Rivard v. State Of Wash.

• Decision Date: 06 May 2010
• Docket Number: No. 82431-2.,82431-2.
• Court: Washington Supreme Court
• Parties: James Douglas RIVARD, Petitioner,v.STATE of Washington, Respondent.

168 Wash.2d 775

231 P.3d 186

James Douglas RIVARD, Petitioner,v.STATE of Washington, Respondent.

No. 82431-2.

Supreme Court of Washington En Banc.

Argued March 16, 2010.

Decided May 6, 2010.

Julia Anne Dooris, Gemberling & Dooris, P.S., Spokane, WA, for Petitioner.

Andrew J. Metts, III, Spokane County Prosecutor's Office, Spokane, WA, for Respondent.

C. JOHNSON, J.

¶ 1 This case asks us to determine whether individuals are eligible to own or possess firearms under RCW 9.41.040 if they were convicted of vehicular homicide before the 1996 legislative reclassification of that crime from a class B to a class A felony. The trial court, concluding that the reclassification had no retroactive effect, restored the petitioner's right to possess firearms. The Court of Appeals reversed and concluded that the petitioner was ineligible to possess firearms. We reverse the Court of Appeals.

Factual and Procedural History

¶ 2 In February 1994, James Rivard was charged by information with vehicular homicide as a result of an accident that occurred in December 1993. Rivard ultimately pleaded guilty to the charge on June 20, 1997. The trial court sentenced Rivard as a first time offender to 90 days' partial confinement and two years of supervised release. The trial court's sentence also erroneously prohibited Rivard from owning or possessing a firearm unless and until his right to do so was restored.¹ The trial court ordered Rivard's discharge on November 30, 1999. Other than his vehicular homicide conviction, Rivard (as of 2006) had no criminal history.

¶ 3 In September 2006, Rivard petitioned for the restoration of his right to possess firearms. By this time, the statute prohibiting certain persons from owning or possessing a firearm, RCW 9.41.040, had been amended. In 1993, when Rivard committed his crime, the statute prohibited firearm possession only by those convicted of a “crime of violence” or other felonies involving a firearm. Former RCW 9.41.040(1) (1992). Because Rivard's crime (vehicular homicide) did not qualify as a crime of violence, the statute in place in 1993 did not prohibit him from possessing firearms. Former RCW 9.41.010(2) (1992). By the time of his petition in 2006, however, the relevant statutes had been amended to prohibit possession by anyone convicted of a “serious offense,” which included vehicular homicide. RCW 9.41.040(1)(a); ² former RCW 9.41.010(12)( l ) (2001). The current unlawful possession statute contains an additional provision that may permit an individual otherwise prohibited from possessing firearms to restore his right to do so, provided that he has not been convicted of either a sex offense or a class A felony. RCW 9.41.040(4). At the time of Rivard's offense, vehicular homicide was a class B felony. Former RCW 46.61.520(2) (1991). In 1996, the crime was reclassified as a class A felony. Former RCW 46.61.520(2) (1996) (Laws of 1996, ch. 199, § 7).

¶ 4 The trial court granted Rivard's petition, concluding that under the saving clause, RCW 10.01.040, Rivard's conviction remains a class B felony despite its subsequent reclassification and that “prior felony convictions” in RCW 9.41.040(4)(b)(i) refers to felony convictions prior to and not including the felony that divested Rivard of his right to possess a firearm (i.e., his vehicular homicide conviction). The trial court ordered Rivard's right to possess firearms restored.

¶ 5 The State appealed this order, and the Court of Appeals initially affirmed the trial court. However, the Court of Appeals granted the State's motion for reconsideration and reversed itself, holding that because Rivard was convicted of a class A felony, he is now barred from possessing firearms. State v. Rivard, 146 Wash.App. 891, 894, 193 P.3d 195 (2008).

Issue

¶ 6 Whether RCW 9.41.040 permanently prohibits the petitioner, who was convicted of a class B felony later reclassified as class A, from owning or possessing firearms?

Analysis

¶ 7 Resolution of this case requires us to answer two questions: first, what is the effect on persons convicted of vehicular homicide before its reclassification from class B to class A? Second, if we conclude that Rivard's conviction should be a class B felony, did the trial court properly restore his rights under RCW 9.41.040?

1. Reclassification of Vehicular Homicide

¶ 8 The State argues, and the Court of Appeals agreed, that because vehicular homicide is now a class A felony, Rivard's conviction is for a class A felony, whether or not it was originally class B. The State asserts that the law in effect at the time of Rivard's petition applies, not the law in effect at the time he committed the underlying felony. In support of this proposition, the State relies on State v. Schmidt, 143 Wash.2d 658, 23 P.3d 462 (2001). However, the Schmidt opinion does not support the State's argument.

