State v. Peterson

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON SEPTEMBER 10, 2026 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON SEPTEMBER 10, 2026 SARAH R. PENDLETON SUPREME COURT CLERK IN THE SUPREME COURT OF THE STATE OF WASHINGTON STATE OF WASHINGTON, No. 104536-1 Respondent, EN BANC v. Filed: September 10, 2026 KAREN KATHLEEN PETERSON, Petitioner. GORDON MCCLOUD, J.—In 2015, the State charged Karen Peterson with felony possession of a controlled substance in violation of RCW 69.50.4013. To avoid conviction, Peterson sought and obtained a court order permitting her to enter the superior court’s “Adult Drug Treatment Court” program. She paid the program’s mandatory $900 participation fee and successfully completed it. The trial court then entered an order dismissing the charges with prejudice. In 2021, this court decided State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). Blake ruled that RCW 69.50.4013 was unconstitutional for making simple drug possession a strict liability crime. As a result, anyone convicted of simple drug possession prior to Blake can obtain vacatur of the conviction and reimbursement of legal financial obligations (LFOs) paid as a result of the conviction. State v. Peterson (Karen Kathleen), No. 104536-1 Peterson was not convicted so she has no conviction to vacate or LFOs to refund. Instead, she filed a CrR 7.8 motion seeking the refund of her $900 drug court participation fee and vacatur of the already-dismissed charge. The trial court granted her motion, and the Court of Appeals reversed. State v. Peterson, 35 Wn. App. 2d 1, 573 P.3d 462 (2005). Peterson may certainly file a CrR 7.8(b)(5) motion to challenge the court order that allowed her to participate in drug treatment court and to pay its $900 participation fee. But she cannot prevail on that motion. To be sure, due process clause protections require the government to refund LFOs exacted from a criminal defendant as a result of an invalidated conviction. But that is not what happened here. In this case, Peterson was never convicted and never sentenced to pay LFOs. She sought and obtained the right to avoid conviction by participating in and successfully completing an alternative program: the drug court. She was not compelled to pay the drug court participation fee as a result of a conviction; she did so voluntarily to avoid conviction. We therefore reject her claim that she is entitled to a refund of that fee under federal due process clause protections. FACTUAL AND PROCEDURAL HISTORY The State charged Peterson with felony possession of a controlled substance in August 2015. Clerk’s Papers (CP) at 47-48 (Information). She agreed to enter 2 State v. Peterson (Karen Kathleen), No. 104536-1 Snohomish County’s Adult Drug Treatment Court (ADTC) program to avoid conviction. Id. at 50-55 (Def.’s Agreement to Enter ADTC Program). As part of that agreement, Peterson agreed to waive her right to a speedy trial and to a trial by jury. Id. at 50. She agreed to a stipulated facts bench trial if she were terminated from drug court and acknowledged that “it is very likely the Judge will find [her] guilty since the only evidence the Judge will consider are the reports and other materials submitted by the prosecutor.” Id. at 50-51. Of importance to this case, she also agreed to pay a nonrefundable fee of $900 to participate in that drug court program. Id. at 51. If she failed to follow the terms of the agreement, the judge could impose sanctions including “[b]eing convicted and sentenced to the term prescribed by law for the original felony charge.” Id. at 53. In exchange, the prosecutor agreed to dismiss the pending charges with prejudice “[u]pon the Defendant’s compliance with this Agreement and successful graduation from ADTC.” Id. at 54. Peterson, her attorney, the prosecutor, and the judge each signed this agreement, which concluded by ordering Peterson to report to drug court. Id. at 54-55. Peterson succeeded in drug court. She graduated from drug treatment court in July 2017, and the court dismissed the pending charges with prejudice. Id. at 35 (Aff. by Certification), 57 (Ord. of Dismissal with Prejudice). Four years later, this court ruled that Washington’s simple drug possession statute, RCW 69.50.4013, was unconstitutional. Blake, 197 Wn.2d 170. Anyone 3 State v. Peterson (Karen Kathleen), No. 104536-1 convicted of violating that statute is entitled to vacatur of their conviction and refund of their LFOs. LFOs are payments a