State v. Minor , 162 Wash. 2d 796 ( 2008 )

¶21

Madsen, J.

(concurring) — The parties agree that petitioner Jacob Minor was not given oral or written notice of loss of firearm rights, the court that sentenced him for the predicate offense failed to notify him of the loss of firearm rights, and a box next to a preprinted notification of the loss of firearm rights on the order on adjudication and disposition for the predicate offense was not checked. Under these circumstances, I concur in the majority’s conclusion that Mr. Minor was affirmatively misled into believing he had not lost these rights. The appropriate remedy is, as the majority holds, reversal of the adjudication for unlawful possession of a firearm.

¶22 However, failure to check a box on a preprinted order on adjudication form will not always result in reversal. The crux of the matter is whether the individual was affirmatively misled, because “[fignorance of the law is generally no defense, although a narrowly defined class of cases has determined that affirmative, misleading information from a governmental entity is a violation of due process.” State v. Sweeney, 125 Wn. App. 77, 83, 104 P.3d 46 (2005) (citing State v. Leavitt, 107 Wn. App. 361, 371, 27 P.3d 622 (2001)).

¶23 For example, in State v. Moore, 121 Wn. App. 889, 896, 91 P.3d 136 (2004), the Court of Appeals affirmed the trial court’s dismissal of an unlawful possession of a firearm charge because the defendant was not advised of loss of firearm rights, and the trial court affirmatively misled him into believing those rights were not lost when the court told him that “he could put the ordeal behind him if he stayed out of trouble.” In Leavitt, 107 Wn. App. at 372-73, the Court of Appeals reversed a conviction for unlawful firearm possession where the totality of the court’s actions and inactions affirmatively misled the defendant into believing that his firearm possession restriction was limited to one year.

¶24 But if the individual has actual knowledge of the law or actual notice of the loss of firearm rights, in whatever form, the individual cannot legitimately claim he or she justifiably believes that firearm rights were not lost and therefore cannot claim to have been misled. An example of facts that would lead to the conclusion that the individual had actual knowledge or notice is found in State v. Carter, 127 Wn. App. 713, 112 P.3d 561 (2005). There, the defendant was charged with unlawful possession of a firearm based on a prior juvenile burglary offense, but in the interim between the juvenile offense and the possession charge the defendant had been convicted of a felony and notified at that time that he was disqualified from possessing firearms. Id. at 721.

125 Individuals who have actual knowledge of the law or actual notice of the loss of firearm rights cannot show they were affirmatively misled by a failure to advise of the loss of firearm rights, and they are not entitled to reversal of an adjudication or conviction of unlawful possession of a firearm.

¶26 I concur in the majority opinion.

Bridge, J. Pro Tem., concurs with Madsen, J.