State v. Schmidt, No. 69741-8

CourtUnited States State Supreme Court of Washington
Writing for the CourtSMITH, J.
Citation143 Wash.2d 658,23 P.3d 462
PartiesSTATE of Washington, Respondent, v. Zachary B. SCHMIDT, Petitioner, and State of Washington, Respondent, v. Marlin L. Ayers, Petitioner.
Docket Number No. 69741-8, No. 69833-3.
Decision Date17 May 2001

23 P.3d 462
143 Wash.2d 658

STATE of Washington, Respondent,
v.
Zachary B. SCHMIDT, Petitioner,
and
State of Washington, Respondent,
v.
Marlin L. Ayers, Petitioner

Nos. 69741-8, 69833-3.

Supreme Court of Washington, En Banc.

Argued January 30, 2001.

Decided May 17, 2001.

As Amended May 30, 2001.

As Amended on Denial of Reconsideration July 13, 2001.


23 P.3d 464
Ronald D. Ness & Associates, John L. Cross and Geoffrey Cross, Port Orchard, for Petitioner

Gerald Horne, Pierce County Prosecutor, Terry Lane, Deputy, Tacoma; Russell Hauge, Kitsap County Prosecutor, Randall A. Sutton, Deputy, Port Orchard, for Respondent.

23 P.3d 463
SMITH, J

In consolidated cases Petitioners Zachary B. Schmidt and Marlin L. Ayers seek review of separate decisions of the Court of Appeals, Division Two.

In State v. Schmidt,1 the Court of Appeals affirmed Petitioner's Kitsap County Superior Court conviction for first degree unlawful possession of a firearm. The Court of Appeals reasoned that the 1994 amendment to the firearms statute, RCW 9.41.040, making it a felony for persons previously convicted of a serious offense (including any crime of violence) to possess a firearm, did not violate the constitutional prohibition against ex post facto laws because the amended statute only punished future conduct.

In State v. Ayers,2 the Court of Appeals in an unpublished opinion reversed and remanded dismissal by the Pierce County Superior Court of seven counts of second degree unlawful possession of a firearm. The Court of Appeals reasoned that the 1996 amendment to RCW 9.41.040 making it a felony for a person convicted of "any felony" to possess a firearm did not violate the constitutional prohibition against ex post facto laws because the amended statute only punished future conduct.

This court consolidated the cases and granted review. We affirm the Court of Appeals in both cases.

QUESTION PRESENTED

The question presented in this case is whether amendments to RCW 9.41.040 violate constitutional prohibitions against ex post facto laws by making a convicted felon's possession of all firearms unlawful because of a felony conviction which occurred prior to the statutory amendments.

STATEMENT OF FACTS

STATE OF WASHINGTON V. ZACHARY B. SCHMIDT

In 1988, Petitioner Zachary B. Schmidt was convicted of a felony, assault in the second degree.3 At that time, RCW 9.41.0404 prohibited persons convicted of that offense from owning, possessing or having control of short firearms and pistols, but did not prohibit ownership, possession or control of rifles. In 1994, RCW 9.41.040 was amended to prohibit persons who committed any "crime of violence" from owning, possessing or having control of any firearm.5

On December 1, 1997 at 2:27 a.m., while on routine patrol, Kitsap County Deputy Sheriff Ronald S. Zude observed a 1978 Ford pick-up truck with no license plate lights heading westbound on Holly Road in Kitsap County,

23 P.3d 465
Washington.6 Deputy Zude made a traffic stop and, because of the early morning hour, asked Petitioner, the driver, if "there were any guns, knives or drugs in the vehicle."7 Petitioner Schmidt hesitated and replied "not to my knowledge."8 Deputy Zude determined Petitioner's driver's license was suspended and arrested him for driving with a suspended license. There was another passenger in the truck. The deputy also learned the owner of the vehicle was Glenn A. Mesinger.9 During search of the vehicle incident to the arrest, Deputy Zude found under and behind the driver's seat two long guns, a loaded 30-30 Winchester rifle and a BB gun.10

The trial court in conclusions of law at the 3.5 hearing determined that Deputy Zude made a "valid traffic stop" and his initial questions to Petitioner about the existence of any weapons in the truck were "appropriate to a Terry11 stop, were a reasonable precaution in the interests of officer safety and were made before [he] was in custody."12 The court concluded that Deputy Zude's questions concerning BB gun pellets found in Petitioner's coat pocket were not an "interrogation within the meaning of the Miranda13 decision," that he was advised of his Miranda rights, and his statements were admissible.14