court may order as part of a defendant’s sentence after conviction. RCW 9.94A.760(1). Peterson argues that Nelson v. Colorado, 581 U.S. 128, 137 S. Ct. 1249, 197 L. Ed. 2d 611 (2017), entitles her to a refund of her drug court participation fee. She sought relief in the superior court under CrR 7.8(b)(4) and (5). CP at 34 (Mot. for Relief Under CrR 7.8). Specifically, she sought “relief from judgment, ordering the State to return all fees Ms. Peterson paid because of her participation in Drug Court” and “an order vacating the dismissed Possession of a Controlled Substance charge.” Id. CrR 7.8(b) states that “[o]n motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons,” including “[t]he judgment is void,” CrR 7.8(b)(4), or “[a]ny other reason justifying relief from the operation of the judgment,” CrR 7.8(b)(5). Peterson argued that the order of dismissal was void because the State never had authority to charge her with violating the unconstitutional statute. CP at 39. Peterson also argued that the reason justifying relief under CrR 7.8(b)(5) was “the expended time, energy and financial resources spent in Drug Court, which resulted in the dismissal of an unconstitutional charge.” Id. at 40. 4 State v. Peterson (Karen Kathleen), No. 104536-1 The trial court agreed with Peterson, stating, “I would vacate. I would vacate the dismissal, which vacates the entire thing. . . . And then I would order the refund of the fees that were paid.” Verbatim Tr. of Proc. for Appeal at 16. The court then signed a written order vacating the charge and ordering the State to refund the $900 drug court fee.1 CP at 7-9 (Ord. Vacating Charge & Reimburse Drug Ct. Fee No Counts Remain). That order specified that the “charge of POSSESSION OF A CONTROLLED SUBSTANCE contained in the Information filed on August 18, 2015, against the above-named defendant, is constitutionally defective pursuant to CrR 7.8(2) [sic2] and State v. Blake and is hereby vacated.” Id. at 8. It further stated that “[d]ue process requires that Ms. Peterson be refunded the $900 Drug Court fee previously paid pursuant to the vacated charge. The State of Washington shall determine the method of any refund herein with all deliberate speed.” 3 Id. 1 The order also directed that “[t]he Washington State Patrol . . . shall immediately update their records to reflect the vacation of the charge, and shall transmit the order vacating the charge to the Federal Bureau of Investigation as required by RCW 9.96.060(7).” CP at 8. The Court of Appeals reversed and at oral argument, Peterson’s counsel confirmed that she is not seeking to reinstate that portion of the trial court’s order. Wash. Sup. Ct. oral arg., State v. Peterson, No. 104536-1, at 8 min., 33 sec. to 9 min., 8 sec.; 9 min., 8 sec. to 9 min., 16 sec. (“The Court: So you’re not asking us to reinstate [that] portion of the trial court’s order . . . ? Counsel: Correct . . . .”), https://tvw.org/video/washington-state-supreme-court- 2026021055/?eventID=2026021055. 2 The Court of Appeals interpreted the trial court’s citation to “CrR 7.8(2),” which doesn’t exist, as a citation to CrR 7.8(b), given the context. We do too. 3 The State has refunded the entire $900 to Peterson. See Corrected Br. of Appellant at 31 (Wash. Ct. App. No. 85791-6-I (2024)); CP at 1. Peterson argued below that this 5 State v. Peterson (Karen Kathleen), No. 104536-1 The Court of Appeals reversed. Peterson, 35 Wn. App. 2d 1. It reasoned that the original order to dismiss was not a judgment and therefore could not be vacated under CrR 7.8(b). 4 Id. at 11 (citing State v. Hecht, 2 Wn. App. 2d 359, 364, 409 P.3d 1146 (2018)). It also concluded that Peterson could not qualify for vacatur under RCW 9.94A.640(1), which the court said “limits vacatur to cases where a conviction exists.” Id. at 12. The Court of Appeals continued that “the trial court abused its discretion when it concluded that a dismissal order was a judgment for purposes of CrR 7.8 relief and, separately, when it vacated a charge that did not result in a conviction.” Id. at 14. (As discussed further below, Peterson no longer seeks vacatur of the original, but later dismissed, charge.) Finally, the Court of Appeals ruled that Peterson could not use CrR 7.8 to seek a refund of her drug court fee. Peterson relied on Civil Survival Project v. State, a Court of Appeals decision that held that CrR 7.8 is the exclusive procedural means for those with Blake convictions to seek refunds of their LFOs. 24 Wn. App. 2d 564, 520 P.3d 1066 (2022), review denied, 2 Wn.3d 1011 (2023). But the appellate court rendered the case moot. See Br. of Resp’t at 14-15 (Wash. Ct. App. No. 85791-6-I (2024)). The Court of Appeals, however, determined that the claim fell within an exception to the mootness doctrine for issues of continuing and substantial public interest. Peterson, 35 Wn. App. 2d at 8 n.6. It therefore addressed the merits of Peterson’s claim. Neither party challenges that decision in this court. And the State does not seek to recapture the refund. Id. at 7 n.6. 