J-S85009-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
CORY J. WILLIS
Appellant No. 1162 EDA 2016
Appeal from the Order March 16, 2016
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000602-2006
BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.
JUDGMENT ORDER BY PANELLA, J. FILED JANUARY 09, 2017
Appellant, Cory J. Willis, appeals from the order of the Monroe County
Court of Common Pleas denying his application to restore his firearm rights.
We affirm.
The relevant facts and procedural history are as follows. On June 19,
2007, Willis pleaded guilty to a second offense, DUI, highest rate of alcohol,1
as a misdemeanor of the first degree. On that same date, Willis was
sentenced to intermediate punishment for a period of 1 year, 90 days of
which was to be spent under house arrest.
____________________________________________
1
75 Pa.C.S.A. § 3802(c). Under the law in effect at the time of Willis’s guilty
plea, a person convicted of a misdemeanor of the first degree was subject to
a term of imprisonment not to exceed 5 years. See 18 Pa.C.S.A. §
106(b)(6).
J-S85009-16
On January 17, 2015, Willis attempted to purchase a firearm at a gun
show in Matamoras, Pike County, Pennsylvania. Due to his DUI conviction,
he was denied permission to purchase the gun. An appeal of that denial is
current pending before the Pennsylvania Attorney General’s office.
On September 29, 2015, Willis filed a Petition for Restoration of
Firearm Rights under 18 Pa.C.S.A. § 6105.1. The trial court held a hearing
on Willis’s Petition. Ultimately, the trial court dismissed Willis’s Petition due
to lack of jurisdiction. This timely appeal follows.
On appeal, Willis raises two issues. First, Willis argues that the trial
court should have found that the sentencing limits set forth in
Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013), applied
retroactively to Willis’s second DUI conviction. See Appellant’s Brief, at 3.
Therefore, Willis argues, because the sentencing limit set forth in Musau
would not make him a “disabled person” under federal law, the trial court
should have found that he is a person allowed to possess a firearm. Id. at 9.
Alternatively, if Willis was properly deemed a “disabled person” under federal
law, Willis argues that the trial court erred in determining that Willis was not
entitled to have his firearm rights restored under 18 Pa.C.S.A. § 6105.1.
See id. at 10.
Willis’s arguments challenge the trial courts interpretation of case law
as well as its statutory interpretation of the Pennsylvania Uniform Firearms
Act, 18 Pa.C.S.A. § 6101 et seq. These arguments raise questions of law
over which our standard of review is de novo and out scope of review is
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J-S85009-16
plenary. See J.C.B. v. Pa. State Police, 35 A.3d 792, 794 (Pa. Super.
2012).
We have reviewed the parties’ briefs, the relevant law, the certified
record, and the thorough opinion of the Honorable Stephen M. Higgins. The
trial court’s opinion comprehensively disposes of Willis’s issues on appeal,
with appropriate references to the record and without legal error. Therefore,
we will affirm based upon that opinion. See Trial Court’s Opinion, dated
3/16/16.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/9/2017
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Circulated 12/13/2016 09:24 AM
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COURTOFCOMMONPLEASOFMONROECOUNTY
FORTY-TIDRD JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
CORY J. WILLIS, 602CR2006
Petitioner
VS,
Petition for Restoration of
COMMONWEALTH OF PENNSYLVANIA, Firearm Rights
Respondent
OPINION
This matter comes before the Court on Cory J. Willis, (hereinafter
"Petitioner") Petition for Restoration of Firearm Rights. Petitioner was convicted of
Driving under the Influence of Alcohol ("DUI"), Highest Rate (BAC .16+), Second
Offense' on June 19, 2006 following a guilty plea to the charge. The conviction
constitutes a Federal firearm disability pursuant to 18 U.S.C. § 922(g)(l) making it
unlawful for Petitioner to possess a firearm, Petitioner now seeks to have his firearm
rights restored so that he may have the opportunity to possess a firearm in the future.
Upon consideration of the arguments presented by both parties; a careful review of both
Pennsylvania's Uniform Firearms Act of 19952 ("Unifonn Act") and the Federal Gun
Control Act of 19683 ("Federal Act"), and for the reasons set forth below, Petitioner's
Petition for Restoration of Firearm Rights is dismissed due to this Court's lack of
jurisdiction to effectuate removal of a firearms disability imposed pursuant to the Federal
Act.
1
75 Pa.C.S.A. § 3802(c).
2 18 Pa.C.S.A. § 6101 et seq, specifically 18 Pa.C.S.A. § 6105.1.
