State Of Washington, V. Jerome Othello Clary Iv

559 P.3d 579

• Court: Court of Appeals of Washington
• Decided: December 2, 2024
• Docket: 85961-7
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JEROME OTHELLO CLARY IV, No. 85961-7-I Appellant, DIVISION ONE v. PUBLISHED OPINION STATE OF WASHINGTON,

Respondent.

FELDMAN, J. — Approximately two decades ago, a court convicted Jerome

Othello Clary—who was a juvenile at the time—of child molestation in the first

degree and entered an order of disposition revoking his right to possess firearms.

Since then, Clary completed all the requirements to have his juvenile court file

sealed under RCW 13.50.260, and a trial court entered an order to that effect.

Under RCW 13.50.260(6)(a), which governs the legal effect of such an order, “the

proceedings in the case shall be treated as if they never occurred.” Years later,

Clary petitioned the trial court to restore his right under Washington law to possess

a firearm. The court denied the petition, finding that “a sealed juvenile conviction”

is a “disqualifying offense” under RCW 9.41.041. Because the court’s ruling is

consistent with our Supreme Court’s controlling analysis in Barr v. Snohomish

County Sheriff, 193 Wn.2d 330, 440 P.3d 131 (2019), we affirm. No. 85961-7-I

I

In June 2007, a court convicted Clary, then a juvenile, of child molestation

in the first degree, a class A felony. The court also revoked his right to possess

firearms. In August 2018, the court sealed his juvenile court file in an order entered

pursuant to RCW 13.50.260. 1 It is undisputed that Clary satisfied all the

requirements for sealing his conviction.

In June 2023, Clary petitioned the trial court to restore his right to possess

a firearm (“Petition”). The court denied his Petition in October 2023, despite the

sealing order, finding that the “sealing of a juvenile conviction does not make the

conviction disappear under all circumstances and for all purposes.” The court

further found that “the plain language of RCW 9.41.041(1) prohibits [Clary] from

petitioning for a restoration of his right to possess a firearm because he has been

convicted of a disqualifying offense, sealing order notwithstanding.” 2

Clary appeals the denial of his Petition.

II

This appeal involves the intersection of two statutes. The first is RCW

9.41.041(1), which states:

A person who is prohibited from possession of a firearm under RCW 9.41.040 may not petition a court to have the person’s right to possess a firearm restored if the person has been convicted or found not guilty by reason of insanity of: A felony sex offense; a class A

1 The legislature amended RCW 13.50.260 after the court sealed Clary’s juvenile file, but the amendments do not affect the legal arguments in this case. Therefore, this opinion cites to the current version of the statute. 2 Although Clary filed his Petition under RCW 9.41.040(4), the legislature subsequently recodified

the provisions at issue from former RCW 9.41.040 to current RCW 9.41.041, which is the statute to which the court referred. LAWS OF 2023, ch. 295, § 4. Because any amendments are not material to the legal arguments in this case, this opinion again cites the current version of the statute.

2 No. 85961-7-I

felony[3]; or a felony offense with a maximum sentence of at least 20 years.

(Emphasis added.) The second statute at issue is RCW 13.50.260(6)(a), which

states:

If the court enters a written order sealing the juvenile court record pursuant to this section, it shall, subject to RCW 13.50.050(13), order sealed the official juvenile court record, the social file, and other records relating to the case as are named in the order. Thereafter, the proceedings in the case shall be treated as if they never occurred, and the subject of the records may reply accordingly to any inquiry about the events, records of which are sealed. Any agency shall reply to any inquiry concerning confidential or sealed records that records are confidential, and no information can be given about the existence or nonexistence of records concerning an individual.

(Emphasis added.) Against this statutory backdrop, the issue here is whether the

trial court correctly concluded that a sealed, juvenile, class A felony conviction

disqualifies Clary from restoring his right to possess a firearm under state law—as

RCW 9.41.041(1) provides—even though RCW 13.50.260(6)(a) states that sealed

juvenile case proceedings “shall be treated as if they never occurred.”

Our Supreme Court’s opinion in Barr is controlling on this point. Similar to

Clary, Barr was convicted of two class A felony offenses when he was a juvenile.

193 Wn.2d at 333. After obtaining a court order sealing the juvenile files, like Clary

did here, Barr applied for a concealed pistol license (CPL) from the County sheriff.

