David L. Bacon, Petitioner
Pennsylvania State Police, Respondent
Submitted: February 10, 2017
BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE MICHAEL H.
WOJCIK, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior
L. Bacon (Applicant) petitions for review from an order of an
Administrative Law Judge (ALJ) of the Office of the Attorney
General (OAG) that sustained a decision of the Pennsylvania
State Police (PSP) denying his application to purchase or
transfer a firearm. The basis for the denial was Section 6105
of the Pennsylvania Uniform Firearms Act of 1995 (Uniform
Firearms Act), 18 Pa. C.S. §6105 ("Persons not to
possess, use, manufacture, control, sell or transfer
firearms"), which precludes a person convicted of a
prohibited offensive weapon violation or similar out-of-state
violation from purchasing a firearm in Pennsylvania.
Applicant argues the ALJ erred in denying his request for
relief where his 2002 criminal charge in California was
"set aside, " a "plea of not guilty [was]
entered, " and the "case [was] ordered
dismissed"; and, in the absence of a conviction,
Applicant could not be prohibited pursuant to 18 Pa. C.S.
§6105(a). Br. of Appellant at 2. Applicant also presents
two alternative arguments. Upon review, we affirm, while
acknowledging that Applicant has an alternative remedy
2002, Applicant pled guilty to criminal possession of a
"billy club" in violation of former Section 12020
of the California Penal Code. He received a sentence of 30 days
in jail, followed by 36 months of what the courts in
California call "probation, " which we understand
to be supervision in the community. A fine was also imposed
2004, Applicant filed a motion for early termination of his
probation and to set aside his conviction. The Superior Court
of California subsequently issued an order terminating
Applicant's probation, and, in accordance with Section
1203.4 of the California Penal Code: (1) set aside
Applicant's guilty plea; (2) entered a plea of not
guilty; and, (3) dismissed the case. The order also stated it
"[did] not relieve [Applicant] of the obligation to
disclose the conviction in response to any direct question
contained in any questionnaire or application for public
office, for licensure by any state or local agency, or by
contracting with the California State Lottery."
Certified Record (C.R.), Item #6, Ex. A at 18.
November 2015, after Applicant became a Pennsylvania
resident, he attempted to purchase a firearm at Cabela's.
After a search of the Pennsylvania Instant Check System
(PICS) database, Applicant's request was denied.
Applicant filed a PICS Challenge. In response, the PSP
confirmed the denial of Applicant's request under Section
6105 of the Unified Firearms Act based on a disqualifying
conviction for manufacture or possession of a dangerous
weapon. Applicant appealed to the OAG. A hearing ensued
before an ALJ.
hearing, the parties essentially agreed that the sole issue
was a legal issue: whether Applicant's conviction and
subsequent proceedings in his California criminal case
disqualified him from purchasing a firearm in Pennsylvania.
The parties presented no witness testimony. However, they
submitted a 22-page joint exhibit. After the hearing, the
parties submitted legal memoranda.
the ALJ issued an order denying Applicant's appeal.
Shortly thereafter, the ALJ issued a decision setting forth
findings and reasons for denying Applicant's requested
relief. In particular, the ALJ found that in October 2002,
Applicant was convicted of violating Section 12020(a)(1) of
the California Penal Code for possessing a "billy
club." ALJ's Findings & Reasons for Denial of
Request for Relief at 1. The ALJ determined Section
12020(a)(1) of the California Penal Code was equivalent to
Section 908 of Pennsylvania's Crimes Code. Thus, the ALJ
concluded, Applicant was prohibited from purchasing a firearm
pursuant to Section 6105 of the Uniform Firearms Act.
September 2004, an order was entered pursuant to California
Penal Code Section 1203.4. However, the ALJ determined, the
order did not remove the conviction from the definition of
"conviction" set forth in Section 6102 of the
Uniform Firearms Act, 18 Pa. C.S. §6102.
end, the ALJ stated the California Penal Code specifically
permits, "in any subsequent prosecution of the defendant
for any other offense, the prior conviction may be pleaded
and proved and shall have the same effect as if probation had
not been granted or the accusation or information
dismissed." Section 1203.4 of the California Penal Code.