4 It did not note that the trial court vacated the charge, not just the dismissal. 6 State v. Peterson (Karen Kathleen), No. 104536-1 held that Civil Survival did not control because “the fee at issue here is not a state- mandated LFO.” Peterson, 35 Wn. App. 2d at 17. And it rejected Peterson’s argument that the dismissal order was void because the State never had authority to charge her in the first place. Id. at 19. The Court of Appeals concluded that the trial court abused its discretion by issuing an order that “clearly exceeded its authority under the rule, Blake, and the vacatur statute.” Id. at 20. Peterson sought review in this court, arguing that CrR 7.8 is the proper vehicle for seeking relief and that federal due process clause protections require the State to return her drug court participation fee.5 Pet. for Rev. at 3-4. Though Peterson’s arguments in the lower courts appeared to request two independent forms of relief (vacatur of the charges and, separately, refund of the fee), Peterson clarified at oral argument before this court that she sought vacatur only as a vehicle to obtain a refund, not as an independent remedy, and that she did so only because she believed that the Blake Refund Bureau required proof of vacatur to issue a refund. In fact, Peterson’s counsel explicitly acknowledged that Peterson did not really seek vacatur—she just sought a refund. Wash. Sup. Ct. oral arg., State v. Peterson, No. 5 Peterson cited both the Fourteenth Amendment of the United States Constitution and article I, section 3 of the Washington Constitution in her briefing. Suppl. Br. of Pet’r at 8; Pet. for Rev. at 10. But she did not argue that Washington’s due process clause is more protective than the federal due process clause in this context, and she cited only a federal due process protection case (Nelson, 581 U.S. at 128) in support of her claim. We therefore address only the federal due process claim. 7 State v. Peterson (Karen Kathleen), No. 104536-1 104536-1, at 3 min., 30 sec. to 4 min., 2 sec. (“[S]he is seeking an order of vacatur . . . [because] [t]he Bureau requires an order of vacatur to effectuate the refund of any money collected by the State. That is, as far as I can tell, the real value of an order of vacatur in this case—it’s to effectuate the refund.”); 4 min., 29 sec. to 4 min., 40 sec. (“In terms of the effect of a vacate of a charge versus a dismissed charge, the only difference is that one effectuates the remedy of a refund and the other does not.”); 7 min., 59 sec. to 8 min., 5 sec. (“Again, the real value [of vacatur] is to effectuate the refund that she is entitled to under due process.”); 9 min., 39 sec. to 9 min., 44 sec. (“. . . [t]he remedy that is important to Ms. Peterson . . . is the refund.”), https://tvw.org/video/washington-state-supreme-court- 2026021055/?eventID=2026021055. Thus, the sole question before this court is whether Peterson may use CrR 7.8(b) to seek a refund of money paid pursuant to a court order 6 that she claims is now constitutionally invalid and, if so, whether she wins on that claim.7 The nonprofit group Civil Survival filed an amicus brief in support of review. 6 The relevant court order is the court’s order directing her to report to drug treatment court. As part of that order, Peterson agreed to pay a nonrefundable participant fee of $900. CP at 51, 50-55. 