Appeal from Kitsap Superior Court. Docket No: 13-2-01585-6. Judge signing: Honorable Kevin D Hull. Judgment or order under review. Date filed: 09/27/2013.
Thomas E. Weaver Jr., for appellant.
Tina Robinson, Prosecuting Attorney, and Randall A. Sutton, Deputy, for respondent.
Authored by Lisa Sutton. Concurring: Bradley A. Maxa, Jill M Johanson.
[186 Wn.App. 467] Lisa Sutton,
[¶1] Clifford Payseno appeals the superior court's denial of his petition to restore his right to possess a firearm. We are asked to decide whether the requirement in RCW 9.41.040(4)(a)(ii)(A) that a petitioner be crime free for five years is satisfied by an earlier crime-free period or whether the crime-free period must immediately precede the filing of the petition.
[¶2] We hold that RCW 9.41.040(4)(a)(ii)(A) is ambiguous as applied to the facts of this case. The statute can be interpreted as requiring a petitioner to be crime free for the five-year period immediately preceding the petition or interpreted as requiring a petitioner to be crime free during some earlier five-year period. The legislative history and interpretative aids do not definitively resolve this ambiguity. Under the rule of lenity, we strictly construe the statute in Payseno's favor. Accordingly, we reverse and remand
for further proceedings consistent with this opinion.
[¶3] The parties do not contest the operative facts. In March 2000, Payseno was convicted of a felony violation of [186 Wn.App. 468] the Uniform Controlled Substances Act (VUCSA). In June 2000, Payseno was convicted of the misdemeanor offense of first degree negligent driving under former RCW 46.61.5249 (1997). After serving his sentences, Payseno then went over five years in the community without a conviction of any kind.
[¶4] In February 2007 and May 2010, Payseno was convicted of two additional misdemeanor offenses: one for driving under the influence under former RCW 46.61.502 (1998) and one for first degree negligent driving under former RCW 46.61.5249 (1997). Neither of these offenses disqualified him from possessing a firearm. See former RCW 9.41.040(1)(a) (1997) (providing that it is a crime for anyone convicted of a " serious offense" under chapter 9.41 RCW to possess a firearm); former RCW 9.41.010(12) (1997) (defining " serious offense" for purposes of chapter 9.41 RCW).
[¶5] In 2013, Payseno petitioned the superior court to reinstate his right to possess a firearm. At the time of his petition, Payseno had no charges pending. The State objected to the petition and argued that in order to have his firearm rights restored, Payseno's five-year-crime-free period needed to immediately precede the filing of the petition. The superior court construed the language in RCW 9.41.040(4)(a)(ii)(A) that the petitioner not be " currently charged with any felony, gross misdemeanor, or misdemeanor crimes" as requiring the petitioner to be crime free for the five-year period preceding the petition even if the subsequent criminal ...