petition for restoration of firearm rights, RCW
9.41.040(4)(a)(ii)(A) requires five or more consecutive years
in the community without a conviction. After losing his right
to possess a firearm, Edgar Dennis III had no criminal
convictions for 16 years. But in 2014, he was convicted of a
misdemeanor. In 2016, he petitioned for restoration of his
firearm rights, but the superior court denied the request.
The court found that due to Dennis's 2014 conviction, he
had not been without a conviction for the time period
required by the statute.
appeal, Dennis argues that because RCW 9.41.040(4)(a)(ii)(A)
is ambiguous, we must apply the rule of lenity. Under that
rule, he urges us to construe the statute such that any
consecutive five year period without a criminal conviction is
sufficient to satisfy the statute, even if the petitioner has
one or more misdemeanor convictions within five years of
filing the petition. We decline to apply the rule of lenity
in this case because the rule is only applicable when
ambiguity remains after engaging in traditional methods of
statutory interpretation. That is not the case here. Properly
construed, RCW 9.41.040(4)(a)(ii)(A) reflects the
legislature's intent to require at least five consecutive
conviction-free years immediately preceding a petition for
restoration of firearm rights. We affirm.
Dennis III was convicted of second degree robbery, third
degree assault, and two counts of felony violation of the
Uniform Controlled Substances Act in 1991. As a result, he
was disqualified from possessing a firearm. In 1998, Dennis
was convicted of third degree assault. After serving his
sentence, Dennis lived in the community for over 15 years
without a conviction of any kind. Then in 2014, he was
convicted of first degree negligent driving.
April 2016, Dennis petitioned the superior court to reinstate
his right to possess a firearm. To restore firearm rights,
RCW 9.41.040(4)(a)(ii)(A) requires five or more consecutive
years in the community without a criminal conviction. In his
petition, Dennis did not disclose his negligent driving
conviction. The State objected to the petition and apprised
the court of Dennis's recent misdemeanor. The State
argued that Dennis's five-year conviction-free period
must immediately precede his petition for restoration. The
superior court denied Dennis's petition and motion for
reconsideration. He appeals.
argues that the trial court erred by denying his petition to
restore firearm rights. Relying on Pavseno v. Kitsap
County. 186 Wn.App. 465, 346 P.3d 784 (2015), he
contends that RCW 9.41.040(4)(a)(ii)(A) is ambiguous as to
whether he must have no convictions for five years
immediately preceding the petition for restoration and that
the rule of lenity requires us to strictly construe the
statute in his favor. In Pavseno. Division II of our
court found that RCW 9.41.040(4)(a)(ii)(A) was ambiguous and
that the legislative intent of the statute was unclear, even
after resort to rules of statutory construction. The court
applied the rule of lenity and strictly construed the statute
in favor of the defendant. It held that any consecutive five
year conviction-free period after the disqualifying crime
satisfied the statute, even if the five year period
immediately preceding the petition was not conviction free.
Dennis urges us to follow Pavseno. The State
contends Pavseno is incorrectly decided and that we
should decline to follow it.
meaning of a statute is a question of law that we review de
novo. Dep't of Ecology v. Campbell & Gwinn.
LLC. 146 Wn.2d 1, 9, 43 P.3d 4 (2002). When possible, we
derive the legislative intent of a statute solely from the
plain language enacted by the legislature, considering the
text of the provision in question, the context of the statute
in which the provision is found, related provisions, and the
statutory scheme as a whole. State v. Evans. 177
Wn.2d 186, 192, 298 P.3d 724 (2013) (citing State v.
Ervin. 169 Wn.2d 815, 820, 239 P.3d 354 (2010)). If more
than one interpretation of the plain language is reasonable,
then the statute is ambiguous and we must construe it.
Id. We may then rely on rules of statutory
construction, legislative history, and relevant case law to
discern legislative intent. Ervin. 169 Wn.2d at 820.
If, after applying rules of statutory construction, we
conclude that a statute remains ambiguous, "'the
rule of lenity requires us to interpret the statute in favor
of the defendant absent legislative intent to the
contrary.'" City of Seattle v. Winebrenner.
167 Wn.2d 451, 462, 219 P.3d 686 (2009)) (quoting State
v. Jacobs. 154 Wn.2d 596, 601, 115 P.3d 281 (2005)).
Thus, we will interpret an ambiguous penal statute adversely
to the defendant only if statutory construction "clearly
establishes" that the Legislature intended such an
interpretation. Id. The rule of lenity applies to
statutes governing post-conviction proceedings. State v.
Slattum, 173 Wn.App. 640, 658, 295 P.3d 788 (2013).
person who loses his firearm rights as a result of a criminal
conviction may petition for restoration of that right under
certain circumstances. When considering a petition for
restoration, the superior court's function is
ministerial, not discretionary: it grants the petition once
the petitioner has satisfied the requirements. State v.
Swanson, 116 Wn.App. 67, 69, 65 P.3d 343 (2003). Among
other requirements, a petitioner must have five or more
consecutive years in the community without a conviction:
[l]f a person is prohibited from possession of a
firearm...and has not previously been convicted ... of a sex
offense prohibiting firearm ownership ... and/or any felony
defined under any law as a class A felony or with a maximum
sentence of at least twenty years, or both, the individual
may petition a court of record to have his or her right to
possess a firearm restored:
. . .
(ii)(A) If the conviction or finding of not guilty by reason
of insanity was for a felony offense, after five or
more consecutive years in the community without being
convicted or found not guilty by reason of insanity
or currently charged with any felony, gross misdemeanor, or
misdemeanor crimes, if the individual has no prior felony
convictions that prohibit the possession of a firearm counted
as part of the offender score under RCW 9.94A.525
RCW 9.41.040(4)(a) (emphasis added). The parties dispute
whether the five consecutive conviction-free years must