg
Baskett and to the crimes with which he was charged, the trial court erred by
excluding evidence of the no-contact order. Therefore, we reverse and remand
for further proceedings.
FACTS
In 2016, Freeberg-Baskett was convicted in King County Superior Court of
assault in the fourth degree—domestic violence (count 1) and attempted theft in
the third degree (count 2). On December 9, 2016, Freeberg-Baskett was
sentenced to 364 days’ imprisonment on count 1 and 90 days’ imprisonment on
count 2, to run concurrently. The court suspended the sentenced imprisonment
on certain conditions. One of those conditions was that Freeberg-Baskett be on
unsupervised probation for 12 months, i.e., through December 8, 2017. Another
was that Freeberg-Baskett have no contact with the victim, Blanchet, pursuant to
chapter 10.99 RCW. To that end, the court entered a domestic violence no-
contact order with a stated expiration date of December 9, 2018. In other words,
the term of the no-contact order was one year longer than the term of Freeberg
Baskett’s suspended sentence.
In April 2017, Freeberg-Baskett was ordered to serve out his remaining
sentence in custody after he failed to comply with another condition of his
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About a year later, according to probable cause statements, officers found
Freeberg-Baskett and Blanchet together on two occasions in May 2018, i.e., after
Freeberg-Baskett’s suspended sentence would have expired but before the
stated expiration of the no-contact order. The State subsequently charged
Freeberg-Baskett with two counts of domestic violence felony violation of a court
order. Freeberg-Baskett moved to dismiss the charges, arguing that under
Granath, the no-contact order was void and inapplicable to the charged crimes,
which occurred after the term of Freeberg-Baskett’s suspended sentence. The
State countered that under the collateral bar rule, Freeberg-Baskett was barred
from challenging the validity of the no-contact order in a proceeding for violation
of that order.
The trial court concluded that the no-contact order was not void and
denied Freeberg-Baskett’s motion to dismiss. But it excluded evidence of the no-
contact order, reasoning that under Granath, the order was not enforceable”
and was therefore inapplicable to the crimes charged (quoting Granath, 190
Wn.2d at 557). The trial court later found, under RAP 2.2(b)(2), that “the
practical effect of the Court’s Order on Motion to Dismiss signed 8/31/18 is to
terminate the case.” The State appeals.
ANALYSIS
The State argues that the trial court erred by excluding evidence of the no
contact order. We agree.
3 No. 78963-5-1/4
We review rulings on the admissibility of evidence for abuse of discretion.
State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). The trial court
abuses its discretion when it applies an incorrect legal analysis or commits
another error of law. State v. Tobin, 161 Wn.2d 517, 523, 166 P.3d 1167 (2007).
The trial court serves a gate-keeping role in a proceeding for violation of a
court order. State v. Miller, 156 Wn.2d 23, 24, 123 P.3d 827 (2005); City of
Seattle v. May, 171 Wn.2d 847, 854, 256 P.3d 1161(2011). “[T]he trial court’s
gate-keeping role includes excluding orders that are void, orders that are
inapplicable to the crime charged . . . and orders that cannot be constitutionally
applied to the charged conduct (e.g., orders that fail to give the restrained party
fair warning of the relevant prohibited conduct).” M~y~ 171 Wn.2d at 854. Here,
and as further discussed below, the trial court committed an error of law by
excluding the no-contact order as inapplicable to the crimes with which Freeberg
Baskett was charged. Also, as discussed below, we are not persuaded by any of
Freeberg-Baskett’s proffered alternative justifications for the trial court’s
exclusion of the no-contact order. Therefore, reversal is required.
An order is inapplicable to the crime charged if “the order either does not
apply to the defendant or does not apply to the charged conduct.” Jyj.?y, 171
Wn.2d at 854. Here, the order was applicable to both Freeberg-Baskett and the
conduct with which he was charged in that it expressly directed Freeberg-Baskett
not to “knowingly enter, remain, or come within 500 . . . feet . . . of [Blanchet] or
4 No. 78963-5-1/5
[her] residence, school, workplace, [or] vehicle” until December 9, 2018.1
Therefore, the trial court erred by excluding it as inapplicable.
Freeberg-Baskett disagrees and offers a number of justifications for the
trial court’s exclusion of the no-contact order. None of them are persuasive.
