State v. Schmidt
| Decision Date | 14 April 2000 |
| Docket Number | No. 23431-9-II.,23431-9-II. |
| Citation | 100 Wash.App. 297,996 P.2d 1119 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Zachary B. SCHMIDT, Appellant. |
Bonnie M. Hazelbaker, Kitsap Co. Deputy Pros. Atty., Port Orchard, for Respondent.
John L. Cross, Ronald D. Ness & Associates, Port Orchard, for Appellant.
Zachary Schmidt appeals his conviction for unlawful possession of a firearm. He claims he was convicted in violation of the ex post facto clause. We affirm.
In 1988, Schmidt was convicted of second degree assault. The law in effect at that time did not bar one convicted of second degree assault from possessing a rifle.1
In 1994, the legislature amended RCW 9.41.040 to make it a felony for a person previously convicted of second degree assault to possess a rifle.2 From here on, we refer to this as the 1994 amendment.
In 1997, Schmidt was arrested while possessing a rifle. A day or two later, the State charged him under the 1994 amendment.
In 1998, Schmidt was convicted by a jury. Later, he was sentenced to prison for 36 months.
The only issue on appeal is whether Schmidt was convicted in violation of the ex post facto clause. That clause provides that no state shall pass any ex post facto law.3 Its purposes are "to assure that legislative Acts give fair warning of their effect," and to restrain "arbitrary and potentially vindictive legislation."4
Whether a law is "ex post facto" turns on two basic questions: (1) Is the law "criminal" or "punitive," as opposed to "civil" or "non-punitive"? (2) If the law is "criminal" or "punitive," does it punish past or future conduct?5 "Past conduct" means conduct occurring before the law's effective date, while "future conduct" means conduct occurring after the law's effective date.6
If a law is not "criminal" or "punitive," it can be applied to any conduct, either past or future, without violating the ex post facto clause. As the United States Supreme Court explained in Kansas v. Hendricks, "The Ex Post Facto Clause, which `forbids the application of any new punitive measure to a crime already consummated,' has been interpreted to pertain exclusively to penal statutes."7 If a law is "criminal" or "punitive," it can be applied to future conduct without violating the ex post facto clause. As the United States Supreme Court explained in McDonald v. Massachusetts, "The statute, imposing a punishment on none but future crimes, is not ex post facto."8
If a law is "criminal" or "punitive," however, it cannot be applied to past conduct without violating the ex post facto clause.9 Thus, the United States Supreme Court has repeatedly categorized as ex post facto:
1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.[10]
These concepts have been imprecisely expressed by saying that "A law violates the ex post facto clause if it: (1) is substantive, as opposed to merely procedural; (2) is retrospective (applies to events which occurred before its enactment); and (3) disadvantages the person affected by it."11 To say that a law is "merely procedural" often means (but does not always mean) that the law is not "criminal" or "punitive."12 To say that a law is "retrospective" means that the law applies to past conduct (i.e., to conduct that occurred before its effective date).13 To say that a law "disadvantages the person" means that the law disadvantages an offender by punishing him or her to a greater extent than before.14
In this case, the 1994 amendment is both criminal and punitive. From and after its 1994 effective date, it provided that a person previously convicted of second degree assault would be guilty of a felony and subject to a prison term if he or she possessed a rifle. In 1997, it served as the legal basis for convicting Schmidt and sentencing him to prison. A law simply cannot be more criminal or punitive than that.
The remaining question is whether the 1994 amendment punishes past or future conduct. If it punishes only future conduct, it does not offend the ex post facto clause, even though it is criminal and punitive.
