                                                                                                                FILED
                                                                                                        COURT OF APPEALS
                                                                                                             DIVISION TI
                                                                                                       2015 tMR 17
                                                                                                                   I r 8: I
      IN THE COURT OF APPEALS OF THE STATE OF WASHING                                                                   NGTON
                                                   DIVISION II                                         BY


    CLIFFORD PAYSENO,.                                                          No. 45389- 4- 11


                                          Appellant,


          v.



    KITSAP COUNTY,                                                          PUBLISHED OPINION


                                          Respondent.



          SUTTON, J. — Clifford Payseno appeals the superior court' s denial of his petition to restore


his   right   to   possess    a   firearm.   We are asked to decide whether the requirement in RCW


9. 41. 040( 4)( a)( ii)(A) 1 that a petitioner be crime free for five years is satisfied by an earlier crime -

free period or whether the crime -free period must immediately precede the filing of the petition.

          We hold that RCW 9. 41. 040( 4)( a)( ii)(A) is ambiguous as applied to the facts of this case.

The statute can be interpreted as requiring a petitioner to be crime free for the five -year period

immediately preceding the petition or interpreted as requiring a petitioner to be crime free during

some earlier       five -year   period.   The legislative history and interpretative aids do not definitively

resolve   this ambiguity.         Under the rule of lenity, we strictly construe the statute in Payseno' s favor.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.




1
    The legislature      amended       RCW 9. 41. 040 in 2014.          LAWS OF 2014,   ch.   111, §   1.   Besides

renumbering some subsections, the amendments made in 2014 dfd not alter the statute in any way
relevant to this case since the petition was filed by the appellant in 2013; accordingly, we cite the
current version of      the     statute unless otherwise   indicated.
No. 45389 -4 -II



                                                      FACTS


         The parties do not contest the operative facts. In March 2000, Payseno was convicted of a

felony violation of the Uniform Controlled Substances Act (VUCSA).2 In June 2000, Payseno

was convicted of the misdemeanor offense of first degree negligent driving under former RCW

46. 61. 5249 ( 1997).      After serving his sentences, Payseno then went over five years in the

community without a conviction of any kind.

         In February 2007 and May 2010, Payseno was convicted of two additional misdemeanor

offenses, one   for   driving   under   the influence         former RCW 46. 61. 502 ( 1998), and one for
                                                        under '




first degree   negligent   driving   under    former RCW 46. 61. 5249 ( 1997).   Neither of these offenses


disqualified him from possessing          a   firearm. See former RCW 9. 41. 040( 1)(   a) (   1997) ( providing


that it is a crime for anyone convicted of a " serious offense" under chapter 9. 41 RCW to possess

a   firearm); former RCW 9. 41. 010( 12) ( 1997) (      defining " serious offense" for purposes of chapter

9. 41 RCW).


         In 2013, .Payseno petitioned the superior court to reinstate his right to possess a firearm.


At the time of his petition, Payseno had no charges pending. The State objected to the petition and

argued that in order to have his firearm rights restored, Payseno' s five -year- crime -free period


needed to immediately precede the filing of the petition. The superior court construed the language

in RCW 9. 41. 040( 4)( a)( ii)(A) that the petitioner not be " currently charged with any felony, gross

misdemeanor or misdemeanor crimes" as requiring the petitioner to be crime free for the five -year




2
    Former RCW 69. 50. 401 ( 1998).        Payseno' s VUCSA conviction automatically revoked his right
to possess a firearm. RCW 9. 41. 040( 4)( a).




                                                          2
No. 45389 -4 -II



period preceding the petition even if the subsequent criminal offense was not a disqualifying crime

that impacted his firearms      right.       As a result, the superior court denied the petition and Payseno


appealed.



                                                          ANALYSIS


         Payseno argues that once he remained crime free for five years in the community after his

2000 felony and misdemeanor convictions, under RCW 9.41. 040( 4)( a)( ii)(A) the superior court

did not have discretion to deny his petition. We agree that the requirement of the five-year- crime-

free period may be completed at any time before the petition is filed.

