FILED
JULY 13, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34222-1-111
Respondent, )
)
v. )
)
DEREK R. WILLIAMS, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. - Derek Williams appeals from his jury conviction for taking a
motor vehicle, arguing that the trial court did not adequately advise him that he had lost
his right to possess firearms. We conclude that he did not preserve this issue for appeal.
FACTS
A Spokane County jury convicted Mr. Williams of taking a motor vehicle. He
was sentenced by the Honorable James Triplet. His offender score was calculated at 8
and his criminal history reflected a total of nine other adult felony convictions. The
judgment and sentence form contained standard language indicating that Mr. Williams
No. 34222-1-111
State v. Williams
needed to surrender any firearms and that he had lost his right to possess firearms.
Clerk's Papers (CP) at 18. 1
In addition, during the sentencing hearing, the court engaged in the following
exchange with the defendant and his counsel:
The Court: 500 victim, 200 court costs, 100 DNA, that's 800; $25 a
month. Let's go four months out, July 15, 2016. You can't vote. You
can't possess firearms.
Do we have a right of appeal for him for me to go over?
The Court: Anything else substantively I need to advise him on his
rights? That summarizes it. It's not reading it to him.
[Defense Counsel]: I don't think there's anything else, Judge.
Report of Proceedings (RP) at 367-368 (emphasis added). The colloquy continued after a
brief recess and the judge asked defense counsel, "did I miss any other issues or
questions?" Counsel answered in the negative. RP at 368. When the court later again
asked if defense counsel needed anything else, counsel once more answered in the
negative. RP at 372.
Mr. Williams subsequently filed a timely notice of appeal to this court.
1
"5.Sa Firearms. You may not own, use or possess any firearm, and under
federal law any firearm or ammunition unless your right to do so is restored by the
court in which you are convicted or the superior court of Washington State where you
live, and by a federal court if required. You must immediately surrender any
concealed pistol license. (The clerk of the court shall forward a copy of the defendant's
driver's license, identicard, or comparable identification, to the Department of Licensing
along with the date of conviction or commitment). RCW 9.41.040, 9.41.047." CP at 18.
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State v. Williams
ANALYSIS
This appeal raises a single2 issue--did the trial court sufficiently orally advise Mr.
Williams concerning the fact that he had lost his right to possess firearms due to the
jury's verdict? We conclude that this issue is not preserved under the facts of this case
and decline to address it.
RCW 9.41.047(l)(a) provides in relevant part:
At the time a person is convicted ... of an offense making the person
ineligible to possess a firearm, ... the convicting or committing court shall
notify the person, orally and in writing, that the person must immediately
surrender any concealed pistol license and that the person may not possess
a firearm unless his or her right to do so is restored by a court of record.
The failure to comply with the notice requirement of the statute creates an affirmative
defense to a later unlawful possession of a firearm prosecution should the defendant assert
that he was not advised of the prohibition on firearm possession. State v. Breitung, 173
Wn.2d 393, 402-403, 267 P.3d 1012 (2011); State v. Garcia, No. 34176-3-III, (Wash. Ct.
App. June 15, 2017) (unpublished), http://www.courts.wa.gov/opinions/pdf/34l 763_unp.pdf.
The general rule in Washington is that an appellate court will not consider an issue
on appeal that was .not first presented to the trial court. RAP 2.5(a); State v. Scott, 110
2
Although Mr. Williams also requested that this panel waive any appellate costs
that might be imposed against him, he has not complied with our general order and
provided updated financial information. We thus decline to address this request without
prejudice to him presenting his argument in an objection to any cost bill the State might
file. Our commissioner will consider any objection in accordance with RAP 14.2.
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No. 34222-1-III
State v. Williams
Wn.2d 682, 685, 757 P.2d 492 (1988). However, RAP 2.5(a)(3) permits a party to raise
initially on appeal a claim of "manifest error affecting a constitutional right." The error
must be both (1) manifest and (2) truly of constitutional magnitude. Id. at 688. A claim
is manifest if the facts in the record show that the constitutional error prejudiced the
defendant's trial. State v. McFarland, 127 Wn.2d 322,333, 899 P.2d 1251 (1995). The
purpose of error preservation rules such as RAP 2.5(a) is to promote judicial efficiency
by encouraging parties to point out errors to the trial court at a time when they can be
corrected. Scott, 110 Wn.2d at 685.
The adequacy of the oral advice concerning firearms (and concealed permit) loss
does not present a manifest question of constitutional error. Mr. Williams cites solely to
RCW 9.41.047(1) and the cases construing it. He also presents no argument explaining
how we can entertain this claim in light of RAP 2.5 since he did not object in the trial
court.
There is common law sentencing error exception to RAP 2.5, although its contours
are not well developed. See, e.g., State v. Jones, 182 Wn.2d 1,338 P.3d 278 (2014)
(explaining State v. Ford, 137 Wn.2d 472, 973 P.2d 452 (1999) (challenge to offender
score calculation permitted despite failure to object in trial court)). It does not apply to
all claimed sentencing errors. E.g., In re Pers. Restraint of Goodwin, 146 Wn.2d 861,
873-875, 50 P.3d 618 (2002) (waiver of alleged sentencing error in trial court). Even
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No. 34222-1-III
State v. Williams
where that exception exists, the appellate court retains discretion whether to review the
claim or not. E.g., State v. Blazina, 182 Wn.2d 827, 833-835, 344 P.3d 680 (2015).
Here, even if the common law exception applies, we decline to consider the claim.
An objection to the court's oral recitation of the information could have led to an easy
correction without need for a second hearing. If the notification articulated by the trial
judge left any questions in his mind, Mr. Williams and his counsel were both free to seek
clarification, an opportunity that the trial judge repeatedly invited the defense to make.
Instead, defense counsel repeatedly told the trial court that no further explanation of the
sentence was required. There is no manifest sentencing error for us to review.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
j
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