Mohiadeen v. Washington County Sheriff's Office

No. 117 February 20, 2025 29

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

FOUAD MOHIADEEN,

Petitioner-Respondent,

v.

WASHINGTON COUNTY SHERIFF’S OFFICE,

Respondent-Appellant.

Washington County Circuit Court

22CV31426; A180154

Theodore E. Sims, Judge.

Argued and submitted March 6, 2024.

Kimberly A. Stuart argued the cause and filed the briefs

for appellant.

Rankin Johnson argued the cause for respondent. Also

on the brief was Rankin Johnson Law, LLC.

Before Aoyagi, Presiding Judge, Lagesen, Chief Judge,

and Joyce, Judge.*

AOYAGI, P. J.

Reversed and remanded for entry of a judgment affirm-

ing the sheriff’s denial of petitioner’s application.

______________

*

Lagesen, C. J., vice Jacquot, J.

30 Mohiadeen v. Washington County Sheriff’s Office

Cite as 338 Or App 29 (2025) 31

AOYAGI, P. J.

One of the requirements to be eligible for a concealed

handgun license in Oregon is that the applicant “[h]as never

been convicted of a felony.” ORS 166.291(1)(g).1 An applicant

who has been convicted of a felony but had their “record

expunged under the laws of this state or equivalent laws of

other jurisdictions” is treated the same as someone never con-

victed of a felony. ORS 166.291(2). In this case, petitioner was

convicted of a felony in California. He later took advantage of

procedures available to him under California law, pursuant

to which his felony conviction was reduced to a misdemeanor

conviction, then partially removed from his record. Petitioner

now lives in Oregon. When he applied for a concealed hand-

gun license, the Washington County Sheriff denied the appli-

cation, based on petitioner’s prior felony conviction. On judi-

cial review, the trial court concluded that petitioner’s felony

record had been expunged under California laws equivalent

to Oregon law and, on that basis, ordered the sheriff to issue a

concealed handgun license to petitioner. The sheriff appeals.

We conclude that the trial court erred in relying

on the expungement provision, ORS 166.291(2), to find peti-

tioner eligible for a license, because the California laws

under which petitioner obtained some relief from his convic-

tion are not “equivalent” to Oregon’s expungement law. We

also reject petitioner’s proffered alternative bases to affirm.

Specifically, we reject his contention that, as a matter of stat-

utory construction, he has “never been convicted of a felony”

within the meaning of ORS 166.291(1)(g), given California’s

post-judgment process for treating the felony as a misde-

meanor, and his related federal constitutional arguments.

Accordingly, we reverse and remand for entry of a judgment

affirming the sheriff’s denial of petitioner’s application.

I. FACTS

In 2015, petitioner pleaded no contest to a felony

in California state court. He was convicted and sentenced

1

Some statutes cited in this opinion, particularly ORS 166.291 and ORS

137.225, have been amended during the pendency of this case. See Or Laws 2024,

ch 70, § 55 (amending ORS 137.225); Or Laws 2022, ch 97, § 5 (amending ORS

166.291). Those amendments are immaterial to our analysis, so all statutory

citations are to the current statutes, unless stated otherwise.

32 Mohiadeen v. Washington County Sheriff’s Office

to probation the following year. In 2018, petitioner filed a

motion in the same court, seeking reduction of his felony

conviction to a misdemeanor conviction, as permitted by Cal

Penal Code § 17(b); early termination of his probation, as

permitted by Cal Penal Code § 1203.3; and a plea change

and dismissal of the charge, as permitted by Cal Penal Code

§ 1203.4. The court granted the motion. It ordered that peti-

tioner’s conviction was “reduced to a misdemeanor for all

purposes,” withdrew petitioner’s no-contest plea and entered

a not-guilty plea, then dismissed the case.

In 2022, petitioner applied for a concealed hand-

gun license in Washington County, Oregon, where he now

resides. The eligibility requirements for a concealed hand-

gun license are listed in ORS 166.291. If an applicant meets

those requirements and pays the applicable fees, then the

sheriff of the county where the applicant resides “shall

issue” the license. ORS 166.291(1).

The Washington County Sheriff denied petitioner’s

application based on ORS 166.291(1)(g), which requires that

the applicant “[h]as never been convicted of a felony.” The

sheriff determined that petitioner’s 2016 felony conviction

in California made him ineligible for a license, notwith-

standing the relief that petitioner had obtained from the

California court with respect to that conviction in 2018.

