Pennsylvania State Police, Petitioner v. Michael Drake, Respondent
No. 235 C.D. 2022
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
October 30, 2023
HONORABLE ELLEN CEISLER, Judge
Submitted: September 13, 2023
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE ELLEN CEISLER, Judge HONORABLE LORI A. DUMAS, Judge
OPINION BY JUDGE CEISLER
FILED: October
Petitioner Pennsylvania State Police (PSP) appeals from the Office of the Attorney General‘s (OAG) February 17, 2022 order, through which an OAG administrative law judge (ALJ) reversed the PSP‘s denial of Respondent Michael Drake‘s (Drake) application for a license to carry a concealed firearm. After thorough review, we reversе in part, vacate in part, and remand this matter to the OAG for proceedings consistent with this opinion.
I. Background
On May 30, 2015, Drake was arrested in Folsom, California, and was charged with multiple crimes relating to violent acts he had perpetrated against the mother of his young son. Reproduced Record (R.R.) at 91a-92a, 96a-101a. Drake subsequently pled nolo contendere in the Superior Court of California, County of Sacramento (California Supеrior Court), to 1 misdemeanor count each of false imprisonment1 and unlawfully carrying a concealed firearm,2 and was sentenced on October 9, 2015, to 45 days in county jail, along with 258 hours of community service. Id. at 84a, 90a.
At some point thereafter, Drake moved to Pennsylvania. He then sought post-conviction relief by filing a petition for dismissal with the California Superior Court, which was granted on April 4, 2019, pursuant to
[Drake] is released from all penalties and disabilities resulting from the offense except as provided in [California] Penal Code sections 29800 and 29900 ... and [California] Vehicle Code section 13555. In any subsequent prosecution of [Drake] for any other offense, the prior сonviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or [criminal] information dismissed. The dismissal does not permit a person to own, possess, or have in his control a firearm if prevented by [California] Penal Code sections 29800 or 29900[.]
Id. at 105a.
On May 6, 2019, Drake applied for a license to carry a concealed firearm at the York County Sheriff‘s Office, which was denied when the Pennsylvania Instant Check System (PICS)4 indicated that Drake was legally prohibited from obtaining such a license. Id. at 2a, 70a. Drake then filed a PICS challenge with the PSP on May 14, 2019, which the PSP denied on June 26, 2019. Id. at 70a-77a. In doing so, the PSP explained that Drake‘s application had been denied because of his aforementioned false imprisonment conviction. Id. at 74a, 77a.
Shortly thereafter, Drake appealed the PSP‘s denial to the OAG, whereupon an OAG ALJ held an evidentiary hearing on July 12, 2021. The ALJ then took the matter under advisement and, on February 17, 2022, issued an order granting Drake‘s appeal. Id. at 1a. In the written adjudication that accompanied this order, the ALJ explained that he had made this ruling for two reasons. First, the California Superior Court‘s April 4, 2019 order, which set aside Drake‘s 2015 nolo contendere plea, meant that his false imprisonment conviction could not be considered a “conviction” for purposes of federal or Pennsylvania gun control law and, thus, could not impede Drake‘s ability to secure a license to carry a concealed firearm. Id. at 15a-18a. Second, the PSP had not established that Drake‘s situation involved a firearm that had moved in or affected interstate commerce, as the ALJ believed the PSP was required to do under both federal and state law. Id. at 18a. Accordingly, thе ALJ concluded that the PSP lacked a legally valid basis for denying Drake‘s application. Id. at 18a-19a. In response, the PSP appealed the OAG‘s order to our Court on March 17, 2022.
II. Discussion
The PSP offers three arguments for our consideration, which we summarize
The PSP‘s first argument hinges upon the interplay between California law, federal law, and Pennsylvania law. Per
It shall be unlawful for any person--
....
(9) whо has been convicted in any court of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
makes possession of a firearm unlawful when the following elements are sаtisfied: (1) a status element (here “[convicted in any court of a misdemeanor crime of domestic violence]“); (2) a possession element (to “possess“); (3) a jurisdictional element (“in or affecting commerce“); and (4) a firearm element (a “firearm or ammunition“).
