                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                              June 5, 2018


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    AUSTIN J. BENSON,                                                 No. 50270-4-II

                        Appellant,

         v.

    STATE OF WASHINGTON,                                          PUBLISHED OPINION

                        Respondent.


        SUTTON, J. — Austin J. Benson appeals the superior court’s order denying his petition to

restore his firearm rights under RCW 9.41.040(4).1 Benson argues that (1) his 2008 conviction

for second degree robbery is not an automatic bar to restoration of firearm rights, and (2) because

his two disabling felonies were entered and sentenced on the same day, he does not have any prior

felony convictions that are part of his offender score and that would prevent restoration of his

firearm rights. We agree with Benson.

        Benson also argues that he was not required to prove compliance with the sentencing

conditions when the predicate conviction is a felony. The State concedes this issue. We accept

the State’s concession. Accordingly, we reverse the superior court’s dismissal of Benton’s petition

for restoration of his firearm rights, vacate the order denying the petition for restoration of firearm

rights, and remand for further proceedings consistent with this decision.


1
  The legislature amended RCW 9.41.040 in 2017, after the date Benson filed his petition. Laws
of 2017 ch. 233 § 4. Because the amendments did not change the subsections we rely on, we cite
to the current version of the statute.
No. 50270-4-II


                                             FACTS

       On May 28, 2008, Benson was convicted of one count of unlawful possession of a

controlled substance (a class C felony) and one count of second degree robbery (a class B felony).

Although these offenses were committed on different dates and charged under different cause

numbers, he was convicted and sentenced for both convictions on the same date. Both of these

convictions were disabling offenses that prohibited him from owning, possessing, using, or

controlling a firearm. RCW 9.41.040(1), (2).

       On March 2, 2017, Benson petitioned for restoration of his firearm rights. In addition to

acknowledging the convictions described above, he stated that on August 21, 2009, he had also

been convicted of third degree driving with a suspended or revoked license, a misdemeanor. He

further alleged that (1) he had been in the community for more than five years without being

convicted of any felony, gross misdemeanor, or misdemeanor crimes, and (2) no charges were

pending against him in any court.

       The State objected to Benson’s restoration petition, arguing that (1) under RCW

9.41.040(4)(a), his class B second degree robbery conviction was an automatic bar to restoration,

(2) Benson had not provided proof that he had completed the sentencing conditions of his two

felony convictions, and (3) under RCW 9.41.040(4)(a)(ii)(A), Benson was not entitled to have his

rights restored because his class B second degree robbery conviction had not yet washed out as a

felony point. Benson responded that (1) his class B second degree robbery conviction was not an

automatic bar to restoration, (2) he did not have to prove compliance with the sentencing

conditions, and (3) under Rivard v. State, 168 Wn.2d 775, 221 P.3d 186 (2010), the class B second




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No. 50270-4-II


degree robbery conviction did not prevent restoration of his firearm rights because it was not a

“prior conviction.”

       The superior court denied Benson’s petition based on the State’s first argument, that the

second degree robbery conviction was an automatic bar to restoration.2

       Benson appeals.

                                            ANALYSIS

                      I. SECOND DEGREE ROBBERY NOT AN AUTOMATIC BAR

       Benson argues that the second degree robbery conviction is not an automatic bar to

restoration.3 We agree.

       RCW 9.41.040(4)(a) provides:

       Notwithstanding subsection (1) or (2) of this section, a person convicted . . . of an
       offense prohibiting the possession of a firearm under this section other than . . .
       robbery, . . . who received a probationary sentence under RCW 9.95.200, and who
       received a dismissal of the charge under RCW 9.95.240, shall not be precluded
       from possession of a firearm as a result of the conviction or finding of not guilty by
       reason of insanity. Notwithstanding any other provisions of this section, if a person
       is prohibited from possession of a firearm under subsection (1) or (2) of this section
       and has not previously been convicted or found not guilty by reason of insanity of
       a sex offense prohibiting firearm ownership under subsection (1) or (2) of this
       section and/or any felony defined under any law as a class A felony or with a


2
 Based on the record before us, it appears the superior court did not address the rest of the State’s
arguments or make any other findings related to the restoration petition.
3
 We note that the State originally conceded that the second degree robbery conviction was not an
automatic bar to restoration of firearm rights, but it appears that the State is withdrawing this
concession in its Statement of Additional Authorities. See Respondent’s Statement of Additional
Authorities. The case law cited by the State in its Statement of Additional Authorities, Smith v.
State, 118 Wn. App. 464, 76 P.3d 769 (2003), is not persuasive. In Smith, the petitioner had been
convicted of a prior sex offense, an offense that precluded restoration of firearm rights under RCW
9.41.040(4)(a), whereas, as discussed below, Benson was not convicted of any offense that
precluded restoration of firearm rights under that statute.



