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State v. Dennis

Court of Appeals of Washington, Division 1

September 11, 2017

STATE OF WASHINGTON, Appellant,
v.
EDGAR DENNIS, III Respondent.

          SPEARMAN, J.

         To 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.

         On 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.

         FACTS

         Edgar 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.[1]

         In 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.

         DISCUSSION

         Dennis 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.[2] The State contends Pavseno is incorrectly decided and that we should decline to follow it.

         The 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).

         A 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 ...


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