State v. RadanState v. Radan
In 1987, Richard A. Radan (Radan) was convicted of felony first degree theft in the state of Montana. After serving a portion of his sentence, Radan was granted an early discharge from supеrvision and pursuant to Montana law, all of Radan‘s civil rights, including his right to possess firearms, were automatically restored. Subsequently, Radan was charged under
Radan moved to dismiss, arguing that because his right to possess firearms was fully restored in Montana, he could not be charged under Washington law as a felon in possession of a firearm. The Superior Court granted the motion and the State appeаled. The Court of Appeals reversed. State v. Radan, 98 Wash.App. 652, 990 P.2d 962 (1999). Radan petitioned this Court for its review. We reverse.
FACTS
The facts underlying Radan‘s Montana conviction are not in dispute. In 1987, Radan was convicted of felony first degree theft. In 1989, Radan‘s supervision was transferred to Washington State. In February 1994, Radan‘s Washington parole officer recommended, and Radan received, an early discharge from supervision by the State of Montana. As a result of his discharge and in accord with Montana law, Radan‘s civil rights, including his right to bear arms, were automatically restored by Montana. Upon his discharge Radan received a form letter from the Washington Department of Corrections stating:
Congratulations, enclosed is an Order of Discharge signed by the Superior Court.... This Order signifies that you have successfully completed all sentence requirements. The Court has restored your rights to vote and hold public office. You must still contact the Bureau of Alcohol, Tobacco and Firearms to apply for restoration of your right to bear firearms.
Pet. for Review, ex. B.
On September 4, 1997, two deputy sheriffs were dispatched to Radan‘s home in Pend Oreille County. The officers were responding to a report by Radan that there was a prowler on his property. When the officers arrived on the call, Radan was wearing a holster with a handgun. During the course of the investigation, Radan indicated he also possessed a rifle in his home.
Officers learned that Radan had a 1987 felony conviction for first degree theft in the state of Montana. Based upon this information a search warrant was obtained and executed for Radan‘s residence on September 9, 1997. During the search, two firearms were discovered: a .44 magnum handgun and a 7.65 caliber rifle. In a letter dated September 15, 1997, the Montana Department of Corrections informed the sheriff in Newport that Radan had been “successfully discharged from supervision” and that per Montana law his “full rights [were] restored upon termination of [the] offense....” Pet. for Review, ex. C. The Pend Oreille County prosecutor nevertheless charged Radan by information under
Radan filed a motion in Superior Court to dismiss. The court granted the motion, finding that because Radan‘s civil rights were automatically and fully restored in Montana he could not be prosecuted as a felon in possession of a firearm in Washington. The State appealed and in a published opinion the Court of Appeals (Division Three), reversed,
ANALYSIS
Radan does not dispute that Washington may “regulate the possession of firearms within its border.” Resp. Br. at 7. Radan was charged under
a plea of guilty has been accepted, or a verdict of guilty has been filed, notwithstanding the pendency of any future proceedings including but not limited to sentencing or disposition, post-trial or post-factfinding motions, and appeals. Conviction includes a dismissal entered after a period of probation, suspension or deferral of sentence, and also includes equivalent dispositions by courts in jurisdictions other than Washington state.
The principal arguments advanced by Radan in this case center on the fact that, in so far as Montana law is concerned, he has been free to possess firearms since at least 1994. Under Montana law, “[c]onviction of an offense does not deprive the offender of a civil or constitutional right, except as provided in the Montana constitution or as specifically enumerated by the sentencing judge.”
Section 28. Rights of the convicted. Laws for the punishment of crime shall be founded on the principles of prevention and reformation. Full rights are restored by termination of state supervision for any offense against the state.
The Montana Criminal Code further provides that
[e]xcept as provided in the Montana constitution, if a person has been deprived of a civil or constitutional right by reason of conviction for an offense and the person‘s sentence has expired or the person has been pardoned, the person is restored to all civil rights and full citizenship, the same as if the conviction had not occurred.
A person shall not be precluded from possession of a firearm if the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted or the conviction or disposition has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
Radan first argues that Montana‘s automatic restoration of his civil rights is an
In construing a statute, this Court‘s primary objective is to ascertain and give effect to the intent of the Legislature. Cherry v. Municipality of Metro. Seattle, 116 Wash.2d 794, 799, 808 P.2d 746 (1991). If a statute is unambiguous this Court is required to apply the statute as written and “‘assume that the legislature mean[t] exactly what it says.‘” In re Custody of Smith, 137 Wash.2d 1, 9, 969 P.2d 21 (1998) (quoting State v. McCraw, 127 Wash.2d 281, 288, 898 P.2d 838 (1995)). The rule of lenity provides that if a criminal statute is ambiguous, it is to be interpreted in favor of the defendant. Lively, 130 Wash.2d at 14, 921 P.2d 1035. If a statute is unambiguous, however, the rule of lеnity is inapplicable. State v. McGee, 122 Wash.2d 783, 787, 864 P.2d 912 (1993); Chapman v. United States, 500 U.S. 453, 463-64, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991).
