IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 75441-6-I
Appellant,
DIVISION ONE
V.
ORDER WITHDRAWING AND
EDGAR DENNIS, III 'AMENDING OPINION
Respondent.
IT IS HEREBY ORDERED that the opinion of this court in the above-entitled case filed
on September 11, 2017 is withdrawn and replaced with the amended opinion filed on October
2,2017.
SO ORDERED.
FOR THE COURT
Presiding Judge
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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 75441-6-1
Appellant,
DIVISION ONE
V.
AMENDED
EDGAR DENNIS, III PUBLISHED OPINION
Respondent. FILED: October 2, 2017
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
No. 75441-6-1/2
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.
'A conviction for first degree negligent driving (a misdemeanor offense) does not
disqualify a person from possessing a firearm. See RCW 9.41.040(1)(2). However, once the
firearm rights are lost, a conviction of any offense, including a misdemeanor, may preclude the
restoration of that right. See RCW 9.41.040(4)(a)(ii).
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DISCUSSION
Dennis argues that the trial court erred by denying his petition to restore
firearm rights. Relying on Payseno 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 Payseno, 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 Payseno.2 The State
contends Payseno 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,
2 Dennis cites In re Per. Restraint of Eddie D. Arnold, 198 Wn. App. 842, 396 P.3d 375
(2017)for its holding that we are bound by horizontal stare decisis to the decisions of our sister
divisions. We respectfully disagree that Payseno dictates our holding in this case. Grisby V.
Herzog, 190 Wn. App. 786, 808-811, 362 P.3d 763(2015).(The doctrine of stare decisis does not
preclude one panel from the court of appeals from stating a holding that is inconsistent with
another panel within the same division.)
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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:
[I]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
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No. 75441-6-1/5
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 immediately precede the petition.
We begin with whether RCW 9.41.040(4)(a)(ii)(A) is ambiguous."A statute
is ambiguous ... when it is fairly susceptible to different, reasonable
interpretations, either on its face or as applied to particular facts, and must be
construed to avoid strained or absurd results." McGinnis v. State, 152 Wn.2d
639, 645, 99 P.3d 1240(2004). After Dennis's 1998 disqualifying conviction, he
had no additional convictions until 2014. Thus, Dennis had gone "five or more
consecutive years" without being convicted of or "currently charged" with any
criminal offense. RCW 9.41.040(4)(a)(ii)(A). But, because of his 2014 conviction,
Dennis had not been conviction free for at least five years prior to filing his
petition for restoration of his firearms right. On these facts, RCW
9.41.040(4)(a)(ii)(A) can reasonably be interpreted to require the conviction-free
period to immediately precede Dennis' petition. It can also be interpreted to allow
the conviction-free period to occur at any time prior to his petition. We conclude
the statutory provision at issue is ambiguous.
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No. 75441-6-1/6
We next determine whether statutory construction clearly establishes
legislative intent that the conviction-free period must immediately precede the
petition to restore firearms rights. We first turn to the legislative history of RCW
9.41.040:
In 1994, RCW 9.41.040 was reenacted and amended. RCW
9.41.040(4) was again amended as part of the 1995 Hard Time
for Armed Crime Act, Initiative 159.4 LAWS OF 1995, ch. 129,§
16. The legislative "Findings and Intent" included the statement
that "[c]urrent law [did] not sufficiently stigmatize the
carrying and use of deadly weapons by criminals." LAWS OF
1995, ch. 129,§ 1. Before the legislature imposed the five-year-
crime-free period requirement, the legislature found that
"increasing violence in our society causes great concern for the
immediate health and safety of our citizens and our social
institutions." LAWS OF 1994, 1st Spec. Sess., ch. 7,§ 101, at
2197. The legislature also found that "violence is abhorrent to the
aims of a free society and that it cannot be tolerated." Laws of
1994, 1st Spec. Sess., ch. 7, § 101, at 2197.(Emphasis added).
(Footnotes omitted).
Payseno, 186 Wn. App. at 471-72. The Pavseno court reasoned that these
statements of purpose were general and did not help resolve the timing of the
five year conviction-free period. But the State argues that there is meaning in the
legislative finding that current law does not sufficiently stigmatize the use of )
firearms by criminals. We agree. The finding expresses that the Act was intended
to keep guns out of the hands of criminals who continue to commit crimes,
including offenses that do not themselves disqualify firearm possession. A
person who has committed a disqualifying criminal offense and who continues to
commit crimes falls squarely within the scope of this stated purpose. This
supports the State's position that a person already convicted of a disqualifying
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No. 75441-6-1/7
offense and who has, within five years preceding his petition, been convicted of
another crime, may not have his firearms right restored.