                                            I. STATUTORY INTERPRETATION


         Statutory   construction      is   an   issue   of   law that   we review   de   novo.   Anderson v. Dussault,


181 Wn.2d 360, 368, 333 P. 3d 395 ( 2014).                     In construing a statute, our primary objective is to

ascertain and " give effect    to the legislature' s intent."            TracFone Wireless, Inc. v. Dep 't ofRevenue,

170 Wn.2d 273, 281, 242 P. 3d 810 ( 2010).                    To determine legislative intent, we first look to the

plain   language   or plain   meaning       of   the   statute, "   considering the text of the provision in question,

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

scheme as a whole."       State   v.   Evans, 177 Wn.2d 186, 192, 298 P. 3d 724 ( 2013); State v. Ervin,


169 Wn.2d 815, 820, 239 P. 3d 354 ( 2010).


         Plain language that is not ambiguous does not require construction. State v. Delgado, 148

Wn.2d 723, 727, 63 P. 3d 792 ( 2003).                  If a statute is unambiguous or plain on its face we must


apply the   statute as written and assume              that the legislature    meant   exactly    what   it   said.   TracFone


Wireless, 170 Wn.2d at 281; State v. Roggenkamp, 153 Wn.2d 614, 621, 106 P. 3d 196 ( 2005).




                                                                    3
No. 45389- 4- 11




         A statute is ambiguous if it can reasonably be interpreted in two or more ways, but it is

not ambiguous      simply because different interpretations           are conceivable."        Berger v. Sonneland,


144 Wn.2d 91,       105, 26 P. 3d 257 ( 2001). "           If the statute is still susceptible to more than one


interpretation after we conduct a plain meaning review, then the statute is ambiguous and we rely

on statutory construction, legislative history, and relevant case law to determine legislative intent."

State v. Rice, 180 Wn. App. 308, 313, 320 P. 3d 723 ( 2014).

        We also apply the rule of lenity, which provides that, if a criminal statute is ambiguous, we

  strictly   construe '    it in favor    of   the   defendant.   Evans, 177 Wn. 2d       at   193 (   quoting State v.

Hornaday,       105 Wn.2d 120, 127, 713 P. 2d 71 ( 1986)); see State v. Villanueva -Gonzalez, 180


Wn.2d 975, 984, 329 P. 3d 78 ( 2014).                 Washington courts apply the rule of lenity not only to

criminal sanctions, but also to the community custody, probation, and post- conviction context, and

to procedural statutes affecting an offender' s rights. State v. Slattum, 173 Wn. App. 640, 658, 295

P. 3d 788,     review   denied, 178 Wn. 2d 1010 ( 2013);          see State v. Parent, 164. Wn. App. 210, 212,

267 P. 3d 358 ( 2011) ( applying rule to sentencing).


                                   II. INTERPRETING RCW 9. 41. 040( 4)( a)


        RCW 9. 41. 040( 4)( a) provides, in part:


         I] f a person is prohibited from possession of a firearm [ as a result of a conviction
        fo r   a serious offense] and       has   not   previously been   convicted ...    of a sex offense

        prohibiting firearm ownership ...    and /or any felony defined under any law as a
        class A felony or with a maximum sentence of at least twenty years, or both, the
        individual may petition a court of record to have his or her right to possess a firearm
        restored:




         ii)(A) If the     conviction ...      was for a felony offense, afterfive or more consecutive
        years     in the community       without   being convicted ... or currently charged with any
No. 45389 -4 -II



        felony, gross misdemeanor, or misdemeanor crimes, if the individual has no prior
        felony convictions that prohibit the possession of a firearm counted as part of the
        offender score under RCW 9. 94A. 525[.]


Emphasis added).


        In interpreting this statute, we previously held that " RCW 9. 41. 040( 4) does not expressly

grant the restoring court any discretion or state a burden of proof'; the superior court thus " serves

a ministerial    function —i. e., granting the     petition —once   the petitioner has satisfied the enumerated


requirements."      State    v.   Swanson, 116 Wn.    App. 67, 69,    65 P. 3d 343 ( 2003).   To the extent that


the superior court exercised its discretion in denying Payseno' s petition, it did so improperly.

                                           A. AMBIGUOUS LANGUAGE


         A    statute   is    ambiguous . . .      when it is fairly susceptible to different, reasonable

interpretations, either on its face or as applied to particular facts, and must be construed to avoid

strained or absurd results."         McGinnis v. State, 152 Wn.2d 639, 645, 99 P. 3d 1240 ( 2004).


        RCW 9.41. 040( 4)( a)( ii)(A)' s provision that a petitioner may petition for restoration of gun

rights " after   five   or more      consecutive   years   in .the community   without   being   convicted"   can




reasonably be interpreted in two          ways.     The statute could be interpreted to require a five-year-

crime- free   period    immediately      preceding    a petition.   Alternatively, it could be interpreted to

require a five -year- crime -free period at any time prior to a petition so long as the other statutory

requirements are met ( no current charges or           disqualifying   convictions).   After Payseno' s firearm


possession rights were revoked in 2000, he was crime free in the community for seven years, from

2000 to 2007, without any current charges or disqualifying convictions at the time of his petition,

but he was not crime free for the entire five years immediately preceding his petition.




