In the Matter of the Personal Restraint of: Gilbert Gonzales, Jr.

FILED
OCTOBER 19, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Personal Restraint of: ) No. 38080-7-III
)
GILBERT GONZALES, JR., ) UNPUBLISHED OPINION
)
Petitioner. )
PENNELL, C.J. — Gilbert Gonzales, Jr. has filed a petition for relief from personal
restraint imposed following his 2020 conviction for one count of second degree unlawful
possession of a firearm under RCW 9.41.040(2)(a)(i). At the time of his guilty plea,
RCW 9.41.040(2)(a)(i) made it a felony for any person who had previously been
convicted for possession of a controlled substance under former RCW 69.50.4013 (2017)
to possess a firearm. Mr. Gonzales had eight previous felony convictions for possession
of a controlled substance under former RCW 69.50.4013.
In February 2021, the Washington Supreme Court issued its decision in State v.
Blake, 197 Wn.2d 170, 195, 481 P.3d 521 (2021), holding that former RCW 69.50.4013
violated state and federal due process clauses and was therefore void. Mr. Gonzales
subsequently filed a personal restraint petition within the one-year time bar of
RCW 10.73.090, seeking the vacation of his conviction for unlawful possession of
a firearm.
The State concedes that because Mr. Gonzales’s previous felony convictions for
possession of a controlled substance were unconstitutional, they could not be predicates
No. 38080-7-III
In re Pers. Restraint of Gonzales
for his conviction for unlawful possession of a firearm. See State ex rel. Evans v.
Brotherhood of Friends, 41 Wn.2d 133, 143, 247 P.2d 787 (1952) (“If a statute is
unconstitutional, it is and has always been a legal nullity.”). Accordingly, the State agrees
that Mr. Gonzales’s conviction for unlawful possession of a firearm must be vacated. See
In re Pers. Restraint of Hinton, 152 Wn.2d 853, 860, 100 P.3d 801 (2004) (“[A] judgment
and sentence based on conviction of a nonexistent crime entitles one to relief on collateral
review.”).
Based on our own review of Mr. Gonzales’s petition, and the State’s concessions,
we grant the personal restraint petition and remand to the Superior Court for the vacation
of his conviction. Based on this disposition, we need not address Mr. Gonzales’s other
claims of error.
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
_________________________________
Pennell, C.J.
WE CONCUR:
____________________________
Siddoway, J. Lawrence-Berrey, J.
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