CRIMINAL LAW

Uniform Firearms Act • Bar to Ownership/Possession • Enumerated Felonies

Commonwealth v. Grove, PICS Case No. 17-1402 (Pa. Super. Aug. 31, 2017) Solano, J. (43 pages).

Defendant’s contention that his 1978 conviction for criminal trespass did not constitute an “enumerated offense” under Section 6105 of the Uniform Firearms Act, thus barring him from owning a gun, was meritless; therefore, trial counsel was not ineffective for failing to raise the claim. The court affirmed an order denying defendant relief under the Post Conviction Relief Act.

In 2014, defendant was convicted of one count of cruelty to animals for shooting his dog and leaving it to die. He was also convicted of violating the Uniform Firearms Act because a prior conviction made him ineligible to own a firearm. As the court explained, after defendant shot his dog, police checked his criminal history and found that he had been convicted of criminal trespass in 1978. Under an amended provision of the act in effect in 2013, defendant’s 1978 conviction made it unlawful for him to own a gun. On this appeal, defendant argued that his trial counsel was ineffective for failing to make various arguments as part of his defense against the firearms charge. The high court noted that before 1995, the act provided that no person who had been convicted in state or elsewhere of a “crime of violence” shall own a firearm or have one in his possession or control. Defendant’s conviction for criminal trespass was not a “crime of violence” under the definition of such in Section 6102 of the Crimes Code; thus, he was not prohibited under Section 6105 of the act from owning a firearm at the time of his conviction in 1978. However, the Legislature amended Section 6105 in 1995 to preclude persons convicted of certain enumerated felonies, not all involving crimes of violence, from possessing or using a firearm. Because of the amendment, a person convicted of a second-degree felony for criminal trespass was not permitted to own a firearm. Defendant argued that trial counsel was ineffective for conceding that his 1978 criminal trespass conviction was an “enumerated offense” that prohibited his gun ownership under Section 6105(b). He urged the court to interpret Section 6105(b) to apply only to conduct that would result in a conviction for a second-degree felony today, rather than at the time the criminal trespass was committed. The court found no Pennsylvania case on point, but looked to the U.S. Supreme Court’s decision in McNeill v. U.S., 563 U.S. 816 (2011). The plain language of Section 6105, like the language of the Armed Career Criminal Act at issue in McNeill, focuses on the conviction and requires the court to examine the law in effect at the time of defendant’s criminal trespass conviction to determine whether it is a felony of the second degree, the court observed. There was no question that at the time defendant was convicted of criminal trespass, his crime was a felony of the second degree. Any other interpretation would lead to an absurd result, the court reasoned. The court thus found that defendant’s contention that he was not convicted of an “enumerated offense” under Section 6105 lacked merit. Since defendant’s argument was meritless, defense counsel could not be found to have been ineffective for failing to make such an argument. The court therefore agreed with the Post Conviction Relief Act court that denied defendant relief on his ineffectiveness claim.