                                                            5
No. 45389 -4 -II



                                                    B. LEGISLATIVE INTENT


          To resolve this ambiguity, we first consider RCW 9.41. 040' s legislative history. See Rice,

180 Wn.       App.     at   313.    In 1994, RCW 9.41. 040 was reenacted and amended.3 RCW 9.41. 040( 4)

was again amended as part of the 1995 Hard Time for Armed Crime Act, Initiative 159. 4 LAws

OF   1995,    ch.    129, § 16. The legislative " Findings          and   Intent" included the       statement   that "[   c] urrent




law [ did]     not   sufficiently      stigmatize   the carrying    and use of     deadly   weapons    by   criminals."      LAws


OF   1995,    ch.    129, §     1. Before the legislature imposed the five -year- crime -free period requirement,

the legislature found that "                 increasing violence in our society causes great concern for the

immediate health            and     safety   of our citizens and   our   social   institutions."   LAws OF 1994, 1st Spec.


Sess.,   ch.   7, § 101, at 2197. The legislature also found that " violence is abhorrent to the aims of a


free society        and   that it   cannot    be tolerated." LAWS        OF   1994, 1st Spec. Sess.,    ch.   7, § 101, at 2197.


           But the legislative history reveals only general statements describing the purpose of RCW

9. 41. 040.      The legislature offered no statement illuminating whether the five -year- crime -free




3
    LAWS   OF   1994, 1st Spec. Sess.,           ch.   7, § 402.


4 At that time, the relevant provision was amended to read:
             T] he individual may petition a court of record to have his or her right to possess a
           firearm restored:


                          b)        After five or more consecutive years in the community without
           being convicted or currently charged with any felony, gross misdemeanor, or
           misdemeanor crimes, if the individual has no prior felony convictions that prohibit
           the possession of a firearm counted as part of the offender score under [ former]
           RCW 9. 94A. 360 [ recodified                as   RCW 9. 94A. 525 ( LAws      of   2001,   ch.   10, § 6)].
LAws     OF    1995,      ch.   129, § 16, at 461.




                                                                    6
No. 45389 -4 -II



period was     meant    to    immediately         precede      a petition     for firearms         restoration.    Therefore, the


legislative history does not assist us in resolving the ambiguity.

                                               C. RULES OF CONSTRUCTION

        We    next consider         any     applicable rules of construction. "[              T] he legislature is presumed to


know the statutory      scheme."            Bishop v. City of Spokane, 142 Wn. App. 165, 171, 173 P. 3d 318

 2007). "'   Where the Legislature omits language from a statute, intentionally or inadvertently, this

court will not read    into the      statute   the language that       it believes    was omitted.'"        Manary v. Anderson,

176 Wn.2d 342, 357, 292 P. 3d 96 ( 2013) (                   quoting State v. Moses, 145 Wn.2d 370, 374, 37 P.3d

1216 ( 2002)).    There is no language in RCW 9. 41. 040( 4)( a)( ii)(A) that expressly requires that the

five -year- crime -free      period    immediately          precede    the   petition.    This provides some support for


Payseno' s position. But there are no particular rules of construction that definitively resolve the

ambiguity.


                                                      D. RULE OF LENITY


        Because we cannot discern the legislature' s intent after resorting to interpretative aids,

RCW 9. 41. 040( 4)(     a)(   ii)(A) is      ambiguous as applied            to the   facts   of   this   case.   In construing an

ambiguous criminal statute, the rule of lenity requires us to strictly construe a statute in favor of a

criminal     defendant.       Villanueva -Gonzalez, 180 Wn.2d at 984; Slattum, 173 Wn. App. at 658

 holding that the rule        of   lenity   applies   to   a petitioner   in the   post- conviction context).        Accordingly,

we must hold that, as applied to the facts of this case, RCW 9. 41. 040( 4)( a)( ii)(A) requires only

that Payseno was crime free during any five -year period before his petition to restore his gun rights.




                                                                   7
No. 45389 -4 -II




                                              III. CONCLUSION


       We hold that RCW 9. 41. 040( 4)( a)( ii)(A) is ambiguous as applied to the facts of this case.


The statute can be interpreted as requiring a petitioner to be crime free for the five -year period

immediately preceding the petition or interpreted as requiring a petitioner to be crime free during

some earlier   five -year   period.   The legislative history and interpretative aids do not definitively

resolve this ambiguity. Under the rule of lenity, we strictly construe the statute in Payseno' s favor.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.




 We concur:



    r +

   hanson, C. J.




 Maxa,




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