STATE v. RADAN (1999)

RCW 9.41.040 prohibits any person convicted of a felony from possessing a firearm.   However, under RCW 9.41.040(3) a person cannot be precluded from possession of a firearm if the predicate conviction has been the subject of a postconviction procedure based on a finding of rehabilitation or innocence.   Richard A. Radan was charged with second degree unlawful possession of a firearm based on a prior felony conviction in Montana.   The trial court determined that Mr. Radan's rights had been fully restored under Montana law and dismissed the unlawful possession charge.   On appeal, the State contends the Montana restoration of rights procedure does not qualify as an “equivalent procedure” under RCW 9.41.040(3) because the Montana procedure is automatic and is not based on a finding of rehabilitation or innocence.   Mr. Radan urges a broader reading of the term “equivalent procedure,” and also asserts the Washington courts must grant full faith and credit to the restoration of rights determination rendered in Montana.   We conclude the Montana automatic restoration of rights procedure does not qualify as an “equivalent procedure” for purposes of RCW 9.41.040(3).   For that reason, a convicted felon like Mr. Radan cannot possess a firearm within the State of Washington without petitioning a court of record pursuant to RCW 9.41.040(4).   The order of the superior court dismissing the charge is reversed and the matter is remanded.

FACTS

On October 10, 1997, Mr. Radan was charged with one count of second degree unlawful possession of a firearm in violation of RCW 9.41.040.   It was alleged that on September 9, Mr. Radan was found to be in possession of two firearms after a prior felony conviction in Montana.   It is undisputed that (1) Mr. Radan was convicted of first degree theft, a felony, in Montana;  (2) Mr. Radan's rights were later automatically restored under Montana law;  and (3) Mr. Radan has not petitioned a Washington court to acquire firearm possession rights in Washington pursuant to RCW 9.41.040(4).

Mr. Radan subsequently filed a motion to dismiss asserting that his right to possess firearms had been restored under Montana law.   Mr. Radan relied on Montana Criminal Code Section 46-18-801 which provides, in part, “if a person has been deprived of a civil or constitutional right by reason of conviction for an offense and the person's sentence has expired or the person has been pardoned, the person is restored to all civil rights and full citizenship, the same as if the conviction had not occurred.”   Additionally, article II, section 28 of the Montana State Constitution states:  “Laws for the punishment of crime shall be founded on the principles of prevention and reformation.   Full rights are restored by termination of state supervision for any offense against the state.”   Mr. Radan also submitted documents demonstrating that he had been successfully discharged from supervision in Montana.

The court dismissed the charge concluding that Mr. Radan could lawfully possess firearms in Washington because his rights had been fully restored by the State of Montana.   The court determined that “the test for whether a person would be prohibited from possessing a firearm in the State of Washington on an out of state felony conviction would be whether the person's rights were fully restored in the state where the conviction occurred.”   In reaching this conclusion, the court considered cases applying a similar federal statute, 18 USCA § 921(a)(20).   The State appeals.

ANALYSIS

The State contends the Washington Legislature has the power to regulate the possession of firearms within Washington and that the Legislature enacted RCW 9.41.040, limiting the right of convicted felons to possess firearms, as a valid exercise of this power.   Under the State's view, the right to possess firearms in Washington is determined by applying the Washington statutory scheme;  cases construing 18 USCA § 921(a)(20) should not be considered.   According to the State, Mr. Radan could be charged with unlawful possession of a firearm under RCW 9.41.040 because the plain language of the statute prohibits Mr. Radan from possessing a firearm and none of the exceptions detailed in the statute are applicable.   The State contends RCW 9.41.040(3) does not recognize an out-of-state restoration of rights determination unless that determination is based on a finding of rehabilitation or innocence.

In response, Mr. Radan urges us to employ a broad reading of RCW 9.41.040(3).   He contends that felons convicted out-of-state are not prohibited from possessing firearms in Washington if their rights have been restored under any process in the convicting state.   Mr. Radan asserts RCW 9.41.040 cannot be read to prohibit felons convicted out-of-state from possessing firearms in Washington when the convicting state has already fully restored that person's rights.   Mr. Radan suggests that the statute is ambiguous and that its broad language should be read to include any restoration of rights procedures employed by the convicting state.   Mr. Radan bases his argument on cases construing 18 USCA § 921(a)(20) and the application of the rule of lenity.   Mr. Radan also asserts that Washington must give full faith and credit to the “judgment” in Montana that restored Mr. Radan's civil rights at the termination of state supervision for his offense.   Finally, Mr. Radan contends the Washington courts do not have jurisdiction to adjudicate a felon's restoration of rights when those rights are determined by criminal conduct occurring out-of-state.   In other words, Mr. Radan contends the Washington courts have no jurisdiction to affect the rights determined by an out-of-state conviction.