On December 3, 1997, the Kitsap County Prosecuting Attorney filed an information in the Kitsap County Superior Court charging Petitioner Schmidt with one count of first degree unlawful possession of a firearm as follows:

He, the said ZACHARY B. SCHMIDT, in the County of Kitsap, State of Washington, on or about the 1st day of December, 1997, owned, possessed, or had in his or her control a firearm, after having been previously convicted of Second Degree Assault in State v. Schmidt, Kitsap County Cause No. 88-1-00055-5; contrary to the Revised Code of Washington 9.41.040(1)(a).15

On April 30, 1998, a jury found Petitioner "guilty" of unlawful possession of a firearm in the first degree.16 He was sentenced to prison for 36 months by Judge Grant L. Anderson.17 He appealed to the Court of Appeals, Division Two.18 On April 14, 2000, the Court of Appeals affirmed the conviction, concluding that "the 1994 amendment is punitive," but because "it punishes future conduct (i.e., conduct occurring after its effective date), not past conduct (i.e., conduct occurring before its effective date)," Petitioner's conviction did not violate the ex post facto clause.19

In a concurring opinion, Acting Chief Judge David Armstrong agreed with the result, but stated "the majority answers the wrong question."20 His concurrence applied

23 P.3d 466
the reasoning of the United States Court of Appeals for the Ninth Circuit in United States v. Huss,21 a case involving an ex post facto challenge to Oregon's firearms statute. Judge Armstrong reasoned that "the 1994 amendment is not punitive and, thus, does not violate ex post facto principles. The Legislature did not intend the amendment to be punitive."22

STATE OF WASHINGTON V. MARLIN L. AYERS

In 1987 or 1988, Petitioner Marlin L. Ayers was convicted of a felony, theft in the first degree.23 At that time former RCW 9.41.04024 did not prohibit a person convicted of theft in the first degree from owning, possessing, or having control of any firearm.25

In 1984, 1989 and 1993,26 Petitioner applied for and obtained concealed weapons permits from the Puyallup Police Department.27 Each application form contains a statement informing applicants that "persons ... who have been convicted of a crime punishable for a term exceeding 1 year" are prohibited from receiving a firearm.28 On all three applications, Petitioner Ayers represented that he had not been convicted of a felony.

In 1996 former RCW 9.41.040 was amended to make it a crime for a person convicted of "any felony" to possess any firearm.29 Under the 1996 amendment, theft in the first degree was included in the category of crimes for which conviction would make it unlawful to own, possess or have control of any firearm.

Between November 1, 1997 and November 25, 1997, Petitioner Ayers and his wife and son pawned several firearms at two pawnshops in Kitsap County: Topkick Jewelry

23 P.3d 467
and Loan, and Randy's Loan and Coin.30 One of the pawnshop owners, Ted Wilkinson, on November 11, 1998 signed a declaration that Petitioner's wife, Ms. Sharon Ayers, or the Ayers' son, would bring firearms into the pawnshop.31 He stated he never saw Petitioner actually touch the firearms, but Petitioner filled out the paperwork. Petitioner in his declaration dated December 11, 1998 stated that his wife or his son delivered the firearms to the pawnshop.32

On February 17, 1998, the Pierce County Superior Court issued a certificate and order of discharge on Petitioner Ayers' conviction of theft in the first degree.33 The court on June 11, 1998 issued an order restoring Petitioner Ayers' firearms rights.34 Between November 1997 and June 11, 1998, police engaged in an investigation of Petitioner Ayers' firearms transactions with pawnshops.35

On October 13, 1998, the Pierce County Prosecuting Attorney filed an information in the Pierce County Superior Court charging Petitioner Ayers with seven counts of second degree unlawful possession of a firearm under RCW 9.41.040(1)(b). Count one of the information read:

I, JOHN W. LADENBURG, Prosecuting Attorney for Pierce County, ... do accuse MARLIN L. AYERS of the crime of UNLAWFUL POSSESSION OF A FIREARM IN THE SECOND DEGREE, committed as follows:
That MARLIN L. AYERS, in Pierce County, Washington, on or about the 8th day of November, 1997, did unlawfully and feloniously own, have in his possession, or under his control a firearm, to wit: a Winchester 30-30 caliber rifle, he having been previously convicted in the State of Washington or elsewhere of a felony, to wit: Theft in the First Degree, contrary to RCW 9.41.040(1)(b), and against the peace and dignity of the State of Washington.36

Counts II through VII were identical, with the exception of the date and the make and model of the rifles.37