In State v. Watkins,15 a juvenile was convicted of a drug offense in 1992. The law in effect at that time did not prohibit him from possessing a firearm. Later, the law was changed so that it did prohibit him from possessing a firearm. After the new law took effect, the juvenile was found with a firearm and charged accordingly. He then argued, as Schmidt argues here, that to apply the new law to him was to violate the ex post facto clause. Division One held in essence that the new law was being applied to future conduct (i.e., to conduct occurring after the new law's effective date),16 and thus that the new law was not being applied in violation of the ex post facto clause.17
Other jurisdictions hold likewise,18 and the commentators are generally in accord. With respect to the analogous problem of habitual criminal statutes, LaFave and Scott state: Some ex post facto questions of the increased-punishment type have arisen in connection with the passage of habitual criminal laws, which impose enhanced penalties for later offenses if the defendant has previously been convicted of one or more crimes. If the defendant commits crime A at a time when there is no habitual criminal statute, then such a statute is passed imposing increased punishment for a second offense, and then the defendant commits crime B, it is not within the ex post facto prohibition to apply the habitual criminal statute to crime B. No additional punishment is prescribed for crime A, but only the new crime B, which was committed after the statute was passed.[19]
Attempting to distinguish these authorities, Schmidt asserts that the 1994 amendment punishes his 1988 conduct, which is "past" conduct with reference to the 1994 amendment. Like Division One, however, we think that the State is punishing Schmidt not for his 1988 conduct, but rather for his 1997 conduct. If he had not engaged in his 1997 conduct, he would not be punished at all.
As the preceding paragraph shows, we have no quarrel with the concurrence's position that the 1994 amendment does not punish Schmidt for his 1988 conduct.20 We think, however, that the 1994 amendment does punish Schmidt for his 1997 conduct, for the 1994 amendment is the very basis upon which Schmidt has been charged, convicted and sentenced to prison. Accordingly, we think the concurrence errs insofar as it "would hold that the 1994 amendment is not punitive."21
We would ignore this flaw as merely semantical if its consequences for the ex post facto clause were not so serious. To characterize a treatment statute as non-punitive is to leave intact the clause's protection against punitive statutes.22 To characterize as non-punitive a regulatory statute—i.e., a statute that mandates or proscribes certain defined conduct, but does not punish a violation —is to leave intact the clause's protection against punitive statutes.23 But to characterize a felony statute as non-punitive means that the ex post facto clause does not apply; and if the ex post facto clause does not apply, a citizen can be punished for conduct that was first criminalized after the date of the conduct's occurrence. That offends the ex post facto clause, at its very core.
In conclusion, we hold that the 1994 amendment is punitive. We further hold that it punishes future conduct (i.e., conduct occurring after its effective date), not past conduct (i.e., conduct occurring before its effective date). As a result, Schmidt's conviction did not violate the ex post facto clause.
Affirmed.
I concur in the result reached by the majority, but I write separately because the majority answers the wrong question.
The majority reasons that, although the 1994 statutory amendment is punitive, it punishes only future conduct and, thus, does not violate ex post facto principles. In so reasoning, the majority assumes that the punishment of which Schmidt complains is that flowing from his 1997 conduct. This is simply wrong. Schmidt tells us in plain words that the 1994 amendment increased the punishment for his 1988 conviction because a "vested right in the possession or ownership of firearms was erased." Thus, Schmidt does not argue that his 1997 conviction and sentence for unlawful possession of a firearm increased the punishment for his 1988 conviction. Rather, he argues that his punishment was increased when the 1994 amendment became law. And, his 1988 punishment was increased whether or not he later violated the new law because the increased punishment consisted of taking away his right to possess a rifle.
Schmidt warns us against applying the "mere truism" analysis used in State v. Watkins, 76 Wash.App. 726, 887 P.2d 492 (1995). We should heed his warning. Under Watkins, a new statute that takes away rights or imposes additional burdens on previously convicted felons will always survive an ex post facto challenge so long as the statute attaches a new penalty for its violation. This is so because the Watkins court and the majority here pass right over the effect of the 1994 amendment and look only at the violation of the statute as ex post facto punishment. But a new criminal statute will always punish conduct that occurs after the statute was passed. Watkins simply does not address Schmidt's issue: Did the 1994 amendment by its terms increase his punishment by taking away his right to possess a rifle? To answer this question, we must examine the intent and effect of the statute.
Our Supreme Court has done such an analysis in State v. Ward, 123 Wash.2d 488,...
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