Petitioner sought judicial review. Petitioner first

argued for eligibility under the subsection concerning

expungement, ORS 166.291(2). He argued that his felony

conviction had been expunged under the laws of the State

of California and that those laws are similar enough to

Oregon’s expungement law, ORS 137.225, to be “equivalent”

for purposes of ORS 166.291(2). In the alternative, petitioner

argued that he had “never been convicted of a felony” within

the meaning of ORS 166.291(1)(g), given the reduction of his

felony conviction to a misdemeanor conviction in 2018.

The sheriff disagreed on both points. Pointing to dif-

ferences between Cal Penal Code § 1203.4 and ORS 137.225,

the sheriff argued that the relief that petitioner obtained

in California in 2018 was not “equivalent” to expungement

under Oregon law and that ORS 166.291(2) therefore did not

Cite as 338 Or App 29 (2025) 33

apply. As for ORS 166.291(1)(g), the sheriff argued that peti-

tioner was lawfully convicted of a felony in 2016 and that the

2018 misdemeanor reduction did not change that fact.

After a hearing, the trial court ruled in petitioner’s

favor, based on the expungement provision in ORS 166.291(2).

The court concluded that, although the California laws under

which petitioner obtained relief were not “precisely equiva-

lent” to Oregon’s expungement law, they were “substantially

equivalent.” The court entered a judgment stating that peti-

tioner meets the statutory criteria for a concealed handgun

license and ordering the sheriff to issue the license.

II. STANDARD OF REVIEW

Because the sheriff denied the application based on

petitioner not meeting the statutory criteria for a concealed

handgun license, the trial court’s task on judicial review

was to reassess whether petitioner met the criteria. ORS

166.293(6) (providing, in relevant part, that a circuit court

“judgment affirming or overturning the sheriff’s decision

shall be based on whether the petitioner meets the criteria

that are used for issuance of a concealed handgun license”).

Our task is the same. We find the facts de novo—although,

in this case, the facts are undisputed. ORS 166.293(10);

Stanley v. Myers, 276 Or App 321, 327-28, 369 P3d 75, rev den,

359 Or 525 (2016). To the extent that questions of statutory

construction arise, “the intended meaning of a statute is a

question of law.” DCBS v. Muliro, 359 Or 736, 742, 380 P3d

270 (2016). We seek to ascertain the intent of the legislature

by examining the disputed text in context, as well as any

helpful legislative history. State v. Gaines, 346 Or 160, 171-

73, 206 P3d 1042 (2009).

III. ANALYSIS

We begin with a brief overview of the statute at

issue, ORS 166.291, to frame our discussion. We then

address the expungement provision in ORS 166.291(2), on

which the trial court relied to overturn the sheriff’s deci-

sion. Because we disagree with the trial court on that point,

we then turn to ORS 166.291(1)(g) and petitioner’s constitu-

tional arguments as potential alternative bases to affirm.

34 Mohiadeen v. Washington County Sheriff’s Office

A. Overview of ORS 166.291

In Oregon, applications for concealed handgun

licenses are directed to the sheriff of the county in which

the applicant resides. The sheriff “shall issue” a license to

any applicant who meets the statutory criteria for a license

and pays the applicable fees. ORS 166.291(1); but see also

ORS 166.293(2) (authorizing denial of a license on danger-

ousness grounds, even if the person is otherwise qualified

under ORS 166.291).

The statutory criteria for a license are laid out in

ORS 166.291. There are qualifications regarding citizen-

ship, age, residency, outstanding warrants, pretrial release,

and firearm competence. ORS 166.291(1)(a) - (f). There are

qualifications regarding stalking protective orders, military

discharge, sex offender registration, and certain firearm

orders. ORS 166.291(1)(m) - (p). Most pertinent here, there

are qualifications regarding prior criminal convictions,

prior juvenile adjudications, and prior civil commitments.

ORS 166.291(1)(g) - (L). As to prior criminal convictions,

the applicant must have “never been convicted of a felony or

found guilty, except for insanity under ORS 161.295, of a

felony.” ORS 166.291(1)(g) (emphasis added). The applicant

must have “not been convicted of a misdemeanor or found

guilty, except for insanity under ORS 161.295, of a misde-

meanor within the four years prior to the application * * *.”