3 18 U.S.C. § 921 el seq•• specifically 18 U.S.C. § 922.
Factual and Procedural His1QIT .
Toe following is a summary of the relevant facts. particular state and
federal statutes that brought about this action, and procedural history of the case:
On June 19, 2006, following a guilty plea, Petitioner was convicted of a
Second Offense, DUI, Highest Rate (BAC .16+). The first offense DUI occurred in
2002, for which Petitioner received Accelerated RehabilitativeDlsposition ("ARD").
The second offense DUI in 2006 is graded as a Misdemeanor of the First
Degree.4 In Pennsylvania, a person convicted of a misdemeanor of the first degree is
subject to a prison term not to exceed five years.5
Under the Federal Act, it is unlawful for any person, convicted of a State
offense classified by the laws of the State as a misdemeanor and punishable by a term of
imprisonment exceeding two years, to possess a firearm. 6
On June 19, 2006, Petitioner was sentenced to intermediate punislunent
for a period of one (1) year, of which ninety (90) days was to be spent on
electronic/house arrest program.
Because the maximum penalty Petitioner could have received for the
Second Offense DUI exceeded two years, the Petitioner was prohibited from possessing a
firearm under the Federal Act, as of his conviction date on June 19, 2006.
On or about January 17, 2015, Petitioner attempted to purchase a firearm
at a gun show in Matamoras. Pike County, Pennsylvania. He was denied. An appeal of
the denial is currently pending before the Attorney General's office.
4 75 Pa.C.S.A. § 3803(b)(3) states that "an individual ••• who violates section 3802(c) or (d) and who has
one or more prior offenses commits a misdemeanor of the first degree."
5
18 Pa.C.S.A. § 106(b)(6) states that "a crime is a misdemeanor of the first degree ifit is so designated in
this title or ifa person convicted thereof may be sentenced to a term of imprisonment, the maximum of
which is not more than five years."
6
18 U,S,C. § 922(g)(I).
2
The Pennsylvania State Police filed criminal charges against Petitioner
related to the attempted purchase in Pike County in violation of 18 Pa.C.S.A. § 6105(a)
(relating to the firearm restriction). That case has not reached its final disposition.
On September 29, 2015, Petitioner filed the instant Petition for Restoration
of Firearm Rights under 18 Pa.C.S.A. § 6105.1. A hearing was held on the Petition on
October 19, 2015, and briefs were ordered. The Commonwealth filed its Memorandum
of Law on October 30, 2015, and Petitioner filed his Brief in Support of Petition for
Restoration on November 4, 2015.
Discussion
Petitioner argues that Section 18 Pa.C.S.A. 6105.1 of the Uniform Act
provides the standard by which a court shall apply in determining whether restoration of
Petitioner's firearm rights is warranted. In tum, the Commonwealth counters Petitioner's
argument by offering a different interpretation of 18 Pa.C.S.A. 6105.1 and argues that
Petitioner has not met the requirements necessary to restore his firearm rights. We find
that both Petitioner and the Commonwealth have misinterpreted 18 Pa.C.S.A. 6105.1 in
this case in that the statute provides relief in limited circumstances for a firearm disability
under the Uniform Act but does not provide a remedy for a firearm disability that is
imposed pursuant to the Federal Act.
The Uniform Act
The Uniform Act, specifically Sections 6105(a) and 6105.1, contain the
provisions by which a person will lose his or her firearm rights in Pennsylvania and the
requirements for restoration of those firearm rights under certain circumstances.
However, these two sections pertain only to a firearm disability under Pennsylvania's
Uniform Act and not a firearm disability under the Federal Act. Furthermore, Section
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6105.1, relied upon by both Petitioner and the Commonwealth; is applicable only to such
offenses under prior laws of the Commonwealth, specifically violations of the former
Vehicle Code and Penal Code.
Under the Uniform Act, a person can become a prohibited person in
Pennsylvania by being convicted of any one of thirty-eight (38) enumerated offenses
under section 6105(b) or whose conduct meets the criteria found under subsection (c) of
section 6105. 18 Pa.C.S.A. § 6105(a),(c). Relief from such a state firearm disability
under sections 6105(a) and 6105(c) is found in subsection 61 OS(d), where a person
seeking relief "may make application to the court of common pleas of the county where
the principal residence of the applicant is situated ... ,, 18 Pa.C.S.A. § 6105(d).
Therefore, the only relief that can be granted pursuant to Section 6105(d) is from a state
firearm disability imposed under Section 6l05(a). Pennsylvania State Police v.
