           IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



STATE OF WASHINGTON,
                                                No. 75441-6-I
                    Appellant,
                                                DIVISION ONE
      V.
                                                ORDER WITHDRAWING AND
EDGAR DENNIS, III                              'AMENDING OPINION

                    Respondent.

      IT IS HEREBY ORDERED that the opinion of this court in the above-entitled case filed

on September 11, 2017 is withdrawn and replaced with the amended opinion filed on October

2,2017.

      SO ORDERED.



                                  FOR THE COURT




                                  Presiding Judge




                                                                                     CZ
                                                                                                ci
                                                                                             C:1•-•
                                                                  F!LE."0
                                                          COURT OF Pk ppu.Ls Dr!
                                                           STATE OF V:AS:-11::IL!

                                                           HP OCT -2 PM 1: 01


      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



STATE OF WASHINGTON,
                                                  No. 75441-6-1
                     Appellant,
                                                  DIVISION ONE
       V.
                                                  AMENDED
EDGAR DENNIS, III                                 PUBLISHED OPINION

                     Respondent.                  FILED: October 2, 2017

       SPEARMAN, J. — To petition for restoration of firearm rights, RCW

9.41.040(4)(a)(ii)(A) requires five or more consecutive years in the community

without a conviction. After losing his right to possess a firearm, Edgar Dennis III

had no criminal convictions for 16 years. But in 2014, he was convicted of a

misdemeanor. In 2016, he petitioned for restoration of his firearm rights, but the

superior court denied the request. The court found that due to Dennis's 2014

conviction, he had not been without a conviction for the time period required by

the statute.

       On appeal, Dennis argues that because RCW 9.41.040(4)(a)(ii)(A) is

ambiguous, we must apply the rule of lenity. Under that rule, he urges us to

construe the statute such that any consecutive five year period without a criminal

conviction is sufficient to satisfy the statute, even if the petitioner has one or more

misdemeanor convictions within five years of filing the petition. We decline to

apply the rule of lenity in this case because the rule is only applicable when
No. 75441-6-1/2

ambiguity remains after engaging in traditional methods of statutory

interpretation. That is not the case here. Properly construed, RCW

9.41.040(4)(a)(ii)(A) reflects the legislature's intent to require at least five

consecutive conviction-free years immediately preceding a petition for restoration

of firearm rights. We affirm.

                                            FACTS

        Edgar Dennis III was convicted of second degree robbery, third degree

assault, and two counts of felony violation of the Uniform Controlled Substances

Act in 1991. As a result, he was disqualified from possessing a firearm. In 1998,

Dennis was convicted of third degree assault. After serving his sentence, Dennis

lived in the community for over 15 years without a conviction of any kind. Then in

2014, he was convicted of first degree negligent driving.1

        In April 2016, Dennis petitioned the superior court to reinstate his right to

possess a firearm. To restore firearm rights, RCW 9.41.040(4)(a)(ii)(A) requires

five or more consecutive years in the community without a criminal conviction. In

his petition, Dennis did not disclose his negligent driving conviction. The State

objected to the petition and apprised the court of Dennis's recent misdemeanor.

The State argued that Dennis's five-year conviction-free period must immediately

precede his petition for restoration. The superior court denied Dennis's petition

and motion for reconsideration. He appeals.




       'A conviction for first degree negligent driving (a misdemeanor offense) does not
disqualify a person from possessing a firearm. See RCW 9.41.040(1)(2). However, once the
firearm rights are lost, a conviction of any offense, including a misdemeanor, may preclude the
restoration of that right. See RCW 9.41.040(4)(a)(ii).

                                                2
No. 75441-6-1/3

                                        DISCUSSION

        Dennis argues that the trial court erred by denying his petition to restore

firearm rights. Relying on Payseno v. Kitsap County, 186 Wn. App. 465, 346 P.3d

784(2015), he contends that RCW 9.41.040(4)(a)(ii)(A) is ambiguous as to

whether he must have no convictions for five years immediately preceding the

petition for restoration and that the rule of lenity requires us to strictly construe

the statute in his favor. In Payseno, Division II of our court found that RCW

9.41.040(4)(a)(ii)(A) was ambiguous and that the legislative intent of the statute

was unclear, even after resort to rules of statutory construction. The court applied

the rule of lenity and strictly construed the statute in favor of the defendant. It

held that any consecutive five year conviction-free period after the disqualifying

crime satisfied the statute, even if the five year period immediately preceding the

petition was not conviction free. Dennis urges us to follow Payseno.2 The State

contends Payseno is incorrectly decided and that we should decline to follow it.