ORS 166.291(1)(h). And the applicant must have “not been

convicted of an offense involving controlled substances or

participated in a court-supervised drug diversion pro-

gram,” subject to two exceptions for one-time offenders. ORS

166.291(1)(L).

With respect to the requirement in ORS 166.291(1)(g)

that the applicant “[h]as never been convicted of a felony,”

ORS 166.291(2) identifies circumstances in which an appli-

cant “is not subject to” disqualification under that provision:

“A person who has been granted relief under ORS 166.273,

166.274, or 166.293 or 18 USC 925(c) or has had the person’s

record expunged under the laws of this state or equivalent

laws of other jurisdictions is not subject to the disabilities

in subsection (1)(g) to (L) of this section.”

Cite as 338 Or App 29 (2025) 35

The statutes cited in the first part of ORS 166.291(2)—i.e.,

ORS 166.273, ORS 166.274, ORS 166.293, and 18 USC

925(c)—all set forth specific procedures to obtain relief

from a firearms disability. For present purposes, however,

the portion of ORS 166.291(2) directly at issue is the second

part, regarding expunged records, on which the trial court

relied to overturn the sheriff’s decision in this case. We turn

to discussing that provision.

B. Eligibility under ORS 166.291(2)

The trial court concluded that petitioner’s prior fel-

ony conviction did not disqualify him from obtaining a con-

cealed handgun license because petitioner had had his “record

expunged under the laws of this state or equivalent laws of

other jurisdictions.” ORS 166.291(2) (emphasis added). In the

trial court’s view, the California laws under which petitioner

obtained relief in 2018 were not “precisely equivalent” to

Oregon’s expungement law but were “substantially equiva-

lent.” The sheriff challenges that conclusion, while petitioner

defends it. As explained below, we conclude that an “equiva-

lent” expungement law for purposes of ORS 166.291(2) is one

with the same essential features as the set-aside procedure

in ORS 137.225, and we further conclude that the California

laws under which petitioner obtained relief do not meet that

standard, given the substantial limitations on the relief that

they provide relative to Oregon law.

The parties’ dispute regarding ORS 166.291(2)

raises three related questions: What did the legislature

mean by “record expunged under the laws of this state”?

What did the legislature mean by “equivalent” with respect

to the laws of other jurisdictions? How does the properly con-

strued statute apply to these facts?

The first question—the meaning of “record expunged

under the laws of this state”—is an easy one. Petitioner, the

sheriff, the trial court, and we all agree that that language

in ORS 166.291(2) refers to the set-aside procedure in ORS

137.225, under which an Oregon court may seal the record

of a conviction and other official records in a criminal case.

At the time that ORS 166.291(2) was enacted in 1989, ORS

137.225 was “popularly known” as Oregon’s “expunction

36 Mohiadeen v. Washington County Sheriff’s Office

statute.” State v. Green, 29 Or App 337, 339, 563 P2d 756

(1977); see also, e.g., State v. Adams, 57 Or App 725, 725,

646 P2d 37 (1982) (referring to ORS 137.225 as “Oregon’s

expunction statute”); Springer v. State, 50 Or App 5, 13, 621

P2d 1213, rev den, 290 Or 727 (1981) (describing “expunction

remedies” under ORS 137.225). The legislature would have

understood ORS 137.225 to provide for record expungement

as that term is legally defined, see Black’s Law Dictionary

582 (6th ed 1990) (defining “expungement of record” as the

“[p]rocess by which record of criminal conviction is destroyed

or sealed after expiration of time”)—and we are unaware

of any other Oregon expungement law that the legislature

could have been referring to.2

We therefore understand “record expunged under

the laws of this state” to mean record expunged under ORS

137.225. Under that statute, a person convicted of a quali-

fying offense3 who “has fully complied with and performed

the sentence of the court for the offense” may, after a certain

amount of time has passed,4 apply to the court where the

conviction was entered “for entry of an order setting aside

the conviction.” ORS 137.225(1)(a). The court may hold a

hearing on the motion and may require affidavits or other

proof. ORS 137.225(3)(a). The court is to grant the motion

2

We acknowledge that, in dicta in a footnote in State v. Langan, 301 Or 1, 4

n 3, 718 P2d 719 (1986), the Supreme Court described “expungement” as a “mis-

nomer” that “should not be used” to describe ORS 137.225, because the statute

“does not call for expunging anything from the record of conviction but for sealing

the record.” (Emphasis added.) It appears that the court may have inadvertently

relied on the legal definition of “expunge,” which focuses on the act of “physi-

cally destroying” information, rather than the legal definition of “expungement of

record,” which, as quoted in the text, includes the sealing of records. See Black’s

at 582 (defining “expunge” and “expungement of record”). Courts and commenta-

tors have continued to describe ORS 137.225 as an “expungement” statute.