7 As mentioned above, Peterson is not seeking to reinstate the portion of the trial court’s order on her CrR 7.8 motion that compelled Washington State Patrol to take certain actions, so we need not decide that issue. But we note that CrR 7.8(b) is a procedural mechanism that allows trial courts to correct errors in their own orders and proceedings. A CrR 7.8(b) motion does not place any other party before the court or grant the trial court any additional authority to compel nonparties to act. 8 State v. Peterson (Karen Kathleen), No. 104536-1 STANDARD OF REVIEW Peterson’s case presents two issues: (1) whether she can challenge the trial court’s order in a CrR 7.8 motion—a question of court rule interpretation, and (2) whether due process clause protections require courts to refund drug court participation fees paid to avoid conviction under an unconstitutional statute—a question of constitutional interpretation. These are both questions of law that we review de novo. State v. Stump, 185 Wn.2d 454, 458, 374 P.3d 89 (2016) (interpretation of a court rule presents a question of law that we review de novo); State v. Gregory, 192 Wn.2d 1, 14, 427 P.3d 621 (2018) (plurality opinion) (we review constitutional claims de novo). To be sure, the trial court decided both issues in an order on a CrR 7.8 motion. And we review superior court decisions on CrR 7.8 motions for abuse of discretion. State v. Enriquez-Martinez, 198 Wn.2d 98, 101, 492 P.3d 162 (2021). But there are no disputed facts or credibility matters at issue here, just questions of law. And a trial court abuses its discretion “if [that discretion] is exercised on untenable grounds or for untenable reasons, such as a misunderstanding of the law.” Id. So even under this standard of review, our task is the same: we must decide whether the superior court’s decision on the two questions of law presented was based on a correct understanding of the law. 9 State v. Peterson (Karen Kathleen), No. 104536-1 ANALYSIS I. Peterson can use CrR 7.8(b) to seek relief from an “order” stemming from her drug charges—CrR 7.8 is not limited to challenges to “judgments” A. To determine whether Peterson may seek relief under CrR 7.8(b)(4) or (5), we must examine the language of that rule as a whole The parties dispute whether Peterson can seek relief under CrR 7.8, a court rule. CrR 7.8 (“Relief from Judgment or Order”) provides, in relevant part: (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons: (1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order; (2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 7.5; (3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) The judgment is void; or (5) Any other reason justifying relief from the operation of the judgment. We interpret court rules de novo, using tools of statutory construction to effectuate the drafter’s intent. State v. Waller, 197 Wn.2d 218, 225, 481 P.3d 515 (2021); State v. George, 160 Wn.2d 727, 735, 158 P.3d 1169 (2007) (“As with statutes, this court gives effect to the plain language of a court rule, as discerned by reading the rule in its entirety and harmonizing all of its provisions.” (citing State v. Greenwood, 120 Wn.2d 585, 592, 845 P.2d 971 (1993)). 10 State v. Peterson (Karen Kathleen), No. 104536-1 Ascertaining a rule’s plain meaning involves “‘constru[ing] and apply[ing] words according to the meaning that they are ordinarily given, taking into account the statutory context, basic rules of grammar, and any special usages stated by the legislature on the face of the statute.’” Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002) (quoting 2A NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 48A:16, at 809-10 (6th ed. 2000)). “[W]e must look to the whole statute, rather than the single phrase at issue.” In re Sehome Park Care Ctr., Inc., 127 Wn.2d 774, 778, 903 P.2d 443 (1995). Thus, to determine whether relief is available to Peterson through CrR 7.8(b)(4) or (5), we must look beyond just those subsections and examine the rule as a whole, in context. B. CrR 7.8(b)’s introductory clause broadly authorizes a trial court to grant relief from a final judgment, order, or proceeding, and that introductory clause modifies each subsection Peterson’s motion sought relief under CrR 7.8(b)(4) and (5). CP at 39. The State argues that Peterson cannot request relief under subsection (4) or (5) because there is no “judgment” in her case. See Suppl. Br. of Resp’t at 12-13. Though subsections (4) and (5) refer only to “judgments,” Peterson argues that those subsections may also provide relief from orders or proceedings, because CrR 7.8(b) refers to relief from a “final judgment, order, or proceeding” and does not limit relief to those convicted of a crime. 