State v. Rivard

Sweeney, J.

¶1 The trial court granted James D. Rivard’s petition to restore his right to possess a firearm. We first decided that the original sentencing court did not have authority to suspend Mr. Rivard’s license beyond his period of Department of Corrections (DOC) supervision. We relied on former RCW 9.41.040 (1992) and former RCW 9.94A.120 (1993). The State moved for reconsideration. It argues that we should have applied the law in effect on the date Mr. Rivard petitioned to have his right to possess firearms restored (September 20, 2006) and the date the court actually restored those rights (January 26, 2007). The State argues that the law in effect on the date he was originally sentenced for vehicular homicide is irrelevant. We conclude the State is correct. We then reverse the trial court’s order restoring his right to possess firearms.

FACTS

¶2 The State charged James D. Rivard with vehicular homicide in February 1994 as a result of an automobile accident on December 1, 1993. Vehicular homicide was a class B felony at the time. Mr. Rivard pleaded guilty to vehicular homicide in June 1997. The judgment and sentence were entered according to the vehicular homicide statute in effect in 1993. See Clerk’s Papers at 29. And the law in 1993 prohibited Mr. Rivard from possessing a firearm but only while he was under DOC supervision. Former RCW 9.94A. 120(13) (1993); former RCW 9.41.040(1) (1992).

¶3 The legislature reclassified vehicular homicide from a class B felony to a class A felony in 1996. Laws of 1996, ch. 199, § 7. The law now prohibits those convicted of “any felony defined under any law as a class A felony” from ever possessing a firearm. RCW 9.41.040(4).

¶4 The trial court here granted Mr. Rivard’s petition to restore his right to possess firearms. The State appealed. We concluded, on authority of former RCW 9.94A. 120(13) (1993) and former RCW 9.41.040(1) (1992), that the sentencing court did not have authority, under 1993 law, to restrict Mr. Rivard’s right to possess firearms after he was no longer subject to DOC supervision. And we affirmed the decision of the trial judge restoring Mr. Rivard’s right to possess a firearm. The State moved for reconsideration.

DISCUSSION

¶5 The State argues, among other things, that the legislature can modify gun possession laws without violating constitutional prohibitions against ex post facto laws because such laws do not change the quantum of punishment for the original crime. State v. Watkins, 76 Wn. App. 726, 732, 887 P.2d 492 (1995). And the prohibition against ex post facto laws applies only to statutes that impose punishment. State v. Schmidt, 143 Wn.2d 658, 674, 23 P.3d 462 (2001), aff’g State v. Schmidt, 100 Wn. App. 297, 300 n.7, 996 P.2d 1119 (2000). The legislature’s 1994 and 1995 amendments to RCW 9.41.040 were not punitive; they were regulatory. They restricted gun ownership. Laws of 1994, 1st Spec. Sess., ch. 7, § 402 (making it illegal for persons convicted of vehicular homicide to possess firearms); Laws of 1995, ch. 129, § 16 (requiring eligible offenders to petition for restoration of right to possess firearms). The amendments merely altered the collateral consequences of Mr. Rivard’s conviction. Schmidt, 143 Wn.2d at 676. And case law suggests that the legislature intended such amendments to be retroactive. See State v. Reed, 84 Wn. App. 379, 385-87, 928 P.2d 469 (1997) (statutory notice plan).

¶6 Possession of firearms has always been subject to government regulation for safety purposes. Schmidt, 143 Wn.2d at 676. The legislature can prohibit convicted felons from possessing firearms. State v. Krzeszowski, 106 Wn. App. 638, 641, 24 P.3d 485 (2001). RCW 9.41.040 is such a restriction.

¶7 The amended version of RCW 9.41.040 then applies to Mr. Rivard. See Schmidt, 100 Wn. App. at 300 (regulations can be applied to past conduct without violating the ex post facto clause). And he is not entitled to have his right restored because he has been convicted of a crime which is classified as a class A felony. RCW 9.41.040(4).

¶8 We conclude then that the trial court erred when it granted his petition and restored his right to possess firearms.

¶9 Moreover, Mr. Rivard could not possess a firearm lawfully even if we affirmed the trial court here. Mr. Rivard’s vehicular homicide conviction is a serious offense. RCW 9.41.010(12)(l). RCW 9.41.040(1)(a) prohibits offenders convicted of serious offenses from possessing firearms:

A person ... is guilty of the crime of unlawful possession of a firearm . . . if the person owns, has in his . . . possession, or has in his . . . control any firearm after having previously been convicted ... in this state . . . of any serious offense.

(Emphasis added.)

¶10 We reverse the trial judge’s decision to restore the right to possess firearms here.

Brown, J., concurs.