Freeberg-Baskett first relies on Miller to argue that an order is inapplicable
not just when it does not apply to the defendant or the charged conduct, but also
when it ‘is not issued by a competent court, is not statutorily sufficient, is vague
or inadequate on its face, or otherwise will not support a conviction of violating
the order.” Miller, 1 56 Wn.2d at 31. He then relies on Granath to argue that the
no-contact order was inapplicable within the meaning of Miller. But his reliance
on Miller and Granath is misplaced.
In Miller, our Supreme Court held that the validity of a no-contact order is
neither an express nor implied element of the crime of violating a no-contact
order. Miller, 156 Wn.2d at 29. After reaching its holding, the court
acknowledged that there were several Court of Appeals cases “which deemed
validity an ‘implied element.” Miller, 156 Wn.2d at 29. Thus, “out of respect for
the opinions of the Court of Appeals[,]” Miller, 156 Wn.2d at 29, the court
engaged in a closer examination of two of those cases: City of Seattle v.
Edwards, 87 Wn. App. 305, 941 P.2d 697 (1997), and State v. Marking, 100 Wn.
App. 506, 997 P.2d 461 (2000). Although the Miller court overruled Edwards and
IThe no-contact order contains an exception for third-party contact for arranging child visitation, but that exception is not at issue here. 5 No. 78963-5-1/6
Marking to the extent that they held that the validity of a no-contact order was an
element of the crime of violating the no-contact order, it stated that it was
“inclined to believe that the Court of Appeals reached appropriate results in
Marking and Edwards.” Miller, 156 Wn.2d at 31. It then characterized the issues
with the no-contact orders in those cases as relating to the “‘applicability” of the
order to the crime charged and, as Freeberg-Baskett correctly points out, stated
that ‘[am order is not applicable to the charged crime if it is not issued by a
competent court, is not statutorily sufficient, is vague or inadequate on its face, or
otherwise will not support a conviction of violating the order.” Miller, 156 Wn.2d
at 31.
But six years later, in j~y, our Supreme Court clarified the meaning of
“applicability.” jyj.~y involved application of the collateral bar rule, which generally
“prohibits a party from challenging the validity of a court order in a proceeding for
violation of that order.” jyj.~y, 171 Wn.2d at 852. The issue before our Supreme
Court in jyj~y was whether the collateral bar rule prohibits a defendant from
challenging the validity of a domestic violence protection order in a prosecution
for violation of that order. jyj~y, 171 Wn.2d at 851. The court ultimately held that
the rule did bar such a challenge with regard to the no-contact order at issue in
~y, which failed to expressly recite a statutorily required finding that the
defendant was likely to resume acts of domestic violence. ~y, 171 Wn.2d at
855 & n.6.
6 No. 78963-5-1/7
The court then observed that although the collateral bar rule generally
precludes challenges to the validity of an order in a proceeding for violation of
that order, the rule does not bar challenges to the applicability of an order. M?y,
171 Wn.2d at 855. The jy~y court explained, however, that Miller’s ‘discussion
of the applicability of orders . . . was an effort to harmonize that case with the
results in . . . Edwards . . and Marking.” ~ 171 Wn.2d at 853-54. And,
although it acknowledged that “some language in Miller may be capable of being
read more broadly when viewed in isolation,” the .f~y court clarified that an order
is inapplicable when it “either does not apply to the defendant or does not apply
to the charged conduct.” j~y, 171 Wn.2d at 854. In short, after .f~y, an order is
inapplicable only when it does not apply to the defendant or to the charged
conduct. Therefore, Freeberg-Baskett’s reliance on Miller to suggest that
applicability refers to something broader is misplaced.
Freeberg-Baskett’s reliance on Granath is also misplaced. In Granath, the
defendant, Wendy Granath, was convicted in King County District Court of two
domestic violence offenses. Granath, 190 Wn.2d at 550. The district court
sentenced Granath to 364 days in jail with 334 days suspended for 24 months.
Granath, 190 Wn.2d at 550. As a condition of her suspended sentence, Granath
was prohibited from contacting the victim, her estranged husband. Granath, 190
Wn.2d at 550. The district court issued a separate no-contact order under RCW
10.99.050, reflecting its directive that Granath not contact her estranged
husband. Granath, 190 Wn.2d at 550. The term of the no-contact order was five
7 No. 78963-5-1/8
years, i.e., three years longer than Granath’s 24-month suspended sentence.
Granath, 190 Wn.2d at 550.
