State v. Dennis

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IN CLSRK8 OFFICE ^ This opinion was filed for record
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1- SUSAN L. CARLSON
SUPREMECOURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
No. 95083-1
Respondent,

En Banc

EDGAR DENNIS III,

Petitioner.
2 6 20IJ
Filed

JOHNSON,J.—This case concerns the statutory interpretation of the portion

of ROW 9.41.040 dealing with requirements for restoration of firearm rights. The

statute allows an offender to petition for restoration of firearm rights "after five or

more consecutive years in the community without being convicted ... or currently

charged with any felony, gross misdemeanor, or misdemeanor crimes." RCW

9.41.040(4)(a)(ii)(A). At issue is whether this required five-year period must

immediately precede the petition for restoration or if any conviction-free five-year

period suffices. We reverse the Court of Appeals and hold that any five-year
State V. Dennis (Edgar), No. 95083-1

conviction-free period satisfies this requirement for eligibility to petition for

restoration of firearm rights.

FACTS

In 1991, Edgar Dennis III was convicted of second degree robbery, third

degree assault, and two counts of felony violation of the Uniform Controlled

Substances Act, chapter 69.50 RCW. His convictions disqualified him from

possessing a firearm. Dennis was also convicted ofthird degree assault in 1998.

After serving his sentence, he lived in the community for over 15 years without a

conviction. Then, in 2014, he was convicted of first degree negligent driving, a

misdemeanor.

In April 2016, Dermis petitioned the court for restoration of his firearm

rights. He did not disclose his 2014 conviction. The State objected to his petition

and informed the court of his 2014 conviction, arguing the statutory requirement of

a five-year conviction-free period must immediately precede a petition for

restoration. The superior court denied the petition. In a motion for reconsideration,

Dennis argued that the trial court had erred in not following the Division Two of

the Court of Appeals' interpretation of the statute that any conviction-ffee five-year

period satisfies the requirement. Payseno v. Kitsap County, 186 Wn. App. 465,

473, 346 P.3d 784 (2015). The superior court denied the motion. Dennis appealed

to Division One and the court affirmed, holding that the five-year period must
State V. Dennis (Edgar), No. 95083-1

immediately precede a petition for restoration. State v. Dennis, 200 Wn. App. 654,

666,402 P.3d 943 (2017). We granted review to resolve this split between

Divisions One and Two. State v. Dennis, 189 Wn.2d 1031,407 P.3d 1146 (2018).

ISSUE

Whether ROW 9.41.040(4)(a)(ii)(A) requires a petitioner be conviction-ffee
for five consecutive years or more immediately preceding the filing ofthe petition.

ANALYSIS

RCW 9.41.040(4)(a)(ii)(A) allows a person who has lost his or her

firearm rights to petition the court for restoration ofthose rights. Once all the

statutory requirements for restoration have been satisfied, a superior court's

role in approving the petition is purely ministerial; the court has no

discretion. State v. Swanson, 116 Wn. App. 67, 78,65 P.3d 343 (2003). The

statute states in relevant part:

An individual may petition a court ofrecord to have his or her right to
possess a firearm restored ...[i]f the conviction or finding of not
guilty by reason ofinsanity was for a felony offense, afterfive or
more consecutive years in the community without being convicted or
found not guilty by reason ofinsanity 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 ofthe offender score under RCW 9.94A.525.

RCW 9.41.040(4)(b),(4)(a)(ii)(A)(emphasis added).

We review issues of statutory interpretation de novo. State v. Evans, 111

Wn.2d 186, 192, 298 P.3d 724(2013). The purpose of statutory interpretation is
State V. Dennis (Edgar), No. 95083-1

'"to determine and give effect to the intent of the legislature.'" Evans, 111 Wn.2d

at 192(quoting State v. Sweany, 174 Wn.2d 909, 914, 281 P.3d 305 (2012)).

"When we interpret a criminal statute, we give it a literal and strict interpretation."