                                                 3
No. 50270-4-II


       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:

(Emphasis added).

       The first sentence of RCW 9.41.040(4)(a) excludes certain offenses for which a defendant

received a probationary sentence under RCW 9.95.200 and dismissal of the charge under RCW

9.95.240 from the firearm prohibition. RCW 9.41.040(4)(a). The first sentence does not say that

those convicted of robbery cannot petition to restore their firearm rights.4

       Instead, it is the second sentence of RCW 9.41.040(4)(a) that addresses the restoration of

firearm rights. This second sentence allows for the restoration of firearm rights for persons who

have been convicted of some felonies, but it does not allow for the restoration of for persons who

have been convicted of a class A felony, a sex offense, or who have had a maximum sentence of

at least 20 years. The second sentence does not exclude all robberies from restoration of firearm

rights. Thus, the trial court erred when it concluded that the class B second degree robbery was

an automatic bar to restoration.

                                   II. “PRIOR FELONY CONVICTIONS”

       The State also argues that Benson is not entitled to restoration of his firearm rights because

his other current offense, the class B second degree robbery conviction, has not yet washed out of

his offender score and this offense precludes restoration of his firearm rights under RCW

9.41.040(4)(a)(ii)(A). We disagree.




4
 Moreover, the first sentence of RCW 9.41.040(4)(a) does not apply here because Benson could
not have received a probationary sentence under RCW 9.94.200 for his felony offenses. RCW
9.95.900(1) (“Except as provided in subsection (2) of this section, the following sections of law
do not apply to any felony offense committed on or after July 1, 1984: . . . 9.95.200.”).


                                                 4
No. 50270-4-II


       Benson argues that under Rivard, he is entitled to restoration of his firearm rights because

he does not have any prior convictions that counted as part of his offender score as required under

RCW 9.41.040(4)(a)(ii)(A). The State responds that Benson’s other current offense, the second

degree robbery, qualifies as a “prior conviction” that precludes relief under RCW

9.41.040(4)(a)(ii)(A) because second degree robbery is a class B felony offense that has not yet

washed out of his offender score.       Whether an other current offense qualifies as a “prior

conviction” that can preclude firearm restoration is an issue of first impression. Based on the plain

language of RCW 9.41.040(4)(a)(ii)(A) and RCW 9.94A.525(1), 5 we conclude that an other

current offense is not a “prior conviction” for purposes of firearm restoration.

       We review issues of statutory interpretation de novo. State v. Gray, 189 Wn.2d 334, 339,

402 P.3d 254 (2017). “When interpreting statutes, we must discern and implement the intent of

the legislature. We look first to the plain meaning of the statutory language, and we interpret a

statute to give effect to all language, so as to render no portion meaningless or superfluous.”

Rivard, 168 Wn. 2d at 783 (internal citation omitted). But we avoid a reading that produces absurd

results. Tingley v. Haisch, 159 Wn.2d 652, 663-64, 152 P.3d 1020 (2007).

       RCW 9.41.040(4)(a)(ii)(A) allows for restoration of firearm rights if (1) the defendant has

spent “five or more consecutive years in the community without being convicted or found not

guilty by reason of insanity or currently charged with any felony, gross misdemeanor, or

misdemeanor crimes,” and (2) “the individual has no prior felony convictions that prohibit the


5
 The legislature has amended this statute several times since Benson’s convictions and since the
date he filed his petition for restoration of firearm rights. Laws of 2017, ch. 272 § 3; Laws of 2013
2nd sp. sess., ch. 35 § 8; Laws of 2011, ch. 166 § 3; Laws of 2010, ch. 274 § 403; Laws of 2008,
ch. 231 § 3. Because none of these amendments changed the subsection we rely on in this opinion,
we cite to the current version of the statute.


                                                 5
No. 50270-4-II


possession of a firearm counted as part of the offender score under RCW 9.94A.525.” (Emphasis

added). The State does not dispute that Benson has spent five or more consecutive years in the

community without other convictions or dispute that he is not currently charged with any crimes.

Thus, the sole issue here is whether “prior felony convictions” that “counted as part of the offender

score under RCW 9.94A.525” includes other concurrent convictions that were entered or

sentenced on the same day.        See RCW 9.41.040(4)(a)(ii)(A).        We hold that “prior felony

convictions” that “counted as part of the offender score under RCW 9.94A.525” do not include

other current convictions that were entered or sentenced on the same day.