We agree with the Court of Appeals that
Nor does Radan cite any authority supporting his interpretation. In fact, although neither party, nor the Court of Appeals, has addressed the point, the language used in
Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted ... or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
The federal counterpart to this rule,
Federal courts have consistently reached the conclusion that for a “pardon, annulment, certificate of rehabilitation, or other equivalent procedure” to bar use of a criminal conviction for impeachment purposes there must be an actual finding that the person convicted has been rehabilitated. Zinman v. Black & Decker, Inc., 983 F.2d 431 (2d Cir. 1993). For instance, in Wilson v. Attaway, 757 F.2d 1227 (11th Cir.1985), the eleventh circuit, in determining whether a conviction under Georgiа‘s first time offender statute could be used for impeachment, stated:
The Georgia First Offender statute, as enacted at time of trial, authorized the court to place on probation a defendant who pleads guilty “without entering a judgment of guilt.”
Nevertheless, the statute does not provide for rehabilitation within the meaning of
Rule 609(c) .
Id. at 1244 (citations omitted).
According to the court,
A similarly instructive case is United States v. Wood, 943 F.2d 1048 (9th Cir.1991), which involved the interplay of Montana law and
“Whenever the court has deferred the imposition of sentence and after termination of the time period during which imposition of sentence has been deferred, upon motion of the court, the defendant, or the defendant‘s attorney, the court may allow the defendant to withdraw his plea of guilty or may strike the verdict of guilty from the record and order that the charge or charges against him be dismissed.... After the charge is dismissed, all records and data relating to the charge are confidential criminal justice information.”
Id. at 1055 (quoting
Even though the above statute requires judicial discretion, the Woods court held that this was not an “other equivalent procedure based on a finding of the rehabilitation of the person convicted.”
Radan next contends that
What cоnstitutes a conviction of such crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungment, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
Unlike
Radan apparently fails to recognize that
Radan‘s final contention is that this Court should look beyond the automatic restoration of rights conferred by Montana law and look to the specific facts related to his “early” discharge from supervision. Radan was granted early discharge based upon
(6)(a) Upon recommendation of the probatiоn and parole officer, a judge may conditionally discharge a probationer from supervision before expiration of the probationer‘s sentence if:
(i) the court determines that a conditional discharge from supervision:
(A) is in the best interests of the probationer and society; and
(B) will not present unreasonable risk of danger to the victim of the offense[.]
The letter from the Montana Department of Corrections recommending Radan‘s early discharge indicates that the recommendation was based in part on the following facts: (1) Radan had no new arrests; (2) he had paid his restitution; and (3) he did not wish to return to Montana. However, more important is the fact that the statute authorizing Radan‘s early discharge requires a finding that a conditional discharge frоm supervision is in the best interests of the probationer and society and “will not present unreasonable risk of danger to the victim of the offense.”
Accordingly, we reverse the Court of Appeals and affirm the trial court‘s order of dismissal.
CONCLUSION
We hold that Montana‘s automatic restoration of civil rights provision does not exempt Radan from charges under
ALEXANDER, C.J., SMITH, J., JOHNSON, J., SANDERS, J., concur.
TALMADGE, J.* (dissenting).
I agree with the majority that
In enacting
No individualized assessment of innocence or rehabilitation occurred in Radan‘s case. He was not innocent. Moreover, he was not rehabilitated, as that term is understood in Washington. The early discharge letter from Montana‘s Department of Corrections stated only that Radan had no new prior arrests; he paid his restitution; and he did not want to return to Montana. While Montana‘s early release statute contemplates such early release may only occur if “a conditional discharge from supervision: (A) is in the best interests of the probationer and society; and (B) will not present unreasonable risk of danger to the victim of the offense,”
Ironically, if Radan had committed his crimes in Washington, his situation would be entirely different from what the majority now determines to be the law for Montana citizens with criminal histories residing in Washington.
In Washington, any felony conviction automatically results in the loss of the right to bear arms, whether or not the judgment so states.
Had Radan‘s theft conviction been entered in Washington, he would immediately have lost his right to bear arms, and the automatic restoration of civil rights upon completion of probation or parole would not permit him to possess firearms. He could petition the court to have his right to possess firearms restored,
The majority distorts the plain language of
GUY, J.P.T., BRIDGE, J., IRELAND, J., concur.