Id. Under RCW 9.41.070(1)(a), the sheriff was required to deny the CPL

application if Clary was “‘prohibited from possessing a firearm under federal law.’”

Id. That issue, in turn, was controlled by 18 U.S.C. § 922(g)(1), which prohibits

any person who “‘has been convicted in any court of, a crime punishable by

3 This category encompasses child molestation in the first degree as a crime of violence. RCW

9.41.040; RCW 9.41.010(39)(a); former RCW 9.41.010(6)(a).

3 No. 85961-7-I

imprisonment for a term exceeding one year’ . . . to . . . ‘possess . . . any firearm.’”

Id. at 335. Thus, Barr involved the same core issue presented here: whether Barr

was prohibited from possessing a firearm because he “has been convicted” of a

disqualifying offense even though RCW 13.50.260(6)(a) states that sealed juvenile

case proceedings “shall be treated as if they never occurred.”

Critical here, the Supreme Court held that the County sheriff was not

required to issue Barr a CPL license. Id. at 340. Responding specifically to Barr’s

reliance on RCW 13.50.260(6)(a), the Court stated, “[w]hile the sealing order

makes those convictions invisible to most people, they do still exist.” Id. at 337

(emphasis added). The Court explained, “This conclusion is evident from the

simple fact that the sealing order will be nullified by ‘[a]ny charging of an adult

felony subsequent to the sealing.’ If that happens, the convictions do not somehow

come back into existence; they merely come back into public view.” Id. (quoting

RCW 13.50.260(8)(b)). The Court then concluded, “Barr’s juvenile adjudications

are clearly convictions that do still exist as a matter of state law, the sealing order

notwithstanding.” Id. at 338.

Like Barr, Clary asserts that because RCW 13.50.260(6)(a) requires that

sealed proceedings be treated as though they never occurred, his juvenile

conviction for child molestation in the first degree cannot disqualify him from having

his firearm rights restored. That argument fails under Barr. Applying Barr, the

sealing order makes Clary’s conviction invisible to most people, but it does still

exist as a matter of state law. Consequently, under RCW 9.41.041(1), Clary is and

remains a person who “has been convicted” of a class A felony, and his prior

4 No. 85961-7-I

conviction disqualifies him from petitioning for restoration of his firearm rights under

state law. The trial court, therefore, properly denied Clary’s petition for restoration

of his firearm rights under RCW 9.41.041(1).

In relying on Barr as we do, we recognize that the Court there stated, “We

express no opinion on Barr’s right to possess firearms as a matter of state law.”

Id. at 340. But while the Court expressed no opinion on that issue, its reasoning

nonetheless compels our holding here. The disqualifying statute in Barr asked

whether Barr “has been convicted” of certain crimes. Id. at 335 (quoting 18 U.S.C.

§ 922(g)(1)). The disqualifying statute at issue here similarly asks whether Clary

“has been convicted” of certain crimes. RCW 9.41.041(1). If a juvenile conviction

that has been sealed under RCW 13.50.260(6)(a) still exists for purposes of the

“has been convicted” provision in 18 U.S.C. § 922(g)(1)—as our Supreme Court

held in Barr—then it also exists for purposes of the “has been convicted” provision

in RCW 9.41.041(1).

Clary’s contrary argument is not entirely without merit. As the dissenting

opinion explains, Clary’s argument is consistent with the plain language of RCW

13.50.260(6)(a), which unequivocally mandates that sealed juvenile case

proceedings “shall be treated as if they never occurred.” But Barr is controlling on

this point, “and we are bound to follow that controlling precedent.” State v. Wallin,

125 Wn. App. 648, 664, 105 P.3d 1037 (2005). And while we are not bound by an

opinion of another division of the court of appeals (see In re Pers. Restraint of

Arnold, 190 Wn.2d 136, 154, 410 P.3d 1133 (2018)), our holding here is consistent

with Division Two’s recent opinion in McIntosh v. State, 30 Wn. App. 2d 224, 233-

5 No. 85961-7-I

34, 544 P.3d 559, review denied, 551 P.3d 434 (Wash. 2024), which similarly

holds, “under [Barr], McIntosh’s juvenile convictions for class A felony sex offenses

still exist under state law and, therefore, he is disqualified from petitioning for

restoration of firearm rights under former RCW 9.41.040(4)(a).” McIntosh thus

confirms that the analysis in Barr applies equally to Clary’s petition to restore his

right to possess firearms under state law. Consistent with Barr, as well as

McIntosh, the trial court here correctly denied Clary’s petition for restoration of

firearm rights.

