State v. Hall, 65044

• Decision Date: 18 February 1981
• Docket Number: No. 65044,65044
• Citation: 301 N.W.2d 729
• Parties: STATE of Iowa, Appellee, v. Johnny Ray HALL, Appellant.
• Court: Iowa Supreme Court

Page 729

301 N.W.2d 729

STATE of Iowa, Appellee, v. Johnny Ray HALL, Appellant.

No. 65044.

Supreme Court of Iowa.

Feb. 18, 1981.

Philip F. Miller, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., and Richard L. Cleland, Asst. Atty. Gen., for appellee.

Considered by REYNOLDSON, C. J., and LeGRAND, McGIVERIN, LARSON and SCHULTZ, JJ.

LeGRAND, Justice.

In 1972 defendant was convicted of robbery and sentenced to the penitentiary. He was paroled in 1974 and on May 5, 1976, he was granted a restoration of citizenship by the governor of this state. Defendant now stands convicted of possession of a firearm in violation of the statute which prohibits convicted felons from possessing such a weapon. Section 724.26, The Code.

The several issues raised all involve in greater or lesser degree the basic argument that this judgment cannot stand because possession of a firearm by a convicted felon Any person who is convicted of a felony in any state or federal court and who subsequently possesses, receives, or transports or causes to be transported a firearm or offensive weapon is guilty of an aggravated misdemeanor.

was not a crime when defendant was convicted in 1972 nor when he was paroled in 1974 nor when his citizenship was restored in 1976. The statute was enacted by the General Assembly to become effective on January 1, 1978. It provides as follows:

The following section excludes from the operation of section 724.26 those convicted felons who have been restored to rights of citizenship by an executive order if "expressly authorized by ... such chief executive to receive, transport or possess firearms or destructive devices." In the present case, of course, there was no such provision because the statute had not been enacted when defendant received his restoration of citizenship.

Defendant asks us to decide three issues. He claims first that he was entitled to a directed verdict; he argues next that the trial court erred in the instruction defining possession; and finally he alleges an abuse of discretion in imposing a sentence of two years for this offense.

I. Several Des Moines detectives, armed with a search warrant went to defendant's residence to search for stolen merchandise. None was found, but the officers observed three guns in a gun rack. In response to a question, defendant said he owned the guns. After defendant had admitted he had a felony record, he modified his statement to claim he had given the guns to his mother.

At trial, both defendant and his mother testified that defendant gave her the guns in July of 1972. She said she kept them in her own home until she moved in with defendant, at which time she brought the guns with her. Both testified the guns were kept in a locked case, for which she had the only key. Defendant further testified that the officers had to break the lock on the gun case in order to take the guns. Defendant argues his mother was in possession of the guns and that his conviction should be reversed for that reason.

The detectives testified to defendant's conflicting statements concerning ownership of the gun. They also testified that the gun case was neither locked nor broken into. In view of this direct conflict in the testimony plus the evidence that the guns were in defendant's home, a consideration of all the evidence in the case could convince a rational jury of defendant's guilt beyond a reasonable doubt.

This, however, does not end defendant's argument concerning his right to a directed verdict. He claims, too, that because he was restored to his rights of citizenship before the enactment of section 724.26, The Code, he cannot be convicted of violating its terms.

We have had only one case involving this statute since its enactment. State v. Rupp, 282 N.W.2d 125 (Iowa 1979). In that case we held that the statute is constitutional and adopted the rationale of Marchese v. California, 545 F.2d 645, 647 (9th Cir. 1976) in explaining that the legislature is justified in prohibiting convicted felons from possessing firearms. A new and narrower question now confronts us: does this statute apply to those convicted before its enactment as well as to those convicted thereafter? We hold it does.

Defendant's argument is that he was restored to all his civil rights in 1976; one of those civil rights then entitled him to possess firearms; subsequent enactment of section 724.26 did not take away this existing right. Implicit in this argument is the claim all those convicted of a felony prior to January 1, 1978, the effective date of the statute, are exempt from its provisions because until then there was no prohibition against such possession by anyone. We refuse to believe that was the legislative intent.

Neither do we believe this result gives retrospective application to section 724.26, The Code. Defendant was found guilty of possessing firearms after the effective date of the statute. His status as a felon was fixed prior to that date, but the proscribed The executive order restoring defendant's citizenship rights is here set out:

conduct the act which constituted the crime occurred almost two years after the statute took effect. See United States v. Sutton, 521 F.2d 1385, 1390 (7th Cir. 1975).

RESTORATION OF CITIZENSHIP

* * *

* * *

I do hereby restore the said JOHNNY RAY HALL to all the rights, privileges and immunities which were forfeited by reason of said conviction.

This Restoration of Citizenship shall not be construed as a Pardon or as a remission of guilt or forgiveness of the offense, and shall not operate as a bar to greater penalties for second offenses or subsequent convictions or conviction as a habitual criminal.

This ORDER is granted upon the recommendations of

IOWA BOARD OF PAROLE

IN TESTIMONY WHEREOF, I have hereunto set my hand and caused to be affixed the Great Seal of the State. Done at Des Moines, this 5th day of May in the year of our Lord nineteen hundred and seventy six.

S/S ROBERT D. RAY

GOVERNOR

It is significant that the executive order was not a pardon nor was it intended to forgive the offense or minimize the consequences of it. For all practical purposes, the restoration to citizenship rights is immaterial. With or without such restoration, a former felon could have possessed firearms prior to January 1, 1978. Now no felon may do so unless permitted by executive order as directed in section 724.27, The Code. We presume, without deciding, that defendant could have asked the governor to amend the executive order to so provide. Sutton, 521 F.2d at 1389. Having failed to do so, defendant, like every other felon, is bound by section 724.26 for possession of firearms after January 1, 1978.

Several federal courts have considered this problem in interpreting the Omnibus Crime Control and Safe Streets Act of 1968. United States v. Matassini, 565 F.2d 1297, 1306-07 (5th Cir. 1978); United States v. Sutton, 521 F.2d 1385, 1390-91 (7th Cir. 1975), to which reference has already been made; cf. United States v. Bergeman, 592 F.2d 533, 536-37 (9th Cir. 1979) (broad purpose of such statutes would be defeated if those whose convictions had been expunged under state law were excluded).

In Sutton, a conviction was upheld under facts almost identical with those now before us. In Matassini, the court held defendant, whose pardon by the governor of Florida for a prior felony occurred twenty-one years earlier, could not be prosecuted because under Florida law a pardon operated as a total forgiveness for the crime itself. The issue in that case was whether the statute applies to "a convicted felon who had received a full and complete pardon under state law prior to the enactment of the Omnibus Act." (Emphasis added). 565 F.2d at 1300.

However, the Matassini court also had this to say at 565 F.2d 1307:

We believe it is clear that Congress, in enacting (the statu...