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Benson v. State

Court of Appeals of Washington, Division 2

June 5, 2018

AUSTIN J. BENSON, Appellant,
v.
STATE OF WASHINGTON, Respondent.

          Sutton, J.

         Austin J. Benson appeals the superior court's order denying his petition to restore his firearm rights under RCW 9.41.040(4).[1] Benson argues that (1) his 2008 conviction for second degree robbery is not an automatic bar to restoration of firearm rights, and (2) because his two disabling felonies were entered and sentenced on the same day, he does not have any prior felony convictions that are part of his offender score and that would prevent restoration of his firearm rights. We agree with Benson.

         Benson also argues that he was not required to prove compliance with the sentencing conditions when the predicate conviction is a felony. The State concedes this issue. We accept the State's concession. Accordingly, we reverse the superior court's dismissal of Benton's petition for restoration of his firearm rights, vacate the order denying the petition for restoration of firearm rights, and remand for further proceedings consistent with this decision.

         FACTS

         On May 28, 2008, Benson was convicted of one count of unlawful possession of a controlled substance (a class C felony) and one count of second degree robbery (a class B felony). Although these offenses were committed on different dates and charged under different cause numbers, he was convicted and sentenced for both convictions on the same date. Both of these convictions were disabling offenses that prohibited him from owning, possessing, using, or controlling a firearm. RCW 9.41.040(1), (2).

         On March 2, 2017, Benson petitioned for restoration of his firearm rights. In addition to acknowledging the convictions described above, he stated that on August 21, 2009, he had also been convicted of third degree driving with a suspended or revoked license, a misdemeanor. He further alleged that (1) he had been in the community for more than five years without being convicted of any felony, gross misdemeanor, or misdemeanor crimes, and (2) no charges were pending against him in any court.

         The State objected to Benson's restoration petition, arguing that (1) under RCW 9.41.040(4)(a), his class B second degree robbery conviction was an automatic bar to restoration, (2) Benson had not provided proof that he had completed the sentencing conditions of his two felony convictions, and (3) under RCW 9.41.040(4)(a)(ii)(A), Benson was not entitled to have his rights restored because his class B second degree robbery conviction had not yet washed out as a felony point. Benson responded that (1) his class B second degree robbery conviction was not an automatic bar to restoration, (2) he did not have to prove compliance with the sentencing conditions, and (3) under Rivard v. State, 168 Wn.2d 775, 221 P.3d 186 (2010), the class B second degree robbery conviction did not prevent restoration of his firearm rights because it was not a "prior conviction."

         The superior court denied Benson's petition based on the State's first argument, that the second degree robbery conviction was an automatic bar to restoration.[2]

         Benson appeals.

         ANALYSIS

         I. Second Degree Robbery Not an Automatic Bar

         Benson argues that the second degree robbery conviction is not an automatic bar to restoration.[3] We agree.

         RCW 9.41.040(4)(a) provides:

Notwithstanding subsection (1) or (2) of this section, a person convicted . . . of an offense prohibiting the possession of a firearm under this section other than . . . robbery, . . . who received a probationary sentence under RCW 9.95.200, and who received a dismissal of the charge under RCW 9.95.240, shall not be precluded from possession of a firearm as a result of the conviction or finding of not guilty by reason of insanity. Notwithstanding any other provisions of this section, if a person is prohibited from possession of a firearm under subsection (1) or (2) of this section and has not previously been convicted or found not guilty by reason of insanity of a sex offense prohibiting firearm ownership under subsection (1) or (2) of this section and/or any felony defined ...

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