State v. Bonetsky

• Decision Date: 05 April 2016
• Docket Number: No. COA15–811.,COA15–811.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. John Wayne BONETSKY.

246 N.C.App. 640

784 S.E.2d 637

STATE of North Carolina

v.John Wayne BONETSKY.

No. COA15–811.

Court of Appeals of North Carolina.

April 5, 2016.

Attorney General, Roy Cooper, by Assistant Attorney General, Joseph L. Hyde, for the State.

Sharon L. Smith, Raleigh, for Defendant.

McGEE, Chief Judge.

John Wayne Bonetsky ("Defendant") appeals his conviction of possession of a firearm by a felon. Defendant contends that part of the North Carolina Firearms Act—specifically N.C. Gen. Stat. § 14–415.1, which generally prohibits felons from possessing firearms—was unconstitutional as applied to him. We affirm.

I. Background

Officer Donny Dellinger ("Officer Dellinger"), a member of the Burke County Narcotics Task Force, obtained a search warrant and led a search of Defendant's home on 23 April 2013. Although the warrant was not included in the record on appeal, it appears the warrant may have been based, at least in part, on the statement of a confidential informant that Defendant was selling "large amounts" of marijuana. Officers did not find any drugs during their search of Defendant's home, but they did find a shotgun, inside a gun case, inside a closet.

Defendant was indicted for possession of a firearm by a felon on 9 September 2013, with Defendant's 1995 conviction for felony marijuana possession in Texas ("the 1995 Texas conviction") listed as the predicate felony. Defendant filed a "Verified Motion to Dismiss" the charge on 31 December 2014, alleging that N.C.G.S. § 14–415.1, "as applied to him[,] [was] a violation of the Constitution of the United States of America and the North Carolina Constitution." The trial court considered, and denied, Defendant's motion during a pretrial hearing on 15 January 2015 ("the pretrial hearing").

During the pretrial hearing, the trial court also found that the 1995 Texas conviction "equate[d] to a North Carolina trafficking in marijuana" conviction. Defendant does not dispute this finding. Defendant also acknowledged during the pretrial hearing that he had been convicted in 1977 of a felony armed robbery offense in Pennsylvania ("the 1977 Pennsylvania conviction"). He denied being armed during the robbery and also denied having been convicted of a firearm offense in connection with that crime. Defendant further acknowledged that he had been convicted in 1996 of a felony "controlled substance violation[ ]" in New York ("the 1996 New York conviction"). No further evidence relating to the 1977 Pennsylvania and 1996 New York convictions were presented at the pretrial hearing.

Before Defendant's trial began, he waived his right to a jury trial and acknowledged to the trial court that his strategy was to have his case tried quickly so he could appeal the trial court's denial of his motion to dismiss. At trial, Officer Dellinger testified that Defendant arrived home during the 23 April 2013 search of Defendant's home. Officer Dellinger testified that he spoke to Defendant about the shotgun and that Defendant was "very cooperative" and indicated he "did not realize at the time that he was not supposed to have [the shotgun] at his residence." Defendant testified at trial that he thought his right to possess a firearm in North Carolina had been restored two months before police searched his home¹ and that he had the shotgun for "personal protection" for himself and his dogs. Defendant testified he lived in the woods and sometimes encountered "wildcat[s]" and bears. The trial court convicted Defendant of possession of a firearm by a felon, gave him a suspended sentence, and placed Defendant on eighteen months of supervised probation. Defendant appeals.

II. Standard of Review

"The standard of review for questions concerning constitutional rights is de novo. " State v. Whitaker, 201 N.C.App. 190, 192, 689 S.E.2d 395, 396 (2009), aff'd, 364 N.C. 404, 700 S.E.2d 215 (2010). However, it is well-established that "when considering the constitutionality of a statute or act there is a presumption in favor of constitutionality, and all doubts must be resolved in favor of the act." Id.; accord District of Columbia v. Heller, 554 U.S. 570, 627–28 n. 26, 128 S.Ct. 2783, 2817–18 n. 26, 171 L.Ed.2d 637, 678 n. 26 (2008) ( " [P]rohibitions on the possession of firearms by felons ... [are] presumptively lawful[.]"). Yet, "[o]nce error is shown, the State bears the burden of proving the error was harmless beyond a reasonable doubt." State v. Graham, 200 N.C.App. 204, 214, 683 S.E.2d 437, 444 (2009) ; see N.C. Gen.Stat. § 15A–1443(b) (2015).

III. Defendant's "As Applied" Challenge

A. Scope of Review

As a preliminary matter, we note that Defendant raised with the trial court "as applied" challenges to N.C.G.S. § 14–415.1 under both the United States and North Carolina Constitutions. Defendant's brief before this Court cites to the Second Amendment of the United States Constitution once, but he proceeds to argue only that "[a] defendant may challenge the application of [ N.C.G.S. § 14–415.1 ] to him or her on grounds that it violates Article I, Section 30 of the North Carolina Constitution." "It is not the role of the appellate courts ... to create an appeal for an appellant [,]" Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005), and we must limit our review of Defendant's case accordingly.