State V. Delgado, 148 Wn.2d 723, 111,63 P.3d 792(2003)(citing State v. Wilson,

125 Wn.2d 212, 217, 883 P.2d 320(1994)). We derive the legislative intent of a

statute solely from the plain language by considering the text ofthe provision in

question, the context of the statute in which the provision is found, related

provisions, and the statutory scheme as a whole. Evans, 111 Wn.2d at 192(citing

State V. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010)).

If, after this inquiry, there is more than one reasonable interpretation ofthe

plain language, then a statute is ambiguous and we may rely on principles of

statutory construction, legislative history, and relevant case law to discern

legislative intent. Ervin, 169 Wn.2d at 820(quoting Christensen v. Ellsworth, 162

Wn.2d 365, 373, 173 P.3d 228 (2007)). A statute is "not ambiguous simply

because different interpretations are conceivable." Berger v. Sonneland, 144

Wn.2d 91, 105, 26 P.3d 257(2001){c\Xmg State v. Till, 139 Wn.2d 107, 115, 985

P.2d365 (1999)).

Both parties argue the provision is unambiguous and should be interpreted

their way. Dennis argues that the State's interpretation requires reading

"immediately preceding" into the statute. It is a well-established principle of
State V. Dennis (Edgar), No. 95083-1

Statutory interpretation that we may not add words "to an unambiguous statute

when the legislature has chosen not to include that language." Delgado, 148 Wn.2d

at 121. No language in the statute states the five-year period must immediately

precede the petition. If the legislature wanted the five-year period to immediately

precede a petition for restoration, it would have said so; we may not read language

into a statute that is not there.

In response, the State argues that the language "five or more consecutive

years" has no effect unless the five years must immediately precede the petition.

Another tenet of statutory interpretation is that we must interpret a statute so as to

"render no portion meaningless or superfluous." Rivard v. State, 168 Wn.2d 775,

783, 231 P.3d 186 (2010). Per this tenet, the State argues that if the legislature had

intended any five-year period to qualify, it would have said "five-year period"

without including the "or more" language. As an example, the State points to the

washout provision ofthe Sentencing Reform Act of 1981, chapter 9.94A RCW,

that says a class C felony washes out if"the offender spent five years in the

community without committing any crime that subsequently results in a

conviction" since the last date of release from confinement. RCW 9.94A.525(2)(d).

The State argues that because ofthe way the legislature wrote the washout

provision, the legislature knew how to establish that any five-year period would
State V. Dennis (Edgar), No. 95083-1

suffice, but the legislature instead chose to add the words "or more" to signal the

five years must immediately precede the petition.

The washout provision is somewhat different from the restoration provision

in that an offender's conviction automatically washes out after the required time

period, whereas the restoration provision requires affirmative action in the form of

a petition from an eligible offender to trigger restoration of rights. Given this

procedural distinction, the legislature may have understandably used different

language in the restoration provision to put offenders on notice about when they

could petition for restoration.

. The restoration provision cites the washout provision in the last part ofthe

statute: "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)(ii)(A). Dennis argues this reference to the

washout provision is crucial to understanding the legislature's inclusion ofthe

words "or more." Dennis's argument situates the language at issue within the

context of the restoration provision as a whole. For a class C felony, the washout

provision is five years, so an offender does not need to wait any more than the five

years already required by the restoration provision. RCW 9.94A.525(2)(c). The

washout period for a class B felony is 10 years, so depending on his or her criminal

history, not every offender will be able to petition five years after his or her last
State V. Dennis (Edgar), No. 95083-1

conviction. RCW 9.94A.525(2)(b). Thus,the "or more" language lets those
petitioners who must wait more than five years know that they can still petition
once any prior convictions that would affect their offender scores have washed out.
Class A felonies and felony sex offenses never wash out, so offenders who have
committed those crimes will never be able to petition for restoration of their

firearm rights. RCW 9.94A.525(2)(a).

