Seguna v. Maketa

181 P.3d 399, 2008 Colo. App. LEXIS 243, 2008 WL 451753
CourtColorado Court of Appeals
DecidedFebruary 21, 2008
DocketNo. 07CA0840
StatusPublished
Cited by1 cases

This text of 181 P.3d 399 (Seguna v. Maketa) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Seguna v. Maketa, 181 P.3d 399, 2008 Colo. App. LEXIS 243, 2008 WL 451753 (Colo. Ct. App. 2008).

Opinion

Opinion by

Judge BERNARD.

Plaintiff, Edward J. Seguna, appeals the district court's order affirming the denial by the El Paso County Sheriffs Office of his application for renewal of a concealed handgun permit. We vacate the order, and remand this case to the district court with directions to enter an order requiring the Sheriff's Office to renew Seguna's permit.

I. Background

In 1984, Seguna pled guilty in Michigan to a felony drug offense. In 1996, upon his motion pursuant to Michigan law, the Michigan court set aside his conviction. See Mich. Comp. Laws §§ 780.621 to .623 (2007). Se-guna subsequently moved to Colorado and became a resident of this state.

In 2001, Seguna successfully applied to the El Paso County Sheriff's Office for a permit to carry a concealed handgun, see § 18-12-208(1)(c), C.R.S.2007, and the permit was renewed twice. However, in 2006, the Sheriff's Office denied the permit on the basis of the 1984 felony conviction in Michigan, which was located through a background check performed during the renewal process. See §§ 18-12-108, 18-12-208(1)(c), (8)(a), 18-12-206(1)(b), 18-12-211(1), C.R.8.2007.

The district court reviewed and affirmed the denial of the permit by the Sheriffs Office. See § 18-12-207(8), C.R.S.2007; C.R.C.P. 106. The district court found that Colorado does not have statutory provisions that are parallel to Michigan's laws allowing validly obtained convictions to be set aside; that the Full Faith and Credit Clause of the United States Constitution does not apply to expungement orders; that recognition of the Michigan set-aside order would violate Colorado's public policy against allowing persons with felony convictions to possess firearms; and that the Sheriff's Office had shown, by a preponderance of the evidence, that Seguna was ineligible to possess a handgun under section 18-12-108, see section 18-12-207(8), and could not be issued a permit for a concealed weapon under section 18-12-203(1)(c).

IIL Choice of Law

To resolve this appeal, we look to Colorado law to instruct us on how we should evaluate the effect of the set-aside Michigan conviction on Seguna's eligibility to obtain a concealed handgun permit. See People v. Pellien, 701 P.2d 1244, 1245 (Colo.App.1985); see also People v. Laino, 32 Cal.4th 878, 895-98, 11 Cal.Rptr.3d 728, 87 P.3d 27, 37-40 (2004); People v. Shear, 71 Cal.App.4th 278, 288, 88 Cal.Rptr.2d 707, 713-14 (1999); State v. Langlands, 276 Ga. 721, 728-24, 588 S.E.2d 18, 21-22 (2008); State v. Edmondson, 112 N.M. 654, 657, 818 P.2d 855, 858 (N.M.Ct.App.1991); State v. Menard, 888 A.2d 57, 62-64 (R.I.2005). Other states look to their own law to determine whether a conviction from a sister state affects the ability of a person to possess a firearm. See Langlands, 276 Ga. at 724, 588 S.E.2d at 21; Menard, 888 A2d at 62-68; Farnsworth v. Commonwealth, 43 Va.App. 490, 497-500, 599 S.E.2d 482, 485-87 (2004), aff'd, 270 Va. 1, 613 S.E.2d 459 (2005); cf. Dickerson v. New Banner Institute, Inc., 460 U.S. 108, 111-15, 108 S.Ct. 986, 74 L.Ed.2d 845 (1988), superseded by statute, 18 U.S.C. § 921(a)(20), as recognized by United States v. Sherbondy, 865 F.2d 996, 1004-05 (9th Cir.1988).

A. Colorado Statutes

1. Permits to Carry Concealed Weapons

A sheriff shall issue concealed handgun permits to applicants who satisfy the criteria contained in section 18-12-208(1), unless the sheriff has reasonable beliefs about an applicant's prior documented behavior as described in section 18-12-208(2). One of the criteria an applicant must satisfy is that he [401]*401or she cannot be "ineligible to possess a firearm pursuant to section 18-12-1108 or federal law." § 18-12-2083(1)(c).

A sheriff is required to "deny, revoke, or refuse to renew a permit if an applicant or a permittee" is ineligible to possess a firearm under section 18-12-108. § 18-12-2088)(a). In a judicial proceeding reviewing a sheriff's decision to deny a permit or to refuse to renew one, the sheriff bears the burden of proving, by a preponderance of the evidence, that the applicant or permittee is ineligible to possess a permit under § 18-12-208(1). § 18-12-207(8).

2. Possession of a Weapon by a Previous Offender

Section 18-12-108(1), C.R.8.2007, states:

A person commits the crime of possession of a weapon by a previous offender if the person knowingly possesses, uses, or carries upon his or her person a firearm ... subsequent to the person's conviction for a felony ... under Colorado or any other state's law or under federal law.

Depending on the cireumstances surrounding the present and previous offenses, possession is punishable as a class four, five or six felony. § 18-12-1082), (4), (5), C.R.S.2007.

B. Analysis of Colorado Statutes

When interpreting a statute, we look first to its language, giving words and phrases their plain meaning. We read a statute as a whole, interpreting it so as to give all its parts consistent and sensible effect, avoiding absurd constructions. If the statute is unambiguous, we need look no further. Board of County Comm'rs v. Costilla County Conservancy Dist., 88 P.3d 1188, 1192-98 (Colo.2004).

The language of section 18-12-108(1) is plain and unambiguous. It states, as is relevant here, that a person commits a crime if he or she knowingly possesses a firearm subsequent to a conviction for a felony "under ... any other state's law." Thus, Colorado's legislature has made clear that, for the purposes of this statute, we look to the "other state's law" to determine whether a person has been convicted of a felony.

This conclusion is supported by our supreme court's decision in People v. Tenorio, 197 Colo. 137, 141-42, 590 P.2d 952, 954-55 (1979), which rejected the argument that the legislature had unconstitutionally delegated its power to define crimes to other states:

[Olur General Assembly ... has declared that certain forms of dangerous criminal conduct ... can serve as the "previous offense" foundation upon which [a prosecution under section 18-12-108 can be based].... [This is true regardless of where the prior crime occurred or whether it was there defined exactly as its counterpart crime in Colorado.
This method of defining prior crimes in other jurisdictions which are serious enough to render one a "previous offender" falls short of incorporating by reference the statutes of other jurisdictions. The language here merely describes and identifies past conduct rather than incorporating statutes by reference.

(Emphasis added.)

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181 P.3d 399, 2008 Colo. App. LEXIS 243, 2008 WL 451753, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seguna-v-maketa-coloctapp-2008.