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Home My WebLink About02-441 MiscellaneousCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo CHARLES F. YANA NO. 02-0441 MISCELLANEOUS IN RE: PETITION TO RESTORE ALL CIVIL RIGHTS AND REMOVE FIREARMS DISABILITIES BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., April 29, 2003. IN this case, Petitioner has filed a document entitled "Petition To Restore All Civil Rights and Remove Firearms Disabilities," requesting relief from certain civil effects of a 1977 criminal conviction. Specifically, Petitioner seeks an order that would restore Petitioner's civil rights, remove Petitioner's firearms disabilities and expunge his prior criminal history record for the purpose of restoring all civil rights and for the purpose of removing all firearms disabilities. ~ The Commonwealth has opposed the petition on the grounds (a) that the court lacks authority to grant the relief requested and (b) that the relief requested would be inappropriate under the circumstances even if such authority existed.2 A hearing was held on the petition on January 13, 2003, and briefs have been submitted by Petitioner and the Commonwealth. For the reasons stated in this opinion, the petition will be granted. STATEMENT OF FACTS Petitioner, Charles Frederick Yana, II,3 who is 45 years etd4 and a Cumberland County resident,5 pled guilty to a charge of simple assault in 1977,6 when he was 19 years etd.7 The date of conviction was March 15, 1977.a Petition To Restore All Civil Rights and Remove Firearms Disabilities, at 3. N.T. 3, Hearing, Jan. 13, 2003 (hereinafter N.T. ~. This offense, in which Petitioner utilized a Winchester rifle,9 qualifies as % misdemeanor of domestic violence''~° for purposes of a federal firearms disabilities statute.~ As a crime punishable by more than one year in jail,~2 the offense also implicates a state juror disqualification provision contained in the Judicial Code.~3 No other loss of civil rights is implicated in the conviction. ~4 Since his conviction in 1977 of simple assault, Petitioner has not been convicted of any felonies or misdemeanors.~5 He is married,~6 has two children,~7 and is employed,la He is a respected member of the community.~9 To the extent that the Secretary of the Treasury has, or had, authority to relieve persons of the federal firearms disability, the United States Congress has 3N.T. 4. 4N.T. 10. s Petition To Restore All Civil Rights and Remove Firearms Disabilities, para. 1; N.T. 4-5. 6N.T. 7. VN.T. 11. 8 Petition To Restore All Civil Rights and Remove firearms Disabilities, para. 8; N.T. 5. 9 N.T. 7-8, 11-14. l0 Petition To Restore All Civil Rights and Remove Firearms Disabilities, para. 8; N.T. 5. ~ See 18 U.S.C. §921(a)(33)(A). Interestingly, the conviction does not qualify as a %rime punishable by imprisonment for a term exceeding one year" for purposes of the federal firearms disabilities statute. See 18 U.S.C. §921 (a)(20)(B) (excluding from definition state convictions for crimes punishable by imprisonment of two years or less). Consequences of the federal disability include Petitioner's inability to hunt and to obtain a permit to carry a concealed weapon. N.T. 5, 7, 10. The details of the offense are contained in the hearing transcript. N.T. 7-8, 11-14. ~: See Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §§2701(b), 1104(2). ~ See Act of June 26, 1980, P.L. 266, §3, as amended, 42 Pa. C.S. §4502. 14 C~. Pa. Const., Art. 2, §7 (qualifications for holding public office); Act of June 3, 1937, P.L. 1333, §701, as amended, 25 P.S. §2811 (qualifications for voting). is N.T. 6. 16 Petition To Restore All Civil Rights and Remove Firearms Disabilities, para. 6; N.T. 5-6. ~7 Petition To Restore All Civil Rights and Remove Firearms Disabilities, para. 7; N.T. 5-6. 18 N.T. 4-5. 19 N.T. 15-21. 2 not appropriated sufficient funds to enable the Secretary to carry out this authority.2° DISCUSSION Under the Federal Gun Control Act of 1968,2~ firearms disabilities apply to a person who has been convicted, inter alia, of "a misdemeanor crime of domestic violence." See, e.g., 18 U.S.C. §§922(d)(9), 922(g)(9), 922(h). The analogous Pennsylvania law dealing with firearms disabilities is contained in the Uniform Firearms Act.~ See Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §6105. The federal firearms disability does not apply where the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights~3 restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. 18 U.S.C. §921(a)(33)(B)(ii). The effect of this exclusionary provision in the federal law is to refer, to some degree, the federal disability issue to state law. [T]he law of the state of conviction, not federal law, determines restoration of civil rights unless the state of conviction has not fully restored the right of its citizen to possess firearms, whereupon that citizen shall not be relieved of his federal firearms disability. Pennsylvania State Police v. Grogan, 790 A.2d 1093, 1096 (Pa. Commw. Ct. 2002) (citations omitted) (emphasis in original). In a sense, the action by a state in relieving a person of any state firearms disability and loss of civil rights arising out 20 Petition To Restore All Civil Rights and Remove Firearms Disabilities, Ex. A; N.T. 5. 2~ See Pennsylvania State Police v. Patdshock, 789 A.2d 309, (Pa. Commw. Ct. 2001). 22 See Pennsylvania State Police v. Paulshock, 789 A.2d 309 (Pa. Commw. Ct. 2001). 