¶ 9 In Schmidt we decided two consolidated cases, both of which involved felons who were later convicted of unlawfully possessing a firearm under RCW 9.41.040. The petitioners challenged these latter possession convictions, arguing that because the statute in effect at the time of their original felony convictions did not prohibit firearm possession, later amendments could not impose such a prohibition without violating the ex post facto clauses of the United States and Washington Constitutions. Rejecting these arguments, we concluded that because RCW 9.41.040 is regulatory, not punitive, it does not alter the standard of punishment for prior felony convictions. We observed that “it is the law in effect at the time a criminal offense is actually committed that controls disposition of the case.” Schmidt, 143 Wash.2d at 673-74, 23 P.3d 462. It is this principle on which the State relies to contend that we must apply the law in effect at the time of Rivard's petition to the facts of this case.

¶ 10 The State is partly correct. We do apply the version of the unlawful possession statute in place in 2006, RCW 9.41.040, to Rivard's case because we must assess whether, at the time of his petition, it would be a crime for him to possess a firearm. Because, as we noted in Schmidt, this statute is a regulatory one, we evaluate whether Rivard should be able to possess a firearm at the time of his petition, not whether he would have been able to possess one in 1993.

¶ 11 However, the analogy to Schmidt ends there. In contrast to the State's argument, our Schmidt holding does not mean that Rivard's vehicular homicide conviction is viewed through the lens of the vehicular homicide statute in place in 2006, RCW 46.61.520. In Schmidt, the “offense” at issue was the unlawful possession of a firearm, so the applicable law was the law in effect at the time of that offense, the current version of RCW 9.41.040. Unlike in Schmidt, however, Rivard has not violated RCW 9.41.040 by unlawfully possessing a firearm. Thus, the violation of that statute cannot be the relevant “offense” for determining which vehicular homicide statute should apply. Because Rivard committed his vehicular homicide offense in 1993 under Schmidt, the classification of his conviction is determined by the statute in effect at the time of his offense, under which vehicular homicide was a class B felony.³

¶ 12 Rivard argues that his vehicular homicide conviction remains a class B felony pursuant to the saving clause, RCW 10.01.040. That statute provides the following, in relevant part:

Whenever any criminal or penal statute shall be amended or repealed, all offenses committed or penalties or forfeitures incurred while it was in force shall be punished or enforced as if it were in force, notwithstanding such amendment or repeal, unless a contrary intention is expressly declared in the amendatory or repealing act....

RCW 10.01.040.

¶ 13 The State argued in its brief to the Court of Appeals that the saving clause applies only to statutory repeals, and not to mere amendments. But, by its language, the statute applies to both repeals and amendments. Further, our courts have long held that under the saving clause, amendments to criminal statutes (which include reclassification of crimes) do not apply retroactively to offenses committed before the effective dates of those amendments. See, e.g., State v. Ross, 152 Wash.2d 220, 237-39, 95 P.3d 1225 (2004); State v. McCarthy, 112 Wash.App. 231, 236-37, 48 P.3d 1014 (2002); State v. Kane, 101 Wash.App. 607, 610-12, 5 P.3d 741 (2000).

¶ 14 In the present case, the saving clause precludes retroactive application of the 1996 reclassification of the vehicular homicide statute. No indication exists that the legislature intended this reclassification to apply retroactively. Therefore, the subsequent reclassification of an offense from a class B to a class A felony has no effect on a prior conviction for that offense and does not retroactively convert the conviction to a class A felony. Rivard's vehicular homicide conviction remains a class B felony.

2. Application of RCW 9.41.040

¶ 15 We must next decide whether, under RCW 9.41.040, Rivard, having been convicted of a class B felony, may regain his right to possess a firearm. Two subsections of the statute are determinative: RCW 9.41.040(1)(a) and (4).

¶ 16 Subsection (1)(a) prohibits a person convicted of a “serious offense” from possessing a firearm. Specifically, the provision states in relevant part the following:

A person ... is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, has in his or her possession, or has in his or her control any firearm after having previously been convicted ... of any serious offense as defined in this chapter.

RCW 9.41.040(1)(a) (emphasis added). Under the statute, “serious offense” includes vehicular homicide. Former RCW 9.41.010(12)( l ). Therefore, because Rivard has been convicted of a serious offense (his “disabling offense”), subsection (1) would, as an initial matter, prohibit him from owning or possessing a firearm.

¶ 17 However,...