Opinion
No. 26309-6-III.
April 8, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-1-03931-0, Michael P. Price, J., entered June 28, 2007.
Reversed by unpublished opinion per Sweeney, C.J., concurred in by Schultheis and Brown, JJ.
The question here is whether the failure to notify a defendant that he is prohibited from possessing firearms precludes a later prosecution for illegal possession of firearms. We conclude that due process does not require such a notice. And we reverse the trial court's judgment that dismissed the charges for illegal possession of firearms.
FACTS
John McBride pleaded guilty to fourth degree assault (domestic violence) on April 1, 1994. Mr. McBride and his wife Brenda had a domestic dispute over 10 years later. She called police to secure Mr. McBride's guns, seven rifles and two handguns. The police discovered that Mr. McBride's right to possess firearms had been revoked after his 1994 assault conviction. The State charged him with nine counts of second degree unlawful possession of firearms.
The pleadings filed as part of Mr. McBride's 1994 guilty plea do not reflect that his right to possess firearms had been revoked. The trial judge in this current prosecution found that Mr. McBride told police he thought his right to possess a firearm had been restored after he took classes for the domestic violence following his 1994 conviction. Clerk's Papers at 26 (Finding of Fact 2.4). The legislature passed RCW 9.41.047 on June 13, 1994, after Mr. McBride pleaded guilty to the fourth degree assault on April 1, 1994. That statute requires that the court notify the defendant that his right to possess a firearm has been suspended.
Former RCW 9.41.047(1)(a) (1994) states that at "the time a person is convicted of an offense making the person ineligible to possess a firearm . . . the convicting or committing court shall 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."
Mr. McBride moved to dismiss the nine counts of second degree unlawful possession of a firearm pursuant to CrR 8.3(b) because he claims he was not notified that his right to possess firearms had been suspended and due process of law requires such notice.
The trial court agreed and dismissed the charges. The State appeals.
DISCUSSION
The State contends that Mr. McBride had no constitutional right to notice. Nor did he have a statutory right to notice because RCW 9.41.047 (requiring notice) had not been passed at the time of his initial conviction. And, moreover, it was Mr. McBride's responsibility to show the State failed to notify him that his right to possess firearms had been suspended. The State contends the trial judge improperly placed that burden on the State.
The essential facts here are undisputed. We assume for purposes of our analysis that the court, in 1994, did not inform Mr. McBride that he lost his right to possess firearms. The question is then one of law; was Mr. McBride entitled to notice that his right to possess firearms had been suspended as a matter of due process of law? Our review is, of course, de novo. State v. Esquivel, 132 Wn. App. 316, 324, 132 P.3d 751 (2006).
The judge dismissed nine counts of unlawful possession of a firearm against Mr. McBride pursuant to CrR 8.3(b):
On Motion of Court. The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial. The court shall set forth its reasons in a written order.
See State v. Michielli, 132 Wn.2d 229, 239-41, 937 P.2d 587 (1997).
There are two steps that must be shown before a court can dismiss charges under CrR 8.3(b). Michielli, 132 Wn.2d at 239. First, a defendant must show arbitrary action or governmental misconduct toward him or her. Id.; State v. Blackwell, 120 Wn.2d 822, 831, 845 P.2d 1017 (1993). Governmental misconduct "`need not be of an evil or dishonest nature; simple mismanagement is sufficient.'" Michielli, 132 Wn.2d at 239-40 (emphasis omitted) (quoting Blackwell, 120 Wn.2d at 831). Second, the defendant must show prejudice affecting his or her right to a fair trial. Id. at 240; see State v. Cannon, 130 Wn.2d 313, 328, 922 P.2d 1293 (1996).
The defendant must show that he was affirmatively misled to support a claim that his due process rights were violated. State v. Moore, 121 Wn. App. 889, 895, 91 P.3d 136 (2004). And there is no showing here that Mr. McBride was affirmatively misled. Moreover, knowledge that possession of a firearm is unlawful is not an element of that crime. RCW 9.41.040(2)(a)(i); State v. Stevens, 137 Wn. App. 460, 467, 153 P.3d 903 (2007), review denied, 162 Wn.2d 1012 (2008); State v. Krzeszowski, 106 Wn. App. 638, 642-43, 24 P.3d 485 (2001). Whether or not the State is required to give notice turns on whether the conduct proscribed is active or passive. Stevens, 137 Wn. App. at 468; State v. Blum, 121 Wn. App. 1, 4-5, 85 P.3d 373 (2004).
The conduct here, like the conduct in Blum, was not passive, like merely being present in a location. Blum, 121 Wn. App. at 4-5. The prosecution was based on "active conduct" (possession a firearm). Stevens, 137 Wn. App. at 468; Blum, 121 Wn. App. at 4-5.
Stevens is then on point. There, the defendant was convicted for first degree rape in Oregon. Stevens, 137 Wn. App. at 464. The state of Oregon did not take away his right to possess firearms. Id. In fact, Mr. Stevens received a hunting license on three different occasions in Oregon. Id. But Mr. Stevens was later arrested in Washington. Id. The police found one shotgun and three rifles in his house. Id. The State charged Mr. Stevens with four counts of first degree unlawful possession of a firearm. Id. The equivalent crime in Washington (for which he was convicted in Oregon) would have resulted in his loss of the right to possess firearms in this state. Id. at 465-66.
Mr. Stevens argued that he was denied his right to due process of law because he was not put on notice of the prohibition to possess firearms in Washington. Id. at 464. We affirmed his conviction and concluded that "knowledge" that his possession of a firearm was unlawful was not an element of the crime. Id. at 467. We also concluded that failure to give notice of the loss of his right to possess firearms was not a violation of his right to due process of law because his conviction was based on active conduct. Id. at 467-68. We relied on Blum.
In Blum, the court held that "the State is not required to prove notice of the law [illegal to possess firearms] to convict." Blum, 121 Wn. App. at 5; Krzeszowski, 106 Wn. App. 638; State v. Reed, 84 Wn. App. 379, 383, 928 P.2d 469 (1997); State v. Semakula, 88 Wn. App. 719, 724, 946 P.2d 795 (1997). And again knowledge that possession is a crime is not an element of the crime. Blum, 121 Wn. App. at 4; Krzeszowski, 106 Wn. App. at 642-43 (citing State v. May, 100 Wn. App. 478, 482, 997 P.2d 956 (2000); Semakula, 88 Wn. App. at 724).
Mr. McBride also relies on State v. Leavitt. State v. Leavitt, 107 Wn. App. 361, 372, 27 P.3d 622 (2001). His reliance is misplaced. There, Mr. Leavitt was convicted in Washington of a crime that resulted in the loss of his right to possess firearms. Id. at 363. RCW 9.41.047 had been enacted at the time of his conviction (unlike here). The trial court nonetheless failed to inform Mr. Leavitt that this prohibition applied beyond his one-year probation. Id. Also, Mr. Leavitt's probation officer gave him a form indicating that RCW 9.41.047 did not apply to him. Id. Division Two of this court reversed Mr. Leavitt's conviction for unlawful possession of a firearm because he had affirmatively been misled. Id. at 372-73. There is no showing that Mr. McBride had been affirmatively misled here.
We reverse the dismissal of the charges here and reinstate the prosecution.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, J. and BROWN, J., concur.