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Withdrawal of a Guilty Plea Does Mean the Defendant Is Rehabilitated for Firearm Possession

Nakatani v. State
Court of Appeals of Washington, Division One
December 24, 2001

Holding: A defendant who is allowed to withdraw his guilty plea and enter a plea of not guilty solely because he completed the terms of his probation does not qualify as rehabilitated for purposes of firearm restoration pursuant to Washington Revised Code § 9.41.040.

Why This Case is Important: Wash. Rev. Code § 9.41.040 prevents defendants convicted of certain crimes from owning a firearm. Sections 9.41.040(3) and 9.41.040(4), however, provides two opportunities for a person to restore their firearm rights.

Section 9.41.040(3) states “a person shall not be precluded from possession of a firearm if the conviction has been subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of rehabilitation […] or innocence.” Wash. Rev. Code. § 9.41.040(3). As such, a person who petitions under Section 9.41.040(3) must demonstrate that they have obtained a pardon, annulment, or certificate of rehabilitation.

Section 9.41.040(4) provides that a person may petition to have his firearm rights restored after a statutory period of time has passed since the conviction. For certain felony offenses, the statutory period is five consecutive years; for certain non-felony offenses, the period is three consecutive years.

Section 9.41.040(4) however, also includes a list of convicted crimes that bars a defendant from petitioning to have his firearm rights restored. Among these crimes are murder, manslaughter, robbery, rape, and burglary. Furthermore, Section 9.41.040(4) also states a person convicted of a sex offense prohibiting firearm ownership, a class A felony or crime carrying a maximum sentence of at least twenty years may not petition for firearm restoration.

If a person does not meet the requirements of Section 9.41.0404(3), or if he falls into the category that bars firearm restoration in Section 9.41.040(4), then the court has the authority to deny his firearm restoration petition.

It is important to note that a person petitioning under Section 9.41.040(3) must establish he has been pardoned or rehabilitated. As this case points out, it is not enough to have a conviction set aside because of timely completion of probation, since this does not amount to a finding of rehabilitation. Nothing short of a finding of post-conviction rehabilitation will allow a person to own a firearm pursuant to Section 9.41.040(3).

Facts of This Case: In 1975, the defendant in this case was convicted of robbery. He received a five-year probationary period; in 1984, he completed his probation, and was allowed to withdraw his guilty plea and enter a plea of not guilty. The court subsequently set aside his conviction for complying with the terms of his probation.

In 2000, the defendant petitioned to have his firearm rights restored. The trial court dismissed the petition. On appeal, the Washington Court of Appeals affirmed the trial court’s decision.

The court of appeals examined the statutory language of RCW § 9.41.040. The court of appeals determined that the language of 9.41.040(3) required that a petitioner establish he has been rehabilitated and stated that a pardon, annulment, or certificate of rehabilitation would establish such a finding of rehabilitation. The court held that the defendant could not establish a finding of rehabilitation because his conviction was set aside merely because he completed the terms of his probation. The court concluded that this did not amount to a finding of rehabilitation.

The court of appeals also determined that the defendant’s conviction barred him from restoring his firearm rights pursuant to Section 9.41.040(4). The court stated that the defendant’s robbery conviction, which also carried a maximum sentence of more than 20 years, was expressly barred from firearm rights restoration under Section 9.41.040(4).

The Washington Court of Appeals thereby affirmed the decision of the court below, ordering that the petitioner’s request to restore his firearm rights be denied.

Key Language: The only prerequisite for allowing the defendant to withdraw his guilty plea and enter a plea of not guilty was that he fulfilled the terms of his probation for the entire period thereof. This is not a finding of rehabilitation for purposes of RCW 9.41.040(3).

Expert Advise: RCW 9.41.040 provides two methods for a person to achieve firearm restoration: (1) either by demonstrating a form of rehabilitation or (2) by complying with the statutory periods. This case clearly explains how RCW 9.41.040 operates and is a case any attorney should be aware of when seeking to restore a client’s firearm rights.

To read about more cases that help to define record clearing relief laws click here.

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