35 Wash. App. 62 | Wash. Ct. App. | 1983
On May 16, 1980, Johnie Lee Gore was charged with being a felon in possession of a firearm in violation of RCW 9.41.040.
Gore now argues that the reversal of his burglary conviction requires reversal of the firearms conviction. Specifically, Gore claims that, under State v. Swindell, 93 Wn.2d 192, 607 P.2d 852 (1980), an unconstitutional prior convic
In Swindell, the Washington Supreme Court's unanimous opinion held that the State has the burden of proving the constitutional validity of a prior guilty plea
Seven days before Swindell was filed, the United States Supreme Court decided Lewis v. United States, 445 U.S. 55, 63 L. Ed. 2d 198, 100 S. Ct. 915 (1980).
In [Burgett], this Court found that the subsequent conviction or sentence violated the Sixth Amendment because it depended upon the reliability of a past uncounseled conviction. The federal gun laws, however, focus not on reliability, but on the mere fact of conviction, ... in order to keep firearms away from potentially dangerous persons. . . . Enforcement of that essentially civil disability through a criminal sanction does not "support guilt or enhance punishment" ... on the basis of a conviction that is unreliable when one considers Congress' broad purpose. Moreover, unlike the situation in Burgett, the sanction imposed by § 1202(a)(1) attaches immediately upon the defendant's first conviction.
(Citation omitted.) Lewis, at 67.
Inasmuch as Lewis was decided just 1 week before Swin
Because a conflict between Lewis and Swindell still exists, we believe that it must be addressed. Based on our review of the two cases, we are persuaded by the public policy considerations enunciated in Lewis and recently reiterated in Dickerson v. New Banner Inst., Inc.,_U.S. _, 74 L. Ed. 2d 845, 103 S. Ct. 986 (1983).
In Lewis the Supreme Court noted Congress’ concern about the easy availability of firearms, especially to people who pose a threat to the community peace.
The Washington Legislature also has imposed a firearms disability on anyone who "has been convicted ... of a crime of violence". RCW 9.41.040. The scope of the restriction is broad. The plain language is not modified in any way to suggest an exception for felons with outstanding convictions on appeal, or convictions which might turn out to be invalid at some future date. The statute unequivocally imposes the disability on anyone "who has been convicted." If the plain meaning of RCW 9.41.040 is unambiguous, it is conclusive absent clear legislative intent to the contrary. See Dickerson, 103 S. Ct. at 990; Lewis, at 60. The Washington legislative history is silent. Laws of 1935, ch. 172, § 4, p. 599, amended by Laws of 1961, ch. 124, § 3, p. 1639 (adding second sentence).
We conclude that the language of the statute, coupled with the public policy concerns voiced by the United States
The judgment is affirmed.
Reconsideration denied July 13, 1983.
Review granted by Supreme Court October 21, 1983.
RCW 9.41.040 provides:
"No person who has been convicted in this state or elsewhere of a crime of violence, shall own a pistol or have one in his possession or under his control. Such person upon being convicted of a violation of this section shall be guilty of a felony and punished by imprisonment in the state penitentiary for not less than one year nor more than ten years."
Second degree burglary constitutes a "crime of violence" as used in RCW 9.41.040:
"'Crime of violence' as used in RCW 9.41.010 through 9.41.160 means any of the following crimes or an attempt to commit any of the same: Murder, manslaughter, rape, riot, mayhem, first degree assault, second degree assault, robbery, burglary and kidnaping." RCW 9.41.010.
We make no distinction between the use of prior guilty pleas and prior convictions in applying RCW 9.41.040.
In Lewis v. United States, 445 U.S. 55, 63 L. Ed. 2d 198, 100 S. Ct. 915 (1980), the predicate conviction was for breaking and entering with intent to commit a misdemeanor in violation of Fla. Stat. § 810.05 (1961). The court convicted Lewis upon a guilty plea entered without advice of counsel contrary to Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A.L.R.2d 733 (1963). Lewis did not appeal, he was never pardoned, and his conviction was never overturned. Although the prior conviction was subject to collateral attack on constitutional grounds, the court held the conviction itself was still disabling.
18 U.S.C. app. § 1202(a) (1976) reads in full:
*65 "Any person who—
" (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or
"(2) has been discharged from the Armed Forces under dishonorable conditions, or
"(3) has been adjudged by a court of the United States or of a State or any political subdivision thereof of being mentally incompetent, or
n (4) having been a citizen of the United States has renounced his citizenship, or
” (5) being an alien is illegally or unlawfully in the United States,
"and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both."
18 U.S.C. app. § 1201 (1976) provides:
The Congress hereby finds and declares that the receipt, possession, or transportation of a firearm by felons, veterans who are discharged under dishonorable conditions, mental incompetents, aliens who are illegally in the country, and former citizens who have renounced their citizenship, constitutes—
(1) a burden on commerce or threat affecting the free flow of commerce,
(2) a threat to the safety of the President of the United States and Vice President of the United States,
(3) an impediment or a threat to the exercise of free speech and the free exercise of a religion guaranteed by the first amendment to the Constitution of the United States, and
(4) a threat to the continued and effective operation of the Government of the United States and of the government of each State guaranteed by article IV of the Constitution.
The Supreme Court deferred to the Legislature's determination of convicted felons' potential for future criminal behavior and found rational the nexus between violent crime and possession of a firearm by a classification of potentially irresponsible people. Lewis, at 65-67.
The United States Supreme Court recognized an obvious exception to the lit