Further, "the order does not relieve [an individual] of
the obligation to disclose the conviction in response to any
direct question contained in any questionnaire or application
for public office, for licensure by any state or local
agency, or for contracting with the California State
Lottery." Id. Additionally, that Section
states: "Dismissal of an accusation or information
pursuant to this section does not permit a person to own,
possess, or have in his or her custody or control any firearm
or prevent his or her conviction under Section 12021."
Id. Further, the ALJ stated, California courts
interpret this statutory provision as not
"expunging" or eradicating the conviction. See
People v. Gross, 190 Cal.Rptr.3d 472 (Cal.Ct.App. 2015);
People v. Frawley, 98 Cal.Rptr.2d 555 (Cal.Ct.App.
the ALJ determined Applicant's California conviction
continued to exist and was not expunged within the meaning of
Section 6102 of the Uniform Firearms Act. Because Applicant
was convicted of the California equivalent of an enumerated
offense which was not expunged, the ALJ denied
Applicant's appeal. This matter is now before us for
appeal,  Applicant argues the ALJ erred in denying
his request for relief where: (1) his 2002 criminal charge in
California was "set aside, " a "plea of not
guilty [was] entered, " and the "case [was] ordered
dismissed"; and, (2) in the absence of a conviction,
Applicant could not be prohibited pursuant to 18 Pa. C.S.
§6105(a). Br. of Appellant at 2.
Applicant contends, California Penal Code Section 12020 and
Section 908 of the Crimes Code, 18 Pa. C.S. §908
("Prohibited offensive weapons") are not
equivalent; as such, his conviction is not sufficient to
establish a disability under 18 Pa. C.S. §6105(a). As a
further alternative, Applicant asserts, Section 908 is
unconstitutional based on the Second Amendment to the U.S.
Constitution and Article 1, Sections 1 and 21 of the
Effect of California Conviction and Subsequent Proceedings
first argues that, because his charging in California was set
aside, a disposition of not guilty entered, and the charges
were dismissed, he cannot be prohibited under Section 6105 of
the Unified Firearms Act. Applicant asserts his California
charging and disposition do not meet the definition of a
"conviction" in Section 6102 of the Uniform
Firearms Act, and this Court's holding in
Pennsylvania State Police v. McCaffrey, 816 A.2d 374
(Pa. Cmwlth. 2003).
end, Applicant maintains, the PSP admits Applicant was never
prohibited under California law from owning and possessing
firearms and ammunition. See Reproduced Record
(R.R.) at 10a-11a. Thus, McCaffrey controls in light
of this Court's statement that "[a] conviction is
not considered a 'conviction' for purposes of
firearms disability under [a particular state's laws]
and, therefore, it is not a 'conviction' for purposes
of firearms disability in Pennsylvania." Id. at
377. Because Applicant was never under any prohibition from
owning and possessing firearms in California as a result of
his 2002 charging, he asserts, he cannot be prohibited in
further argues both the Third Circuit and the Pennsylvania
Supreme Court have addressed the result of a conviction being
"set aside." The Third Circuit holds the term
"set aside" is interchangeable with the term
"expunge." United States v. Doe, 980 F.2d
876, 882 (3d Cir. 1992). Similarly, the Pennsylvania Supreme
Court holds that when a conviction is set aside, "the
slate [is] wiped clean." Commonwealth v.
