State v. R.P.H.

• Citation: 265 P.3d 890,173 Wash.2d 199
• Decision Date: 01 December 2011
• Docket Number: No. 82557–2.,82557–2.
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. R.P.H., Petitioner.

173 Wash.2d 199

265 P.3d 890

STATE of Washington, Respondent,

v.R.P.H., Petitioner.

No. 82557–2.

Supreme Court of Washington, En Banc.

Argued May 12, 2011.Decided Dec. 1, 2011.

Neil Martin Fox, Law Office of Neil Fox, PLLC, Seattle, WA, for Petitioner.

Dennis John McCurdy, King County Prosecutor's Office, Seattle, WA, for Respondent.

ALEXANDER, J.

[173 Wash.2d 200] ¶ 1 We granted R.P.H.'s petition to review a decision of the Court of Appeals in which that court affirmed the King County Superior Court's denial of R.P.H.'s petition for restoration of his right to possess firearms. We reverse the Court of Appeals, concluding that R.P.H.'s conviction was the subject of a procedure equivalent to a certificate of rehabilitation.

I

¶ 2 In 2000, 13–year–old R.P.H. pleaded guilty to one count of first degree child rape for sexually assaulting his 11– and 6–year–old sisters. At sentencing, the King County Juvenile Court accepted the State's recommendation to impose a special sexual offender disposition alternative that included a suspended term of commitment, 12 months of community supervision, sexual deviancy counseling, and various other conditions, including a requirement that R.P.H. “[n]ot possess or use a weapon of any kind.” Clerk's Papers at 14. R.P.H. was advised that, as a consequence of pleading guilty to a felony sex offense, he could no longer possess a firearm and would be required to register as a sex offender. R.P.H. was also notified orally and in writing about the prohibition regarding possession of a firearm pursuant to RCW 9.41.040 and RCW 9.41.047. At the disposition hearing, the juvenile court suggested that R.P.H.'s right to possess a firearm could be restored if he successfully completed treatment. Thereafter, R.P.H. successfully completed treatment and fulfilled the other conditions of his alternative disposition.

¶ 3 In 2007, R.P.H. petitioned the King County Superior Court to relieve him of the obligation to register as a sex offender and to reinstate his right to possess firearms.¹ In support of his petition for relief from the registration requirement, R.P.H. submitted a three-page letter from his deviancy counselor, Timothy Kahn. Kahn wrote that R.P.H. had successfully completed treatment in 2002, had graduated from high school in 2005, and was attending community college. Kahn stated, additionally, that he had met with R.P.H. and R.P.H.'s fiancée in order to review R.P.H.'s behavior, relationships, and lifestyle following his completion of his treatment. Kahn observed that R.P.H. had maintained a healthy, age-appropriate relationship for two years and had disclosed his sex offense history to his fiancée early in their relationship. Kahn supported R.P.H.'s request to terminate his registration requirement, opining that R.P.H. presented a low risk of reoffense.

¶ 4 The State opposed termination of the registration requirement as well as the restoration of R.P.H.'s right to possess a firearm. In support of its position, the State cited the nature of the offense and the fact that R.P.H. had received five traffic infractions since obtaining his driver's license. The State conceded, however, that R.P.H. had satisfied the requirements of former RCW 9.41.040(4) (2005) governing the restoration of firearm rights.

¶ 5 The superior court, relying on the provisions of former RCW 9A.44.140 (2002), granted R.P.H.'s request to terminate the registration requirement. It, however, denied his motion to restore his right to possess firearms, noting a concern over R.P.H.'s traffic infractions. The court told R.P.H., however, that he could try again in one year. When R.P.H. argued, based on State v. Swanson, 116 Wash.App. 67, 65 P.3d 343 (2003), that the court was required to reinstate his firearm rights if he satisfied the statutory requirements, the court invited him to file a motion for reconsideration.

¶ 6 R.P.H. duly moved for reconsideration. In its response to that motion, the State indicated that its earlier concession that R.P.H. had satisfied the statutory requirements for reinstating his right to possess firearms was erroneous. Relying on Graham v. State, 116 Wash.App. 185, 64 P.3d 684 (2003), the State asserted that R.P.H.'s juvenile adjudication of a class A felony sex offense prohibited him from ever having his firearm rights restored. The court denied R.P.H.'s motion for reconsideration without comment.

¶ 7 R.P.H. appealed the superior court's decision to the Court of Appeals, which affirmed. He then sought discretionary review in this court, raising statutory and constitutional issues. We deferred consideration of R.P.H.'s petition pending our decision in State v. Sieyes, 168 Wash.2d 276, 225 P.3d 995 (2010). After Sieyes became final, we granted R.P.H.'s petition. ²

II

¶ 8 Issues of statutory construction and constitutionality are questions of law subject to de novo review. Lake v. Woodcreek Homeowners Ass'n, 169 Wash.2d 516, 526, 243 P.3d 1283 (2010); State v. Chavez, 163 Wash.2d 262, 267, 180 P.3d 1250 (2008).