        The meaning of a statute is a question of law that we review de novo.

Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9,43 P.3d 4(2002).

When possible, we derive the legislative intent of a statute solely from the plain

language enacted by the legislature, 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,


        2 Dennis cites In re Per. Restraint of Eddie D. Arnold, 198 Wn. App. 842, 396 P.3d 375
(2017)for its holding that we are bound by horizontal stare decisis to the decisions of our sister
divisions. We respectfully disagree that Payseno dictates our holding in this case. Grisby V.
Herzog, 190 Wn. App. 786, 808-811, 362 P.3d 763(2015).(The doctrine of stare decisis does not
preclude one panel from the court of appeals from stating a holding that is inconsistent with
another panel within the same division.)

                                                3
No. 75441-6-1/4

192, 298 P.3d 724(2013)(citing State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d

354 (2010)). If more than one interpretation of the plain language is reasonable,

then the statute is ambiguous and we must construe it. Id. We may then rely on

rules of statutory construction, legislative history, and relevant case law to

discern legislative intent. Ervin, 169 Wn.2d at 820. If, after applying rules of

statutory construction, we conclude that a statute remains ambiguous, "'the rule

of lenity requires us to interpret the statute in favor of the defendant absent

legislative intent to the contrary." City of Seattle v. Winebrenner, 167 Wn.2d 451,

462, 219 P.3d 686(2009)(quoting State v. Jacobs, 154 Wn.2d 596, 601, 115

P.3d 281 (2005)). Thus, we will interpret an ambiguous penal statute adversely to

the defendant only if statutory construction "clearly establishes" that the

legislature intended such an interpretation. Id. The rule of lenity applies to

statutes governing post-conviction proceedings. State v. Slattum, 173 Wn. App.

640, 658, 295 P.3d 788(2013).

       A person who loses his firearm rights as a result of a criminal conviction

may petition for restoration of that right under certain circumstances. When

considering a petition for restoration, the superior court's function is ministerial,

not discretionary: it grants the petition once the petitioner has satisfied the

requirements. State v. Swanson, 116 Wn. App. 67, 69,65 P.3d 343(2003).

Among other requirements, a petitioner must have five or more consecutive

years in the community without a conviction:

       [I]f a person is prohibited from possession of a firearm...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

                                          4
No. 75441-6-1/5

       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 or finding of not guilty by reason of
      insanity was for a felony offense, after 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, 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. ...

RCW 9.41.040(4)(a)(emphasis added). The parties dispute whether the five

consecutive conviction-free years must immediately precede the petition.

       We begin with whether RCW 9.41.040(4)(a)(ii)(A) is ambiguous."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). After Dennis's 1998 disqualifying conviction, he

had no additional convictions until 2014. Thus, Dennis had gone "five or more

consecutive years" without being convicted of or "currently charged" with any

criminal offense. RCW 9.41.040(4)(a)(ii)(A). But, because of his 2014 conviction,

Dennis had not been conviction free for at least five years prior to filing his

petition for restoration of his firearms right. On these facts, RCW

9.41.040(4)(a)(ii)(A) can reasonably be interpreted to require the conviction-free

period to immediately precede Dennis' petition. It can also be interpreted to allow

the conviction-free period to occur at any time prior to his petition. We conclude

the statutory provision at issue is ambiguous.




                                          5
No. 75441-6-1/6

       We next determine whether statutory construction clearly establishes

legislative intent that the conviction-free period must immediately precede the

petition to restore firearms rights. We first turn to the legislative history of RCW

9.41.040:

      In 1994, RCW 9.41.040 was reenacted and amended. 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.(Emphasis added).
      (Footnotes omitted).

Payseno, 186 Wn. App. at 471-72. The Pavseno court reasoned that these

statements of purpose were general and did not help resolve the timing of the

five year conviction-free period. But the State argues that there is meaning in the

legislative finding that current law does not sufficiently stigmatize the use of       )

firearms by criminals. We agree. The finding expresses that the Act was intended

to keep guns out of the hands of criminals who continue to commit crimes,

including offenses that do not themselves disqualify firearm possession. A

person who has committed a disqualifying criminal offense and who continues to

commit crimes falls squarely within the scope of this stated purpose. This

supports the State's position that a person already convicted of a disqualifying




                                          6
No. 75441-6-1/7

offense and who has, within five years preceding his petition, been convicted of

another crime, may not have his firearms right restored.

