State v. Bonetsky, 246 N.C. App. 640 (Apr. 5, 2016)

The court rejected the defendant’s contention that the possession of a firearm by a felon statute was unconstitutional as applied to him. Although rejecting the defendant’s challenge, the court agreed that the trial court erred when it found that the defendant’s 1995 Texas drug trafficking conviction “involve[d] a threat of violence.” The trial court also erred by concluding that the remoteness of the 1995 Texas conviction should be assessed from the point that the defendant was released from prison--13 years ago--instead of the date of the conviction-- 18 years ago. The court went on to find that because the defendant’s right to possess a firearm in North Carolina was never restored, he had no history of responsible, lawful firearm possession. And it found that the trial court did not err by concluding that the defendant failed to assiduously and proactively comply with the 2004 amendment to the firearm statute. The court rejected the defendant’s argument that this finding was erroneous because there was no reason to believe that the defendant was on notice of the 2004 amendment, noting that it has never held that a defendant’s ignorance of the statute’s requirement should weigh in the defendant’s favor when reviewing an as applied challenge. Finally, the court held that even though the trial court erred with respect to some of its analysis, the defendant’s as applied challenge failed as a matter of law, concluding:

Defendant had three prior felony convictions, one of which was for armed robbery and the other two occurred within the past two decades; there is no relevant time period in which he could have lawfully possessed a firearm in North Carolina; and, as a convicted felon, he did not take proactive steps to make sure he was complying with the laws of this state, specifically with the 2004 amendment to [the statute]. (footnote omitted).

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