Affirmed.

I CONCUR:

6 No. 85961-7-I State of Washington v. Jerome Othello Clary IV

DÍAZ, J. (dissenting) — The issue before this court is whether a sealed,

juvenile, class A felony conviction disqualifies Clary from restoring his state right

to possess a firearm under RCW 9.41.041(1), despite the fact that RCW

13.50.260(6)(a) mandates that sealed juvenile case proceedings “shall be treated

as if they never occurred[.]” The issue before this court is not whether Clary is now

or ever will be actually eligible to possess a firearm under all laws that bind him.

He expressly concedes he is not eligible to possess a firearm under current federal

law. Still, this case is significant because of how this court, and perhaps our

Supreme Court ultimately, interprets the legislature’s sweeping mandate to “treat”

juvenile cases (with limited exceptions) “as if they never occurred,” when a juvenile

offender does everything we ask of them.

My esteemed colleagues in the majority agree that this case presents the

“intersection” of these statutes and offer a well-reasoned analysis of Barr v.

Snohomish County Sheriff, 193 Wn.2d 330, 440 P.3d 131 (2019), which they

believe controls the disposition of this case. I respectfully dissent because—as I

interpret and would harmonize the statutes, and as I understand Barr—Clary is not

disqualified from the restoration of this state constitutional right. And, thus, I would

reverse and remand this matter for the trial court to grant Clary the relief he seeks.

I. Supplemental Statement of Applicable Law

Because the majority accurately states the facts and procedural posture of

Clary’s case, I do not restate them here. Additional background as to RCW

9.41.041, RCW 13.50.260, and principles of statutory interpretation, however, is No. 85961-7-I/2 (DÍAZ, J., dissenting)

warranted.

RCW 9.41.041(1) prohibits a person who “has been convicted” of “a class

A felony” (among others) from petitioning a court for restoration of their firearm

rights. If one is not so disqualified, they may petition a court to restore their rights

if they meet certain requirements. RCW 9.41.041(2). If a petitioner meets all the

requirements, the law allows the superior court no discretion and requires it to

grant the petition. State v. Swanson, 116 Wn. App. 67, 75, 65 P.3d 343 (2003).

Here, if Clary is not among those people barred by RCW 9.41.041(1)

because of a prior class A felony, there is no dispute he otherwise qualifies for

restoration under RCW 9.41.041(2).

RCW 13.50.260(4)(a) requires courts to grant motions to seal juvenile

records if the party making the motion meets certain requirements. These

requirements include proving that the movant has spent five consecutive years in

the community without committing an offense since the release or entry of

disposition in their juvenile case, has no pending criminal cases, and has paid

restitution in full, among other requirements. Id. Though other crimes are

exempted, there is no exclusion in the statute simply because one is convicted of

a class A juvenile felony. Id. at (4)(a)(v) (excluding certain sex crimes).

Here, as the majority notes at page 2, it is undisputed that Clary qualified

for the sealing of his juvenile case record and that, indeed, the court sealed his

juvenile record before he petitioned for the restoration of his state rights.

Critically, RCW 13.50.260(6)(a) mandates that once a court has ordered a

juvenile court record is sealed, “the proceedings in the case shall be treated as if

2 No. 85961-7-I/3 (DÍAZ, J., dissenting)

they never occurred, and the subject of the records may reply accordingly to any

inquiry about the events[.]” (Emphasis added.)

Finally, as to the relevant principles of statutory interpretation, “[a]n

appellate court reviews issues regarding statutory construction de novo.” State v.

Hahn, 83 Wn. App. 825, 831, 924 P.2d 392 (1996). “The court’s duty is to ascertain

and give effect to the intent and purpose of the Legislature.” Id. “The surest

indication of legislative intent is the language enacted by the legislature, so if the

meaning of a statute is plain on its face, we ‘give effect to that plain meaning.’”