11 State v. Peterson (Karen Kathleen), No. 104536-1 We agree with Peterson’s conclusion, but not with her analysis.8 The rule begins with the introductory clause, “On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons.” CrR 7.8(b) (emphasis added). That introductory clause suggests that each of the “reasons” that “follow[]” will authorize a court to grant relief “from a final judgment, order, or proceeding”—unless, perhaps, the subsections that follow clearly limit the introductory clause’s broad scope. None of CrR 7.8(b)’s five subsections clearly limit the introductory clause’s broad inclusion of “final judgment[s], order[s], or proceeding[s].” Two subsections do not reference judgments, orders, or proceedings at all; one refers to “judgment[s] 8 Peterson relied in part on the series qualifier rule to support her argument. “[T]he series-qualifier rule . . . provides that ‘when there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.’” PeaceHealth St. Joseph Med. Ctr. v. Dep’t of Revenue, 196 Wn.2d 1, 8-9, 468 P.3d 1056 (2020) (quoting BLACK’S LAW DICTIONARY 1642 (11th ed. 2019)). She argued that because the words “final judgment, order, or proceeding” have a straightforward parallel construction, the postpositive phrase “for the following reasons” applies to the entire series, i.e., a petitioner may seek relief from a final judgment, order, or proceeding, for any reasons that follow in subsections (1)-(5). Pet’r’s Suppl. Br. at 14- 15. But her reliance on the series qualifier rule is misplaced. “[F]or the following reasons” is not a series qualifier, nor is it a postpositive phrase. That phrase does not modify “final judgment, order or proceeding.” A postpositive phrase should make sense when read into each term in the series, for example “final judgment [for the following reasons], order [for the following reasons] or proceeding [for the following reasons].” That reading does not make much sense. See PeaceHealth St. Joseph Med. Ctr. v. Dep’t of Revenue, 9 Wn. App. 2d 775, 781-82, 449 P.3d 676 (2019), aff’d, 196 Wn.2d at 8-9. Instead, that phrase introduces the grounds on which the court may grant relief from a final judgment, order, or proceeding. 12 State v. Peterson (Karen Kathleen), No. 104536-1 or order[s];” and the remaining two refer only to “judgment[s].” None of the subsections state that their reference to the listed type of judgment, order, or proceeding is exclusive. Indeed, interpreting each subsection to apply exclusively to its listed court action would render portions of the statute’s introductory clause superfluous— because none of those five subsections list “proceedings” and two do not reference judgments, orders, or proceedings at all. That would make the introductory clause’s inclusion of “proceeding[s]” inoperative. We disfavor interpretations that would render portions of the rule inoperative or superfluous. See Groves v. Meyers, 35 Wn.2d 403, 407, 213 P.2d 483 (1950) (“[A] statute should, if possible, be so construed that no clause, sentence or word shall be superfluous, void, or insignificant.”). This reading of the full statute in context with its introductory clause means that CrR 7.8(b)’s subsections authorize courts to grant relief from a “final judgment, order, or proceeding” for any of the reasons listed in subsections (1) through (5), even if that subsection does not contain the words judgment, order, or proceeding. Indeed, that is how the Court of Appeals has applied CrR 7.8(b) in the past. See Jane Doe v. Fife Mun. Ct., 74 Wn. App. 444, 452, 874 P.2d 182 (1994) (interpreting CrRLJ 7.8(b)’s identical language to permit petitioners to seek relief from void orders, even though they were never convicted and did not have judgments, because 13 State v. Peterson (Karen Kathleen), No. 104536-1 “[t]he rule provides that it exists to enable a party to obtain relief from judgments or orders, not merely convictions,” and directing petitioners to CrRLJ 7.8(b)(4)).9 To be sure, there is a plausible argument that the rule’s inclusion of “judgment” or “order” in some subsections but not in others means that the drafters knew how to expand the operation of the rule in some subsections and limit the operation of the rule in other subsections. See, e.g., Perez-Crisantos v. State Farm Fire & Cas. Co., 187 Wn.2d 669, 680, 389 P.3d 476 (2017) (“[W]here the legislature includes particular language in one section of a statute but omits it in another, the exclusion is presumed intentional.” (citing Millay v. Cam, 135 Wn.2d 193, 202, 955 P.2d 791 (1998))); State v. Delgado, 148 Wn.2d 723, 729, 63 P.3d 792 (2003) (“‘Under expressio unius est exclusio alterius, a canon of statutory construction, to express one thing in a statute implies the exclusion of the other.’” (quoting In re Det. of Williams, 147 Wn.2d 476, 491, 55 P.3d 597 (2002))). But this contrary possible