3

The convictions to which ORS 137.225(1)(a) applies are “[a] Class B felony,

except for a violation of ORS 166.429 or any crime classified as a person felony as

defined in the rules of the Oregon Criminal Justice Commission”; “[a]ny misde-

meanor, Class C felony or felony punishable as a misdemeanor pursuant to ORS

161.705”; “[a]n offense constituting a violation under state law or local ordinance”;

“[a]n offense committed before January 1, 1972, that, if committed after that

date, would qualify for an order under this section”; and contempt-of-court find-

ings. ORS 137.225(5).

4

The minimum time period has changed over the years. Currently, it ranges

from one to seven years, depending on the crime of conviction, with the time

period running “from the date of conviction or the release of the person from

imprisonment for the conviction sought to be set aside, whichever is later.” ORS

137.225(1)(b)(A) - (D).

Cite as 338 Or App 29 (2025) 37

of an eligible person unless their circumstances and post-

conviction behavior create a public-safety risk. Id.

If set aside is ordered, “the person for purposes of

the law shall be deemed not to have been previously con-

victed, and the court shall issue an order sealing the record

of conviction and other official records in the case, including

the records of arrest, citation or charge.” Id. In addition, “the

conviction, arrest, citation, charge or other proceeding shall

be deemed not to have occurred, and the person may answer

accordingly any questions relating to its occurrence.” ORS

137.225(4); see Bahr v. Statesman Journal, 51 Or App 177,

180, 624 P2d 664, rev den, 291 Or 118 (1981) (under ORS

137.225, persons convicted of certain crimes may be granted

“the privilege to act, and answer, in the future as if their

conviction had never occurred”).

Once a conviction is set aside under ORS 137.225, it

largely ceases to exist for practical purposes, with only a few

limited exceptions. See State v. Langan, 301 Or 1, 4 n 3, 718

P2d 719 (1986) (“An order under the statute is not designed

to ‘rewrite history’ and deny the occurrence of an event but

to limit the purposes for which official records may be used

to exhume that past event.”). First, under ORS 137.225

(7)(c), a set-aside conviction may be considered in determin-

ing other set-aside motions. Second, under ORS 137.225(10),

in any civil action in which truth is an element of a claim

for relief or affirmative defense, the court may order disclo-

sure of sealed records on a party’s motion in the interest

of justice. Third, under ORS 137.225(11)(a), the court may

order the reopening and disclosure of sealed records to

assist an investigation by the defendant or the prosecutor,

but such an order has no other effect on the setting aside of

the conviction.

Having concluded that “record expunged under

the laws of this state” in ORS 166.291(2) refers to the set-

aside procedure in ORS 137.225, and having described that

procedure, we next consider what the legislature meant by

“equivalent laws of other jurisdictions.” ORS 166.291(2). In

both legal and lay usage, “equivalent” means equal or alike.

See Webster’s Third New Int’l Dictionary 769 (unabridged

ed 2002) (“equal in force or amount,” “like in signification

38 Mohiadeen v. Washington County Sheriff’s Office

or import,” and “corresponding or virtually identical esp. in

effect or function”); Black’s at 541 (“Equal in value, force,

measure, volume, power, and effect or having equal or corre-

sponding import, meaning or significance; alike, identical.”).

Of course, that raises the question, how alike must

they be? Given the myriad approaches to expungement

across different jurisdictions, we doubt that the legislature

meant to refer only to laws that are substantively identical

to Oregon’s. It is more likely that it meant to refer to laws

with the same essential features as Oregon’s expungement

law, so we proceed with that understanding. See State v.

Carlton, 361 Or 29, 37, 41, 388 P3d 1093 (2017) (examin-

ing statutes containing the phrase “or the equivalent laws

of another jurisdiction” and concluding that “equivalent” is

“yet another synonym of the more restrictive primary mean-

ing of comparable”—i.e., “a degree of similarity that makes

comparison appropriate based on the commonality of salient

features of the things being compared (meaning that they

are alike in substance or essentials)” (internal quotation

marks omitted)).