State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010) (quoting State v. Jacobs,

154 Wn.2d 596, 600, 115 P.3d 281 (2005)).

“[I]t is settled that the plain meaning of a statute is determined by looking

not only ‘to the text of the statutory provision in question,’ but also to ‘the context

of the statute in which that provision is found, related provisions, and the statutory

scheme as a whole.’” State v. Hurst, 173 Wn.2d 597, 604, 269 P.3d 1023 (2012)

(quoting Ervin, 169 Wn.2d at 820). “Although a statute is ambiguous if it is

susceptible to two or more reasonable interpretations, a statute is not ambiguous

merely because different interpretations are conceivable.” Hahn, 83 Wn. App. at

831.

“Another well-settled principle of statutory construction is that ‘each word of

a statute is to be accorded meaning.’” State v. Roggenkamp, 153 Wn.2d 614, 624,

106 P.3d 196 (2005) (quoting State ex rel. Schillberg v. Barnett, 79 Wn.2d 578,

584, 488 P.2d 255 (1971)). “‘[T]he drafters of legislation . . . are presumed to have

used no superfluous words and we must accord meaning, if possible, to every word

3 No. 85961-7-I/4 (DÍAZ, J., dissenting)

in a statute.’” Id. (alteration in original) (quoting In re Recall of Pearsall-Stipek, 141

Wn.2d 756, 767, 10 P.3d 1034 (2000)).

“This court assumes the legislature does not intend to create inconsistent

statutes. ‘Statutes are to be read together, whenever possible, to achieve a

harmonious total statutory scheme . . . which maintains the integrity of the

respective statutes.’” Am. Legion Post No. 149 v. Dep’t of Health, 164 Wn.2d 570,

588, 192 P.3d 306 (2008) (quoting State ex rel. Peninsula Neighborhood Ass’n v.

Dep’t of Transp., 142 Wn.2d 328, 342, 12 P.3d 134 (2000)). In other words, “[t]his

court . . . seeks to construe statutes so as to avoid inconsistency.” State v. Bash,

130 Wn.2d 594, 602, 925 P.2d 978 (1996); see also Jackson v. Fenix

Underground, Inc., 142 Wn. App. 141, 145, 173 P.3d 977 (2007) (“When

interpreting a statute, the court should read it in its entirety, and each provision

must be harmonized with other provisions, if at all possible[.]”).

II. Discussion

The majority acknowledges that this appeal involves the “intersection” of

RCW 9.41.041(1) and RCW 13.50.260(a). Majority at 2. The majority also

recognizes that Clary’s reliance on the latter is “consistent with [its] plain language”

and particularly with its “unequivocal[] mandate[] that sealed juvenile case

proceedings ‘shall be treated as if they never occurred.’” Id. at 5 (quoting RCW

13.50.260(a)). Nonetheless, the majority concludes it must apply Barr’s various

holdings and adopt the reasoning therein, even as the majority recognizes our

Supreme Court expressly declined to reach the issue here. Id. at 4-5.

Respectfully, I believe we first must undertake a de novo review of RCW

4 No. 85961-7-I/5 (DÍAZ, J., dissenting)

13.50.260 (and its statutory scheme) to determine the legislature’s intent. Hanh,

83 Wn. App. at 831. And then, I believe we must clarify the narrow holding in Barr,

which I respectfully believe does not extend to this issue. Finally, we must attempt

to harmonize RCW 13.50.260 and RCW 9.41.041(1), in the event they are in

tension. Jackson, 142 Wn. App. at 145.

A. The Legislature’s Intent in RCW 13.50.260(6)(a)

To ascertain the intent of the juvenile sealing statute, this court must

determine not only the meaning of the plain language of RCW 13.50.260(6)(a)

itself, but also its statutory scheme as a whole. Ervin, 169 Wn.2d at 820; Hurst,

173 Wn.2d at 604. Again, RCW 13.50.260(6)(a) directs that all “proceedings” in a

sealed juvenile case must be “treated” as if they never “occurred.” Where a statute

does not define a nontechnical word, we may look to the dictionary for guidance.

State v. Chester, 82 Wn. App. 422, 427, 918 P.2d 514 (1996).