 Article I, section 24 of the Washington Constitution grants the right to bear arms to individuals of this state.   The right to bear arms conferred in article I, section 24 is not absolute and is subject to “reasonable regulation” by the State under its police power.  Morris v. Blaker, 118 Wash.2d 133, 144, 821 P.2d 482 (1992).   Within constitutional limitations, the Legislature has the absolute power to define any act as a crime and establish the elements of that crime.  State v. Tyson, 33 Wash.App. 859, 861-62, 658 P.2d 55, review denied, 99 Wash.2d 1023 (1983).   To pass constitutional muster, an arms regulation must:  (1) be a reasonable limitation, (2) be reasonably necessary to protect public safety or welfare, and (3) be substantially related to the ends sought.  City of Seattle v. Montana, 129 Wash.2d 583, 594, 919 P.2d 1218 (1996).  “[I]t is clear handgun legislation in Washington is designed to prohibit and punish potentially dangerous felons from possessing handguns.”  State v. Jeffrey, 77 Wash.App. 222, 226, 889 P.2d 956 (1995).  “The unlawful possession of a firearm statute reduces the danger or probability of danger that is created when a felon is in possession of a firearm by making it a punishable offense.”  State v. Anderson, 94 Wash.App. 151, 971 P.2d 585, 588 (1999).

The State charged Mr. Radan with unlawful possession of a firearm under RCW 9.41.040.   This statute prohibits any person convicted of a felony from possessing a firearm.   Previous felony convictions in Washington or elsewhere can serve as the predicate conviction for purposes of this statute.   RCW 9.41.040(1)(a);  RCW 9.41.010(12).   Under RCW 9.41.040(3), a conviction includes “a dismissal entered after a period of probation, suspension or deferral of sentence, and also includes equivalent dispositions by courts in jurisdictions other than Washington state.”   Significantly, a person is not precluded from possession of a firearm:

A person shall not be precluded from possession of a firearm if the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted or the conviction or disposition has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

RCW 9.41.040(3) (emphasis added).   In some circumstances, a person prohibited from possession of a firearm may petition the court to have his right to possess a firearm restored.   RCW 9.41.040(4).

 The question here is one of statutory construction as, appropriately, neither party challenges Washington's right to regulate the possession of firearms within its borders.   On the one hand, the State contends that RCW 9.41.040(3) is unambiguous and that Mr. Radan fails to demonstrate that he qualifies under either of the exceptions because his rights were restored by a process that was automatic and did not include a finding of rehabilitation or innocence.   On the other hand, urging a broad reading of the same statute, Mr. Radan asserts RCW 9.41.040(3) is ambiguous and must be read to recognize any restoration of rights determination made by the convicting state, regardless of the type of restoration procedure employed by that state.   In sum, Mr. Radan asserts the language of RCW 9.41.040(3) encompasses any out-of-state restoration of rights procedure.

 When interpreting a statute, the court must give effect to the plain meaning of the statutory language.  Cherry v. Municipality of Metro. Seattle, 116 Wash.2d 794, 799, 808 P.2d 746 (1991).   A court may not engage in statutory construction if the statute is unambiguous.   State v. Bolar, 129 Wash.2d 361, 366, 917 P.2d 125 (1996).   A statute is ambiguous if it is susceptible to two or more interpretations.  State v. McGee, 122 Wash.2d 783, 787, 864 P.2d 912 (1993).   If the statute may be interpreted in two alternative ways, the rule of lenity requires that the statute be construed against the State and in favor of the accused.  State v. Gore, 101 Wash.2d 481, 485-86, 681 P.2d 227, 39 A.L.R.4th 975 (1984).   Nonetheless, where the statutory language is plain and unambiguous, its meaning must be derived from the wording of the statute itself.  Human Rights Comm'n v. Cheney Sch. Dist. No. 30, 97 Wash.2d 118, 121, 641 P.2d 163 (1982).   Additionally, if a statute is unambiguous, the rule of lenity does not apply.   McGee, 122 Wash.2d at 787, 864 P.2d 912.

