AUSTIN J. BENSON, Appellant,
STATE OF WASHINGTON, Respondent.
J. Benson appeals the superior court's order denying his
petition to restore his firearm rights under RCW
9.41.040(4). 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.
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.
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
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.
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."
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.
Second Degree Robbery Not an Automatic Bar
argues that the second degree robbery conviction is not an
automatic bar to restoration. We agree.
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 ...