A “proceeding” is “[t]he regular and orderly progression of a lawsuit,

including all acts and events between the time of commencement and the entry of

judgment . . . conducted by a court or other official body.” BLACK’S LAW DICTIONARY

1459 (12th ed. 2024) (emphasis added). The breadth of the term palpably includes

all events in a juvenile case, from the charging of an offense, to a conviction,

disposition and post-disposition monitoring. To “treat” is to “deal with: handle.”

MERRIAM-W EBSTER ONLINE DICTIONARY (last visited Sep. 13, 2024),

https://www.merriam-webster.com/dictionary/treat. To “occu[r]” means to

“happe[n]” or “tak[e] place.” BLACK’S LAW DICTIONARY 1295 (12th ed. 2024). The

relevant, though unstated, actor in this provision is the court, who, e.g., is

5 No. 85961-7-I/6 (DÍAZ, J., dissenting)

presented with a petition.

Taken together, then, RCW 13.50.260(6)(a) plainly requires Washington

courts to deal with or handle “all acts and events,” including a conviction, within a

sealed juvenile case as though they did not happen. Notably, there is no

qualification or limitation to that mandate regarding how courts should “treat” such

sealed files in RCW 13.50.260(6)(a) itself. 1

Instead, we must turn to the remainder of the statute to find exceptions to

RCW 13.50.260(6)(a)’s sweeping mandate. And, in the subsections that follow,

the legislature did enumerate exceptions to that mandate, i.e., circumstances in

which juvenile records do remain legally accessible or usable. 2 Critically, there is

no exception in those subsequent subsections of RCW 13.50.260 or elsewhere

which permit a court to access, use, or consider sealed juvenile convictions when

1 The following clause of RCW 13.50.260(6)(a) confirms its breadth, when it states

that “the subject of the records may reply accordingly to any inquiry about the events, records of which are sealed.” RCW 13.50.260(6)(a) (emphasis added). There is no qualification about when a former juvenile respondent can so respond. Indeed, here, Clary “accordingly” indicated, under penalty of perjury, that he had “never been convicted” of a class A felony. The State does not challenge the propriety of this response. 2 The statute provides for a total of seven such circumstances. First, the department of licensing may release information from a sealed record though, tellingly, only to the extent necessary to comply with federal law. RCW 13.50.260(6)(c). Second, with some exceptions, a court may permit the subject of sealed records to inspect his own record upon motion. RCW 13.50.260(7). Third, a court may reopen a sealed record if the juvenile is adjudicated for a subsequent juvenile offense or if the juvenile commits a subsequent adult felony. RCW 13.50.260(8)(a); RCW 13.50.260(8)(b). Fourth, the state patrol may disclose a sealed record to non-Washington agencies for firearms processing and purchasing purposes. RCW 13.50.260(8)(e). Fifth, a litigant may use the information in a sealed record in an action for liability against an employer in limited circumstances. RCW 13.50.260(9). Lastly, county clerks may contact juveniles and others to collect outstanding legal financial obligations even after sealing. RCW 13.50.260(10). 6 No. 85961-7-I/7 (DÍAZ, J., dissenting)

presented with a firearms restoration petition. The legislature could have chosen

to include the firearm restoration process as an exception to RCW 13.50.260(6)(a),

but it did not.

This court must respect the legislature’s decisions as to the language it

chooses to include or omit because we “must not add words where the legislature

has chosen not to include them.” Rest. Dev., Inc. v. Cananwill, Inc., 150 Wn.2d

674, 682, 80 P.3d 598 (2003).

In State v. Linville, for example, our Supreme Court considered whether the

State could join non-enumerated offenses as predicate acts to establish a pattern

of criminal profiteering activity. 191 Wn.2d 513, 516, 423 P.3d 842 (2018). The

“criminal profiteering” statute contained a list of 46 crimes. Id. at 520. The Court

held that, “[u]nder the interpretive rule of ‘expressio unius,’ all other crimes were

impliedly excluded.” Id. That is, “[b]ecause of that legislative decision, those other

crimes cannot be considered profiteering crimes.” Id. at 520-21. The Court

explained that a “controlling rule of statutory interpretation in a situation like this is

