Court of Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number: 21366-8-III
Title of Case: Harry Avery Smith v. State of Washington
File Date: 09/18/2003
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
HARRY AVERY SMITH, ) No. 21366-8-III
)
Appellant, )
) Division Three
v. ) Panel Eight
)
STATE OF WASHINGTON, ) PUBLISHED OPINION
)
Respondent. )
)
KURTZ, J. - Harry Smith petitioned the superior court for a
certificate of rehabilitation under RCW 9.41.040(3) so that his right to
possess a firearm could be restored. Mr. Smith appeals the court's denial
of his petition. We affirm the judgment of the superior court because the
only way that Mr. Smith could have his firearm rights restored was by
pardon or annulment of his conviction.
FACTS
In 1989, Harry Smith was convicted of indecent liberties after he had
sexual contact with an 11-year-old neighbor boy. Mr. Smith was sentenced
to 13 months in prison and required to pay financial obligations. Mr.
Smith served his sentence, paid his financial obligations, and was
subsequently discharged on June 27, 1991. Mr. Smith has had no other
convictions.
In 1999, Mr. Smith petitioned to have his conviction for indecent
liberties vacated. The petition was granted. In 2000, Mr. Smith's petition
to restore his right to possess a firearm was granted. Both these orders
were vacated in 2001 upon a CR 60 motion by the Spokane County Prosecutor's
Office. The court decided that Mr. Smith's conviction could not be vacated
and that his right to possess a firearm could not be restored under RCW
9.41.040(4). In addition, the court concluded that Mr. Smith could not
have his firearm rights restored under RCW 9.41.040(3) because he: (a)
remained required to register as a sex offender, (b) did not offer more
evidence than that required under
RCW 9.41.040(4), and (c) had not been deemed rehabilitated by the court
subsequent to a fact-finding hearing.
Mr. Smith petitioned the court for relief from registering as a sex
offender. In order to petition the court, Mr. Smith submitted to, and
passed, a lie detector test and a psychological evaluation performed by a
sex offender treatment provider. On
February 21, 2002, the court granted Mr. Smith's petition, relieving him
from his obligation to register as a sex offender.
Mr. Smith once again petitioned the court for a RCW 9.41.040(3)
certificate of rehabilitation. Mr. Smith asked the court for a fact-
finding hearing regarding whether he was rehabilitated. Once again, Mr.
Smith's petition was denied. The court 'found that there was a wealth of
information to support the finding that Harry Smith was rehabilitated.'
Clerk's Papers at 33. However, the court concluded that the language
contained in RCW 9.41.040(4) does not provide the court with authority to
grant a certificate of rehabilitation to a person convicted of a serious
crime, which includes indecent liberties. Mr. Smith's motion for
reconsideration was denied. Mr. Smith appeals.
ANALYSIS
Mr. Smith contends that even though he is precluded from obtaining a
firearm under RCW 9.41.040(4), he is still eligible to obtain a certificate
of rehabilitation under RCW 9.41.040(3) and have his firearm rights
restored. The State asserts that
RCW 9.41.040 specifically excludes sex offenders from ever possessing a
firearm, short of legal removal of the underlying conviction.
This case presents an issue of statutory interpretation, so this
court's review is de novo. State v. Argueta, 107 Wn. App. 532, 536, 27
P.3d 242 (2001). The fundamental objective of statutory construction is to
ascertain and carry out the legislature's intent. Rozner v. City of
Bellevue, 116 Wn.2d 342, 347, 804 P.2d 24 (1991). If the statute is plain
and unambiguous, its meaning must be derived from the statute's words
alone. Id. 'A statute is ambiguous if it can reasonably be interpreted in
two or more ways, but it is not ambiguous simply because different
interpretations are conceivable.' Berger v. Sonneland, 144 Wn.2d 91, 105,
26 P.3d 257 (2001). The courts need not discern an ambiguity by imagining
a variety of alternative interpretations. Id. (quoting W. Telepage, Inc.
v. City of Tacoma, 140 Wn.2d 599, 608, 998 P.2d 884 (2000)).
The relevant portions of RCW 9.41.040 provide:
(1)(a) A person, whether an adult or juvenile, is guilty of the crime
of unlawful possession of a firearm in the first degree, if the person
owns, has in his or her possession, or has in his or her control any
firearm after having previously been convicted in this state or elsewhere
of any serious offense as defined in this chapter.
. . . .
(3) Notwithstanding RCW 9.41.047 or any other provisions of law, as
used in this chapter, a person has been 'convicted', whether in an adult
court or adjudicated in a juvenile court, at such time as a plea of guilty
has been accepted, or a verdict of guilty has been filed, notwithstanding
the pendency of any future proceedings including but not limited to
sentencing or disposition, post-trial or post-factfinding motions, and
appeals. 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. 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. Where no record of the court's disposition
of the charges can be found, there shall be a rebuttable presumption that
the person was not convicted of the charge.
