State v. ThomasState v. Thomas
Robert Lee Thomas appeals from a judgment and sentence entered following a trial to the court on stipulated facts finding him guilty of a violation of
Robert Lee Thomas pleaded guilty to second degree assault and was given a suspended sentence оn October 3, 1972. Nearly 6 years later, on February 14, 1978, the King County Superior Court, pursuant to
On March 30, 1981, police received reports that Thomas was making threats against his ex-girlfriend. He had called her threatening to drive to her house and shoot her. Police officers dispatched to the area arrested Thomas as he drоve by her house. A search of Thomas disclosed a loaded .25
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caliber automatic pistol and a knife. Thomas was charged with a violation of
Thomas' appeal presents this question: may a prior assault conviction be used as the essential predicate to prove a violation of
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At the outset, we note that the proceeding under
The court in granting prоbation, may suspend the imposing or the execution of the sentence and may direct that such suspension may continue for such period of time, not exceeding the maximum term of sentence, except as hereinafter set forth and upon such terms and conditions as it shall determine.
Every defendant who has fulfilled the conditions of his probation for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof, may at any time prior to the expiration of the maximum period of punishment for the offense for which he has been convicted be permitted in the discretion of the court to withdraw his plea of guilty and enter a plea of not guilty, or if he has been convicted after a plea of not guilty, the сourt may in its discretion set aside the verdict of guilty; and in either case, the court may thereupon dismiss the information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted. The probationer shall be informed of this right in his probation papers: Provided, That in any subsequent prosecution, for any other offense, such prior conviction may be pleaded and proved, and shall have the same effect as if probation had not been granted, or the information or indictment dismissed.
*165 Upon termination of any suspended sentence underRCW 9.92.060 or 9.95.210, such person may apply to the court for restoration of his civil rights. Thereupon the court may in its discretion enter an order directing that such defendant shall thereafter be released from all рenalties and disabilities resulting from the offense or crime of which he has been convicted.
While
The legislative history of
We believe prior court decisions have established that one purpose for which a conviction may be used despite proceedings under
Furthermore, the Ninth Circuit Court of Appeals has concluded that removal of legal restrictions under
Contrary to the view expressed in [United States v.] Hoctor, [487 F.2d 270 (9th Cir. 1973) 5 ] the statute does not operate absolutely to erase a conviction for all pur *167 poses. True, the enacting clause does speak оf the release of a defendant "from all penalties and disabilities resulting from the offense or crime of which he has been convicted." But the breadth of this remission is limited by a proviso in the statute which reads:
"Provided, That in any subsequent prosecution, for any other offense, such prior conviction may be pleaded and proved, and shall have the same effect as if probation had not been granted, or the information or indictment dismissed."
The Washington appellate courts, on several occasions when called upon to construe the statute, have noted the effect of the proviso upon a conviction and its use. Thus in Matsen v. Kaiser,74 Wash.2d 231 ,443 P.2d 843 (1968), a majority of the justices of the Supreme Court of Washington, speaking of the benevolent public policy underlying the statute, were careful to qualify their brоad statement by noting that "[t]he only exception to the statutory release of all penalties and disabilities attendant upon a conviction is found in the proviso, which is not applicable in the instant case."74 Wash.2d at 237 ,443 P.2d at 847 (emphasis in original). And the dissenter added his comment that expunction effected only a '"partial erasurе' because, as the majority points out, the guilty plea will count as a conviction in any subsequent prosecution."74 Wash.2d at 241 ,443 P.2d at 849 .
Similarly, in Tembruell v. Seattle,64 Wash.2d 503 ,392 P.2d 453 (1964), the Supreme Court of Washington, in the course of an opinion construing a police pension statute, declared that the police officer's
"plea of guilty to grand larceny, coupled with his award of probation and the subsequent dismissal of the information, do not add up to a conviction of felony within the intendments of the police pension statute (RCW 41.20.110 ), even though this sequence of events might be speсially considered by the court as a prior conviction in a later criminal action.RCW 9.95 -.240."64 Wash.2d at 510 ,392 P.2d at 457 .
And in State v. Knott,6 Wash.App. 436 ,493 P.2d 1027 (1972), a decision not called to our attention at the time Hoctor was submitted, the Court of Appeals of Washington held that the statute operated to restore a defendant's civil rights but, because of the proviso, did not *168 obliterate the faсt of Knott's conviction and that such conviction was properly shown to impeach his credibility in his subsequent criminal prosecution. A fortiori, we believe that the prior conviction may be "pleaded and proved" where, as here, it is an essential element of a subsequent crime.
(Footnotes omitted.) Potts, at 885.
Although
Potts
considered the effect of
We also find supportive a recent United States Supreme Cоurt decision. In
Dickerson v. New Banner Inst., Inc.,
— U.S__,
Finally, we believe this decision accomplishes the primary objective of
We note that both features of the expunction statute— the restoration of a defendant's civil rights and the use of the expunged conviction should such person thereafter be prosecuted for any offense—serve the rehabilitative ideal underlying the statute. The former relieves a defendant of an impediment to his speedy and effective reassimilation as a useful member of society, while the latter acts as a deterrent to recidivism.
In sum, we conclude that proceedings under
Applying this rule to the present case, we hold that the trial court properly relied upon the prior conviction in finding Thomas guilty of a violation of
Affirmed.
Notes
"Certain persons forbidden to possess arms. No person who has been convicted in this state or elsewhеre 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 thаn one year nor more than ten years."
The February 14, 1978 order which terminated the suspended sentence provides in pertinent part as follows:
it is ordered that the defendant Robert Lee Thomas be discharged from probation and his civil rights be restored;
It Is Further Ordered, Adjudged and Decreed that the petitioner in the above-entitled case be, and hereby is discharged from further attendance herein and is relieved from all penalties and disabilities resulting from the imposition of the judgment and sentence dated 10/3/72.
As originally passed by the Hоuse, the bill included a section reading:
"New Section. Sec. 3. In all cases prior to the effective date of this act wherein a person has been granted probation in which the execution of sentence has been suspended pursuant to
Potts was charged under a federal statute.
In Potts, at 884 n.2, the court explained the reason for the decision in Hoctor:
"The
Hoctor
panel may have been misled by an opinion of the Washington State Attorney General, 1969 AGO No. 5, which relied heavily on
People v. Taylor,