interpretation of the rule’s language simply means that we must explore other interpretive rules to answer the question presented. C. The rule’s purpose suggests that its broad introductory clause applies to each of its subsections To interpret the meaning of a rule in context, we may also consider the rule’s purpose, as expressed by the enacting body. Campbell & Gwinn, LLC, 146 Wn.2d 9 CrRLJ 7.8(b) is CrR 7.8(b)’s counterpart in courts of limited jurisdiction. Its language is the same. 14 State v. Peterson (Karen Kathleen), No. 104536-1 at 11 (“‘[T]he plain meaning rule requires courts to consider legislative purposes or policies appearing on the face of the statute as part of the statute’s context.’” (quoting 2A SINGER, supra, at 809-10)). CrR 1.2, “Purpose and Construction,” provides: These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration, effective justice, and the elimination of unjustifiable expense and delay. Interpreting CrR 7.8(b)(4) to allow relief from a void judgment, but not from a void order, would not “secure . . . fairness in administration” or “effective justice.” Similarly, interpreting CrR 7.8(b)(5) to allow relief from a judgment for “any other reason justifying relief” but to preclude relief from an order or proceeding even when there is a “reason justifying relief” does not secure fairness or effective justice. Considering CrR 7.8(b)’s introductory clause in context with this purpose bolsters our conclusion that CrR 7.8(b)’s introductory clause must be read to apply to each of its subsections (1)-(5). D. Reading the rule in context with other related rules confirms that its broad introductory clause applies to each of its subsections Reading CrR 7.8(b) in context with other related rules confirms this interpretation. See Ass’n of Wash. Spirits & Wine Distribs. v. Wash. State Liquor Control Bd., 182 Wn.2d 342, 350, 340 P.3d 849 (2015) (“The court discerns legislative intent from the plain language enacted by the legislature, considering . . . 15 State v. Peterson (Karen Kathleen), No. 104536-1 related provisions, amendments to the provision, and the statutory scheme as a whole.” (citing Campbell & Gwinn, LLC, 146 Wn.2d at 9-10)). In State v. Scott, 92 Wn.2d 209, 595 P.2d 549 (1979), this court held that CR 60(b) applies to the vacation of judgments and orders in criminal cases. It adopted this rule in the context of a challenge to not just a judgment, but in the context of defendant’s challenge to an order revoking suspension of sentence (based on new trustworthy information indicating that it had previously been supplied with the incorrect drug test results). CrR 7.8 was adopted to codify this court’s decision in Scott. Purpose Statement, Ord. 25700-A-382, at 59-60 (Wash. June, 11, 1986) (“The drafting subcommittee agreed that the Scott decision, applying CR 60 to criminal cases, should be codified in a court rule, in part to assist practitioners who do not regularly practice criminal law. The rule would be numbered as 7.8 . . . . The drafting subcommittee also concluded CR 60 would have to be selectively incorporated because portions such as CR 60(b)(7) do not arise in criminal cases. . . . Proposed rule 7.8(b) incorporates most of CR 60(b), and includes as pertinent grounds for the motion in criminal cases: CR 60(b)(1), CR 60(b)(3), CR 60(b)(4), CR 60(b)(5), and CR 60(b)(11).”). CrR 7.8 was modeled after CR 60, which “gives trial courts a broad measure of equitable power to grant parties relief from judgments or orders.” Vaughn v. 16 State v. Peterson (Karen Kathleen), No. 104536-1 Chung, 119 Wn.2d 273, 280, 830 P.2d 668, 671 (1992) (citing Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 599 P.2d 1289 (1979)). 10 The language of CrR 7.8(b) is functionally identical to the language of CR 60(b), and CrR 7.8(b) incorporates 5 of CR 60(b)’s 11 subsections (because some of the subsections under CR 60(b) do not arise in criminal cases). Purpose Statement, supra, at 60; CR 60(b). So CrR 7.8(b)(4) is identical to CR 60(b)(5), and CrR 7.8(b)(5) is identical to CR 60(b)(11). Under CR 60(b)(11), courts have granted relief from orders—not just judgments (in appropriate, “extraordinary,” situations). E.g., Scott, 92 Wn.2d 209; In re Marriage of Furrow, 115 Wn. App. 661, 673, 63 P.3d 821 (2003) (granting relief from modification order under the CR 60(b)(11) catchall reason: “CR 60(b)(11) grants the court discretion to vacate an order for ‘[a]ny other reason justifying relief from the operation of the judgment.’” (alteration in original)).11 10 See also State ex rel. Turner v. Briggs, 94 Wn. App. 299, 302-03, 971 P.2d 581 (1999) (“A void judgment [under CR 60(b)] is a ‘judgment, decree or order entered by a court which lacks jurisdiction of the parties or of the subject matter, or which lacks the inherent power to make or enter the particular order involved . . . .’” (emphasis added) (second alteration in original) (internal quotation marks omitted) (quoting Dike v. Dike, 75 Wn.2d 1, 7, 448 P.2d 490 (1968))). 