B. Defendant's Challenge

Defendant contends that N.C.G.S. § 14–415.1 is unconstitutional as applied to him under Article I, Section 30 of the North Carolina Constitution. N.C.G.S. § 14415.1 imposes certain restrictions on the ability of felons to possess firearms. The General Assembly amended N.C.G.S. § 14–415.1 in 2004 ("the 2004 amendment") to prohibit felons from possessing firearms in their homes, whereas previously felons were allowed "to have possession of a firearm within his own house or on his lawful place of business." See 2004 N.C. Sess. Laws. 186, § 14.1.² Defendant contends that the restriction in the 2004 amendment, as applied to him, was unconstitutional.

The right to bear arms under Article I, Section 30 of the North Carolina Constitution "is subject to the authority of the General Assembly, in the exercise of the police power, to regulate, [although] the regulation must be reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety." See Whitaker, 201 N.C.App. at 198, 689 S.E.2d at 399–400 ; but see id. at 197, 689 S.E.2d at 399 (citation omitted) (limiting the Court's review of that right to a felon's "as applied" challenge to N.C.G.S. § 14–415.1 and "not attempt[ing] to determine under Heller [, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637,] the full extent of the individual right under the Second Amendment to keep and bear arms"). Accordingly, this Court utilizes "rational basis" review for "as applied" challenges to N.C.G.S. § 14415.1 under Article I, Section 30 of the North Carolina Constitution. Id.; accord id. at 191, 202, 689 S.E.2d at 395, 402 (holding that Heller had "no effect" upon the level of scrutiny for "as applied" challenges to N.C.G.S. § 14–415.1 under either the Second Amendment or Article I, Section 30 ); but see Johnston v. State of N.C., 224 N.C.App. 282, 293–94, 297, 735 S.E.2d 859, 868–71 (2012) (relying on Heller and U.S. v. Chester, 628 F.3d 673 (4th Cir.2010), to utilize "intermediate scrutiny" for an "as applied" challenge to N.C.G.S. § 14–415.1 under the Second Amendment; noting that "use of the rational basis standard may [no longer] be appropriate" for examining a defendant's "as applied" challenge to N.C.G.S. § 14–415.1 under Article I, Section 30 ; but also noting that the Court was "bound by precedent" to do so), aff'd per curiam, 367 N.C. 164, 749 S.E.2d 278 (2013).

When determining whether N.C.G.S. § 14–415.1 is unconstitutional as applied to a particular felon, this Court is required to examine five factors:

(1) the type of felony convictions, particularly whether they involved violence or the threat of violence, (2) the remoteness in time of the felony convictions; (3) the felon's history of law-abiding conduct since the crime, (4) the felon's history of responsible, lawful firearm possession during a time period when possession of firearms was not prohibited, and (5) the felon's assiduous and proactive compliance with the 2004 amendment.

Whitaker, 201 N.C.App. at 205, 689 S.E.2d at 404 (citing Britt v. State, 363 N.C. 546, 549–50, 681 S.E.2d 320, 322–23 (2009) ) (quotation marks and brackets omitted). As offshoots of the last Whitaker factor, our appellate courts also have taken note of (a) whether a felon proactively initiated an action to challenge the constitutionality of N.C.G.S. § 14–415.1 or waited to bring his constitutional challenge after being charged with possession of a firearm by a felon, see Baysden v. State of N.C., 217 N.C.App. 20, 26, 718 S.E.2d 699, 704 (2011), aff'd per curiam, 366 N.C. 370, 736 S.E.2d 173 (2013), and (b) whether the felon was, or should have been, on notice of the 2004 amendment, see State v.

Price,

233 N.C.App. 386, 398, 757 S.E.2d 309, 317, appeal dismissed, 367 N.C. 508, 759 S.E.2d 90 (2014) ; Whitaker, 201 N.C.App. at 206, 689 S.E.2d at 405. However, as to the matter of notice, this Court has never held that a defendant's ignorance of the requirements of N.C.G.S. § 14–415.1 should weigh in his or her favor when this Court reviews an "as applied" challenge to that section. Cf.

Price, 233 N.C.App. at 398, 757 S.E.2d at 317 (noting that the felon was in prison when the 2004 amendment was enacted and, "[t]herefore, he should have been on notice of the changes in legislation"); Whitaker, 201 N.C.App. at 206, 689 S.E.2d at 405 (noting that the felon was warned multiple times by law enforcement that he could not possess firearms and was "flagrantly" violating the statute).

1. Type of Felony Convictions

In the present case, as to the first Whitaker factor, regarding "the type of felony convictions" at issue and "whether they involved violence or the...