‘expressio unius est exclusio alterius’—the express inclusion of specific items in a

class impliedly excludes other such items that are not mentioned.” Id. at 520; see

also State v. LG Elecs., Inc., 186 Wn.2d 1, 9, 375 P.3d 636 (2016) (holding that

“[u]nder the age old rule expressio unius est exclusio alterius, ‘[w]here a statute

specifically designates the things upon which it operates, there is an inference that

the Legislature intended all omissions.’”) (quoting In re Pers. Restraint of Hopkins,

137 Wn.2d 897, 901, 976 P.2d 616 (1999)); State v. Bacon, 190 Wn.2d 458, 466-

67, 415 P.3d 207 (2018) (declining to fill an alleged omission to a statutory list of

7 No. 85961-7-I/8 (DÍAZ, J., dissenting)

specific exemptions). Accordingly, I would hold that RCW 13.50.260(6)(a)’s

sweeping mandate and its subsequent exceptions thereto together “impliedly

exclude[] other such [exceptions] that are not mentioned” and permits us to infer

“that the Legislature intended all omissions.” Linville, 191 Wn.2d at 520; LG Elecs.,

Inc., 186 Wn.2d at 9.

In turn, applying these canons of construction, I believe RCW 13.50.260

requires Washington courts to “handle” a sealed juvenile conviction as if it never

“happened,” unless and only unless one of the specified exceptions applies.

Because the firearm restoration process is not such an exception, a court must

treat a sealed juvenile conviction as if it did not happen.

B. Barr Does Not Extend to this Issue

Despite recognizing RCW 13.50.260(6)(a)’s “unequivocal[] mandate[],”

majority at page five, the majority agrees with the State that Clary cannot restore

his Washington right to a firearm because his “disqualifying class A conviction

continues to exist for purposes of determining his eligibility to restore his firearm

rights despite the fact that it is sealed.” 3 Majority at 4 (emphasis added). The

majority asserts Barr “is controlling on this point.” Majority at 3. I believe that the

State oversimplifies the holding in Barr and that the majority—in its rightful desire

to faithfully follow controlling precedent—understandably overstates the reach of

3 The State additionally argues that the trial court did not err by denying Clary’s

petition because his sealed felony conviction makes him ineligible for the right to possess a firearm under federal law. However, Clary has made clear that he does not seek through his petition to restore any federal right. Although Clary concedes that he is “ineligible to possess firearms under federal law,” that fact is immaterial because he “merely is petitioning for an order restoring his [right] to possess a firearm under Washington state law.” (Emphasis added). 8 No. 85961-7-I/9 (DÍAZ, J., dissenting)

Barr’s reasoning. A fuller recitation of Barr is needed.

In Barr, a court convicted Barr of two class A felony offenses when he was

a juvenile. 193 Wn.2d at 333. Barr applied for a concealed pistol license (CPL)

from the county sheriff, after obtaining a court order sealing the juvenile files. Id.

The sheriff denied his application because he determined that, under federal law,

those class A felonies—“whether sealed or not”—disqualified him from the right to

a CPL. Id. at 333-34. Thus, the issue before our Supreme Court was whether the

Sheriff was required to issue specifically a CPL to an individual whose sealed

juvenile record includes adjudications for class A felonies. Id. at 332.

Our Supreme Court agreed with the sheriff and held that it was not required

to issue the CPL to Barr because the Washington statute regulating CPLs

expressly requires the issuing authority to deny the CPL application of an applicant

“who ‘is prohibited from possessing a firearm under federal law.’” Id. (quoting RCW

9.41.070(1)(a)); see also id. at 335 (noting the issuing authority is required to deny

such an application) (quoting RCW 9.41.070(2)(b)). And at least one federal law

prohibits any person “who has been convicted in any court of, a crime punishable

by imprisonment for a term exceeding one year . . . to . . . possess . . . any firearm.”

Id. (quoting 18 U.S.C. § 922(g)(1)).

The court further explained that, under the federal law in question, such an

applicant (convicted of a crime punishable by more than a year of imprisonment)

is disqualified from possessing a firearm, unless certain subsequent events follow.

Id. at 335. Specifically, the statute states that “‘[a]ny conviction which has been

expunged, or set aside or for which a person has been pardoned or has had civil

9 No. 85961-7-I/10 (DÍAZ, J., dissenting)

rights restored shall not be considered a conviction for purposes of this chapter.’”

Id. (quoting 18 U.S.C. § 921(a)(20)).

