Payseno v. Kitsap County

346 P.3d 784, 186 Wash. App. 465
CourtCourt of Appeals of Washington
DecidedMarch 17, 2015
DocketNo. 45389-4-II
StatusPublished
Cited by9 cases

This text of 346 P.3d 784 (Payseno v. Kitsap County) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Payseno v. Kitsap County, 346 P.3d 784, 186 Wash. App. 465 (Wash. Ct. App. 2015).

Opinion

¶1

Sutton, J.

Clifford Payseno appeals the superior court’s denial of his petition to restore his right to possess a firearm. We are asked to decide whether the requirement in RCW Si.dl.OdOCdXaXiiXA)1 that a petitioner be crime-free for five years is satisfied by an earlier crime-free period or whether the crime-free period must immediately precede the filing of the petition.

¶2 We hold that RCW 9.41.040(4)(a)(ii)(A) is ambiguous as applied to the facts of this case. The statute can be interpreted as requiring a petitioner to be crime-free for the five-year period immediately preceding the petition or interpreted as requiring a petitioner to be crime-free during some earlier five-year period. The legislative history and interpretative aids do not definitively resolve this ambiguity. Under the rule of lenity, we strictly construe the statute in Payseno’s favor. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

FACTS

¶3 The parties do not contest the operative facts. In March 2000, Payseno was convicted of a felony violation of [468]*468the Uniform Controlled Substances Act (VUCSA).2 In June 2000, Payseno was convicted of the misdemeanor offense of first degree negligent driving under former RCW 46.61-.5249 (1997). After serving his sentences, Payseno then went over five years in the community without a conviction of any kind.

¶4 In February 2007 and May 2010, Payseno was convicted of two additional misdemeanor offenses: one for driving under the influence under former RCW 46.61.502 (1998) and one for first degree negligent driving under former RCW 46.61.5249 (1997). Neither of these offenses disqualified him from possessing a firearm. See former RCW 9.41.040(l)(a) (1997) (providing that it is a crime for anyone convicted of a “serious offense” under chapter 9.41 RCW to possess a firearm); former RCW 9.41.010(12) (1997) (defining “serious offense” for purposes of chapter 9.41 RCW).

¶5 In 2013, Payseno petitioned the superior court to reinstate his right to possess a firearm. At the time of his petition, Payseno had no charges pending. The State objected to the petition and argued that in order to have his firearm rights restored, Payseno’s five-year-crime-free period needed to immediately precede the filing of the petition. The superior court construed the language in RCW 9.41.040(4)(a)(ii)(A) that the petitioner not be “currently charged with any felony, gross misdemeanor, or misdemeanor crimes” as requiring the petitioner to be crime-free for the five-year period preceding the petition even if the subsequent criminal offense was not a disqualifying crime that impacted his firearms right. As a result, the superior court denied the petition and Payseno appealed.

ANALYSIS

¶6 Payseno argues that once he remained crime-free for five years in the community after his 2000 felony and [469]*469misdemeanor convictions, under RCW 9.41.040(4)(a)(ii)(A) the superior court did not have discretion to deny his petition. We agree that the requirement of the five-year-crime-free period may be completed at any time before the petition is filed.

I. Statutory Interpretation

¶7 Statutory construction is an issue of law that we review de novo. Anderson v. Dussault, 181 Wn.2d 360, 368, 333 P.3d 395 (2014). In construing a statute, our primary objective is to ascertain and “give effect to the legislature’s intent.” TracFone Wireless, Inc. v. Dep’t of Revenue, 170 Wn.2d 273, 281, 242 P.3d 810 (2010). To determine legislative intent, we first look to the plain language or plain meaning of the statute, “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, 192, 298 P.3d 724 (2013); State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010).

¶8 Plain language that is not ambiguous does not require construction. State v. Delgado, 148 Wn.2d 723, 727, 63 P.3d 792 (2003). If a statute is unambiguous or plain on its face we must apply the statute as written and assume that the legislature meant exactly what it said. TracFone Wireless, 170 Wn.2d at 281; State v. Roggenkamp, 153 Wn.2d 614, 621, 106 P.3d 196 (2005).

¶9 “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). “If the statute is still susceptible to more than one interpretation after we conduct a plain meaning review, then the statute is ambiguous and we rely on statutory construction, legislative history, and relevant case law to determine legislative intent.” State v. Rice, 180 Wn. App. 308, 313, 320 P.3d 723 (2014).

[470]*470 ¶10 We also apply the rule of lenity, which provides that if a criminal statute is ambiguous, we “ ‘strictly construe [ ]”’ it in favor of the defendant. Evans, 177 Wn.2d at 193 (quoting State v. Hornaday, 105 Wn.2d 120, 127, 713 P.2d 71 (1986)); see State v. Villanueva-Gonzalez, 180 Wn.2d 975, 984, 329 P.3d 78 (2014). Washington courts apply the rule of lenity not only to criminal sanctions but also to the community custody, probation, and postconviction context, and to procedural statutes affecting an offender’s rights. State v. Slattum, 173 Wn. App. 640, 658, 295 P.3d 788, review denied, 178 Wn.2d 1010 (2013); see State v. Parent, 164 Wn. App. 210, 212, 267 P.3d 358 (2011) (applying rule to sentencing).

II. Interpreting RCW 9.41.040(4)(a)

¶11 RCW 9.41.040

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Bluebook (online)
346 P.3d 784, 186 Wash. App. 465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/payseno-v-kitsap-county-washctapp-2015.