Opinion
No. 65014-9-I.
January 18, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 09-1-03833-0, Helen Halpert, J., entered February 22, 2010.
Affirmed by unpublished opinion per Grosse, J., concurred in by Ellington and Schindler, JJ.
A defendant convicted of unlawful possession of a firearm is not affirmatively misled as to the applicability of a lifetime firearms prohibition where the predicate offense court orally notifies the defendant during the plea colloquy that an order imposing the prohibition will be entered, the defendant's statement on guilty plea clearly indicates that the firearm prohibition is applicable to the defendant, and the no-contact order that is issued upon the defendant's conviction of the predicate domestic violence offense unequivocally states that, if the defendant is convicted of a domestic violence offense, the defendant will face a lifetime firearms prohibition. We affirm.
FACTS
In November 2003, George Powell pleaded guilty to domestic violence violation of a no-contact order. The statement of defendant on plea of guilty, which Powell signed, contains a list of potential consequences of a guilty plea. The form directs that the box at the beginning of any paragraph applicable to the particular defendant should be checked and the paragraph initialed by the defendant. One paragraph on Powell's statement was marked with a circle around the box and the letter corresponding to the paragraph, rather than a check in the box. The paragraph states:
I understand that I may not possess, own, or have under my control any firearm unless my right to do so is restored by a court of record and that I must immediately surrender any concealed pistol license. RCW 9.41.040.
The paragraph is not initialed by Powell.
During the hearing on Powell's guilty plea, he told the court that he and his attorney went over each page of the statement in detail. Also, the following colloquy took place:
JUDGE: Do you further understand that there will be a written order prohibiting you from possessing a firearm for the remainder of your life or until a court of competent jurisdiction reinstates that right?
POWELL: Yes, sir.
JUDGE: Do you still wish to plead guilty?
POWELL: Yes, sir.
After Powell's guilty plea, the court imposed a two-year suspended sentence. One of the conditions of the suspended sentence was "Possess no weapons." Powell also received a copy of a domestic violence no-contact order that contained a provision stating:
If you are convicted of a crime of domestic violence, you will be forbidden for life from possessing a firearm or ammunition. Title 18, United States Code, 922(g)(9); RCW 9.41.010.
In 2009, Powell was charged with one count of felony harassment and one count of second degree unlawful possession of a firearm. The charges stemmed from an incident in which Powell threatened to kill his neighbor. The neighbor told the responding officers that Powell had pointed a gun at him. Powell denied pointing a gun at the neighbor and denied owning a gun. The responding officers went inside Powell's house and found a handgun case under a bed. An officer opened the case, saw a 9mm Ruger in the case, closed the case, and put it back under the bed. Powell refused to consent to a search of his house, so the officers obtained a search warrant. The officers searched the house and found two handguns, several long guns, and ammunition. Powell was the registered owner of the 9mm Ruger the officers found under the bed.
The officers obtained a second search warrant for Powell's residence upon discovering Powell's prior conviction for domestic violence violation of a no-contact order. The officers seized an operable Taurus 669 .38 Special handgun from Powell's residence. Powell knew the gun was in his residence.
Powell moved to dismiss the unlawful possession of a firearm charge or to suppress the evidence seized on several grounds, including lack of evidence of a predicate offense. The trial court denied Powell's motion.
Powell pleaded guilty to felony harassment. He waived his right to a jury and agreed to a bench trial on the unlawful possession of a firearm charge. The trial court entered findings of fact and conclusions of law on stipulated facts and found Powell guilty as charged. The court sentenced Powell to 6 days in jail and 54 days of community restitution.
Powell's appeal involves only his conviction on the unlawful possession of a firearm charge.
ANALYSIS
In Washington, a person is guilty of unlawful possession of a firearm if he or she possesses a firearm after being convicted of a felony. At the time a person is convicted of an offense making the person ineligible to possess a firearm, the convicting court must notify the person, orally and in writing, that the person may not possess a firearm unless his or her right to do so is restored by a court of record.
Powell concedes on appeal that he did in fact possess the firearm that is the subject of the charge. He also concedes that, by operation of law, his possession was unlawful. He argues, however, that his conviction must be reversed because the trial court failed to provide the statutorily required notice. The relevant inquiry when a defendant seeks dismissal of a charge of unlawful possession of a firearm on this ground is whether the defendant was "affirmatively misled" to believe that firearm possession was lawful.
State v. Minor, 162 Wn.2d 796, 800-01, 174 P.3d 1162 (2008).
Ignorance of the law is generally not a defense, and Washington case law provides that knowledge of the illegality of firearm possession is not an element of the crime. However, the lower courts have carved a narrow exception for where a governmental entity has provided affirmative, misleading information.
Minor, 162 Wn.2d at 802.
Here, in its order entered after the bench trial on stipulated facts, the trial court found that Powell "was not affirmatively misled by any government representative." Powell assigns error to this finding on appeal. The State argues that this finding must be treated as a verity on appeal because Powell failed to provide a verbatim report of proceedings and thereby failed to provide a record adequate to review his assignment of error. We disagree with the State.
See Morris v. Woodside, 101 Wn.2d 812, 815, 682 P.2d 905 (1984) (an appellant's failure to provide a verbatim report of proceedings renders the trial court's findings of fact verities and binding on the appellate court).