After Granath completed her sentence in December 2014, she moved to
vacate the no-contact order, arguing that it ended when she was no longer
subject to the underlying no-contact condition of the sentence. Granath, 190
Wn.2d at 550. The district court denied Granath’s motion, reasoning that “it ‘had
lawful authority to issue a separate order under [chapter] 1 0.99 [RCW], which is a
stand-alone provision.” Granath, 190 Wn.2d at 550 (alterations in original).
Our Supreme Court ultimately disagreed with the district court. It
explained that under the plain language of the relevant statute, RCW 10.99.050,
“[t]he only reason a court is permitted to issue an order of no-contact in this
context is to record a condition of the sentence.” Granath, 190 Wn.2d at 555
(emphasis added). The court thus concluded that the district court should have
granted Granath’s motion to vacate, rejecting the State’s argument that RCW
10.99.050 independently authorizes a district court to issue a domestic violence
no-contact order. Granath, 190 Wn.2d at 554-55, 557.
In short, Granath held that the district court erred by failing to vacate its
earlier no-contact order because, under the plain language of RCW 10.99.050, a
district court does not have authority to enter a domestic violence no-contact
order whose term exceeds the length of the underlying sentence. Granath, 190
Wn.2d at 557. But Granath did not address whether such a no-contact order
may be excluded, based on inapplicability, in a proceeding for violation of that
8 No. 78963-5-1/9
order. Therefore, Granath does not support Freeberg-Baskett’s argument that
the no-contact order entered in his case is ‘inapplicable” under j~y.
Freeberg-Baskett next argues that the trial court properly excluded the no-
contact order because it was void. He contends that the order was void
because, under Granath, the issuing court lacked authority to issue a no-contact
order exceeding the length of Freeberg-Baskett’s suspended sentence. For the
reasons that follow, we are not persuaded by Freeberg-Baskett’s argument.
As discussed, the collateral bar rule “prohibits a party from challenging the
validity of a court order in a proceeding for violation of that order.” ~ 171
Wn.2d at 852. However, “[ajn exception exists for orders that are void[,]” and
“the trial court’s gate-keeping role includes excluding orders that are void.” M~y,
171 Wn.2d at 852, 854.
But “a court enters a void order only when it lacks personal jurisdiction or
subject matter jurisdiction over the claim.” Marley v. Dept of Labor & Indus., 125
Wn.2d 533, 541, 886 P.2d 189 (1994). And, here, Freeberg-Baskett states that
he “is not challenging the subject matter or personal jurisdiction of the court.”
Therefore, the no-contact order was not void.
Freeberg-Baskett disagrees, relying on Mead School District No. 354 v.
Mead Education Association, 85 Wn.2d 278, 534 P.2d 561 (1975), to argue that
an order is void not only when the issuing court lacks jurisdiction, but also when it
lacks authority to issue “the type of order.” Although our Supreme Court did, in
Mead, refer to a court’s jurisdiction in terms of its authority to issue a particular
9 No. 78963-5-1/10
type of order, Mead, 85 Wn.2d at 284, it has since explained that
‘[tjhe. . . distinction between ‘jurisdiction of the subject matter’ and ‘the power or
authority to render the particular judgment’ rests on an antiquated understanding
of subject matter jurisdiction.” Statev. Posey, 174 Wn.2d 131, 138, 272 P.3d
840 (2012). And, as discussed, it concluded in Marley that “a court enters a void
order only when it lacks personal jurisdiction or subject matter jurisdiction over
the claim.” Marley, 125 Wn.2d at 541. Therefore, we are not persuaded by
Freeberg-Baskett’s argument that an order can be void even when the issuing
court possesses jurisdiction.
To this end, Freeberg-Baskett argues, despite his claim that he “is not
challenging the subject matter or personal jurisdiction of the court,” that the
issuing court lacked jurisdiction to enter a no-contact order whose term exceeded
the term of his underlying sentence. He relies on Granath and on State v.
Holmberq, 53 Wn. App. 609, 768 P.2d 1025 (1989), to support his argument. But
because Freeberg-Baskett’s argument ignores the distinction between statutory
authority and subject matter jurisdiction, his reliance on these cases is
misplaced.
In Holmberq, the question before the court was whether, under RCW
9.95.230, a trial court had authority to revoke probation based on a violation that
occurred after the end of the probationary period but before an order terminating
probation was entered. Holmberq, 53 Wn. App. at 612. And, as discussed, the
issue in Granath was whether, under RCW 10.99.050, a district court has
10 No. 78963-5-Ill I
authority to enter a no-contact order whose term exceeds the term of the
underlying sentence. Granath, 190 Wn.2d at 551. In both cases, the reviewing
court held that the trial courts were without authority under the relevant statutes.