       The original text of the firearm restoration provision also supports the

State's interpretation. When enacted, it 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 RCW 9.94A.360 [recodified as
       RCW 9.94A.525(LAWS OF 2001, CH. 10,§ 6)].

Initiative 159,§ 16, at 461, 54th Leg., Reg. Sess.(Wash. 1995). A natural

reading of the original phrasing is that one may petition after completing a

conviction-free period of at least five years. Later amendments changed the

application of this provision and obscured this meaning. In 1996, the legislature

amended the provision so that it applied specifically to felons.3 In 2005, it was

amended to include people found guilty by reason of insanity. SUBSTITUTE H.B.

1687, 59th Leg., Reg. Sess.(Wash. 2005); SUBSTITUTE H.B. 2420, 54th Leg.,

Reg. Sess.(Wash. 1996) But these amendments did not alter the timing

applicable to the five year conviction-free period. The original text indicates that

the legislature intended for a petitioner to come to court with clean hands after at

least five conviction-free years.

       Relying on City of Federal Way v. Koenig., 167 Wn.2d 341, 348, 217 P.3d

1172(2009), Dennis argues that other subsequent legislative history shows that


       3 The amendment also provided that persons convicted of disqualifying non-felony
offenses were subject to a three year conviction-free period.

                                              7
No. 75441-6-1/8

the legislature has implicitly assented to Payseno. In that case, our Supreme

Court stated its presumption "that the legislature is aware of judicial

interpretations of its enactments and takes its failure to amend a statute following

a judicial decision interpreting that statute to indicate legislative acquiescence in

that decision." Id. at 348 (citing Soproni v. Polygon Apartments Partners, 137

Wn.2d 319, 327 n.3, 971 P.2d 500 (1990)). But legislative acquiescence is not

decisive here for several reasons.

       First, Koenig is distinguishable because in that case there were 23 years

of legislative inaction following a judicial interpretation of a statute. Here, a mere

two years has passed since Payseno was decided. See State v. Coe, 109 Wn.2d

832, 846, 750 P.2d 208(1988)("The Legislature is deemed to acquiesce in the

interpretation of the court if no change is made for a substantial time after the

decision.") Second, while in the time since Payseno was decided in 2015, the

legislature has amended RCW 9.41.040 without clarifying the ambiguity, the

amendments addressed technical matters unrelated to the issue in this case.4

And third, even where evidence of legislative acquiescence is found, it "is not

conclusive, but is merely one factor to consider" when interpreting a statute.

Safeco Ins. Companies v. Mevering, 102 Wn.2d 385, 392,687 P.2d 195(1984)

(citing Somer v. Woodhouse, 28 Wn. App. 262, 270,623 P.2d 1164 (1981)). In

light of these considerations, Dennis's legislative acquiescence argument is

unpersuasive.



       4 In 2016 and 2017, it amended chapters with bills respectively entitled "Juvenile
Offenders — Rehabilitation and Reintegration" and "Sexual Assault Protection Orders — Duration —
Renewal — Modification", which changed discrete provisions related to juvenile offenders and

                                               8
No. 75441-6-1/9

       While legislative history does not definitively resolve the statutory

interpretation question before us, it tends to support that the conviction-free

period must immediately precede the petition.

       We next consider any applicable rules of statutory construction. When we

construe a statute, "'a reading that results in absurd results must be avoided

because it will not be presumed that the legislature intended absurd results."

State v. J.P., 149 Wn.2d 444, 450,69 P.3d 318(2003)(quoting State v. Delgado,

148 Wn.2d 723, 733, 63 P.3d 792(2003)). Additionally, "'[s]tatutes must be

interpreted and construed so that all the language used is given effect, with no

portion rendered meaningless or superfluous.' Id. (quoting Davis v. Dep't of

Licensing, 137 Wn.2d 957, 963, 977 P.2d 554(1999)).