In its findings of fact, the trial court does, as the State asserts, refer to Powell's testimony. However, it appears from the findings that the testimony to which the court refers is Powell's testimony as to his belief that his right to possess a firearm was still revoked at the time of the incident with his neighbor. Because Powell has not provided a verbatim report of proceedings, the trial court's finding on this issue, namely that Powell did not realize that his right to possess a firearm was still revoked at that time, is a verity on appeal. The court's finding that Powell was not affirmatively misled by any government representative appears, however, to be based on the documents and colloquy regarding the 2003 proceedings, not on Powell's untranscribed testimony. This evidence is in the record on appeal, and Powell's failure to provide a verbatim report of proceedings does not preclude our review of his assignment of error. We review the trial court's findings of fact for substantial evidence and its conclusions of law de novo.
We note that the trial court, in its order on stipulated facts, also states that it incorporated the facts as presented at the pretrial hearing, including Powell's testimony as well as the court's oral findings. A transcript of this hearing is not in the record, and it is unclear from the trial court's order as to the nature of Powell's testimony at this hearing or the trial court's oral findings. The absence of this transcript does not preclude our review of Powell's assignment of error as to whether he was affirmatively misled.
We do agree with the State, however, that Powell's assignment of error to the trial court's conclusion that he had been previously convicted of domestic violence violation of a no-contact order is not well taken. Not only does Powell fail to provide argument pertaining to this assignment of error, but also his statement of the case in his opening brief all but concedes that he was in fact convicted of that offense.
State v. Wright, 155 Wn. App. 537, 556, 230 P.2d 1063 (2010) (citing State v. Carter, 127 Wn. App. 713, 112 P.3d 561 (2005)).
In State v. Carter, the court concluded that the defendant had not been affirmatively misled where there was no notification provision in the order on which the unlawful firearms possession charge was based. The defendant inCarter had actual notice of the firearms prohibition because of an intervening felony conviction at which time he was notified that he was disqualified from possessing a firearm. This, the court concluded, prevented the defendant from successfully claiming he was prejudiced by the absence of notification. In State v. Minor, by contrast, the court held that the defendant was affirmatively misled into believing he could possess firearms where the order on which the unlawful possession charge was based did contain a notification of the firearm prohibition, but the court did not check a box located beside the paragraph containing the notification. InState v. Breitung, the court reversed the defendant's conviction of unlawful possession of a firearm where the order on which the charge was based did not contain notification of the firearms prohibition and, unlike inCarter, the defendant did not have actual knowledge of the prohibition from another source, such as a prior felony conviction. Further, the court in Breitung found that given the fact that the defendant candidly admitted to police officers that he possessed firearms, the defendant was prejudiced by the predicate offense court's failure to give the statutorily required notice. The court in State v. Leavitt, likewise found that the defendant was prejudiced by the predicate court's failure to notify him of the firearms prohibition based on the defendant's "guileless actions" of volunteering more information to the officers than was asked of him, which led to the defendant's conviction of unlawful possession of a firearm. As in Minor, the box next to the paragraph containing the firearms prohibition was not checked, a fact the Leavitt court stated suggested that the prohibition did not apply to the defendant and supported a finding that the defendant was affirmatively misled.
127 Wn. App. 713, 112 P.3d 561 (2005).
162 Wn.2d 796, 174 P.3d 1162 (2008).
155 Wn. App. 606, 230 P.3d 614 (2010).
107 Wn. App. 361, 367-68, 27 P.3d 622 (2001).
Here, unlike in Minor and Breitung, the predicate offense court did give Powell the statutorily required oral notice of the firearms prohibition during the plea colloquy. We disagree with Powell that the court's statement that an order prohibiting him from possessing firearms for the rest of his life "will be" entered is insufficient notice. The court's oral notification did not, as Powell argues, merely inform Powell of what "could" happen; rather, the court unequivocally stated that the prohibition "will be" imposed.
We find that the court's written notification was sufficient under RCW 9.41.047 as well and that Powell was not affirmatively misled into believing that the firearms prohibition was revoked upon the expiration of the two-year suspended sentence. As the trial court found in an unchallenged finding, the judgment and sentence entered on the predicate offense prohibited Powell from possessing firearms for the two-year period. However, other documents provided Powell ample actual notice that the firearms prohibition was for his entire life.
The markings on Powell's statement on guilty plea clearly indicate the applicability of the paragraph stating that he was not to possess, own, or have under his control any firearm unless his right to do so is restored. While the box in front of the paragraph is not checked and Powell's initials do not appear near it, the box and the identifying letter of the paragraph are circled. The trial court found, with respect to this paragraph, that it "was not initialed but was circled, indicating that it applied." Powell did not assign error to this finding and it is, therefore, a verity on appeal. The clear indication of the applicability of this paragraph distinguishes this case fromMinor and Leavitt.
Powell appears to argue that the notification in Powell's statement, even if initialed and checked, would be insufficient because the statement was part of the plea process and not part of the sentencing phase. He fails to explain his argument or provide any citations to authority in support of it. Accordingly, we do not consider it.
In addition to Powell's statement on guilty plea, the domestic violence no-contact order Powell was given also provided notification of the firearms prohibition. Under the heading, "WARNINGS TO THE DEFENDANT," appears the following: "If you are convicted of an offense of domestic violence, you will be forbidden for life from possessing a firearm or ammunition." The order is dated the same date as the judgment and sentence on Powell's guilty plea. Powell makes no argument that he was unaware that he had been convicted of an offense of domestic violence, nor can we see how he reasonably could make the argument.
We disagree with Powell that the notice was ineffective because it was "buried in" the no-contact order.
Given the oral and written notification of the lifetime firearms prohibition Powell was given, we find no violation of RCW 9.41.047. Nor, given this notification, do we find that Powell was affirmatively misled into believing that the firearm prohibition was not in effect at the time of the incident with his neighbor, even though a firearms prohibition was a condition of his two-year suspended sentence. The trial court's finding that Powell was not affirmatively misled is supported by substantial evidence.
Affirmed.