J-S85009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

CORY J. WILLIS

                            Appellant                No. 1162 EDA 2016


                     Appeal from the Order March 16, 2016
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000602-2006


BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.

JUDGMENT ORDER BY PANELLA, J.                     FILED JANUARY 09, 2017

       Appellant, Cory J. Willis, appeals from the order of the Monroe County

Court of Common Pleas denying his application to restore his firearm rights.

We affirm.

       The relevant facts and procedural history are as follows. On June 19,

2007, Willis pleaded guilty to a second offense, DUI, highest rate of alcohol,1

as a misdemeanor of the first degree. On that same date, Willis was

sentenced to intermediate punishment for a period of 1 year, 90 days of

which was to be spent under house arrest.

____________________________________________


1
  75 Pa.C.S.A. § 3802(c). Under the law in effect at the time of Willis’s guilty
plea, a person convicted of a misdemeanor of the first degree was subject to
a term of imprisonment not to exceed 5 years. See 18 Pa.C.S.A. §
106(b)(6).
J-S85009-16



        On January 17, 2015, Willis attempted to purchase a firearm at a gun

show in Matamoras, Pike County, Pennsylvania. Due to his DUI conviction,

he was denied permission to purchase the gun. An appeal of that denial is

current pending before the Pennsylvania Attorney General’s office.

        On September 29, 2015, Willis filed a Petition for Restoration of

Firearm Rights under 18 Pa.C.S.A. § 6105.1. The trial court held a hearing

on Willis’s Petition. Ultimately, the trial court dismissed Willis’s Petition due

to lack of jurisdiction. This timely appeal follows.

        On appeal, Willis raises two issues. First, Willis argues that the trial

court    should   have   found   that   the   sentencing   limits   set   forth   in

Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013), applied

retroactively to Willis’s second DUI conviction. See Appellant’s Brief, at 3.

Therefore, Willis argues, because the sentencing limit set forth in Musau

would not make him a “disabled person” under federal law, the trial court

should have found that he is a person allowed to possess a firearm. Id. at 9.

Alternatively, if Willis was properly deemed a “disabled person” under federal

law, Willis argues that the trial court erred in determining that Willis was not

entitled to have his firearm rights restored under 18 Pa.C.S.A. § 6105.1.

See id. at 10.

        Willis’s arguments challenge the trial courts interpretation of case law

as well as its statutory interpretation of the Pennsylvania Uniform Firearms

Act, 18 Pa.C.S.A. § 6101 et seq. These arguments raise questions of law

over which our standard of review is de novo and out scope of review is

                                        -2-
J-S85009-16



plenary. See J.C.B. v. Pa. State Police, 35 A.3d 792, 794 (Pa. Super.

2012).

     We have reviewed the parties’ briefs, the relevant law, the certified

record, and the thorough opinion of the Honorable Stephen M. Higgins. The

trial court’s opinion comprehensively disposes of Willis’s issues on appeal,

with appropriate references to the record and without legal error. Therefore,

we will affirm based upon that opinion. See Trial Court’s Opinion, dated

3/16/16.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/2017




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                            COURTOFCOMMONPLEASOFMONROECOUNTY
                                 FORTY-TIDRD JUDICIAL DISTRICT
                                COMMONWEALTH OF PENNSYLVANIA


             CORY J. WILLIS,                                                     602CR2006

                              Petitioner

                              VS,
                                                                                 Petition for Restoration of
             COMMONWEALTH OF PENNSYLVANIA,                                       Firearm Rights

                              Respondent



                                                           OPINION

                              This matter comes before the Court on Cory J. Willis, (hereinafter

             "Petitioner") Petition for Restoration of Firearm Rights. Petitioner was convicted of

             Driving under the Influence of Alcohol ("DUI"), Highest Rate (BAC .16+), Second

             Offense' on June 19, 2006 following a guilty plea to the charge. The conviction

             constitutes a Federal firearm disability pursuant to 18 U.S.C. § 922(g)(l) making it

             unlawful for Petitioner to possess a firearm, Petitioner now seeks to have his firearm

             rights restored so that he may have the opportunity to possess a firearm in the future.

             Upon consideration of the arguments presented by both parties; a careful review of both

             Pennsylvania's Uniform Firearms Act of 19952 ("Unifonn Act") and the Federal Gun

             Control Act of 19683 ("Federal Act"), and for the reasons set forth below, Petitioner's

             Petition for Restoration of Firearm Rights is dismissed due to this Court's lack of

             jurisdiction to effectuate removal of a firearms disability imposed pursuant to the Federal

             Act.