Sattazahn, 763 A.2d 359, 366 (Pa. 2000). Applicant
argues that while the PSP previously attempted to assert that
the ALJ should not consider Doe or
Sattazahn because they did not address California
relief orders, the PSP disregarded the decision in
Sattazahn, which held that when a conviction is set
aside, it is as if it never occurred. Thus, Applicant
contends, based on the California court order setting aside
his guilty plea, under both federal and state law, as well as
this Court's decision in McCaffrey, it is not a
further asserts, as to Section 6102 of the Uniform Firearms
Act's definition of a conviction, which does not include
expungements, the California Supreme Court recently
acknowledged that relief under Section 1203.4 of the
California Penal Code constitutes expungement of a
conviction. See In re Grant, 317 P.3d 612, 618 n.4
(Cal. 2014) (individual who was convicted of an offense could
"move to expunge the conviction (§
1203.4)[.]"). Thus, Applicant maintains, the California
Supreme Court indicated that relief under Section 1203.4 of
the California Penal Code, which Applicant obtained here,
constitutes an expungement.
these reasons, Applicant maintains, his 2002 California
charging is not a conviction for purposes of Section 6105(a)
of the Uniform Firearms Act; as such, this Court should
reverse the ALJ's decision.
responds that it denied Applicant's background check
based on his California offensive weapons conviction.
See Section 12020(a)(1) of the California Penal
Code. The PSP argues that while Applicant did, in 2004, avail
himself of a commonly used post-conviction relief process in
California pursuant to Section 1203.4 of the California Penal
Code, this order did not vacate, expunge or otherwise remove
the legal fact of Applicant's conviction, and it remains
appropriate to use the conviction for purposes of a
firearms-related background check. The PSP further contends
the proper avenue of relief for Applicant, who has a
Pennsylvania firearms disability, is to pursue the
statutorily-provided relief mechanism set forth in 18 Pa.
C.S. §6105(d), which allows a common pleas court to
afford relief if certain criteria are met.
Uniform Firearms Act defines "Conviction" as (with
A conviction, a finding of guilty or the entering of a plea
of guilty or nolo contendere, whether or not judgment of
sentence has been imposed, as determined by the law of
the jurisdiction in which the prosecution was held. The
term does not include a conviction which has been
expunged or overturned or for which an individual
has been pardoned unless the pardon expressly provides that
the individual may not possess or transport firearms.
18 Pa. C.S. §6102.
in 2002, Applicant pled guilty to criminal possession of a
"billy club" in violation of Section 12020 of the
California Penal Code. C.R., Item #1 at 7. In 2004, he filed
a motion seeking the early termination of his probation and
to set aside his conviction. C.R., Item #1 at 6-8. The
Superior Court of California granted Applicant's motion
pursuant to Section 1203.4 of the California Penal Code.
C.R., Item #1, Ex. 1 at 3. Applicant argues the order
granting relief under Section 1203.4 constitutes an
expungement of his conviction. We disagree.
1203.4 of the California Penal Code states, in relevant part
(with emphasis added):
(a)(1) In any case in which a defendant has fulfilled the
conditions of probation for the entire period of probation,
or has been discharged prior to the termination of the period
of probation, or in any other case in which a court, in its
discretion and the interests of justice, determines that a
defendant should be granted the relief available under this
section, the defendant shall, at any time after the
termination of the period of probation, if he or she is not
then serving a sentence for any offense, on probation for any
offense, or charged with the commission of any offense, be
permitted by the court to withdraw his or her plea of guilty
or plea of nolo contendere and enter a plea of not guilty;
or, if he or she has been convicted after a plea of not
guilty, the court shall set aside the verdict of guilty; and,
in either case, the court shall thereupon dismiss the
accusations or information against the defendant and except
as noted below, he or she shall thereafter be released from
all penalties and disabilities resulting from the offense of
which he or she has been convicted …. The probationer
shall be informed, in his or her probation papers, of this
right and privilege and his or her right, if any, to petition
for a certificate of rehabilitation and pardon. The
probationer may make the application and change of plea in
person or by attorney, or by the probation officer authorized
in writing. However, in any subsequent prosecution of the
defendant for any other offense, the prior conviction may be
pleaded and proved and shall have the same effect as if
probation had not been granted ...