To give you a concise preview, we have two decisions, one out of Division II of the Court of Appeals and one out of Division III of the Court of Appeals. It was a slow week for the Supreme Court - they didn’t announce any fresh cases of significance. The Division II case concerns something criminal defense defense lawyers in Seattle will run into from time to time, or at least face questions on - the restoration of firearm rights after a criminal defense conviction. The Division III case concerns the essentials of residential burglary and whether or not obstructing a law enforcement officer counts as the predicate misdeed necessary for a guilty verdict of residential burglary. Let’s get going!
Restoring Fire Arms Rights - State v. Mihali
Facts - State v. Mihali is a case about restoring fire arms rights to an entity convicted of a crime. Mihali, in 2000, was found guilty of conspiracy to manufacture a controlled substance (i.e. drugs - in all probability methamphetamine). In 2004 Mihali received a certification from the Department of Corrections that she had fulfilled the terms of her judgment, was discharged from DOC supervision, and had all of her civil rights restored (right to vote, etc.) not including the entitlement to own and/or hold a firearm. In 2008 she filed with the court a motion to restore her firearms, alleging that she had met all of the requirements to have her right to firearms restored. The state opposed this motion, arguing that the mandatory 10 years had not elapsed since her conviction was finished, which is a necessity because she was found guilty of a class B felony. The court agreed with Mihali and restored her firearms rights - the State appealed.
Issue - Was Mihali entitled to have her right to possess a firearm restored?
Analysis - firearm restoration rights are governed by RCW 9.41.040(4). It states that a person without a conviction for a sex offense or a Class A felony may petition the court to have their right to possess a weapon if:
(b)(i) If the guilty verdict or finding of not guilty by reason of insanity was for a felony offense, after five or more consecutive years in the community without being found guilty or found not guilty by reason of insanity or currently charged with any felony, gross misdemeanor, or misdemeanor crimes, if the human being has no prior felony convictions that prohibit the possession of a gun counted as part of the offender score under RCW 9.94A.525
The state's contention that two conditions must be met before firearms will be restored is a sound one: (1) five or more years in the community without being convicted or currently charged with a crime; and (2) no earlier felony convictions in her criminal defense history that would be included in her offender score calculation that make illegal possessing a firearm. The issue in scrutiny here is the date from which the second prong of the scrutiny is calculated from. The state contends the ten year look back phase goes from the date of the petition for restoration of weapon rights. Mihali argues the ten year look back period should be from the date of the last guilty verdict. If the state’s view is adopted, Mihali is not appropriate. If Mihali’s view is adopted, she is.
This issue has been raised and answered in preceding case decisions. There we determined that the Legislature intended the look back phase to be from the date of the petition for firearm restoration. Although the decisions in these cases were not absolutely on point because they weren’t discussing this statute explicitly, the breakdown is similar. Furthermore, this is reflected in the Legislative history of the law.
Holding - The trial court’s decision reinstating Mahili’s weapon rights is overturned. Mahili must delay ten years from the date of her last guilty verdict before the court can consider firearm right restoration.
Seattle DUI attorney’s Analysis - In cases such as these, whether or not the law appears to be impartial, it is the law. I think the court decided the way that it should have, even though it forces Mihali to wait five more years to have her weapon rights restored. It was almost certainly worth a shot from Mihali’s criminal defense attorney because the matter hadn’t been litigated, but it was a long shot to be upheld by the Court of Appeals. The fact is, at the time of her petition for firearm right restoration, Mihali had a felony conviction that would have counted as part of her offender score.
Elements of Residential Burglary - State v. Devitt
Facts - State v. Devitt is a case about the basics of residential burglary, namely whether or not obstructing a law enforcement officer counts as the predicate transgression required for a conviction of residential burglary. The case starts with the cops thinking Devitt stole a car and was involved in a hit and run. The cops saw him nearby to the accident and Devitt took off and ran from them. He ended up hiding in an apartment complex, eventually finding himself in the apartment of a woman. While there Devitt talked to the woman, had a schooner of iced tea, made a telephone call (with her authorization), and just hung out waiting for the officers to leave. The woman said she wasn’t in fear for her security. After a bit she went outside to take out the trash and let the officers know Devitt was in her high-rise.
Devitt was charged with residential burglary (first degree dui trespass as an alternative), obstructing a law enforcement officer, and resisting arrest. At the completion of the state’s case, Devitt moved to dismiss the burglary charge for failing to show all of the fundamentals, namely that Devitt planned to commit a offense against the person or property in the dwelling. The court said obstructing a law enforcement officer was enough, and let the case go to the jury. Devitt was convicted of all the charges.
Issue - Is obstructing a police officer sufficient to meet the underlying transgression obligation of residential burglary?
Analysis - Residential burglary is defined in RCW 9A.52.025(1) as: entering or remaining unlawfully in a dwelling other than a vehicle with plan to commit a misdeed against a person or goods therein. To support his posture that obstructing a law enforcement officer should not be important as the underlying offense, Devitt pointed the court to the prosecutor’s standards for charging crimes. Obstructing a law enforcement officer is not characterized anywhere as a transgression against a individual, much less anyone other than the officer.
The language of the residential burglary law requires a explicit transgression (against a being or possessions) in a detailed place (inside a dwelling) and with a specific intent (to go in the abode to commit the offense). Because of this, more than just the intent to commit a crime generally is necessary.
The condition that the offense intended to be committed be done “therein” or within the abode, is also notable. In this case there was no law enforcement officer in the dwelling, making it hard for Devitt to have entered the home to commit that precise offense.
Holding - the state failed to provide evidence the elements of the residential burglary statute. The case is dismissed with prejudice.
Everett driving under the influence Lawyer’s Analysis - Really? Are you freaking kidding me? Why would the prosecutor even charge this offense, much less see it through to a jury trial and then maintain their completely awkward view to the court of appeals? And why would the trial court judge not read the law and realize the elements of the misdeed had not been met? I am a Seattle dui lawyer, so I am a little biased. But I am not the type of criminal defense attorney that is an apologist for my clients. I see the facts and I see the crimes charged and I work from there. Why can’t prosecutors do the same thing?
This is a great example of some of the things we are forced to deal with all the time that gum up the dui justice system, make everyone grumpy, and make defense attorneys think prosecutors are unreasonable and gunning for victories at all times. If this prosecutor would have amended the charges to first degree trespass there would have been no trial, there would have been no appeal, and all of this time would not have been wasted. A first year law student should be able to make the analysis mandatory to get this decision right.
That’s my two sense for today. Stay tuned next week for another installment of the latest criminal decisions from Washington State. Hopefully there will be more exciting news.
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