15 CCAR 39, 8 CTCR 10
COLVILLE CONFEDERATED TRIBES, Appellant,
v.
Jordan SARGENT, Appellee.
No. AP21-018
Colville Confederated Tribes Court of Appeals
March 21, 2022
Dupris, CJ.
This case came before the Court of Appeals (COA) for an Initial Hearing on this date. Appellant appeals the Trial Court's "Order On Motion to Vacate Record of Felony Conviction and Restoration of Gun Rights" issued November 11, 2021. Appellee was given notice of this hearing, but did not appear.
The purpose of an Initial Hearing is to determine
1) whether the facts and/or laws as presented warrant a limited appeal on issues of law and/or of fact;
2) whether a new trial should be granted;
3) whether Appellant has provided sufficient facts and/or law to reverse and remand; or
4) whether the appeal should be dismissed or denied.
The COA, having reviewed the record, reviewed the law, and hearing from Appellant, has found cause to reverse and remand the Trial Court's Order.
FACTS
1. Appellee, Jordan Sargent, was charged with two criminal crimes in the Trial Court in 2012. He plead guilty, was sentenced, and served his sentence. The Trial Court closed his case.
2. On October 25, 2021, Appellee filed a Motion to Vacate Record of Felony Conviction and Restoration of Gun Rights with the Trial Court, claiming he had been rehabilitated and was seeking expungement of this record and his state cases. He also requested that his rights be restored as he had been a law abiding citizen since 2012.
3. On November 01, 2021, the Trial Court entered an order which granted Appellee's request. The Order further allowed the Appellee to withdraw his guilty plea and enter a not guilty plea. It also dismissed the information or indictment for the offenses, released the Appellee from all penalties and disabilities, and ordered that the conviction for those offenses not be included in any subsequent criminal history report used for purposes of determining a sentence. The Order restored Appellee's right to possess a firearm.
4. The Appellant opposed the expungement and restoration.
5. There is no tribal law cited in either the Motion or Order which would allow the Trial Court to grant Appellee's request.
6. The Colville Tribes did not take away Appellee's right to possess a firearm nor did it restrict his rights concerning firearms.
7. There is no felony designation in Colville Tribal Law, only different classes.
DISCUSSION
The COA has reviewed the record, the file, and heard from Appellant. Appellee plead guilty and was sentenced to a fine, court costs, and jail, including conditions for suspensions of some of the fine and jail. None of the conditions were restriction of firearms.
No where in the Colville Tribal Law and Order is there a law that allows the Court to restrict possession of a firearm, nor is there any caselaw which allows such restrictions. The Motion and subsequent Order were both void of any citation to any firearm restrictions that could be imposed, let alone allow the restoration of such restriction. The charges he was facing did not have a firearm enhancement, nor was there any mention of use of a firearm during the altercation on which the charges were filed.
Tribal law is also void of any statute that would allow expungement of any criminal record. Again the Motion and subsequent Order did not cite to any authorizing law. The Order issued by the Trial Court is overbroad.
It appears that the Appellee and Trial Court relied on RCW 9.94A.640, Washington State's New Hope Act, which was enacted to do exactly what Appellee was asking the Trial Court to do, i.e. expunge his record and reinstate his right to possess firearms. RCW 9.94A.640 does not apply in our Courts in that it a State statute which has not been adopted by our Tribes. It was error for the Trial Court to rely on it.
CONCLUSION
The written record is void of any law to which the Court could rely on to make its decision. The Order is void of any law which would allow the Court to order expungement of Appellee's record. There is no statutory or case law which would authorize the Court to enter the Order for restoration and expungement. RCW 9.94A.640 does not apply in our Courts. The Trial Court did not take away Appellee's right to possess firearms, therefore it cannot reinstate something it did not take away.
Based on the foregoing, the Order On Motion To Vacate Record of Felony Conviction and Restoration of Gun Rights dated November 1, 2021 is REVERSED and the case is REMANDED to the Trial Court for dismissal of the Motion and Order.
It is so ORDERED.