Paulshock, 836 A.2d 110, 115 (2003). As a result, Section 6105(d) does not grant the
common pleas court the power to relieve a federal firearm disability. Id.
In the instant case, Petitioner has not been convicted of any of the
enumerated offenses listed in Section 6105(b) nor does his conduct meet the criteria
found under Section 6105(c) that would qualify him for a state firearm disability under
Section 6105(a) of the Uniform Act. As such, Sections 6105(a), (b), (c), and (d) are
inapplicable to Petitioner's case.
Here, Petitioner advances two arguments in support of his petition for
restoration of his firearm rights: 1) the Petitioner is not a "disabled person', for purposes
of possessing a firearm as a result of a decision in Commonwealth v. Musau, 69 A.3d 754
(Pa. Super 2013), which held that the maximum penalty for a first or second DUI
conviction under the DUI statute (75 Pa.C.S.A. § 3803) is six-months, therefore
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disqualifying Petitioner from a firearm disability wider the Federal Act; and 2) that if
Petitioner is a "disabled person,', he is therefore eligible for restoration wider Section
6105.1. Both arguments are without merit.
First, Musau was decided in June 2013, nearly seven years after
Petitioner's conviction on the second offense DUI and six years after completion of his
sentence. To apply the Musau decision to Petitioner in this case would be a retroactive
application of the law without clear intent from the Superior Court in Musau that its
decision should be applied to parties outside of that particular case.
The Pennsylvania Constitution neither mandates nor prohibits retroactive
or prospective application of a new court decision. Blackwell v. Comm., State Ethics
Com'n, 589 A.2d 1094, 1098 (1991). "Retroactive application: is a matter of judicial
discretion which must be exercised on a case by case basis." Id. at 1099. Our Supreme
Court adopted a three-factor test in ]Jlackwe/1 that shall be applied when a question of the
.
retro activity or nonretroactivity of a new decision is before the Court. Id. Although we
may apply the three-factor test in this case, we choose to dispose of this argument with a
simpler analysis of the Musau decision.
The issue in Musau was whether a plain reading of the DUI statute in the
Vehicle Code (75 Pa.C.S.A. § 3803) imposed a statutory maximum sentence of either six
months or five years imprisonment for a second offense DUI, based on the interpretation
of the word "notwithstanding" in the statute. If the court interpreted the statute to cap the
maximum sentence at six months, then the federal firearm disability would not attach. 75
Pa.C.S.A. § 3803 reads in relevant part:
3803. Grading
(a) Basic Offenses -Notwithstanding as provided in subsection (b):
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(I) An individual who violates section 3902(a) (relating to driving
under the influence of alcohol or controlled substance) and bas no
more than one prior offense commits a misdemeanor for which the
individual may be sentenced to a term of imprisonment of not more
than six months and to pay a fine under section 3804 (relating to
penalties).
(b) Other offenses -
(4) An individual who violates section 3802(a)(l) where the
individual refused testing of blood or breath, or who violates section
3802(c) or (d) and who has one or more prior offenses commits a
misdemeanor of the first degree.
75 Pa.C.S.A. § 3803 [Emphasis added]
The Appellant in Musau argued that a plain reading of subsection (a) dictated that the
maximwn sentence Appellant could receive for a second offense DUI with a BAC refusal
was six months incarceration. Musau, 69 A.3d at 757. The Superior Court agreed with
the Appellant finding that our Supreme Court has defined the term "notwithstanding" as
"regardless of", and given this definition, a plain reading of subsection (a) indicated as
follows: regardless of the fact that a second offense DUI results in the grading of the
I
offense as a first degree misdemeanor, the maximum sentence for a first or second DUI
conviction is six months imprisonment. Id. at 758. The Superior Court went on to
declare that this interpretation would be different if the "legislature had instead prefaced
subsection (a) with 'except as provided in subsection (b)"', suggesting that the word
"except" in place of't'notwithstanding" would give subsection (b)(4) legal effect over
subsection (a) with regard to the maximum penalty for a second offense DUI. Id.
In 2014 the legislature, preswnably in response to the Superior Court's
holding in Musau, amended subsection (a) replacing the word "notwithstanding" with
"except". Petitioner in this case would have ~ valid argument under the Musau decision
if the legislature had not acted to amend the statute, however because they did,
6
Petitioner's second offense DUI is graded as a misdemeanor iI1 the first degree, which
carries a maximum sentence of five years imprisonment, and results in a federal firearm
disability under the Federal Act.
Petitioner's second argument is also without merit because the relief
provided by Section 6105.1 is not applicable to Petitioner in this case.
