Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bacon v. Pennsylvania State Police

Commonwealth Court of Pennsylvania

June 13, 2017

David L. Bacon, Petitioner
v.
Pennsylvania State Police, Respondent

          Submitted: February 10, 2017

          BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge.

          OPINION

          ROBERT SIMPSON, Judge.

         David 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.

         Primarily, 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 available.

         I. Background

         In 2002, Applicant pled guilty to criminal possession of a "billy club" in violation of former Section 12020 of the California Penal Code.[1] 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 against Applicant.

         In 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.

         In 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.

         At the 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.

         Ultimately, 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.

         In 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.

         To that 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. 2000).

         Ultimately, 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 disposition.

         II. Issues

         On appeal, [2] 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.

         Alternatively, 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 Pennsylvania Constitution.

         III. Discussion

         A. Effect of California Conviction and Subsequent Proceedings

         1. Contentions

         Applicant 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).

         To that 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 Pennsylvania.

         Applicant 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 conviction.

         Applicant 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.

         For 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.

         The PSP 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.

         2. Analysis

         The Uniform Firearms Act defines "Conviction" as (with emphasis added):

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.

         Here, 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.

         Section 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.