Although not necessary for our interpretation ofthe restoration provision s
plain language, a review of the bill reports supports Dennis's argument. The final
bill report states that an offender may petition for restoration offirearm rights
"after five years in the community without a conviction or current charge for any
crime," but "the person must also have passed the 'washout' period under the
Sentencing Reform Act before he or she may petition the court." Final B.Rep. ON
Substitute H.B. 2420, at 2, 54th Leg., Reg. Sess.(Wash. 1996). Thus,the

legislature seemed focused on offenders' prior convictions washing out before they
could become eligible to petition for restoration of firearm rights. The "or more"
language reflects the legislature's concern for those offenders who may need to
wait more than five years to petition while their prior convictions wash out. This
interpretation is consistent with our opinion in Rivard, where we held that "prior
felony convictions" refers only to felonies occurring prior to the offense that
causes an offender's loss of firearm rights. Rivard, 168 Wn.2d at 784("Although
State V. Dennis (Edgar), No. 95083-1

[an offender] had remained crime-free for the requisite 5 years for the purpose of

his disabling felony, a prior conviction still included in his offender score delays

his eligibility.").

The parties also dispute the significance of the language that a petitioner

may not petition if he or she is "currently charged with any felony, gross

misdemeanor, or misdemeanor crimes." RCW 9.41.040(4)(a)(ii)(A). "[Sjtatutes

should receive a sensible construction to effect the legislative intent and, if

possible, to avoid unjust and absurd consequences." State v. Vela, 100 Wn.2d 636,

641, 673 P.2d 185 (1983)(citing Crown Zellerbach Corp. v. Dep't ofLabor &

Indus., 98 Wn.2d 102, 653 P.2d 626 (1982)). The State points out that the statute

does not limit pending charges only to those crimes that would result in the

renewed loss of firearm rights but instead prevents restoration when any charges

are pending. Thus, the State argues the only logical reading of the statute is that the

legislature did not want courts to restore firearm rights while any new criminal

charges were pending.

Dennis argues that the prohibition on petitioning while charges are pending

makes sense because in any given case, charges may be amended upward, even

from a misdemeanor charge, meaning someone facing charges could possibly

petition for restoration only to be disqualified upon conviction for a crime that

results in the loss of firearm rights. If an offender who is otherwise eligible to
State V. Dennis (Edgar), No. 95083-1

petition for restoration is facing current misdemeanor charges, one of three things

may happen. First, the charge could be amended upward to a felony. If convicted,

even if the offender had already satisfied the five-year requirement, the felony

conviction would start the clock over and the offender would not be eligible to

petition. Second, as in Dennis's situation, the charge could result in a misdemeanor

conviction. Because he has already satisfied the five-year requirement, his

misdemeanor conviction does not prevent him from successfully petitioning. Third,

the charge could be dismissed, which the State seems to agree would not affect

eligibility to petition.

The State argues, and the Court of Appeals below agreed, that Dennis's

interpretation would lead to absurd results because under his interpretation, an

offender cannot petition while a misdemeanor charge is pending, but the moment

he or she is convicted of that misdemeanor he or she can successfully petition for

restoration offirearm rights. We disagree—it is not an absurd result to read and

apply a statute as expressly written; the provision's plain language states that an

offender may not petition while a charge is pending, nothing more.

The State further argues that Dennis's interpretation would lead to absurd

results because a person could be convicted of hundreds of misdemeanors after a

five-year conviction-free period and still recover his or her firearm rights. This

ominous prediction does not seem to be an absurd result because the legislature has
State V. Dennis (Edgar), No. 95083-1

created a specific list of crimes that result in the loss of firearms, and Dennis's

negligent driving conviction is not on that list.' Whether it is 1 misdemeanor

conviction, a dozen, or 100, the statutory language does not change. Dennis has

lived in the community without a conviction for over a decade and has satisfied the

five-year conviction-ffee period; a simple misdemeanor conviction does not

prevent restoration offirearm rights to an offender who has otherwise met the

statutory requirements.

