The Intricacies of the Felon-In-Possession Statute
State v. Frazer (ICA May 13, 2016)
Background. Michael Frazer was indicted with one count of promoting a dangerous drug in the first degree and violation of a protective order. He pleaded guilty to both counts and moved for a conditional discharge pursuant to HRS § 712-1255. The circuit court granted the motion and placed him on probation for five years in count one and two years on count two.
Four years later, Frazer gets charged with one count of first-degree terroristic threatening with use of a dangerous weapon—a semi-automatic firearm and one count of possession of a firearm while “under indictment” for a felony pursuant to HRS § 134-7(b). Frazer moved to dismiss count two on the grounds that he was not “under indictment” and the circuit court agreed. In its order granting the motion, the circuit court concluded that a person who has been granted a conditional discharge is neither “under indictment” nor convicted. The circuit court limited the language of “under indictment” to pretrial status of the defendant. The circuit court also ruled that as an alternative dismissal was warranted under its inherent powers articulated in HRS § 603-21.9(6). The circuit court reasoned that there was no way the prosecution could prove that at the very least Frazer recklessly disregarded the risk that he was “under indictment.” The prosecution appealed.
“Under Indictment” Means On Probation. The ICA agreed with the prosecution that Frazer was “under indictment.” Here’s HRS § 134-7(b):
No person who is under indictment for, or has waived indictment for, or has been bound over to the circuit court for, or has been convicted in this State or elsewhere of having committed a felony, or any crime of violence, or an illegal sale of any drug shall own, possess, or control any firearm or ammunition therefor.
According to the ICA, the plain language of the statute prohibits possession of firearms to those who are “under indictment” of a felony—that is, those who have been charged, but not adjudicated of a felony. Not only was the language plain for the ICA, it also found supportive legislative history.
But What about Conditional Discharge? The ICA next examined the particular challenge of a person on probation by way of conditional discharge. Conditional discharge means that the defendant is found guilty and placed on probation, but can later seek expungement of the conviction once he or she has completed the terms of probation. HRS § 712-1255.
Normally, a Deferral or Conditional Discharge is not a “Conviction.” According to the ICA, Frazer was not charged with being a convicted felon in possession of a firearm, but only under indictment. However, the ICA reasoned that it would make no sense for a person to be “under indictment” and then later be found guilty pursuant to the conditional discharge statute or plead guilty pursuant to a deferral agreement and be out of the scope of the felon-in-possession statute. However, the Hawaii Supreme Court in State v. Ritte, 68 Haw. 253, 710 P.2d 1197 (1985), held that a deferral plea and sentence is not a “conviction” for purposes of HRS § 134-7(b). Thus, based on that logic, the ICA extended the exception to conditional discharges. A person sentenced to probation under the conditional discharge statute is not considered “convicted” for the felon-in-possession statute.
But What about Being “Under Indictment?” The ICA moved on to consider the other question: whether the same exception extends to those who were “under indictment.” The ICA held that the Ritte exception did not apply. According to the ICA, the fact that Frazer had been serving a conditional discharge sentence and was “under indictment” of a separate felony and that he was within the felon-in-possession scope. The ICA vacated the dismissal order and remanded for further proceedings.