       The State argues that Dennis's interpretation allows a person convicted of

hundreds of misdemeanors after a five year conviction-free period to recover his

or her firearm rights. Dennis disputes that this is an absurd result. He argues that

such was the intent of the legislature when it determined that a misdemeanor

conviction for crimes would not result in the loss of firearm rights. We reject

Dennis's argument because it addresses a different circumstance than that at

issue in this case. Here, we are not concerned with whether a person should lose

the right to possess a firearm, but whether a person, having lost that right, should

have it restored. And the legislature has clearly stated that a misdemeanor

conviction is sufficient to preclude restoration of that right.



sexual assault protection orders. ENGROSSED SUBSTITUTE H.B. 2906, 64th Leg. Reg. Sess.
(Wash. 2016); ENGROSSED SUBSTITUTE S.B. 5256, 65th Leg. Reg. Sess.(Wash. 2017).

                                           9
No. 75441-6-1/10

        We agree with the State that it makes no sense to interpret the statute to

allow reinstatement of a person's firearms right when, in the five years preceding

the petition, the person has shown an inability to live in society without

committing any crimes. That person, after all, bears the burden of proving they

are capable of living a crime free life in order to regain their firearms right. It

would be illogical to conclude that the legislature intended that a petitioner with

recent convictions could meet this burden just because he or she had previously

managed five years without one.

       The State argues that there are additional absurd results in light of the

requirement that a petitioner not have any "current charges". The State proposes

the example of a person who goes five years without a criminal conviction after

losing firearm rights. Then, he is charged with a misdemeanor or non-

disqualifying gross misdemeanor crime. While that charge is pending, RCW

9.41.040(4)(a)00(A) prevents him from petitioning for restoration. But under

Dennis's interpretation, he can petition for restoration the moment he is convicted

of the crime. Dennis contends that it is not an absurd result because pending

charges may be amended upward, so the charge may not reflect the

dangerousness of the defendant. While this is true, the result of Dennis's

interpretation is still to penalize a charged person more harshly than a convicted

person.5 Given the constitutional right to gun possession, we agree with the State




        5 Inaddition, we note that if the concern is the dangerousness of the person whose
charges  might be enhanced, imposing pre-trial release conditions related to possession of
firearms addresses such a concern more precisely.

                                              10
No. 75441-6-1/11

that it is unlikely that the legislature intended to deprive a person who is merely

accused of a crime, only to relieve the prohibition upon conviction.

       Giving effect to all the statutory language also supports the State's

interpretation. The State argues for meaning in the words "or more" of the

requirement that an individual have five or more consecutive crime-free years.

Under Dennis's interpretation, the words "or more" would merely clarify that a

person can petition the court for firearms restoration even if they spent six,

seven, or nine years in the community without a conviction. This hardly needs

clarifying, so Dennis's interpretation does not give effect to words "or more." We

agree with the State that properly construed the term "five or more consecutive

years" defines the period of time immediately before the petition is filed as the

time when a petitioner must be conviction free in order for firearm rights to be

restored.

       The State also compares the "five years or more" language to the washout

provision of the Sentencing Reform Act, chapter 9.94A RCW, which does not say

"or more." Under the washout provision, a Class C Felony is not counted toward

an offender score if "the offender spent five years in the community without

committing any crime that subsequently results in a conviction." Former RCW

9.94A.525(2)(c)(2016). Comparing these two sections, the State argues that if

the Legislature intended to allow firearm restoration after any five year period,

they would have written RCW 9.41.040(4)(a)(ii)(A) like they did in RCW

9.94A.525. But by including the words "or more", the legislature must have

intended those words to have some effect. Dennis's interpretation gives those


                                         11
No. 75441-6-1/12

words no effect because it makes the restoration provision operate similarly to

the washout provision. It would restore firearm rights simply by the passage of a

minimum of five conviction-free years. But to give effect to the words "or more",

we agree with the State that the required conviction-free period includes a

minimum of five years plus whatever additional time precedes the filing of the

petition to restore firearm rights.

       Based on our review of the legislative history of RCW 9.41.040(4)(a)(ii)(A)

and application of the rules of statutory construction, we conclude the legislature

intended the statute to require that a petition for restoration of firearm rights must

be immediately preceded by five or more consecutive conviction-free years.

Because the legislative intent is discernible, we need not apply the rule of lenity.

We conclude that the trial court did not err in denying Dennis's petition for

firearms restoration.

       Affirmed.




WE CONCUR:




                                          12