Rehaif v. United States, 139 S. Ct. 2191, 2195-96 (2019). The FGCA also includes an exception to this rule, however, in that
[a] person shall not be considered to have been convicted of [a misdemeanor crime of domestic violence] for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
Upon reviewing this statutory language, as well as the factual record, the ALJ determined that Drake‘s false imprisonment conviction constituted a misdemeanor crime of domestic violence, but reasoned that the California Superior Court‘s set aside order had rendered that conviction a nullity. See R.R. at 16a-17a. Because of this, as well as the absence in the set aside order of any languagе that imposed firearms-related restrictions upon Drake, the ALJ concluded that Section 922(g)(9) of the FGCA did not bar Drake from possessing or acquiring a firearm and, consequently, that Drake was not prohibited by either Section 6105 or 6109 of the UFA from obtaining a permit to carry a concealed firearm. See id. at 14a-17a.
This conclusion is deeply flawed and rests upon the ALJ‘s misunderstanding of the aforementioned state and federal laws, as well as his disregard for how the meaning of “set aside” differs in each context. As just discussed, an individual‘s conviction for a misdemeanor crime of domestic violence does not qualify as a “conviction” for purposes of Section 921(a)(33)(B)(ii) of the FGCA “if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored[.]”
Helpfully, the United States Circuit Court for the Tenth Circuit already answered this very question in Wyoming ex rel. Crank v. United States, 539 F.3d 1236 (10th Cir. 2008).7 As the Crank Court explained,
[t]here are two possible interpretations for the phrase “expunged or set aside.” First, the use of the disjunctive “or” could indicate that Congress intended the two terms to have separate meanings. Second, Congress may have intended the two terms to have the same meaning and used separate terms merеly to avoid potential issues of terminology created by the varying language used in the different laws of the States.
Crank, 539 F.3d at 1244-45. The Tenth Circuit ruled that the second interpretation was the more reasonable one, concluding that
two aspects of the statute suggest that Congress intended both “expunged” and “set aside” to require that the state procedure completely remove all effects of the conviction at issue.
First, the plain meaning of “expunge” and “set aside” are nearly equivalent. Black‘s [L]aw [D]ictionary defines “expunge” as “[t]o erase or destroy.” Black‘s Law Dictionary (4th ed. 2004).[] Similarly, Black‘s defines “set aside” as
“to annul or vacate.” Id. Importantly for the context of [Section] 921(a)(33), both definitions require a complete removal of the effects of a conviction. Second, the structure of [Section] 921(a)(33)(B)(ii) suggests that Congress intended the terms to be interpreted equivalently. Thе first portion of the subsection lists four state actions that would remove firearm disability: expunging, setting aside, pardoning, or restoring civil rights. See id. The second portion of the subsection--which we label the “unless” clause--is apparently intended to parallel and to be coextensive with the first portion of that subsection, yet it addresses only three state actions: pardoning, expunging, or restoring civil rights. Id.
The absence of the term “set aside” suggests that Congress felt that “expungement” in the “unless” clause covered both “set asides” and “expungements.”
Id. at 1245 (footnote omitted). We agree with the Crank Court‘s reasoning and hold that, under Section 921(a)(33)(B)(ii) of the FGCA, the terms “expunged” and “set aside” are synonymous. Furthermore, like the Tenth Circuit, we conclude that, for purposes of this federal statute, a conviction for a misdemeanor crime of domestic violence is expunged or set aside only when the limitations that were imposеd upon the guilty individual as a result of that conviction are completely eliminated.
It follows from this, then, that unless a set aside order issued pursuant to
The PSP‘s next argument, that Drake waived the issue of whether the PSP had shown that the matter involved a firearm that had moved in or affected interstate commerce, is incorrect. Per
The PSP‘s final argument, that proof of a firearm‘s movement in or effect upon interstate commerce is not required to sustain a license denial under Pennsylvania law, is predicated upon a reading of the UFA that this Court has recently rejected. The PSP‘s assertion on this point relies upon its reading of
(c) Other persons.--In addition to any person who has been convicted of any offense listed under subsection (b), the following persons shall be subject to the prohibition of subsection (a):
....
(9) A person who is prohibited from possessing or acquiring a firearm under
18 U.S.C. § 922(g)(9) . If the offense which resulted in the prohibition under18 U.S.C. § 922(g)(9) was committed, as provided in18 U.S.C. § 921(a)(33)(A)(ii) (relating to definitions), by a person in any of the following relationships:
(i) the current or former spouse, parent or guardian of the victim;
(ii) a person with whom the victim shares a child in common;
(iii) a person who cohabits with or has cohabited with the victim as a spouse, parеnt or guardian; or
(iv) a person similarly situated to a spouse, parent or guardian of the victim;
then the relationship need not be an element of the offense to meet the requirements of this paragraph.