In other words, the court laid out a “straightforward” two-part inquiry to

determine whether a person is prohibited from possessing a firearm under federal

law. Id. at 335-36. First, the court must ask whether an applicant has been

convicted of a crime punishable by more than one year of imprisonment under

Washington law, and second, whether these “subsequent events (expungement,

setting aside, pardon, or restoration of civil rights) have occurred.” Id.

Barr argued that a “subsequent event” had occurred because his juvenile

records were sealed and, under RCW 13.50.260(6)(a), “the proceedings in the

case shall be treated as if they never occurred.” Id. at 336-37. The court

responded that the “problem with this argument is that it sidesteps the required

federal statutory analysis,” where “the question is not how a conviction is currently

treated by state law.” Id. at 337 (emphasis added). It was in the context of its

federal statutory analysis that the court stated that, “[w]hile the sealing order makes

those convictions invisible to most people, they do still exist” and that sealing is

“not equivalent to an expungement” or other “subsequent events” under the

second step of the inquiry. Id. at 337-38.

Importantly, our Supreme Court concluded its opinion by stating:

This case presents a narrow question to which we provide a narrow answer. The Sheriff was not required to issue Barr a CPL because, the sealing order notwithstanding, Barr’s class A felony adjudications are predicate, disqualifying convictions for purposes of 18 U.S.C. § 922(g). We express no opinion on Barr's right to possess firearms as a matter of state law.

Id. at 340 (emphasis added).

10 No. 85961-7-I/11 (DÍAZ, J., dissenting)

Clary’s appeal is distinguishable from Barr on cascading levels. He is not

seeking a CPL and, thereby, not triggering the “federal statutory analysis,” which

is required by the state statute regulating CPL applications. Id. at 337 (emphasis

added). As a result, there is no “two part” inquiry, where this court need be

concerned (a) with the metaphysical question whether Clary’s conviction still

“exists” under Washington law after being sealed, id. at 337, or (b) whether a

specific type of “subsequent event” occurred, such as expungement, ending a

conviction’s “existence.” Id. at 336. The sole question here—expressly not

reached by the court in Barr—is whether juvenile convictions which have been

sealed nonetheless preclude someone from restoring their rights “as a matter of”

Washington law, not federal law. Id. at 440. Our plain language analysis above

answers that separate question.

In this way, I read Barr more narrowly than the majority, as well as my

esteemed colleagues who issued McIntosh v. State, 30 Wn. App. 2d 224, 225, 544

P.3d 559 (2024), review denied, 3 Wn.3d 1010, 551 P.3d 434 (2024). I recognize

that the court in McIntosh confronted effectively the same issue as this case, and

that the decision is thus on point. However, I respectfully believe that the majority

and my colleagues in McIntosh interpret Barr in a way that both (a) does not

account for RCW 13.50.260(6)(a)’s sweeping mandate and (b) fails to harmonize

the firearms restoration statute with the juvenile sealing statute. 4 I address each

in turn after further discussing McIntosh.

4 Decisions of other divisions of the Washington Court of Appeals are persuasive

authority and are not binding on this court. In re Pers. Restraint of Arnold, 190 Wn.2d 136, 150-52, 154, 410 P.3d 1133 (2018). 11 No. 85961-7-I/12 (DÍAZ, J., dissenting)

In McIntosh, the appellant sought to restore his state firearm rights after

sealing two juvenile class A felony convictions. 30 Wn. App. 2d at 226 & 229. As

Clary does here, McIntosh argued that RCW 13.50.260(6)(a) requires a court to

treat his sealed juvenile cases as though they never occurred. Id. at 225 & 229.

Our colleagues interpreted that argument to mean McIntosh was arguing

“essentially that the [juvenile convictions] no longer exist.” Id. at 229. In turn, the

court held that—under a reading of Barr similar to the majority’s—convictions in a

sealed juvenile proceeding “still exist under state law and, therefore, [appellant]

was disqualified from petitioning for restoration of firearm rights under former RCW

9.41.040(4)(a).” Id. at 233-34; Majority at 4.