       Benson argues that Rivard is dispositive. Although Rivard is relevant, it does not resolve

the issue here. Rivard establishes that we must examine whether the petitioner had other felonies

before the date of the disabling felony conviction rather than looking at the facts that existed at the

time of the firearm restoration petition. 168 Wn.2d at 784. Rivard was convicted of a single

offense, so our Supreme Court did not address the situation we have here where the petitioner was

convicted and sentenced for more than one qualifying felony that prohibited the possession of a

firearm at the same time. Instead, the plain language of RCW 9.41.040(4)(a)(ii)(A) and RCW

9.94A.525(1) resolves this issue.

       As noted above, RCW 9.41.040(4)(a)(ii)(A) allows for restoration of firearm rights 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). RCW 9.94A.525(1) provides:

       A prior conviction is a conviction which exists before the date of sentencing for the
       offense for which the offender score is being computed. Convictions entered or
       sentenced on the same date as the conviction for which the offender score is being
       computed shall be deemed “other current offenses” within the meaning of RCW
       9.94A.589.



                                                  6
No. 50270-4-II


(Emphasis added).

       Benson’s two felony convictions were entered and sentenced on the same day, so they are

other current offenses in relation to one another, not prior convictions under RCW 9.94A.525(1).

The mere fact that the other current convictions could each be treated as prior offenses and included

in Benson’s offender score at some future date does not also mean that these convictions become

prior felony convictions under RCW 9.94A.525. If that were the case, then any felony conviction

included in the petitioner’s offender score would need to be considered. This would require us to

ignore the use of the term “prior” in the phrase “prior felony convictions” as used in RCW

9.41.040(4)(a)(ii)(A). Because we must “give effect to all language, so as to render no portion

meaningless or superfluous,” we cannot ignore this term. Rivard, 168 Wn. 2d at 783.

       The State argues that this interpretation will lead to an absurd result because it would allow

the restoration of firearm rights to petitioners who have several convictions or sentences imposed

on the same date but would not allow restoration for someone with fewer convictions if even one

of those convictions and sentences occurred the day before the last qualifying felony conviction

prohibiting the possession of a firearm. The argument is well-taken, but we do not find it

persuasive.

       Although we must “‘avoid [a] literal reading of a statute [that] would result in unlikely,

absurd, or strained consequences[,]’ . . . this cannon of construction must be applied sparingly.”

Five Corners Family Farmers v. State, 173 Wn.2d 296, 311, 268 P.3d 892 (2011) (first alteration

in original) (quoting Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal

Order of Eagles, 148 Wn.2d 224, 239, 59 P.3d 655 (2002); and citing Duke v. Boyd, 133 Wn.2d




                                                 7
No. 50270-4-II


80, 87, 942 P.2d 351 (1997)). Here, it is conceivable that the legislature intentionally drafted this

language to avoid other potentially absurd results.

        For instance, in this case treating the other current offense as a prior offense would mean

that Benson could petition to restore his firearm restriction in relation to the class B felony offense

in five years, but he could not petition to restore his rights in relation to the class C offense for ten

years. It would make little sense to impose harsher restrictions for firearm restoration on a lesser

offense. This is particularly important because in many cases the other current offenses would

have taken place at the same time. Because there are conceivable reasons that the legislature used

the language it did, the State’s argument that the results are absurd is not persuasive. Accordingly,

we hold that other current offenses do not qualify as “prior felony convictions” that “counted as

part of the offender score under RCW 9.94A.525” for purposes of RCW 9.41.040(4)(a)(ii)(A).

     III. CONCESSION: NO PROOF OF COMPLIANCE WITH SENTENCING CONDITIONS REQUIRED

        Finally, the State concedes that Benson did not need to prove that he had complied with

the sentencing conditions because the disabling offenses were felonies. We agree.

        The provision requiring compliance with all sentencing conditions is found in RCW

9.41.040(4)(a)(ii)(B), which addresses nonfelony offenses. Benson’s convictions were for felony

offenses, so this provision does not apply. There is no requirement that the petitioner comply with

the sentencing conditions in the applicable subsection, RCW 9.41.040(4)(a)(ii)(A). Accordingly,

we accept the State’s concession on this issue.

        Accordingly, we hold that (1) Benson’s 2008 conviction for the class B second degree

robbery is not an automatic bar to restoration of firearm rights, (2) Benson’s other current

conviction is not a “prior felony conviction[]” that precluded restoration, and (3) there is no



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No. 50270-4-II


requirement that Benson comply with sentencing conditions. Thus, we reverse and vacate the

superior court’s order. But because nothing in our record shows that the superior court considered

any other factors related to the firearm restoration petition and the State has not shown that Benson

is not entitled to restoration under RCW 9.41.040(4)(a)(ii)(A), we remand this matter back to the

superior court for further proceedings consistent with this decision.



                                                     SUTTON, J.
 We concur:



LEE, A.C.J.




WORSWICK, J.




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