The original text of the firearm restoration provision also supports the
State's interpretation. When enacted, it read:
[T]he individual may petition a court of record to have his or her
right to possess a firearm restored:
(b) After five or more consecutive years in the community
without being convicted 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.360 [recodified as
RCW 9.94A.525(LAWS OF 2001, CH. 10,§ 6)].
Initiative 159,§ 16, at 461, 54th Leg., Reg. Sess.(Wash. 1995). A natural
reading of the original phrasing is that one may petition after completing a
conviction-free period of at least five years. Later amendments changed the
application of this provision and obscured this meaning. In 1996, the legislature
amended the provision so that it applied specifically to felons.3 In 2005, it was
amended to include people found guilty by reason of insanity. SUBSTITUTE H.B.
1687, 59th Leg., Reg. Sess.(Wash. 2005); SUBSTITUTE H.B. 2420, 54th Leg.,
Reg. Sess.(Wash. 1996) But these amendments did not alter the timing
applicable to the five year conviction-free period. The original text indicates that
the legislature intended for a petitioner to come to court with clean hands after at
least five conviction-free years.
Relying on City of Federal Way v. Koenig., 167 Wn.2d 341, 348, 217 P.3d
1172(2009), Dennis argues that other subsequent legislative history shows that
3 The amendment also provided that persons convicted of disqualifying non-felony
offenses were subject to a three year conviction-free period.
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No. 75441-6-1/8
the legislature has implicitly assented to Payseno. In that case, our Supreme
Court stated its presumption "that the legislature is aware of judicial
interpretations of its enactments and takes its failure to amend a statute following
a judicial decision interpreting that statute to indicate legislative acquiescence in
that decision." Id. at 348 (citing Soproni v. Polygon Apartments Partners, 137
Wn.2d 319, 327 n.3, 971 P.2d 500 (1990)). But legislative acquiescence is not
decisive here for several reasons.
First, Koenig is distinguishable because in that case there were 23 years
of legislative inaction following a judicial interpretation of a statute. Here, a mere
two years has passed since Payseno was decided. See State v. Coe, 109 Wn.2d
832, 846, 750 P.2d 208(1988)("The Legislature is deemed to acquiesce in the
interpretation of the court if no change is made for a substantial time after the
decision.") Second, while in the time since Payseno was decided in 2015, the
legislature has amended RCW 9.41.040 without clarifying the ambiguity, the
amendments addressed technical matters unrelated to the issue in this case.4
And third, even where evidence of legislative acquiescence is found, it "is not
conclusive, but is merely one factor to consider" when interpreting a statute.
Safeco Ins. Companies v. Mevering, 102 Wn.2d 385, 392,687 P.2d 195(1984)
(citing Somer v. Woodhouse, 28 Wn. App. 262, 270,623 P.2d 1164 (1981)). In
light of these considerations, Dennis's legislative acquiescence argument is
unpersuasive.
4 In 2016 and 2017, it amended chapters with bills respectively entitled "Juvenile
Offenders — Rehabilitation and Reintegration" and "Sexual Assault Protection Orders — Duration —
Renewal — Modification", which changed discrete provisions related to juvenile offenders and
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No. 75441-6-1/9
While legislative history does not definitively resolve the statutory
interpretation question before us, it tends to support that the conviction-free
period must immediately precede the petition.
We next consider any applicable rules of statutory construction. When we
construe a statute, "'a reading that results in absurd results must be avoided
because it will not be presumed that the legislature intended absurd results."
State v. J.P., 149 Wn.2d 444, 450,69 P.3d 318(2003)(quoting State v. Delgado,
148 Wn.2d 723, 733, 63 P.3d 792(2003)). Additionally, "'[s]tatutes must be
interpreted and construed so that all the language used is given effect, with no
portion rendered meaningless or superfluous.' Id. (quoting Davis v. Dep't of
Licensing, 137 Wn.2d 957, 963, 977 P.2d 554(1999)).
