Opinion
No. 31961-6-II
Filed: June 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No. 98-1-00140-2. Judgment or order under review. Date filed: 06/02/2004. Judge signing: Hon. James B II Sawyer.
Counsel for Appellant(s), Peter B. Tiller, The Tiller Law Firm, PO Box 58, Centralia, WA 98531-0058.
Counsel for Respondent(s), Monty Dale Cobb, Mason County Prosecutors Office, 521 N 4th Ave Ste a, PO Box 639, Shelton, WA 98584.
Richard Adams appeals the trial court's denial of his 2003 CrR 7.8(b) motion to modify or to correct his judgment and sentence for eight 1998 guilty plea convictions for unlawful foodfish or shellfish purchase and for unlawful possession and sale of uncertified shellfish. As a member of the Skokomish Indian Tribe, Adams argues that the trial court lacked jurisdiction to enter convictions based on his guilty pleas. More specifically, he argues the trial court erred in ruling that (1) his crimes occurred outside his tribe's treaty area, (2) he should have asserted this jurisdictional defense before entering his guilty pleas, and (3) his motion was untimely. Finding no lack of jurisdiction or abuse of trial court discretion, we affirm.
FACTS I. 1998 Crimes and Sentence
On May 7, 1998, the State charged Richard Adams with seven counts of unlawful purchase of foodfish or shellfish and one count of unlawful possession and sale of uncertified shellfish. On July 24, 1998, Adams pleaded guilty to all seven counts as charged.
The State charged Adams with these crimes because he `was an accomplice to the commission of these felonies in that he, with knowledge that it would promote or facilitate the commission of the crime, aided or agreed to aid . . . in the illegal purchase of clams by selling him the clams in question.' Clerk's Papers (CP) at 64.
In his statement on pleas of guilty, Adams acknowledged, `I believe a fact finder could find me guilty, I would like to take advantage of the state's offer. I stipulate to probable cause in the arresting affidavit.' Clerk's Papers (CP) at 36. The Statement of Probable Cause to Arrest, to which Adams stipulated, provided that: (1) no open tribal clam seasons existed during the dates when he sold the clams; (2) he was harvesting the clams from "the old man[']s place across from Walker Park' in Hammersley Inlet'; and (3) Hammersley Inlet is outside the Skokomish Indian Tribe's `usual and accustomed' tribal shellfish area. CP at 62-63.
On July 24, 1998, the court imposed an exceptional sentence consistent with the parties' plea agreement.
II. 2003 CrR 7.8(b) Motion To Modify or To Correct Judgment and Sentence
Five and one-half years later, on December 29, 2003, Adams filed a CrR 7.8(b)(4) and (5) motion to modify or to correct his judgment and sentence. He argued that (1) the trial court lacked jurisdiction to enter convictions on all eight counts; (2) an Indian treaty exists, of which he is a beneficiary; (3) these contractual treaty agreements are supreme over the state constitution and statutory provisions; (4) he was entitled to the treaty exemption affirmative defense; and (5) he has a valid commercial fishing license. He asked the trial court to vacate his convictions, to recalculate his offender score, and to modify his sentence.
At the February 2004 hearing on his motion, Adams stated, I came back today to argue that, that the trial court then had lacked jurisdiction to begin with. I wanted to take the affirmative defense, I have got a copy of the treaty, I have got a copy of my tribal enrollment, also a statement from the Tribal Fisheries. . . .
I am a Tribal member, Your Honor. . . . When I came in on the plea I was led to believe . . . that I needed a State license. After further research, and talking with others, I didn't need a State license to exercise my treaty rights, so therefore, there is fraud on its' [sic] face and it violates my treaty.
Report of Proceedings (RP) at 11-12.
The State argued it had asserted in the probable cause statement supporting Adams' 1998 pleas that Adams had sold uncertified clams harvested outside the usual and customary area of the Skokomish Indian Tribe. Adams responded, `The shellfish were harvested up in Dosewallips, it was an open tribal beach when they were harvested. They expanded from July `til December.' RP at 14. Adams had stipulated to the contrary in 1998. The trial court denied Adams' motion.
Adams appeals.
ANALYSIS I. Lack of Shellfish Health Certification
The State argues:
The origin of the clams would not be a defense [to the criminal charges against Adams] because the charges involved the unlawful sale/purchase of clams without the required health certifications of licenses. Health certifications are required on commercial sales whether the clams were harvested on tribal or non-tribal beaches.
Br. of Respondent at 3.