III

¶ 9 R.P.H. presents a number of arguments in support of his position that his right to possess firearms should be restored. We find it unnecessary to address his constitutional argument and address only his assertion that because the requirement he register as a sex offender was terminated by the superior court, his right to possess firearms should be restored. In support of that argument, he relies on the provisions of RCW 9.41.040(3), which provide that “[a] person shall not be precluded from possession of a firearm if the conviction has been the subject of a ... certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted.” (Emphasis added.)

¶ 10 R.P.H. argues that the superior court, acting pursuant to former RCW 9A.44.140, made a finding equivalent to a certificate of rehabilitation when it terminated the requirement that he register as a sex offender. The State, citing State v. Masangkay, 121 Wash.App. 904, 91 P.3d 140 (2004), responds that there is no certificate of rehabilitation in Washington, saying that “[i]f the Legislature had wanted courts to treat certain Washington convictions as non-convictions under RCW 9.41.040(3), it would have identified the ‘equivalent procedures' existing in Washington under which courts could do so.” Suppl. Br. of Resp't at 15–16.³

¶ 11 Former RCW 9A.44.140(4)(b)(ii) (2000) provided that a court may relieve a person of the duty to register for a sex offense committed when the person was under the age of 15 if the person has not been adjudicated of any additional sex offenses or kidnapping offenses during the 24 months following the adjudication and “proves by a preponderance of the evidence that future registration ... will not serve the purposes of RCW 9A.44.130, 10.01.200, 43.43.540, 46.20.187, 70.48.470, and 72.09.330.” It is our view that the order of the superior court terminating R.P.H.'s registration requirement, which was based in part on a submission from his treatment provider, is tantamount to a determination that R.P.H. is rehabilitated.⁴ It is, in sum, equivalent to a certificate of rehabilitation based on a finding of rehabilitation.

¶ 12 Our holding is entirely consistent with a prior decision of this court, State v. Radan, 143 Wash.2d 323, 21 P.3d 255 (2001). There we concluded that an early discharge from supervision by Montana authorities of a person who had been convicted in that state of first degree theft, combined with a letter from that state's department of corrections recommending discharge, was a procedure equivalent to a certificate of rehabilitation based on a “ ‘finding of the rehabilitation’ ” under RCW 9.41.040(3). Id. at 336, 21 P.3d 255. In reaching this decision, our court did not rely on the fact that Montana's early discharge of the defendant, Richard Radan, automatically restored all of his civil rights, including the right to bear arms. Rather, we looked to what the discharge procedure in Montana was based on in reaching our conclusion that it was equivalent to a certificate of rehabilitation pursuant to RCW 9.41.040(3).

¶ 13 Here we have a situation very similar to that in Radan, albeit with a superior court judge of this state discharging R.P.H. The fact that the discharge was ordered by a court, rather than a department of corrections of another state, does not render the discharge any less equivalent to a certificate of rehabilitation. Indeed, in our view, it carries more force. In sum, we consider the superior court's order discharging R.P.H. from the necessity of registering as a sex offender to be equivalent to a certificate of rehabilitation under RCW 9.41.040(3). R.P.H. should, therefore, not be barred from exercising the right to possess firearms.

IV

¶ 14 In light of our determination that R.P.H.'s conviction was the subject of a procedure equivalent to a certificate of rehabilitation, we do not address R.P.H.'s other arguments.⁵ We reverse the Court of Appeals' decision affirming the superior court's order denying R.P.H.'s petition to have his right to possess firearms restored.

WE CONCUR: CHARLES W. JOHNSON, TOM CHAMBERS, SUSAN OWENS, MARY E. FAIRHURST, JAMES M. JOHNSON, and DEBRA L. STEPHENS, Justices.

MADSEN, C.J. (dissenting).

¶ 15 Former RCW 9.41.040(4) (2005) ¹ provides that a person convicted of a sex offense can never petition for restoration of the right to possess firearms. Nevertheless, the majority says that when a trial judge in this state terminates a sex offender registration requirement, such action is “equivalent” to a finding of rehabilitation under RCW 9.41.040(3), and a defendant may rely on the trial court's action as an end-run to evade the prohibition in former subsection (4). This makes no sense; if a trial judge lacks authority to restore gun rights to a sex offender, surely a trial court's decision to terminate a reporting requirement cannot become an “equivalent” procedure that...