(4) Notwithstanding subsection (1) of this section, a person
convicted of an offense prohibiting the possession of a firearm under this
section other than murder, manslaughter, robbery, rape, indecent liberties,
arson, assault, kidnapping, extortion, burglary, or violations with respect
to controlled substances under RCW 69.50.401(a) and 69.50.410, who received
a probationary sentence under RCW 9.95.200, and who received a dismissal of
the charge under RCW 9.95.240, shall not be precluded from possession of a
firearm as a result of the conviction. Notwithstanding any other
provisions of this section, if a person is prohibited from possession of a
firearm under subsection (1) of this section and has not previously been
convicted of a sex offense prohibiting firearm ownership under subsection
(1) of this section and/or any felony defined under any law as a class A
felony or with a maximum sentence of at least twenty years, or both, the
individual may petition a court of record to have his or her right to
possess a firearm restored{.}
Mr. Smith argues that RCW 9.41.040(3) and RCW 9.41.040(4) are separate and
distinct, so an individual can petition for a certificate of rehabilitation
under subsection (3) notwithstanding the provisions in subsection (4).
The Attorney General's office was asked the following question: 'If a
person
is convicted of a Class A felony, or one of the enumerated crimes listed in
RCW 9.41.040(4), is there any statutory procedure for restoring such a
person's right
to possess a firearm?' The Attorney General responded:
From the wording of this question, we understand its meaning to be:
For persons who are not eligible to petition a court for restoration of
firearm possession rights because they were convicted of one or more of the
crimes enumerated in RCW 9.41.040(4), is there any other procedure for
regaining these rights? . . . {W}e conclude that there is only onepotential avenue of redress under current statutory law. That is pardon by
the governor with a specific finding of rehabilitation or of innocence. As
noted earlier, persons in this category are not defined as 'convicted' for
purposes of RCW 9.41.040 and therefore are no longer within the statute's
prohibition.
4 Op. Att'y Gen. 1, 6 (2002). 'Although not controlling, Attorney General
opinions are given 'considerable weight.'' Bates v. City of Richland, 112
Wn. App. 919, 933, 51 P.3d 816 (2002) (quoting Everett Concrete Prods.,
Inc. v. Dep't of Labor & Indus., 109 Wn.2d 819, 828, 748 P.2d 1112 (1988)).
In subsection (1), RCW 9.41.040 provides that it is unlawful for a
person who has been convicted of a serious crime, which includes indecent
liberties, to possess a firearm. In subsection (4), RCW 9.41.040 provides
that people convicted of certain crimes may petition the court to have his
or her right to possess a firearm restored. But, subsection (4)
specifically denies this right to certain offenders. Because Mr. Smith was
convicted of a sex offense, he cannot have his firearm rights restored.
RCW 9.41.040(4). Finally, in subsection (3), RCW 9.41.040 provides that
Mr. Smith could have his firearm rights restored only if his conviction was
pardoned, annulled, or he was issued a certificate of rehabilitation or its
equivalent. As currently drafted, there is no provision in Washington
statutes for the issuance of a certificate of rehabilitation. Thus, the
only way that Mr. Smith could have his firearm rights restored is by pardon
or annulment of his conviction.
Mr. Smith is not eligible to have his firearm rights restored. The
court did not err by failing to hold a hearing to issue a certificate of
rehabilitation or by denying Mr. Smith's motion to restore his firearm
rights.
Affirm.
Kurtz, J.
WE CONCUR:
Brown, C.J.
SWEENEY, J. (concurring)--I agree with both the analysis and the
conclusion reached by the majority. I write separately simply to note that
superior courts in this state are constitutional courts. Wash. Const. art.
IV, sec. 6. And as such, those courts have general jurisdiction over all
cases and all proceedings which are not by law vested in some other forum
or court. Dillenburg v. Maxwell, 70 Wn.2d 331, 351-52, 413 P.2d 940, 442
P.2d 783 (1966). Harry Smith's petition for the right to possess a firearm
certainly falls within the court's jurisdiction and authority. There is,
moreover, no statutory prohibition to the trial court's granting Mr. Smith
a right to possess a firearm under its constitutional general jurisdiction
authority. The State's argument is that this specific statute, RCW
9.41.040(3), does not authorize such a petition. My reaction is: so what?
The superior court would have had the authority absent this statute to
grant Mr. Smith the right to possess a firearm. But this avenue was
neither briefed nor argued by the parties. And, accordingly, it would be
inappropriate for us to resolve the case on those grounds. State v.
Wheaton, 121 Wn.2d 347, 365, 850 P.2d 507 (1993).
Sweeney, J.