The State, however, fails to cite any authority in support of this assertion, contrary to RAP 10.3(a) and (b). Therefore, we do not consider this argument and focus instead on the CrR 7.8(b) jurisdiction issue.
State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193 (1990); State v. Cox, 109 Wn. App. 937, 943, 38 P.3d 371 (2002).
II. CrR 7.8(b)(4) Relief From Judgment
CrR 7.8(b) allows a court to relieve a party from a final judgment if the `judgment is void' or for `any other reason justifying relief from the operation of the judgment.' CrR 7.8(b)(4) and (5). A party must bring such a motion within a reasonable time. CrR 7.8(b)(5).
Adams argues that that when he challenged the court's jurisdiction in his CrR 7.8(b) motion, the trial court erred by failing to take testimony on the location from which he had obtained the shellfish. We disagree.
A. Standard of Review
This dispute involves a question of law whether the State made a sufficient threshold showing of territorial jurisdiction. State v. Boyd, 109 Wn. App. 244, 250, 34 P.3d 912 (2001), review denied, 146 Wn.2d 1012 (2002). Because territorial jurisdiction is a question of law, we review the trial court's determinations de novo. State v. Squally, 132 Wn.2d 333, 340, 937 P.2d 1069 (1997).
With respect to Adams' challenge to the trial court's conduct of the hearing, we review trial court's CrR 7.8(b) decision for abuse of discretion. State v. Ellis, 76 Wn. App. 391, 394, 884 P.2d 1360 (1994). We find no abuse here.
B. Timeliness
It is well settled law that the State does not acquire criminal jurisdiction either by estoppel or by stipulation. Boyd, 109 Wn. App. at 249. In addition, a defendant does not waive a jurisdictional issue by failing to challenge jurisdiction at the time of plea or sentencing. White v. Schneckloth, 56 Wn.2d 173, 174, 351 P.2d 919 (1960). Thus, although Adams waited five and one-half years before raising this jurisdictional issue, we need not address whether this was a reasonable period of time within which to bring the motion. CrR 7.8(b)(5). Either the trial court had jurisdiction or it did not.
C. Criminal Jurisdiction
Adams first contends that, by asserting his Native American heritage and a claim of tribal immunity, he created a burden on the State to prove jurisdiction beyond a reasonable doubt, which the State failed to meet. We agree that the State had the burden to prove jurisdiction, but we disagree that the State failed to meet this burden. See State v. L.J.M., 129 Wn.2d 386, 918 P.2d 898 (1996).
Under Washington's Indian Reservation Criminal Jurisdiction Retrocession Act, RCW 37.12.100, the State partially surrendered, to the Skokomish Indian Tribe and to the federal government, general criminal jurisdiction over Indians for acts committed on tribal lands or allotted lands within the Skokomish Indian Reservation held in trust by the United States. RCW 37.12.100; see e.g., State v. Daniels, 104 Wn. App. 271, 276, 16 P.3d 650 (2001). For certain serious crimes committed by Indians on reservations, the Indian Major Crimes Act created federal jurisdiction. 18 U.S.C. sec. 1153.
Although Adams argues that the trial court initially lacked jurisdiction to convict him, he has limited his assignment of errors and arguments to the trial court's order denying his CrR 7.8(b) motion. In response, however, the State argues that the trial court correctly decided the issue of jurisdiction when Adams entered his guilty pleas. Because jurisdiction is a fundamental, underlying issue, we address it before reviewing the trial court's order denying Adams' CrR 7.8(b) motion.
At the hearing on Adams' CrR 7.8(b) motion, the State did not dispute that Adams was of Native American heritage. But the State had alleged in its probable cause statement that Adams had sold uncertified clams `harvested from Hammersly [sic] Inlet which is outside of the Skok [sic] Tribes [sic] usual and custom area.' RP at 13 (emphasis added). And Adams had stipulated to this fact in his statement on plea of guilty some five and one-half years earlier. His stipulation to the State's proof that he harvested outside tribal lands satisfies the State's burden to establish jurisdiction.
Moreover, Adams failed to produce any evidence that could, assuming its truth, show that his shellfish violations occurred within the jurisdictional and geographic boundaries of the Skokomish Indian Tribe. Although Adams stated that he had a copy of the `treaty' and his `tribal enrollment,' he did not produce (1) any evidence that the alleged crimes occurred on tribal land surrendered to the Skokomish Indian Tribe and to the United States; (2) any evidence that the alleged crimes occurred on allotted or trust lands; and (3) any evidence that the Indian Major Crimes Act applied here. Adams' status as an Indian is irrelevant on the question of jurisdiction if, as here, the site of the alleged crime is not within tribal or federal jurisdiction. L.J.M., 129 Wn.2d at 396.