             1
               75 Pa.C.S.A. § 3802(c).
             2 18 Pa.C.S.A. § 6101 et seq, specifically 18 Pa.C.S.A. § 6105.1.
             3 18 U.S.C. § 921 el seq•• specifically 18 U.S.C. § 922.
                                  Factual and Procedural His1QIT .

                    Toe following is a summary of the relevant facts. particular state and

federal statutes that brought about this action, and procedural history of the case:

                    On June 19, 2006, following a guilty plea, Petitioner was convicted of a

Second Offense, DUI, Highest Rate (BAC .16+). The first offense DUI occurred in

2002, for which Petitioner received Accelerated RehabilitativeDlsposition                    ("ARD").

                    The second offense DUI in 2006 is graded as a Misdemeanor of the First

Degree.4 In Pennsylvania, a person convicted of a misdemeanor of the first degree is

subject to a prison term not to exceed five years.5

                    Under the Federal Act, it is unlawful for any person, convicted of a State

offense classified by the laws of the State as a misdemeanor and punishable by a term of

imprisonment exceeding two years, to possess a firearm. 6

                    On June 19, 2006, Petitioner was sentenced to intermediate punislunent

for a period of one (1) year, of which ninety (90) days was to be spent on

electronic/house arrest program.

                    Because the maximum penalty Petitioner could have received for the

Second Offense DUI exceeded two years, the Petitioner was prohibited from possessing a

firearm under the Federal Act, as of his conviction date on June 19, 2006.

                    On or about January 17, 2015, Petitioner attempted to purchase a firearm

at a gun show in Matamoras. Pike County, Pennsylvania. He was denied. An appeal of

the denial is currently pending before the Attorney General's office.


4 75 Pa.C.S.A. § 3803(b)(3) states that "an individual ••• who violates section 3802(c) or (d) and who has
one or more prior offenses commits a misdemeanor of the first degree."
5
  18 Pa.C.S.A. § 106(b)(6) states that "a crime is a misdemeanor of the first degree ifit is so designated in
this title or ifa person convicted thereof may be sentenced to a term of imprisonment, the maximum of
which is not more than five years."
6
    18 U,S,C. § 922(g)(I).
                                                      2
                The Pennsylvania State Police filed criminal charges against Petitioner

related to the attempted purchase in Pike County in violation of 18 Pa.C.S.A. § 6105(a)

(relating to the firearm restriction). That case has not reached its final disposition.

                On September 29, 2015, Petitioner filed the instant Petition for Restoration

of Firearm Rights under 18 Pa.C.S.A. § 6105.1. A hearing was held on the Petition on

October 19, 2015, and briefs were ordered. The Commonwealth filed its Memorandum

of Law on October 30, 2015, and Petitioner filed his Brief in Support of Petition for

Restoration on November 4, 2015.

                                         Discussion

                Petitioner argues that Section 18 Pa.C.S.A. 6105.1 of the Uniform Act

provides the standard by which a court shall apply in determining whether restoration of

Petitioner's firearm rights is warranted. In tum, the Commonwealth counters Petitioner's

argument by offering a different interpretation of 18 Pa.C.S.A. 6105.1 and argues that

Petitioner has not met the requirements necessary to restore his firearm rights. We find

that both Petitioner and the Commonwealth have misinterpreted 18 Pa.C.S.A. 6105.1 in

this case in that the statute provides relief in limited circumstances for a firearm disability

under the Uniform Act but does not provide a remedy for a firearm disability that is

imposed pursuant to the Federal Act.

The Uniform Act

                The Uniform Act, specifically Sections 6105(a) and 6105.1, contain the

provisions by which a person will lose his or her firearm rights in Pennsylvania and the

requirements for restoration of those firearm rights under certain circumstances.

However, these two sections pertain only to a firearm disability under Pennsylvania's

Uniform Act and not a firearm disability under the Federal Act. Furthermore, Section

                                               3
6105.1, relied upon by both Petitioner and the Commonwealth; is applicable only to such

offenses under prior laws of the Commonwealth, specifically violations of the former

Vehicle Code and Penal Code.

               Under the Uniform Act, a person can become a prohibited person in

Pennsylvania by being convicted of any one of thirty-eight (38) enumerated offenses

under section 6105(b) or whose conduct meets the criteria found under subsection (c) of

section 6105. 18 Pa.C.S.A. § 6105(a),(c). Relief from such a state firearm disability

under sections 6105(a) and 6105(c) is found in subsection 61 OS(d), where a person

seeking relief "may make application to the court of common pleas of the county where

the principal residence of the applicant is situated ... ,, 18 Pa.C.S.A. § 6105(d).

Therefore, the only relief that can be granted pursuant to Section 6105(d) is from a state

firearm disability imposed under Section 6l05(a). Pennsylvania State Police v.