Holmberg, 53 Wn. App. at 613; Granath, 190 Wn.2d at 557. But “[a] court does
not lack subject matter jurisdiction merely because it may lack authority to enter a
given order.” In re Pers. Restraint of Smalls, 182 Wn. App. 381, 387-88, 335
P.3d 949 (2014). Rather, “[a] court lacks subject matter jurisdiction when it
attempts to decide a type of controversy that it has no authority to decide.”
SmaIls, 182 Wn. App. at 387; see also In re Marriage of Buecking, 179 Wn.2d
438, 448, 316 P.3d 999 (2013) (“Subject matter jurisdiction’ refers to a court’s
ability to entertain a type of case, not to its authority to enter an order in a
particular case.”). Here, Freeberg-Baskett does not contend that the superior
court, which entered the original no-contact order, lacked authority to decide the
type of controversy before it, i.e., a nonfelony criminal case. Therefore,
Freeberg-Baskett’s argument fails.
Freeberg-Baskett next points to the following language from Granath to
argue that the no-contact order was void: “The no-contact order issued in this
case was not enforceable after Granath completed her suspended sentence in
December 2014, and the district court should have granted her motion to vacate.”
Granath, 190 Wn.2d at 557 (emphasis added). But, as discussed, Granath was
an appeal from a district court’s denial of a motion to vacate. Granath did not
hold that a no-contact order that exceeds the length of a suspended sentence is
11 No. 78963-5-1112
void such that it can be collaterally attacked in a later proceeding—it held only
that such an order is erroneous. Therefore, Freeberg-Baskett’s reliance on the
Granath court’s language regarding enforceability is misplaced. See jy.~y, 171
Wn.2d at 852-53 (explaining that an order can be collaterally attacked based only
on an argument that it is absolutely void, not based on an argument that the
order is merely erroneous).
Freeberg-Baskett next suggests that allowing the State to criminalize the
violation of a no-contact order that is invalid under Granath would offend due
process in that defendants would not have clear notice of how the law applies to
them. He again attempts to analogize this case to Holmberq, where Division
Two held that a court does not have statutory authority under RCW 9.95.230 to
modify or revoke probation for violations occurring outside of the probationary
period. Holmberq, 53 Wn. App. at 613. But the Holmberg court’s analysis rested
on its interpretation of the relevant statute. Holmberg, 53 Wn. App. at 612.
Unlike this case, Holmberg did not involve an alleged violation of a court order
that expressly applied to the defendant and to the charged conduct.
Furthermore, although the no-contact order entered in this case may have been
erroneous under Granath, it gave Freeberg-Baskett clear notice of what conduct
was prohibited. Freeberg-Baskett’s argument is unpersuasive.
As a final matter, Freeberg-Baskett contends that “each individual
defendant should not have to specifically take additional steps [to] remove an
invalid order when the court has lost jurisdiction” and that “[t]o adopt such a
12 No. 78963-5-1/13
policy would mean that hundreds, if not thousands, of defendants. . . would have
[to] move to remove invalid orders.” He asserts that “{t]his is an
unreasonable . . . expectation given that many [are] indigent and have no legal
education to know an order terminating probation must be rendered for a court to
lose its ability to impose a suspended sentence” and that “[m]ost individuals
would assume an order is unenforceable when the court has lost jurisdiction.”
But these contentions ignore the competing interests of the victims of the
“hundreds, if not thousands” of defendant-abusers to whom Freeberg-Baskett
refers. These victims rely on no-contact orders for protection from their abusers
and should be able to take those orders at face value. If we were to accept
Freeberg-Baskett’s argument that a no-contact order that is longer than the
underlying sentence automatically becomes void or inapplicable as soon as the
underlying sentence expires, victims would not know that affirmative steps must
be taken to obtain continuing protection even though the no-contact order
already entered by the court appears to remain in effect. Indeed, in light of
victims’ competing interests, it is not unreasonable to expect defendants like
Freeberg-Baskett to do as the defendant in Granath did, i.e., move to vacate or
modify a domestic violence no-contact order entered under ROW 10.99.050 to
the extent that its term outlasts the term of the underlying sentence. Therefore,
Freeberg-Baskett’s argument is unpersuasive.
13 No. 78963-5-1/14
We reverse and remand for further proceedings.
WE CONCUR:
L1i ~, i~