The PSP‘s preferred reading of Section 6105(с)(9) cannot carry the day, however, as this Court already rejected it in Madden. In that case, Madden applied to have the PSP return his firearm after he was convicted of disorderly conduct and had completed his sentence. Madden, 284 A.3d at 274-75. The PSP subsequently denied this application on the basis that Madden‘s conviction was for a misdemeanor crime of domestic violence, which triggered prohibitions against possession and ownership of a firearm under Section 922(g)(9) of the FGCA and Section 6105(c)(9) of the UFA. Id. at 275. Madden challenged the PSP‘s denial of his application to return his firearm, whereupon an OAG ALJ reversed the PSP‘s denial, on the basis that the PSP had failed to meet its burden under both of those statutes to prove that the at-issue firearm had moved in interstate commerce. Id. at 275. The PSP then appealed the ALJ‘s decision to this Court and, of relevance to this matter, argued that the plain language of Section 6105(c)(9) did not require proof of a firearm‘s travel in interstate commerce in order to trigger that statute‘s prohibition against firearm ownership and possession. Id. at 277. We disagreed, explaining that
[a]lthough we acknowledge the phrase “interstate commerce” is nowhere to be found within Section 6105 of the UFA, our plain language analysis does not end
there. We cannot ignore that Section 6105(c)(9) expressly imports the requirements of Sectiоn 922(g)(9) of the FGCA. Thus, the interstate commerce element is automatically triggered by Section 6105(c)(9) of the UFA. In other words, an individual cannot violate Section 6105(c)(9) of the UFA without violating Section 922(g)(9) of the FGCA. Accordingly, bound by the plain language of the UFA and the FGCA, proof of the interstate commerce element is required to satisfy a firearm application denial under Section 6105(c)(9) of the UFA.
Id. at 278. While the genesis of this matter differs from Madden, in that this case involves a firearms license application, the relevant statutory language is identical. Accordingly, just as in Madden, we hold that it was the PSP‘s burden under Section 6105(c)(9) to show that Drake‘s firearm moved in or affected interstate commerce.
Given that Madden was published in October 2022, it post-dated the ALJ‘s reversal of the PSP‘s license denial in this matter, the PSP‘s subsequent appeal to this Court, and the PSP‘s appellate brief. Thus, this reading of Section 6105(c)(9) and the burdens it imposes upon the PSP regarding proof of а firearm‘s travel in interstate commerce was not known to the PSP at any of these junctures. We therefore consider it prudent to remand this matter in part to the OAG, with instructions that the ALJ hold an evidentiary hearing that is limited to this issue, with the burden of proof placed upon the PSP,8 and then make necessary factual findings and legal conclusions thereafter. See Madden, 284 A.3d at 278-79 (remanding matter to OAG due to effect of Pennsylvania Supreme Court decision that hаd been published while the PSP‘s appeal to Commonwealth Court was pending resolution).
III. Conclusion
In light of the foregoing analysis, we reverse the OAG‘s February 17, 2022 order in part, vacate it in part, and remand this matter to the OAG for proceedings consistent with this opinion.
ELLEN CEISLER, Judge
Judge McCullough dissents and wishes to be so noted.
ORDER
AND NOW, this 30th day of October, 2023, it is hereby ORDERED that the Office of the Attorney General‘s (OAG) February 17, 2022 order is REVERSED IN PART, regarding its determination that the “set aside” of Respondent Michael Drake‘s (Drake) conviction in Californiа for false imprisonment expunged that conviction for purposes of Section 921(a)(33)(B)(ii) of the Federal Gun Control Act,
Jurisdiction relinquished.
ELLEN CEISLER, Judge
Notes
In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other casе in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if they are not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw their plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if they have been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which they have been convicted, except as provided in Section 13555 of the [California] Vehicle Code. The probationer shall be informed, in their probation papers, of this right and privilege and the right, if any, to petition for a certificate of rehabilitation and pardon. The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing. However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve them of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.
(2) Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have custody or control of any firearm or to prevent conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6 [of the California Penal Code].
Former