Paulshock, 836 A.2d 110, 115 (2003). As a result, Section 6105(d) does not grant the

common pleas court the power to relieve a federal firearm disability. Id.

               In the instant case, Petitioner has not been convicted of any of the

enumerated offenses listed in Section 6105(b) nor does his conduct meet the criteria

found under Section 6105(c) that would qualify him for a state firearm disability under

Section 6105(a) of the Uniform Act. As such, Sections 6105(a), (b), (c), and (d) are

inapplicable to Petitioner's case.

               Here, Petitioner advances two arguments in support of his petition for

restoration of his firearm rights: 1) the Petitioner is not a "disabled person', for purposes

of possessing a firearm as a result of a decision in Commonwealth v. Musau, 69 A.3d 754

(Pa. Super 2013), which held that the maximum penalty for a first or second DUI

conviction under the DUI statute (75 Pa.C.S.A. § 3803) is six-months, therefore

                                              4
disqualifying Petitioner from a firearm disability wider the Federal Act; and 2) that if

Petitioner is a "disabled person,', he is therefore eligible for restoration wider Section

6105.1. Both arguments are without merit.

                First, Musau was decided in June 2013, nearly seven years after

Petitioner's conviction on the second offense DUI and six years after completion of his

sentence. To apply the Musau decision to Petitioner in this case would be a retroactive

application of the law without clear intent from the Superior Court in Musau that its

decision should be applied to parties outside of that particular case.

                The Pennsylvania Constitution neither mandates nor prohibits retroactive

or prospective application of a new court decision. Blackwell v. Comm., State Ethics

Com'n, 589 A.2d 1094, 1098 (1991). "Retroactive application: is a matter of judicial

discretion which must be exercised on a case by case basis." Id. at 1099. Our Supreme

Court adopted a three-factor test in ]Jlackwe/1 that shall be applied when a question of the
                                                                                .
retro activity or nonretroactivity of a new decision is before the Court. Id. Although we

may apply the three-factor test in this case, we choose to dispose of this argument with a

simpler analysis of the Musau decision.

               The issue in Musau was whether a plain reading of the DUI statute in the

Vehicle Code (75 Pa.C.S.A. § 3803) imposed a statutory maximum sentence of either six

months or five years imprisonment for a second offense DUI, based on the interpretation

of the word "notwithstanding" in the statute. If the court interpreted the statute to cap the

maximum sentence at six months, then the federal firearm disability would not attach. 75

Pa.C.S.A. § 3803 reads in relevant part:

               3803. Grading
               (a) Basic Offenses -Notwithstanding as provided in subsection (b):


                                              5
                    (I) An individual who violates section 3902(a) (relating to driving
                    under the influence of alcohol or controlled substance) and bas no
                    more than one prior offense commits a misdemeanor for which the
                    individual may be sentenced to a term of imprisonment of not more
                    than six months and to pay a fine under section 3804 (relating to
                    penalties).

               (b) Other offenses -
                   (4) An individual who violates section 3802(a)(l) where the
                   individual refused testing of blood or breath, or who violates section
                   3802(c) or (d) and who has one or more prior offenses commits a
                   misdemeanor of the first degree.
75 Pa.C.S.A. § 3803 [Emphasis added]

The Appellant in Musau argued that a plain reading of subsection (a) dictated that the

maximwn sentence Appellant could receive for a second offense DUI with a BAC refusal

was six months incarceration. Musau, 69 A.3d at 757. The Superior Court agreed with

the Appellant finding that our Supreme Court has defined the term "notwithstanding" as

"regardless of", and given this definition, a plain reading of subsection (a) indicated as

follows: regardless of the fact that a second offense DUI results in the grading of the
                                                                             I



offense as a first degree misdemeanor, the maximum sentence for a first or second DUI

conviction is six months imprisonment. Id. at 758. The Superior Court went on to

declare that this interpretation would be different if the "legislature had instead prefaced

subsection (a) with 'except as provided in subsection (b)"', suggesting that the word

"except" in place of't'notwithstanding" would give subsection (b)(4) legal effect over

subsection (a) with regard to the maximum penalty for a second offense DUI. Id.

               In 2014 the legislature, preswnably in response to the Superior Court's

holding in Musau, amended subsection (a) replacing the word "notwithstanding" with

"except". Petitioner in this case would have ~ valid argument under the Musau decision

if the legislature had not acted to amend the statute, however because they did,



                                              6
Petitioner's second offense DUI is graded as a misdemeanor iI1 the first degree, which

carries a maximum sentence of five years imprisonment, and results in a federal firearm

disability under the Federal Act.

               Petitioner's second argument is also without merit because the relief

provided by Section 6105.1 is not applicable to Petitioner in this case.