11 See generally In re Marriage of Lehman, No. 33868-1-III, slip op. at 2, 19 (Wash. Ct. App. Mar. 14, 2017) (unpublished) (CR 60(b)(11) is an appropriate vehicle for a motion to vacate child support orders: “We hold that a court may vacate a judgment or order under CR 60(b)(11) in those situations where an attorney’s gross negligence effectively deprived a diligent but unknowing client of representation. . . . [W]e remand to the trial court for it to make additional findings on whether the orders should be vacated under CR 60(b)(11), consistent with our analysis of that rule in this opinion.”), 17 State v. Peterson (Karen Kathleen), No. 104536-1 Just as CR 60(b)(11) gives trial courts power to grant relief from orders (in extraordinary circumstances) in civil matters, CrR 7.8 gives trial courts power to grant relief from orders (in extraordinary circumstances) in criminal matters. Interpreting CrR 7.8(b)’s subsections to limit its introductory language clashes with the drafter’s intent as shown by this historical context. In sum, narrowly interpreting CrR 7.8(b)(4) and (5) to authorize courts to grant relief only from judgments, and not from orders or proceedings, lacks support in the rule’s language, context, or purpose. We conclude that relief is available under CrR 7.8(b)(4) and (5) to challenge any of the three court actions included in the introductory clause. Next, we turn to whether CrR 7.8(b)(4) or (5) is the proper avenue for relief given the facts of Peterson’s case. E. Peterson’s path to relief is through CrR 7.8(b)(5); the Blake decision is the type of extraneous irregularity contemplated by CrR 7.8(b)(5). But because the order at issue here is not “void,” relief is not available through CrR 7.8(b)(4) CrR 7.8(b)(4) permits the court to relieve a party from a final judgment, order, or proceeding when “[t]he judgment is void.” https://www.courts.wa.gov/opinions/pdf/338681_unp.pdf; In re Det. of Scott, No. 70692- 6-I, slip op. at 6 (Wash. Ct. App. June 9, 2014) (unpublished) (considering sexually violent predator’s motion to vacate order of commitment under CR 60(b)(11) because “CR 60(b)(11) . . . authorizes a trial court to vacate an order for ‘[a]ny other reason justifying relief from the operation of the judgment,’” but denying it on the merits (second alteration in original) (quoting CR60(b)(11))), https://www.courts.wa.gov/opinions/pdf/706926.pdf. 18 State v. Peterson (Karen Kathleen), No. 104536-1 But the trial court’s actions here were not “void.” Under our controlling recent precedent, simple drug possession was a valid crime when Peterson faced charges; our later ruling in Blake rendered the statute unconstitutional but did not nullify the statute or render all related proceedings void. State v. Olsen, 3 Wn.3d 689, 701, 555 P.3d 868 (2024) (“We . . . disagree with Olsen that an unconstitutional statute is a nullity, void ab initio;” thus, Blake did not invalidate Olsen’s agreement to plead guilty to drug possession and several other non-possession-crimes); 12 see also State v. Ward, No. 58969-9-II, slip op. at 9 (Wash. Ct. App. July 29, 2025) (unpublished) (“[A]t the time of the parties’ [agreement that Ward would participate in drug court], simple drug possession was a recognized crime and its later invalidation did not make the statute a nullity.” (citing Olsen, 3 Wn.3d at 701)), https://www.courts.wa.gov/opinions/pdf/D2%2058969-9- II%20Unpublished%20Opinion.pdf. Because the trial court’s actions in Peterson’s case, including the order to enter drug treatment court, were not “voided” by Blake, Peterson cannot use CrR 12 Olsen pleaded guilty to forgery and unlawful possession of a controlled substance in August and September 2003 in separate plea agreements. The trial court accepted the pleas at the same time and imposed concurrent sentences. In 2005, Olsen pleaded guilty to unlawful possession of a controlled substance and unlawful possession of a firearm in the second degree in a single plea agreement. Olsen argued that his pleas to unlawful possession of controlled substances “became pleas to nonexistent crimes, rendering them involuntary.” Olsen, 3 Wn.2d at 693. We rejected that argument. Blake required the court to vacate Olsen’s drug possession convictions, but it did not void all related proceedings. 