The State argues that Dennis's interpretation allows a person convicted of
hundreds of misdemeanors after a five year conviction-free period to recover his
or her firearm rights. Dennis disputes that this is an absurd result. He argues that
such was the intent of the legislature when it determined that a misdemeanor
conviction for crimes would not result in the loss of firearm rights. We reject
Dennis's argument because it addresses a different circumstance than that at
issue in this case. Here, we are not concerned with whether a person should lose
the right to possess a firearm, but whether a person, having lost that right, should
have it restored. And the legislature has clearly stated that a misdemeanor
conviction is sufficient to preclude restoration of that right.
sexual assault protection orders. ENGROSSED SUBSTITUTE H.B. 2906, 64th Leg. Reg. Sess.
(Wash. 2016); ENGROSSED SUBSTITUTE S.B. 5256, 65th Leg. Reg. Sess.(Wash. 2017).
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No. 75441-6-1/10
We agree with the State that it makes no sense to interpret the statute to
allow reinstatement of a person's firearms right when, in the five years preceding
the petition, the person has shown an inability to live in society without
committing any crimes. That person, after all, bears the burden of proving they
are capable of living a crime free life in order to regain their firearms right. It
would be illogical to conclude that the legislature intended that a petitioner with
recent convictions could meet this burden just because he or she had previously
managed five years without one.
The State argues that there are additional absurd results in light of the
requirement that a petitioner not have any "current charges". The State proposes
the example of a person who goes five years without a criminal conviction after
losing firearm rights. Then, he is charged with a misdemeanor or non-
disqualifying gross misdemeanor crime. While that charge is pending, RCW
9.41.040(4)(a)00(A) prevents him from petitioning for restoration. But under
Dennis's interpretation, he can petition for restoration the moment he is convicted
of the crime. Dennis contends that it is not an absurd result because pending
charges may be amended upward, so the charge may not reflect the
dangerousness of the defendant. While this is true, the result of Dennis's
interpretation is still to penalize a charged person more harshly than a convicted
person.5 Given the constitutional right to gun possession, we agree with the State
5 Inaddition, we note that if the concern is the dangerousness of the person whose
charges might be enhanced, imposing pre-trial release conditions related to possession of
firearms addresses such a concern more precisely.
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No. 75441-6-1/11
that it is unlikely that the legislature intended to deprive a person who is merely
accused of a crime, only to relieve the prohibition upon conviction.
Giving effect to all the statutory language also supports the State's
interpretation. The State argues for meaning in the words "or more" of the
requirement that an individual have five or more consecutive crime-free years.
Under Dennis's interpretation, the words "or more" would merely clarify that a
person can petition the court for firearms restoration even if they spent six,
seven, or nine years in the community without a conviction. This hardly needs
clarifying, so Dennis's interpretation does not give effect to words "or more." We
agree with the State that properly construed the term "five or more consecutive
years" defines the period of time immediately before the petition is filed as the
time when a petitioner must be conviction free in order for firearm rights to be
restored.
The State also compares the "five years or more" language to the washout
provision of the Sentencing Reform Act, chapter 9.94A RCW, which does not say
"or more." Under the washout provision, a Class C Felony is not counted toward
an offender score if "the offender spent five years in the community without
committing any crime that subsequently results in a conviction." Former RCW
9.94A.525(2)(c)(2016). Comparing these two sections, the State argues that if
the Legislature intended to allow firearm restoration after any five year period,
they would have written RCW 9.41.040(4)(a)(ii)(A) like they did in RCW
9.94A.525. But by including the words "or more", the legislature must have
intended those words to have some effect. Dennis's interpretation gives those
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No. 75441-6-1/12
words no effect because it makes the restoration provision operate similarly to
the washout provision. It would restore firearm rights simply by the passage of a
minimum of five conviction-free years. But to give effect to the words "or more",
we agree with the State that the required conviction-free period includes a
minimum of five years plus whatever additional time precedes the filing of the
petition to restore firearm rights.
Based on our review of the legislative history of RCW 9.41.040(4)(a)(ii)(A)
and application of the rules of statutory construction, we conclude the legislature
intended the statute to require that a petition for restoration of firearm rights must
be immediately preceded by five or more consecutive conviction-free years.
Because the legislative intent is discernible, we need not apply the rule of lenity.
We conclude that the trial court did not err in denying Dennis's petition for
firearms restoration.
Affirmed.
WE CONCUR:
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