State v. Schmidt
| Decision Date | 17 May 2001 |
| Docket Number | No. 69741-8, No. 69833-3. |
| Citation | 143 Wash.2d 658,23 P.3d 462 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Zachary B. SCHMIDT, Petitioner, and State of Washington, Respondent, v. Marlin L. Ayers, Petitioner. |
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.
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In State v. Ayers,2 the Court of Appeals in an unpublished opinion reversed and remanded dismissal by the Pierce County Superior Court of seven counts of second degree unlawful possession of a firearm.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.
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.
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, 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 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 22
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 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:
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 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 to the Court of Appeals, Division Two. On May 5, 2000, in an unpublished...
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...of criminal violation applies "unless a contrary intention is expressly declared in the amendatory ... act"); State v. Schmidt , 143 Wash.2d 658, 673-74, 23 P.3d 462 (2001) ("it is the law in effect at the time a criminal offense is actually committed that controls disposition of the case")......
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...Retroactive application of a statute may violate the ex post facto doctrine, id. at 507, 198 P.3d 1021 (citing State v. Schmidt, 143 Wash.2d 658, 672-73, 23 P.3d 462 (2001)), or affect vested rights and violate due process, id. (citing State v. Varga, 151 Wash.2d 179, 195, 86 P.3d 139 (2004......
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...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 (2001). ¶ 32 We note that the argument that an unconstitutional statute does not, in some sense, exist, and therefore cannot......
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...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......