The Associated Press State & Local Wire
October 18, 2002, Friday, BC cycle
2:54 AM Eastern Time
SECTION: State and Regional
LENGTH: 666 words
HEADLINE: Court upholds gun sentence in pot case
BYLINE: By PAUL QUEARY, Associated Press Writer
DATELINE: OLYMPIA
BODY:
A Spokane County man will have to spend an extra three years in prison because he had a gun hanging on the wall near his marijuana growing operation, the state Supreme Court has ruled.
Thursday's decision upholds a jury's verdict that the weapon was used as part of the pot operation.
When police with a search warrant entered Mark Schelin's house in Spokane County in 1996, he was at the bottom of the basement stairs near the marijuana operation. He complied peacefully when they ordered him up the stairs, handcuffed and arrested him. Later, a search of the house found a loaded pistol in a holster hanging on the basement wall about six to 10 feet from where he had been standing. The search also turned up more than 100 marijuana plants, large amounts of harvested marijuana, scales, and $50,000 in gold coins.
Schelin was charged with possession of a controlled substance with intent to manufacture, and possession with intent to distribute. Prosecutors also sought firearms enhancements for both charges.
Schelin was convicted in 1998 and sentenced to 45 months - with 36 months of that term for the weapons enhancements. By law, the firearms portion of the sentence runs first and cannot be shortened for good behavior, said Andrew Metts, the Spokane County deputy prosecutor who argued the case.
Schelin appealed, arguing that the weapon was to protect his girlfriend from her estranged ex-husband. But the trial court, the Court of Appeals, and now the Supreme Court - disagreed.
"The jury was entitled to infer he was using the weapon to protect his basement marijuana grow operation," Justice Faith Ireland wrote in the narrow 5-4 decision. "Schelin stood near the weapon when police entered his home and could very well have exercised his apparent ability to protect the grow operation with a deadly weapon, to the detriment of the police."
But the majority's decision drew dissents from three different justices, including Richard Sanders, who argued vehemently that Schelin's constitutional right to bear arms was violated because the pistol hadn't been sufficiently connected to the crime of growing marijuana.
"Regrettably, the majority excuses the failure and takes yet another stumbling step down the slippery slope toward the ultimate destruction of our civil right to keep and bear arms," Sanders wrote.
Justice Charles Johnson also dissented, saying that the law requires that the weapon be used in a deadly manner.
"The State presented no evidence that Schelin used the revolver seized from his home in any manner likely to produce death," Johnson wrote. "The State's only argument was that Schelin could have accessed it had he chosen to resist his arrest. However, the uncontroverted testimony of the detectives at Schelin's trial was that Schelin did not resist his arrest, did not attempt to reach his gun, and did not unholster his gun."
Justice Tom Chambers worried the majority's ruling might lead to unjust sentences in the future.
"Simple constructive possession of a weapon on the premises sometime during the entire period of illegal activity is not enough to establish a nexus between the crime and the weapon," Chambers said. "Without that nexus, we run the risk of convicting a defendant under the deadly weapon enhancement for having a weapon unrelated to the crime."
Metts said the case revolves around that concept of nexus - the connection linking the crime, the weapon and the defendant. If all three aren't connected, the weapons enhancement law doesn't apply, Metts said.
"He's doing 36 months because he chose to have a gun while he was growing marijuana," Metts said. "It's a jury call. The standard is readily accessible, easily obtained."
Schelin has been free during the appeal. Prosecutors plan to get him behind bars soon. A telephone call to his lawyer, Douglas Phelps, was not immediately returned Thursday.
October 18, 2002, Friday, BC cycle
2:54 AM Eastern Time
SECTION: State and Regional
LENGTH: 666 words
HEADLINE: Court upholds gun sentence in pot case
BYLINE: By PAUL QUEARY, Associated Press Writer
DATELINE: OLYMPIA
BODY:
A Spokane County man will have to spend an extra three years in prison because he had a gun hanging on the wall near his marijuana growing operation, the state Supreme Court has ruled.
Thursday's decision upholds a jury's verdict that the weapon was used as part of the pot operation.
When police with a search warrant entered Mark Schelin's house in Spokane County in 1996, he was at the bottom of the basement stairs near the marijuana operation. He complied peacefully when they ordered him up the stairs, handcuffed and arrested him. Later, a search of the house found a loaded pistol in a holster hanging on the basement wall about six to 10 feet from where he had been standing. The search also turned up more than 100 marijuana plants, large amounts of harvested marijuana, scales, and $50,000 in gold coins.
Schelin was charged with possession of a controlled substance with intent to manufacture, and possession with intent to distribute. Prosecutors also sought firearms enhancements for both charges.
Schelin was convicted in 1998 and sentenced to 45 months - with 36 months of that term for the weapons enhancements. By law, the firearms portion of the sentence runs first and cannot be shortened for good behavior, said Andrew Metts, the Spokane County deputy prosecutor who argued the case.
Schelin appealed, arguing that the weapon was to protect his girlfriend from her estranged ex-husband. But the trial court, the Court of Appeals, and now the Supreme Court - disagreed.
"The jury was entitled to infer he was using the weapon to protect his basement marijuana grow operation," Justice Faith Ireland wrote in the narrow 5-4 decision. "Schelin stood near the weapon when police entered his home and could very well have exercised his apparent ability to protect the grow operation with a deadly weapon, to the detriment of the police."
But the majority's decision drew dissents from three different justices, including Richard Sanders, who argued vehemently that Schelin's constitutional right to bear arms was violated because the pistol hadn't been sufficiently connected to the crime of growing marijuana.
"Regrettably, the majority excuses the failure and takes yet another stumbling step down the slippery slope toward the ultimate destruction of our civil right to keep and bear arms," Sanders wrote.
Justice Charles Johnson also dissented, saying that the law requires that the weapon be used in a deadly manner.
"The State presented no evidence that Schelin used the revolver seized from his home in any manner likely to produce death," Johnson wrote. "The State's only argument was that Schelin could have accessed it had he chosen to resist his arrest. However, the uncontroverted testimony of the detectives at Schelin's trial was that Schelin did not resist his arrest, did not attempt to reach his gun, and did not unholster his gun."
Justice Tom Chambers worried the majority's ruling might lead to unjust sentences in the future.
"Simple constructive possession of a weapon on the premises sometime during the entire period of illegal activity is not enough to establish a nexus between the crime and the weapon," Chambers said. "Without that nexus, we run the risk of convicting a defendant under the deadly weapon enhancement for having a weapon unrelated to the crime."
Metts said the case revolves around that concept of nexus - the connection linking the crime, the weapon and the defendant. If all three aren't connected, the weapons enhancement law doesn't apply, Metts said.
"He's doing 36 months because he chose to have a gun while he was growing marijuana," Metts said. "It's a jury call. The standard is readily accessible, easily obtained."
Schelin has been free during the appeal. Prosecutors plan to get him behind bars soon. A telephone call to his lawyer, Douglas Phelps, was not immediately returned Thursday.