Section 6105.1 titled Restoration ofFireann Rigqts for Offenses Under
Prior Laws of the Commonwealth, does refer to Federal firearm disabilities, although
with limited application not available to Petitioner in this case. It provides in relevant
part:
(a) Restoration. - A person convicted of a disabling
offense may make application to the court of common
pleas in the county where the principal residence of the
applicant is situated for restoration of firearms rights.
(e) "Disabling Offense." A conviction for any offense
which:
(l ) resulted in a Federal firearms disability and is
substantially similar to either an offense currently
graded as a crime punishable by a term of
imprisonment for not more than two years or
conduct which no longer constitutes a violation of
law; and
(2) was a violation of either of the following:
(i) the former act of May 1, 1929, known as The
Vehicle Code, or the former act of April 29,
1959, known as The Vehicle Code; or
(ii) the former act of June 24, 1939, known as the
Penal code.
18 Pa.C.S.A. 6105.l(a), (e). [emphasis added].
Subsection (e) (2) is relevant in that it defines a "disabling offense" only
as a violation that occurs under the former Vehicle Code or the former Penal Code, both
of which have been revised by more recent amendments. Our Superior Court in
Commonwealth v. Stiver, 50 A.3d 702, interpreted Section 6105.1 as applying only to
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persons convicted of a "disabling offense"; i.e., "persons who have a federal firearms
disability that resulted from an offense under the previous Penal or Traffic Code of this
Commonwealth, and which is no longer graded as an offense punishable by two or more
years' imprisorunent under the current laws of this Commonwealth." Id, at 706.
Petitioner here was charged and convicted under the amended Vehicle
Code (amended by the Act of June 17, 1976, Act 81). Because Section 6105.l defines a
"disabling offense" as a violation that occurred specifically under the former Vehicle
Codes (Act of May 1, 1929 and Act of April 29, 1959) and former Penal Code (Act of
June 24, 1939), the Petitioner's conviction is not a "disabling offense" under the statute.
Because Petitioner's conviction is not a "disabling offense" under Section
6105.1, the relief provided by the statute is not available to Petitioner.
The Federal Act
Petitioner is disabled for purposes of possessing a firearm under Section
922(g)(I) of the Federal Act as a result of having been convicted of a crime punishable
by imprisonment or term exceeding one year.7 This prohibition includes such State
misdemeanor convictions where the maximum prison term exceeds two years.8 The
Federal Act provides the procedure by which a person, who is prohibited from possessing
a firearm, may restore his or her firearm rights under federal law. This procedure is
codified in Section 925(c) of the Federal Act. It provides in relevant part:
(c) A person who is prohibited from possessing, shipping,
transporting, or receiving firearms or ammunition may
make application to the Attorney General for relief from
718
U.S.C. § 922(g). Section 922(g)(1) states: "it shall be unlawful for any person - who has been
convicted in any court ofa crime punishable by imprisonment for a term exceeding one year ... to ...
possess in or affecting commerce, any firearm ... or receive ... any firearm which has been shipped or
transported in interstate or foreign commerce."
8
18 U.S.C. § 92l(a). Section 92l(a)(20XB) states: "The term 'crime punishable by imprisonment for a
term exceeding one year' does not include- any State offense classified by the laws of the State as a
misdemeanor and punishable by a term of imprisonment of two years or less." ill!JIIIA
8 ~~
the disabilities imposed by Federal laws with respect to the
acquisition, receipt, transfer, shipment, transportation, or
possession of firearms, and the Attorney General may grant
such relief if it is established to his satisfaction that the
circumstances regarding the disability, and the applicant's
record and reputation, are such that the applicant will not
be likely to act in a manner dangerous to public safety and
that the granting of relief would not be contrary to the
public interest. Any person whose application is denied
by the Attorney General may file a petition with the
United States district court for the district in which he
resides for a judicial review of such denial.
18 U.S.C. § 925(c). [emphasis added].
As discussed above, Petitioner is disabled from possessing a firearm under
the Federal Act, not the Uniform Act, and as such must follow the procedures set forth in
Section 925(c) of the Federal Act for restoration of his firearm rights. It is our
understanding from Petitioner's brief that he has applied with the Attorney General for
restoration and his application has been denied. As outlined above, any appeals of such
denial are exclusively within the jurisdiction of the U.S. district court in which the
Petitioner resides.
For the reasons stated above, we find that we lack the jurisdiction to
effectuate the removal of a firearms disability imposed pursuant to the Federal Act.
Having addressed all issues before this Court, we enter the following
order:
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