As explained above, I respectfully disagree with this understanding of Barr’s

reach. Our Supreme Court in Barr undertook a “straightforward” two-part analysis

exploring whether the conviction still “existed” because that is what the state CPL

statute required. 193 Wn.2d at 335. There is no such requirement here. The

question is not whether a sealed conviction “exists” under federal law, but what our

state legislature meant in passing both RCW 13.50.260 and RCW 9.41.041.

Rather than address that issue, the court in McIntosh nowhere explains

what RCW 13.50.260’s mandate to “treat[] [sealed juvenile convictions] as is they

never occurred” might mean if the convictions “still exist under state law.” McIntosh

instead surveys only the circumstances when the mandate does not apply. 30 Wn.

App. 2d at 233 (reviewing how the convictions are accessible under RCW

13.50.260(8)(b)-(e) and RCW 9.94A.525(2)(a)). By doing so, the court renders the

mandate meaningless, which we should seek to avoid. Roggenkamp, 153 Wn.2d

12 No. 85961-7-I/13 (DÍAZ, J., dissenting)

at 624. Moreover, as also explained above, the failure to give effect to its mandate

effectively reads into the Washington law another way in which the conviction may

be accessed or used, which we should also seek to avoid. State v. Taylor, 97

Wn.2d 724, 729, 649 P.2d 633 (1982) (holding that court should not “arrogate to

ourselves the power to make legislative schemes more perfect, more

comprehensive and more consistent”).

What I believe this court must do, instead, is afford each provision meaning,

while harmonizing the two statutes to avoid inconsistency if any. See Am. Legion

Post No. 149, 164 Wn.2d at 588; Jackson, 142 Wn. App. at 146-47.

C. Harmonizing RCW 9.41.041(1) and RCW 13.50.260

I begin again with the meaning of the plain language of the firearms

restoration statute. RCW 9.41.041(1) states that a person is disqualified from

petitioning for restoration if that person “has been convicted” of a class A felony.

This phrase is written in a grammatical form known as “present perfect continuous”

or “present perfect progressive.” The verb tense is used to capture something that

started in the past and is continuing at the present time. 5 In other words, the

phrase “has been convicted of” refers to the present existence of a past conviction.

As aforementioned, the existence of a sealed juvenile class A felony

adjudication may be relevant in a distinguishable context, like federal firearms law,

such as in Barr. But, it does not dictate or conflict with how a state court should

“deal with” or “treat” such a sealed conviction, which is a different task. To interpret

RCW 9.41.041(1) consistently with RCW 13.50.260(6)(a)—which again makes no

5 THE CHICAGO MANUAL OF STYLE §§ 5.136, 5.139 (18th ed. 2024)

13 No. 85961-7-I/14 (DÍAZ, J., dissenting)

mention of firearms restoration—I would hold that these words do not implicate or

apply to how a state court should “handle” a sealed juvenile proceeding, leaving

the interpretation of RCW 13.50.260(6)(a) provided above undisturbed.

Had the legislature intended to circumvent the specifications of the sealing

statute, it could have chosen to phrase RCW 9.41.041(1)’s prohibition more

explicitly. For instance, it could have chosen to legislate that persons who “have

ever been convicted” of a class A felony are prohibited from possessing a firearm,

but it did not. 6 State v. Larson, 184 Wn.2d 843, 849, 365 P.3d 740 (2015) (finding

“illustrative examples were intended to limit the scope of the statute”) (emphasis

omitted); Cent. Puget Sound Reg’l Transit Auth. v. Airport Inv. Co., 186 Wn.2d 336,

346, 376 P.3d 372 (2016) (“we presume the legislature says what it means and

means what it says.”).

Therefore, in light of the meaning of the words the legislature did choose to

include, and in order to harmonize this statute with RCW 13.50.260, I would hold

that RCW 9.41.041(1) encompasses only adult convictions or juvenile cases that

have not been sealed. In that way, RCW 9.41.041 is not rendered meaningless.

Roggenkamp, 153 Wn.2d at 624.

6 Before the prohibition concerning class A offenses was recodified to current RCW

9.41.041—when it was a provision within former RCW 9.41.040— all versions of its language included the word “previously. . . has been convicted.” However, the omission of this word in the current version does not change my analysis.

14 No. 85961-7-I/15 (DÍAZ, J., dissenting)

III. CONCLUSION

For the reasons above, I respectfully dissent from my esteemed colleagues

in the majority.