RCW 9.41.040(3) is not ambiguous.   This statute describes, in some detail, the type of postconviction procedure that enables a felon to possess a firearm in Washington without going through the petition process required in RCW 9.41.040(4).   Specifically, under RCW 9.41.040(3), a person shall not be precluded from possession of a firearm in Washington if the conviction has been the subject of a postconviction procedure “based on a finding of the rehabilitation of the person convicted” or “a finding of innocence.”   Contrary to the assertions of Mr. Radan, this provision cannot be read to include any restoration procedure.   Indeed, the statutory exemption applies only when it is established that the procedure included a fact-finding inquiry resulting in a finding of the rehabilitation or innocence of the felon in question.   The Montana restoration of rights determination here was automatic and was not based on any fact-finding procedure.   The plain language of RCW 9.41.040(3) does not encompass a blanket automatic restoration of rights procedure.

Mr. Radan contends the Washington statutory scheme must be construed in the same manner as 18 USCA § 921(a)(20).   Under the federal scheme, any person convicted of a felony in any court is prohibited from possessing or transporting firearms in interstate or foreign commerce.  18 USCA § 922(g)(1).   More importantly, 18 USCA § 921(a)(20) provides that “[w]hat constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held” and that “[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter[.]”  In other words, the federal statute incorporates a choice of law provision and grants an exemption based on any restoration of rights procedure.   Because the federal scheme is different than the Washington scheme, the cases relied upon by Mr. Radan, Beecham v. United States, 511 U.S. 368, 114 S.Ct. 1669, 128 L.Ed.2d 383 (1994), and United States v. Dahms, 938 F.2d 131 (9th Cir.1991), reach a different result.   These cases would be helpful if we were attempting to interpret or apply 18 USCA § 921(a)(20).   Unfortunately, Mr. Radan was charged with a violation of RCW 9.41.040 and we must apply the plain language of that statute.

 Mr. Radan further contends that even if the exemptions detailed in RCW 9.41.040(3) are not applicable, the State is prevented from charging him with unlawful possession of a firearm because the State of Washington must grant full faith and credit to the “judgment” by the State of Montana granting him full civil rights.  “A judgment rendered by a court of one state, if valid, is entitled to recognition in the courts of another state by virtue of the full faith and credit clause.”  In re Estate of Stein, 78 Wash.App. 251, 261, 896 P.2d 740 (1995), review denied, 128 Wash.2d 1014, 911 P.2d 1343 (1996).   The full faith and credit clause is unavailable to assist Mr. Radan for two reasons.   First, Mr. Radan fails to demonstrate that Montana's automatic restoration of rights procedure constitutes a “judgment” for purposes of the full faith and credit clause.   Second, even if we assume the Montana determination constitutes a judgment, its impact is limited.   Montana does not have the authority to regulate an individual's right to possess firearms in Washington.

When all is considered, it is clear that the Washington statutory scheme incorporates full faith and credit considerations.   RCW 9.41.040(3) provides for the recognition of a “pardon, annulment, certificate of rehabilitation, or other equivalent procedure” provided it is based on a finding of rehabilitation or innocence.   In other words, recognition is granted to those restoration of rights procedures where questions concerning a felon's rehabilitation or innocence are resolved through litigation.   Simply stated, Washington prohibits the possession of firearms by convicted felons, but will apply the principles of res judicata and exempt those convictions where a postconviction inquiry results in a finding of rehabilitation or innocence.   Washington need not recognize an automatic restoration of rights determination based solely on the termination of supervision.

 Finally, Mr. Radan contends the Washington courts lack the jurisdiction to adjudicate convictions of other states or to grant or deny restoration of civil rights based on an out-of-state conviction.   This argument is without merit because RCW 9.41.040(3) has no impact on the regulation of firearms in Montana and does not in any way impede the Montana criminal justice system.   Of equal importance, Mr. Radan cites no authority suggesting that Washington is precluded from restricting the possession of firearms by convicted felons within the state.   As we have seen, Washington has the right to regulate the possession of firearms within its borders and has done so with a fairly comprehensive statutory scheme.   Because Mr. Radan fails to demonstrate that he is exempt under RCW 9.41.040(3) or that he regained his right to possess a firearm pursuant to RCW 9.41.040(4), he may be charged with unlawful possession of a firearm in Washington.

Reversed and remanded.

KURTZ, A.C.J.

BROWN, J., and KATO, J., concur.