On December 11, 1998, Petitioner moved to dismiss the information38 claiming (1) the prosecutor acted arbitrarily in charging him and therefore the charges should be dismissed under CrR 8.3(b); (2) application of the 1996 amendment to his case violated the prohibition against ex post facto laws; and (3) there was not sufficient evidence that he possessed the firearms and thus failed to establish a prima facie case under State v. Knapstad.39

The Superior Court, the Honorable Grant L. Anderson, heard oral arguments on the motion on December 23, 1998 and issued findings of fact and conclusions of law on

23 P.3d 468
February 10, 1999.40 The court granted Petitioner Ayers' motion to dismiss the charges,41 concluding (1) the facts in the case were significantly different from the facts in State v. Watkins,42 and (2) the matter should be dismissed in the interests of justice under CrR 8.3 because of its unique facts, citing State v. Knapstad and State v. Sonneland.43

The State appealed...

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55 practice notes
  • In re Personal Restraint of Dyer, No. 79872-9.
    • United States
    • United States State Supreme Court of Washington
    • August 7, 2008
    ...means "`the statute alters the standard of punishment which existed under the prior law.'" Id. (quoting State v. Schmidt, 143 Wash.2d 658, 673, 23 P.3d 462 (2001)). Dyer contends he is disadvantaged by the ISRB's application of RCW 9.95.009(2) and (3). ¶ 36 Dyer asserts, "[i]f the Board is ......
  • State v. Caton, No. 40422–2–II.
    • United States
    • Court of Appeals of Washington
    • September 13, 2011
    ...instead of the law in effect in 2001. But we apply the law in effect at the time the crime was committed. State v. Schmidt, 143 Wash.2d 658, 673–74, 23 P.3d 462 (2001). He committed the crime on June 16, 2009, when former RCW 9A.44.130(11)(a) was in effect. The trial court did not retroacti......
  • State v. Nordlund, No. 26222-3-II.
    • United States
    • Court of Appeals of Washington
    • August 30, 2002
    ...he had "fair warning of conduct which will result in criminal penalties and of the punishment the State may impose[.]" State v. Schmidt, 143 Wash.2d 658, 673, 23 P.3d 462 (2001). As with the use of his other prior convictions to calculate his offender score under the SRA, the use of these c......
  • State v. Pillatos, No. 75984-7.
    • United States
    • United States State Supreme Court of Washington
    • January 25, 2007
    ...or punishable, `disadvantage' means the statute alters the standard of punishment which existed under the prior law." State v. Schmidt, 143 Wash.2d 658, 673, 23 P.3d 462 ¶ 32 We note that the argument that an unconstitutional statute does not, in some sense, exist, and therefore cannot just......
  • Request a trial to view additional results
55 cases
  • In re Personal Restraint of Dyer, No. 79872-9.
    • United States
    • United States State Supreme Court of Washington
    • August 7, 2008
    ...means "`the statute alters the standard of punishment which existed under the prior law.'" Id. (quoting State v. Schmidt, 143 Wash.2d 658, 673, 23 P.3d 462 (2001)). Dyer contends he is disadvantaged by the ISRB's application of RCW 9.95.009(2) and (3). ¶ 36 Dyer asserts, "[i]f the Board is ......
  • State v. Caton, No. 40422–2–II.
    • United States
    • Court of Appeals of Washington
    • September 13, 2011
    ...instead of the law in effect in 2001. But we apply the law in effect at the time the crime was committed. State v. Schmidt, 143 Wash.2d 658, 673–74, 23 P.3d 462 (2001). He committed the crime on June 16, 2009, when former RCW 9A.44.130(11)(a) was in effect. The trial court did not retroacti......
  • State v. Nordlund, No. 26222-3-II.
    • United States
    • Court of Appeals of Washington
    • August 30, 2002
    ...he had "fair warning of conduct which will result in criminal penalties and of the punishment the State may impose[.]" State v. Schmidt, 143 Wash.2d 658, 673, 23 P.3d 462 (2001). As with the use of his other prior convictions to calculate his offender score under the SRA, the use of these c......
  • State v. Pillatos, No. 75984-7.
    • United States
    • United States State Supreme Court of Washington
    • January 25, 2007
    ...or punishable, `disadvantage' means the statute alters the standard of punishment which existed under the prior law." State v. Schmidt, 143 Wash.2d 658, 673, 23 P.3d 462 ¶ 32 We note that the argument that an unconstitutional statute does not, in some sense, exist, and therefore cannot just......
  • Request a trial to view additional results

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