At the 2004 hearing, Adams asserted that he had harvested the shellfish in Dosewallips (allegedly on land within the Skokomish Indian Tribe geographical and jurisdictional boundaries). His unsupported assertion was not sufficient to defeat his 1998 stipulation that the State had evidence to prove he harvested the shellfish illegally outside tribal lands.
Like the appellant in L.J.M., Adams failed to show `that he met the requirements for the tribe's extension of personal jurisdiction over him under [the state] Indian Reservation Criminal Jurisdiction Retrocession Act and 18 U.S.C. sec.sec. 1151-53.' L.J.M., 129 Wn.2d at 395. Although it was undisputed in L.J.M. that the location of the alleged crime was within the Colville Indian Reservation, the appellant had not produced any evidence to show that the alleged crime occurred on trust property or that he met the requirements for the tribe's extension of jurisdiction over him; the appellate court affirmed the trial court's finding that the appellant had failed to raise a doubt about state jurisdiction. L.J.M., 129 Wn.2d at 395-96.
The State and the trial court were entitled to rely on the 1998 probable cause affidavit evidence to which Adams had stipulated. This probable cause statement showed that Adams committed the illegal shellfish harvests in Hammersley Inlet outside tribal land, and, thus, within the jurisdiction of the Mason County Superior Court. L.J.M., 129 Wn.2d at 396.
D. Trial Court Discretion
Adams having failed to mount a successful challenge to state court jurisdiction, we hold that the trial court (1) did not err in allowing the State to rest on its initial showing that the crimes occurred within the state; (2) did not err in failing to take further testimony on the location from which Adams had obtained the shellfish; and (3) correctly ruled that `the original judgment and sentence is not erroneous or invalid.' CP at 10. We find no abuse of discretion in the trial court's denial of Adams' CrR 7.8(b)(4) motion to modify or to correct his 1998 judgment and sentence.
III. CrR 7.8(b)(5) Other Reason Justifying Relief
Adams also argues the trial court abused its discretion when it denied his motion to modify or to correct his judgment and sentence under CrR 7.8(b)(5). Again, we disagree.
`A section (5) vacation of judgment is limited to extraordinary circumstances not covered by any other section of the rule.' State v. Olivera-Avila, 89 Wn. App. 313, 319, 949 P.2d 824 (1997) (citations omitted). `These extraordinary circumstances must relate to fundamental, substantial irregularities in the court's proceedings or to irregularities extraneous to the court's action.' Olivera-Avila, 89 Wn. App. at 319 (citations omitted). This section does not apply, however, where, as here, the circumstances allegedly justifying the relief existed at the time the judgment was entered. State v. Cortez, 73 Wn. App. 838,842, 871 P.2d 660 (1994).
Notwithstanding his unsuccessful assertion that his judgment is void, Adams did not point to any `fundamental, substantial irregularities in the court's proceedings or to irregularities extraneous to the court's action.' Olivera-Avila, 89 Wn. App. at 319 (citations omitted). Instead, Adams merely tried, unsuccessfully, to assert his treaty rights as an affirmative defense to the alleged crimes, five and one-half years later.
Moreover, evidence of Adams' tribal enrollment and his treaty rights was in existence, and in fact undisputed, at the time Adams entered his guilty pleas and the trial court imposed his judgment and sentence. On this ground alone, CrR 7.8(b)(5) is inapplicable. State v. Gomez-Florencio, 88 Wn. App. 254, 259, 945 P.2d 228 (1997), review denied, 134 Wn.2d 1026 (1998).
We hold, therefore, that the trial court did not abuse its discretion in denying Adams' CrR7.8(b)(5) motion to modify or to correct his judgment and sentence.
IV. Reasonable Time
Finally, Adams contends that the trial court erred when it found that his CrR 7.8(b) motion to modify or to correct his judgment and sentence was not timely filed. He argues that the trial court gave no reason to support its ruling and that its ruling was apparently arbitrary. Because we affirm the trial court on other grounds, we do not further address this issue. State v. Frodert, 84 Wn. App. 20, 25, 924 P.2d 933 (1996) (Court of Appeals has the discretion to affirm trial court on any grounds supported by record), review denied, 131 Wn.2d 1017 (1997).
The trial court concluded, `Defendant's motion is not timely.' CP at 10. `The existence of a treaty right would be an affirmative defense which should have been asserted at the time of trial, not four years after the judgment and sentence had been entered.' CP at 10.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, P.J. and VAN DEREN, J., Concur.