19 State v. Peterson (Karen Kathleen), No. 104536-1 7.8(b)(4)—which allows a petitioner to seek relief from “void” judgments—to seek relief. CrR 7.8(b)(5), however, permits the court to grant relief for “[a]ny other reason justifying relief from the operation of the judgment.” As discussed above, CR 60(b)(11), on which CrR 7.8(b)(5) was modeled, applies to “orders” as well as “judgments.” We have ruled that this provision allows for relief in extraordinary circumstances not covered by other subsections of the rule. State v. Lamb, 175 Wn.2d 121, 128, 285 P.3d 27 (2012). Extraordinary circumstances “must relate to fundamental, substantial irregularities in the court’s proceedings or to irregularities extraneous to the court’s action.” State v. Olivera-Avila, 89 Wn. App. 313, 321, 949 P.2d 824 (1997) (citing State v. Aguirre, 73 Wn. App. 682, 688, 871 P.2d 616 (1994)); see also State v. Smith, 159 Wn. App. 694, 701, 247 P.3d 775 (2011) (extraordinary circumstances include the county’s elimination of partial confinement programs, which would require petitioners to serve the remainder of their sentences in total confinement despite the sentencing judge’s explicit reliance on alternatives to incarceration); State v. Klump, 80 Wn. App. 391, 909 P.2d 317 (1996) (extraordinary circumstances include the reversal of petitioner’s federal sentence, which had been ordered to run consecutively to his state sentence). 20 State v. Peterson (Karen Kathleen), No. 104536-1 We hold that the invalidation of the simple drug possession statute in Blake constitutes a “fundamental, substantial irregularit[y]” “extraneous to the court’s action” that permits Peterson to seek relief under CrR 7.8(b)(5). Olivera-Avila, 89 Wn. App. at 321. F. Whether the trial judge erred by retaining jurisdiction over Peterson’s motion depends on whether she “made a substantial showing that [she is] entitled to relief” The State argued to the Court of Appeals that even if Peterson could use CrR 7.8 to seek relief, that rule required the trial court to transfer the motion to the Court of Appeals for treatment as a personal restraint petition because Peterson failed to make a substantial showing that she is entitled to relief. CrR 7.8(c)(2), “Procedure on Vacation of Judgment,” states: The court shall transfer a motion filed by a defendant to the Court of Appeals for consideration as a personal restraint petition unless the court determines that … either (i) the defendant has made a substantial showing that they are entitled to relief or (ii) resolution of the motion will require a factual hearing. A defendant is entitled to relief under subsection (i) where the person (A) is serving a sentence for a conviction under a statute determined to be void, invalid, or unconstitutional by the United States Supreme Court, the Washington Supreme Court, or an appellate court where review either was not sought or was denied or (B) is serving a sentence that was calculated under RCW 9.94A.525 using a prior or current conviction based on such a statute.[13] 13 Because Peterson is neither serving a sentence for an unconstitutional conviction nor serving a sentence calculated under RCW 9.94A.525, the State argued to the Court of Appeals that the trial court erred in retaining the motion. Reply Br. of Appellant at 20 (Wash. Ct. App. No. 85791-6-I (2024)). That argument essentially reads “only” into the sentence: “A defendant is entitled to relief under subsection (i) [ONLY] where the person 21 State v. Peterson (Karen Kathleen), No. 104536-1 (Emphasis added.) The trial court obviously concluded that Peterson made a substantial showing that she was entitled to relief—the trial court granted her motion. Because that determination (i.e., whether Peterson made a substantial showing that she is entitled to relief) rests on the merits of Peterson’s argument, we turn there next. (We note at this point, though, that CrR 7.8(c) does not require the movant to prevail on the merits to make a “substantial showing” of entitlement to relief and avoid transfer to . . .”—but the rule does not contain that word. That argument also assumes that despite the list of grounds for relief in CrR 7.8(b), the last sentence of CrR 7.