In re Parsons

624 S.E.2d 790, 218 W. Va. 353, 2005 W. Va. LEXIS 153
CourtWest Virginia Supreme Court
DecidedNovember 29, 2005
DocketNo. 32662
StatusPublished
Cited by2 cases

This text of 624 S.E.2d 790 (In re Parsons) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Parsons, 624 S.E.2d 790, 218 W. Va. 353, 2005 W. Va. LEXIS 153 (W. Va. 2005).

Opinion

Justice MAYNARD delivered the Opinion of the Court.

MAYNARD, Justice.

Appellant, Robert Adam Parsons, appeals the July 19, 2004, order of the Circuit Court of Ohio County that denied Appellant’s petition to regain the ability to possess a firearm based on the court’s finding that the grant of such relief would violate federal law. For [355]*355the reasons that follow, we affirm the circuit court’s order.

I.

FACTS

Appellant was indicted for “wanton endangerment involving a firearm” after he allegedly pointed a handgun at his girlfriend, Kristin Conrad, and cocked the gun’s hammer; /‘domestic battery” for allegedly causing physical harm to his girlfriend by holding her by both arms and shoving her onto a couch; and “battery” on a friend of Ms. Conrad’s, Judith Thompson. At the time of the offense giving rise to these indictments, Appellant was a police officer with the Bethlehem, West Virginia Police Department and a part-time police officer with the town of Yorkville, Ohio. Appellant entered a nolo contendere plea to domestic assault and was sentenced to six months probation. As a specific term of Appellant’s probation, and in accordance with W.Va.Code § 61-7-7(a)(8) (2004), Appellant was not permitted to “use or possess any firearms or lethal weapons.”

After Appellant’s probationary period expired, he filed a petition pursuant to W.Va. Code § 61-7-7(c) in the Circuit Court of Ohio County to regain the ability to possess a firearm. Subsequent to a hearing on the matter, the circuit court dismissed Appellant’s petition after finding that the grant of the relief requested would violate federal law. Appellant now appeals this order.

II.

STANDARD OF REVIEW

Because this case involves the interpretation of a federal statute, this Court’s standard of review is de novo. See Syllabus Point 1, Chrystal R.M. v. Charlie A. L., 194 W.Va. 138, 459 S.E.2d 415 (1995) (“Where the issue on an appeal from the circuit court is clearly ... involving an interpretation of a statute, we apply a de novo standard of review”).

III.

DISCUSSION

The sole issue before us is whether the circuit court erred in dismissing Appellant’s petition to regain his ability to possess a firearm. We find that it did not. As noted above, Appellant’s petition was filed pursuant to W.Va.Code § 61-7-7(c) which provides:

Any person prohibited from possessing a firearm by the provisions of subsection (a) of this section may petition the circuit court of the county in which he or she resides to regain the ability to possess a firearm and if the court finds by clear and convincing evidence that the person is competent and capable of exercising the responsibility concomitant with the possession of a firearm, the court may enter an order allowing the person to possess a firearm if such possession would not violate any federal law.

The circuit court denied the relief sought by Appellant after finding that Appellant’s possession of a firearm would violate the Gun Control Act of 1968 which provides that a person convicted of a misdemeanor crime of domestic violence is prohibited from, inter alia, possessing a firearm. Specifically, according to 18 U.S.C. § 922(g)(9),

It shall be unlawful for any person -
who has been convicted in any court of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The circuit court concluded that Appellant’s conviction of domestic assault constitutes a conviction of a misdemeanor crime of domestic violence under the federal statute so that Appellant is now prohibited from possessing a firearm.1

Appellant challenges the circuit court’s conclusion on several grounds. First, Appel[356]*356lant cites the language of 18 U.S.C. § 921(a)(33)(B)(ii), which states:

A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil lights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

According to Appellant, the restoration exception in the above provision applies to him so that restoration of his civil rights would only violate federal law if the restoration order specifically denied firearm or ammunition possession.2 We reject this argument.

By its plain terms, 18 U.S.C. § 921 (a)(33)(B)(ii) provides that a person shall not be considered to be convicted of such an offense “if the conviction ... is an offense for which the person has ... had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense).” Federal case law indicates that a person who has not lost his or her civil rights cannot have them “restored” for the purpose of 18 U.S.C. § 921 (a) (33) (B) (ii). In United States v. Jennings, 323 F.3d 263 (4th Cir.2003), cert. denied, 540 U.S. 1005, 124 S.Ct. 531, 157 L.Ed.2d 412 (2003), the defendant was convicted in the United States District Court for the District of South Carolina of possessing a firearm after a conviction in state court of a misdemeanor crime of domestic violence. Because the defendant was not incarcerated for his misdemeanor domestic violence conviction, he lost none of his civil rights under South Carolina law. The defendant appealed the firearm possession conviction. The Fourth Circuit framed the issue as “whether a person convicted of a [misdemeanor crime of domestic violence] but never stripped of his civil rights under state law is thereafter subject to prosecution under 18 U.S.C. § 922(g)(9).” Jennings, 323 F.3d at 266. The court noted that it was the defendant’s contention that he could not be convicted of violating 18 U.S.C. § 922(g)(9) because, regarding his domestic violence conviction, his civil rights, even though they had never been taken away, were nevertheless “restored” under 18 U.S.C. § 921(a)(33)(B)(ii). The court gave short shrift to this argument, reasoning as follows:

As the court noted in

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Cite This Page — Counsel Stack

Bluebook (online)
624 S.E.2d 790, 218 W. Va. 353, 2005 W. Va. LEXIS 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-parsons-wva-2005.