Dennis points out that had he petitioned once the five-year period had run,

his rights would have been restored and his later misdemeanor conviction would

not disqualify him from possessing a firearm. He argues that the State's

interpretation leads to absurd results because it arbitrarily rewards the petitioner

who rushes into court as soon as five years have passed. Given that a court's role in

the restoration process is purely ministerial, the precipitating event for eligibility

for restoration is when the statutory requirements are met, not when the petition is

'Crimes that result in the loss offirearm rights—^those crimes enumerated in RCW
9.41.040(1) and (2)—are different from those crimes that prevent courts from restoring firearm
rights—any conviction for any felony, gross misdemeanor, or misdemeanor. A conviction for
any felony, gross misdemeanor, or misdemeanor is enough to interrupt the five-year conviction-
free period required for restoration. But the issue here is not whether Dennis's five-year
conviction-free period was interrupted by his misdemeanor conviction, but whether the timing of
his five-year period matters for restoration.

10
State V. Dennis (Edgar), No. 95083-1

filed. The only discretion the restoration provision contemplates is the petitioner's

discretion to decide when to petition.

The language of the restoration provision is clear: an offender having

previously been convicted of a class C felony needs a period of five years without

any convictions before he or she can petition for restoration of rights; this five-year

period need not immediately precede the petition. Ifthe legislature intended the

five-year period to immediately precede a petition for restoration, it could have

said so, but where the legislature omits language from a statute, we may not read

language into the statute. State v. Moses, 145 Wn.2d 370, 374, 37 P.3d 1216(2002)

(citing Jenkins v. Bellingham Mun. Court, 95 Wn.2d 574, 579,627 P.2d 1316

(1981)).

We reverse the Court of Appeals and hold that in this case, involving a prior

class C conviction, any conviction-free period of five or more consecutive years

satisfies the requirement of the restoration provision under RCW

9.41.040(4)(a)(ii)(A). We remand to the trial court with instructions to grant

11
State V. Dennis (Edgar), No. 95083-1

Dennis's petition for restoration of his firearm rights.

WE CONCUR:

^ Dennis also puts forth two constitutional arguments which were not raised at the Court
of Appeals. Dennis argues that Division One's interpretation supports an arbitrary application of
the restoration provision that renders the statute unconstitutional as applied to him. He also
argues that the statute violates the equal protection clause. Given our resolution of the statutory
interpretation, we decline to decide these issues.

12
State V. Dennis

No. 95083-1

GonzAlez, J.(dissenting)—^RCW 9.41.040(4)(a)(ii)(A) unambiguously sets

forth the prerequisites for the restoration of one's firearm rights. One ofthose

prerequisites is that the petitioner must be crime-free for at least five years at the

time of petition. The majority concludes that a person previously convicted of a

felony may successfully petition for the restoration oftheir firearm rights, even if

they have had a new conviction in the last five years, so long as they were crime-

free for five years at some point in the past. This reading ofthe statute is not what

the people intended in proposing, or the legislature intended in passing, the Hard

Time for Armed Crime Act, Laws OF 1995, ch. 129. Therefore, I respectfully

dissent.

In Washington, a person convicted of a felony loses the right to possess

firearms. ROW 9.41.040. However, with some exceptions, the right can be

restored. RCW 9.41.040(4). In relevant part, the statute sets forth the criteria as

follows:
State V. Dennis, No. 95083-1 (Gonzalez, J., dissenting)

An individual may petition a court of record to have his or her right to
possess a firearm restored ...
[i]f the conviction or finding of not guilty by reason ofinsanity was for a
felony offense, after five or more consecutive years in the community
without being convicted or found not guilty by reason ofinsanity or
currently charged with anyfelony, gross misdemeanor, or misdemeanor
crimes, if the individual has no prior felony convictions that prohibit the
possession of a firearm counted as part ofthe offender score under RCW
9.94A.525.

RCW 9.41.040(4)(b),(4)(a)(ii)(A)(emphasis added). Once the person satisfies the

statutory criteria, the trial court acts in a ministerial capacity and without discretion

in approving the petition. State v. Swanson, 116 Wn. App. 67, 78,65 P.3d 343

(2003).

I agree with the majority that this statute is unambiguous. But I disagree

with the interpretation the majority derives from this unambiguous statute. When

construing an unambiguous statute,"we will give effect to the plain meaning ofthe

statutory language." In re Marriage ofSchneider, 173 Wn.2d 353, 363, 268 P.3d

215 (2011); also State v. Vela, 100 Wn.2d 636, 641, 673 P.2d 185 (1983); State

V. Larson, 184 Wn.2d 843, 851, 365 P.3d 740(2015).

Here, Dennis was convicted of assault in the third degree, robbery in the

second degree, and two violations of the Uniform Controlled Substances Act, ch.