               Section 6105.1 titled Restoration ofFireann Rigqts for Offenses Under

Prior Laws of the Commonwealth, does refer to Federal firearm disabilities, although

with limited application not available to Petitioner in this case. It provides in relevant

part:

               (a) Restoration. - A person convicted of a disabling
                   offense may make application to the court of common
                   pleas in the county where the principal residence of the
                   applicant is situated for restoration of firearms rights.

               (e) "Disabling Offense."       A conviction for any offense
                   which:

                   (l ) resulted in a Federal firearms disability and is
                        substantially similar to either an offense currently
                        graded as a crime punishable by a term of
                        imprisonment for not more than two years or
                        conduct which no longer constitutes a violation of
                        law; and

                  (2) was a violation of either of the following:
                       (i) the former act of May 1, 1929, known as The
                            Vehicle Code, or the former act of April 29,
                            1959, known as The Vehicle Code; or
                       (ii) the former act of June 24, 1939, known as the
                            Penal code.
18 Pa.C.S.A. 6105.l(a), (e). [emphasis added].

                Subsection (e) (2) is relevant in that it defines a "disabling offense" only

as a violation that occurs under the former Vehicle Code or the former Penal Code, both

of which have been revised by more recent amendments. Our Superior Court in

Commonwealth v. Stiver, 50 A.3d 702, interpreted Section 6105.1 as applying only to
                                              7
persons convicted of a "disabling offense"; i.e., "persons who have a federal firearms

disability that resulted from an offense under the previous Penal or Traffic Code of this

Commonwealth, and which is no longer graded as an offense punishable by two or more

years' imprisorunent under the current laws of this Commonwealth." Id, at 706.

                  Petitioner here was charged and convicted under the amended Vehicle

Code (amended by the Act of June 17, 1976, Act 81). Because Section 6105.l defines a

"disabling offense" as a violation that occurred specifically under the former Vehicle

Codes (Act of May 1, 1929 and Act of April 29, 1959) and former Penal Code (Act of

June 24, 1939), the Petitioner's conviction is not a "disabling offense" under the statute.

                  Because Petitioner's conviction is not a "disabling offense" under Section

6105.1, the relief provided by the statute is not available to Petitioner.

The Federal Act

                  Petitioner is disabled for purposes of possessing a firearm under Section

922(g)(I) of the Federal Act as a result of having been convicted of a crime punishable

by imprisonment or term exceeding one year.7 This prohibition includes such State

misdemeanor convictions where the maximum prison term exceeds two years.8 The

Federal Act provides the procedure by which a person, who is prohibited from possessing

a firearm, may restore his or her firearm rights under federal law. This procedure is

codified in Section 925(c) of the Federal Act. It provides in relevant part:

                 (c) A person who is prohibited from possessing, shipping,
                     transporting, or receiving firearms or ammunition may
                     make application to the Attorney General for relief from

718
     U.S.C. § 922(g). Section 922(g)(1) states: "it shall be unlawful for any person - who has been
convicted in any court ofa crime punishable by imprisonment for a term exceeding one year ... to ...
possess in or affecting commerce, any firearm ... or receive ... any firearm which has been shipped or
transported in interstate or foreign commerce."
8
  18 U.S.C. § 92l(a). Section 92l(a)(20XB) states: "The term 'crime punishable by imprisonment for a
term exceeding one year' does not include- any State offense classified by the laws of the State as a
misdemeanor and punishable by a term of imprisonment of two years or less."                         ill!JIIIA
                                                    8                                                    ~~
                  the disabilities imposed by Federal laws with respect to the
                  acquisition, receipt, transfer, shipment, transportation, or
                  possession of firearms, and the Attorney General may grant
                  such relief if it is established to his satisfaction that the
                  circumstances regarding the disability, and the applicant's
                  record and reputation, are such that the applicant will not
                  be likely to act in a manner dangerous to public safety and
                  that the granting of relief would not be contrary to the
                  public interest. Any person whose application is denied
                  by the Attorney General may file a petition with the
                  United States district court for the district in which he
                  resides for a judicial review of such denial.
18 U.S.C. § 925(c). [emphasis added].

                As discussed above, Petitioner is disabled from possessing a firearm under

the Federal Act, not the Uniform Act, and as such must follow the procedures set forth in

Section 925(c) of the Federal Act for restoration of his firearm rights. It is our

understanding from Petitioner's brief that he has applied with the Attorney General for

restoration and his application has been denied. As outlined above, any appeals of such

denial are exclusively within the jurisdiction of the U.S. district court in which the

Petitioner resides.

                For the reasons stated above, we find that we lack the jurisdiction to

effectuate the removal of a firearms disability imposed pursuant to the Federal Act.

                Having addressed all issues before this Court, we enter the following

order:




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