IN RE ANDERSON, 57809-0-I (Wash.App. 8-6-2007)

In the Matter of BRUCE M. ANDERSON, Appellant.

No. 57809-0-I.The Court of Appeals of Washington, Division One.
August 6, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from a judgment of the Superior Court for Snohomish County, No. 06-2-05739-1, Tracy G. Waggoner, J. Pro Tem., entered January 31, 2006.

Affirmed by unpublished per curiam opinion.

PER CURIAM.

Bruce Anderson petitioned the superior court under RCW 9.41.040(3) and(4) for the restoration of firearm rights he lost as a result of a 1976 robbery conviction. Because the arguments he advanced below are controlled by settled law, and because he fails to identify a vested right supporting the due process argument he raises for the first time on appeal, we affirm. In 1976, Anderson pleaded guilty to first degree robbery. The court imposed a 20-year deferred sentence with three years probation.

In 1979, following Anderson’s successful completion of probation, the superior court granted his petition “For Leave to Withdraw Plea of Guilty and Enter Plea of Not Guilty and Order for Dismissal of Cause.”In 2006, Anderson filed a petition for a certificate of rehabilitation and/or an order restoring his right to possess a firearm. The superior court denied the motion. Anderson appeals.

CERTIFICATE OF REHABILITATION
Anderson first contends the court erred in denying his request for a Certificate of Rehabilitation under RCW 9.41.040(3). That statute provides in pertinent part: A person shall not be precluded from possession of a firearm if the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted or the conviction or disposition has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. Anderson concedes that neither the courts nor the Legislature have established a procedure for the issuance of certificates of rehabilitation.[1] He argues, however, that the superior court had inherent authority under RCW 2.28.150 “to adopt any suitable process or mode of proceeding that may appear most conformable to the spirit of the laws.”[2] We rejected the same argument in State v. Masangkay, 121 Wn. App. at 913-14. We adhere to our holding in that case. Anderson also argues that even if there is no procedure for issuance of a certificate of rehabilitation, the court should have restored his firearm rights because his completion of probation and the court’s order allowing withdrawal of his guilty plea and dismissal of the charges was equivalent to a finding of rehabilitation. This argument is controlled by our decision in Nakatani v. State, 109 Wn. App. 622, 626, 36 P.3d 1116
(2001) (completion of probation, withdrawal of guilty plea, and subsequent dismissal of charges “is not a finding of rehabilitation for purposes of RCW 9.41.040(3)”).

DUE PROCESS
Last, Anderson contends the trial court erred in denying his petition for restoration of his firearm rights under RCW 9.41.040(4). In his petition, Anderson relied on the following portion of the statute:

Notwithstanding any other provisions of this section, if a person is prohibited from possession of a firearm under subsection (1) . . . of this section and has not previously been convicted . . . of a sex offense prohibiting firearm ownership under subsection (1) . . . of this section and/or any felony defined under any law as a class A felony or with a maximum sentence of at least twenty years, or both, the individual may petition a court of record to have his or her right to possess a firearm restored:

(a) Under RCW 9.41.047; and/or

(b)(i) If the conviction . . . was for a felony offense, after five or more consecutive years in the community without being convicted or . . . currently charged with any felony, gross misdemeanor, or misdemeanor crimes, if the individual has no prior felony convictions that prohibit the possession of a firearm counted as part of the offender score under RCW 9.94A.525.

Anderson conceded below that he was ineligible to petition the court under this language because his robbery offense carried a maximum sentence of 20 years. He argued, however, that his offense had been downgraded by the Legislature and he was therefore eligible to petition for restoration of his firearm rights.

On appeal, Anderson advances an entirely different argument regarding this statute. He now contends the restrictions in the statute cannot apply retroactively to his 1976 conviction, stating as follows:

Mr. Anderson maintains that in 1976 when he plead guilty and was sentenced there was no prohibition for restoring the Right to Possess a Firearm. See RCW 9.41.040 (Session Laws 1976). This [former] statute merely sets the penalties and does not address restoration of rights. By applying the current statute to Mr. Anderson, this action denied him due process.[3]

Assuming, without deciding, that Anderson may raise this claim for the first time on appeal,[4] we reject it.

Retroactive application of a law violates due process only if it deprives an individual of a vested right.[5] Here, it is undisputed that at the time of Anderson’s offense, the Legislature had not authorized restoration of firearm rights. Although Anderson claims he had a “vested right” in 1976 to petition for restoration of his firearm rights, he cites no authority establishing that right. He simply argues that “[t]he fact that the statute did not specifically state a right to restore in 1976, does not mean that it did not exist.”[6] We disagree.

Restoration of rights taken away by the Legislature is a matter for the Legislature.[7] The 1976 version of RCW 9.41.040 expressly, and without qualification of any kind, took away the firearm rights of persons convicted of crimes of violence. That right may not be restored unless and until the Legislature decides otherwise.

For the first time in his reply brief, Anderson contends the 1976 version of RCW 9.41.040 is ambiguous and that the rule of lenity requires that the statute be construed as allowing a petition for restoration of firearm rights. This argument comes too late and need not be considered.[8]

We affirm the order on review.

For the Court:

/s/ Cox, J.
/s/ Coleman, J.
/s/ Ellington, J.

[1] State v. Masangkay, 121 Wn. App. 904, 910-14, 91 P.3d 140
(2004) (courts have no statutory procedure or inherent power to issue certificate of rehabilitation); Smith v. State, 118 Wn. App. 464, 470, 76 P.3d 769 (2003) (“As currently drafted, there is no provision in Washington statutes for the issuance of a certificate of rehabilitation.”).
[2] Appellant’s Brief at 4.
[3] Appellant’s Brief at 6.
[4] See RAP 2.5(a).
[5] In re Pers. Restraint of Sappenfield, 92 Wn. App. 729, 742, 964 P.2d 1204 (1998).
[6] Reply Brief at 2.
[7] See Masangkay, 121 Wn. App. at 913-14; In re Carlson’s Estate, 61 Wn.2d 359, 367, 378 P.2d 435 (1963) (“but the legislature has abolished the right to deduct the amount of the federal estate tax in computing inheritance taxes, and only the legislature can restore it.”).
[8] Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809,828 P.2d 549 (1992) (issue raised for the first time in a reply is too late for consideration). Moreover, even if we were to reach the argument we would reject it. Plain words in a statute do not require judicialconstruction. State v. Keller, 143 Wn.2d 267, 276, 19 P.3d 1030 (2001).The statute clearly and unambiguously states that “[n]o person who has been convicted . . . of a crime of violence, shall own a pistol or have one in his possession or under his control.” Former RCW 9.41.040. The statute says nothing about restoration or exceptions to its prohibition. Nor does Anderson identify any ambiguous language in the provision.