69.50 RCW (none of which permanently disqualify him). Because of these

convictions, Dennis lost his right to possess firearms. He had the opportunity to

restore that right. Dennis remained crime-free for 16 years following his last
State V. Dennis, No. 95083-1 (Gonzalez, J., dissenting)

conviction in 1998, but, in 2014,two years before petitioning for the restoration of

his firearm rights, Dennis was convicted of first degree negligent driving—a

misdemeanor.

Under the majority's interpretation, Dennis would be prohibited from

petitioning to restore his firearm rights while charged, but not after conviction

because first degree negligent driving is a misdemeanor. Majority at 9("[T]he

provision's plain language states that an offender may not petition while a charge

is pending, nothing more."); id. at 10("[A] simple misdemeanor conviction does

not prevent restoration of firearm rights."). Yet, the statute clearly dictates that a

person may petition

after five or more consecutive years in the community without [(1)] being
convicted[,] or [(2)] found not guilty by reason of insanity[,] or [(3)]
currently charged with anyfelony, gross misdemeanor, or misdemeanor
crimes.

RCW 9.41.040(4)(ii)(A)(emphasis added). A person whose firearm rights have

been lost because of a felony conviction and who is later convicted for a crime that

itself typically does not result in the loss offirearm rights (for example,

misdemeanor negligent driving) remains barred from restoring their right to

possess a firearm. The new conviction restarts the clock.

This was clearly intended, considering the provision's context. Columbia

Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 421, 440, 395 P.3d 1031

(2017)("Plain language analysis also looks to amendments to the statute's
3
State V. Dennis, No. 95083-1 (Gonzalez, J., dissenting)

language over time."(citing Dep't ofEcology v. Campbell & Gwinn, LLC, 146

Wn.2d 1, 10-11, 43 P.3d 4(2002))). The restoration provision at issue was

included in the Hard Time for Armed Crime Act, which enhanced sentencing to

"sufficiently stigmatize the carrying and use of deadly weapons by criminals."

Laws of 1995, ch. 129, § 1(c). Before 1995,the only people eligible for

restoration were those who lost their rights to possess firearms because they were

convicted ofthree or more DWIs (driving while intoxicated) in five years, and

those who had been involuntarily committed. Laws of 1994, 1st Spec. Sess., ch.

7, § 404(2),(3),(4)(a)(i). In addition, before 1995, the law did "not provide

similar procedures for the other classes of people who are subject to unlawful

possession of a firearm." H.B. Rep. on Initiative 159, at 2, 54thLeg., Reg. Sess.

(Wash. 1995). Thus, it is highly unlikely, given this history, that the people

intended to prevent someone from possessing a firearm while a misdemeanor

charge was pending, but then allow that the same person to obtain a firearm

following a conviction.

The majority spends a considerable amount of time parsing out the statutory

meaning of"or more." The phrase "or more" simply denotes that an offender must

be crime-free for a minimum offive years in order to petition for restoration.

ROW 9.41.040(4) requires no involvement in criminal activity at for least five

years, while recognizing the petitioner may have more than five crime-free years at
State V. Dennis, No. 95083-1 (Gonzalez, J.; dissenting)

the time of petition. Dennis remained crime-free for at least five years before

being convicted again in 2014. Once Dennis was charged and convicted, the clock

restarted. Dennis is eligible to petition for the restoration of his firearm rights five

years after his 2014 conviction, which, if he remains crime-free, is next year.

RCW 9.41.040(4) places the responsibility on the defendant to petition for the

restoration oftheir firearm rights. Here, Dennis' opportunity to restore his right

lapsed because of his own criminal behavior.

Because the majority would restore Dennis' firearm rights sooner than the

people intended, I respectfully dissent.
State V. Dennis, No. 95083-1 (Gonzalez, J., dissenting)