23 Civil rights, in this context, is generally understood to mean the right to vote, the right to sit on a jury, and the right to seek and hold public office. See, e.g., United States v. Essig, 10 F.3d 968, 975 (3d Cir. 1993). 3 of a prior conviction serves as a positive vetting of his present character for purposes of the federal disability as well. See generally United States v. Essig, 10 F.3d 975 (3d Cir. 1993); Pennsylvania v. Grogan, 790 A.2d 1093, 1098 (Pa. Commw. Ct. 2002) (Leadbetter, J., dissenting). In the Commonwealth, firearms disabilities arising out of convictions may be removed by the court of common pleas of the county of the applicant's principal residence upon a determination that each of the following conditions is met: (i) The Secretary of the Treasury of the United States has relieved the applicant of an applicable disability imposed by Federal law upon the possession, ownership or control of a firearm as a result of the applicant's prior conviction, except that the court may waive this condition if the court determines that the Congress of the United States has not appropriated sufficient funds to enable the Secretary of the Treasury to grant relief to applicants eligible for the relief. (ii) A period of ten years, not including any time spent in incarceration, has elapsed since the most recent conviction of the applicant of a crime enumerated in subsection (b) or a felony violation of The Controlled Substance, Drug, Device and Cosmetic Act. Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §6105(d)(3). implicit within this provision is the hearing court's authority to restore the applicant's civil right to serve on a jury in the process of ratifying his privilege to possess, transfer or control a firearm. Pennsylvania State Police v. Paulshock, 789 A.2d, 309, 315 (Pa. Commw. Ct. 2001). In the present case, the statutory condition for a waiver of the prerequisite that Petitioner procure federal relief from his firearms disability is present, in addition, Petitioner has, in the court's view, long since rehabilitated himself with respect to the firearms-related misdemeanor which still occasions his firearms disability and loss of his civil right to serve on a jury. Given the authority of the court to relieve Petitioner from any state firearms disability arising out of the 4 conviction24 and, ancillary thereto, to restore his right to serve on a jury, and the circumstances demonstrating that he has earned such a result, the following order will be entered: ORDER OF COURT AND NOW, this 29th day of April, 2003, upon consideration of Petitioner's Petition To Restore All Civil Rights and Remove Firearms Disabilities, following a hearing held on January 13, 2003, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. The prerequisite that Petitioner obtain federal relief from his firearms disability is waived; 2. To the extent that Petitioner is precluded from shipping, transporting, owning, possessing, purchasing, receiving, or transferring a firearm as a consequence of his conviction on March 15, 1977, for simple assault, the disability is removed. 3. To the extent that Petitioner is precluded from serving on a jury as a consequence of the aforesaid conviction, his civil right to perform jury service is restored; no other civil rights were lost as a result of the conviction. BY THE COURT, s/ J. Wesley Oler, Jr._ J. Wesley Oler, Jr., J. :4 In a case such as the present one, where the state legislature has not included the firearms- related conviction among those warranting a state firearms disability, a petitioner's case for relief from the federal disability is even more compelling than if a state disability did attach. In such a case, an adjudication favorable to the petitioner, with respect to the state disability, is more in the nature of a declaration of the state policy than an order of relief from it. The Commonwealth's argument that the court's authority to adjudicate a case of the present type is limited to the less compelling situations only, while technically appealing, is highly unreasonable in its result. See Commonwealth's Brief in Opposition to Petition, at 1-4. One presumption to be employed in statutory construction is that "the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable." Act of December 6, 1972, P.L. 1339, §3, 1 Pa. C.S. §1922(1). 5 Daniel Sodus, Esq. Senior Assistant District Attorney Dirk E. Berry, Esq. Attorney for Defendant 6 7 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo CHARLES F. YANA NO. 02-0441 MISCELLANEOUS IN RE: PETITION TO RESTORE ALL CIVIL RIGHTS AND REMOVE FIREARMS DISABILITIES BEFORE OLER, J. ORDER OF COURT AND NOW, this 29th day of April, 2003, upon consideration of Petitioner's Petition To Restore All Civil Rights and Remove Firearms Disabilities, following a hearing held on January 13, 2003, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. The prerequisite that Petitioner obtain federal relief from his firearms disability is waived; 2. To the extent that Petitioner is precluded from shipping, transporting, owning, possessing, purchasing, receiving, or transferring a firearm as a consequence of his conviction on March 15, 1977, for simple assault, the disability is removed. 3. To the extent that Petitioner is precluded from serving on a jury as a consequence of the aforesaid conviction, his civil right to perform jury service is restored; no other civil rights were lost as a result of the conviction. BY THE COURT, Daniel Sodus, Esq. Senior Assistant District Attorney J. Wesley Oler, Jr., J. Dirk E. Berry, Esq. Attorney for Defendant