As previously described, under the set-aside pro-

cedure in ORS 137.225, the court issues “an order sealing

the record of conviction and other official records in the

case, including the records of arrest, citation or charge,” and

the person “for purposes of the law shall be deemed not to

have been previously convicted,” subject only to very limited

exceptions. Thus, the essential features of record expunge-

ment under Oregon law are that the record of conviction and

related official records in the case are sealed and unavailable

to the public, the conviction is no longer considered part of

the person’s criminal history, it no longer affects the person’s

legal rights or disabilities, and the person is privileged to

represent that they have never been convicted of the offense.

With that understanding of “record expunged under

the laws of this state” and “equivalent laws of other jurisdic-

tions,” we turn to applying ORS 166.291(2) to the facts of this

case. We must determine whether the relief that petitioner

obtained under California law—reduction of his felony con-

viction to a misdemeanor conviction under Cal Penal Code

§ 17(b) and Cal Penal Code § 1203.3, followed by a change

Cite as 338 Or App 29 (2025) 39

of plea and dismissal under Cal Penal Code § 1203.4—is

“equivalent” to record expungement under ORS 137.225.

Because reduction of petitioner’s conviction to a

misdemeanor under Cal Penal Code § 1203.3 cannot on its

own be viewed as any kind of expungement, we begin with

Cal Penal Code § 1203.4. As relevant here, section 1203.4

applies to a person who has been convicted of an offense (fel-

ony or misdemeanor) and sentenced to probation. It provides

that “[t]he defendant shall, at any time after the termination

of the period of probation, if they are not then serving a sen-

tence for an offense, on probation for an offense, or charged

with the commission of an offense, be permitted by the court

to withdraw their plea of guilty or plea of nolo contendere

and enter a plea of not guilty.” Cal Penal Code § 1203.4(a)(1).

The court shall “thereupon dismiss the accusations or infor-

mation against the defendant.” Id. “[E]xcept as noted below,

the defendant shall thereafter be released from all penal-

ties and disabilities resulting from the offense of which they

have been convicted, except as provided in Section 13555 of

the Vehicle Code.” Id. (emphasis added).

The “except as noted below” limitation in section

1203.4 turns out to be a very meaningful one. Section

1203.4 imposes “numerous and substantial” limitations on

the relief provided. People v. Frawley, 82 Cal App 4th 784,

791, 98 Cal Rptr 2d 555 (2000). Those limitations include:

• “[I]n any subsequent prosecution of the defendant for

any other offense, the prior conviction may be pleaded

and proved and shall have the same effect as if proba-

tion had not been granted or the accusation or informa-

tion dismissed.” Cal Penal Code § 1203.4(a)(1).

• The conviction must be disclosed on questionnaires or

applications for public office, state or local licensure, or

lottery contracts. Cal Penal Code § 1203.4(a)(1) (requir-

ing the order to state and the person to be informed

“that the order does not relieve them of the obligation

to disclose the conviction in response to any direct ques-

tion contained in any questionnaire or application for

public office, for licensure by any state or local agency,

or for contracting with the California State Lottery

Commission”).

40 Mohiadeen v. Washington County Sheriff’s Office

• The conviction still exists for purposes of disqualification

from holding public office. Cal Penal Code § 1203.4(a)(3).

• The person still must comply with any criminal protec-

tive order that was issued in conjunction with the con-

viction, until it expires or is terminated by order. Cal

Penal Code § 1203.4(a)(4).

• “Dismissal of an accusation or information pursuant

to [section 1203.4] does not permit a person to own,

possess, or have custody or control of a firearm or to

prevent conviction under Chapter 2 (commencing with

Section 29800) of Division 9 of Title 4 of Part 6.” Cal

Penal Code § 1203.4(a)(2).

As described by the California Supreme Court, “[the

California] courts have drawn a distinction between penal-

ties imposed on a felon as further punishment for the crime,

as to which vacation under [section] 1203.4 generally affords

relief, and nonpenal restrictions adopted for protection of

public safety and welfare.” People v. Vasquez, 25 Cal 4th

1225, 1230, 25 P3d 1090, 1093 (2001).

Those significant limitations on the relief provided

by section 1203.4 lead us to conclude that section 1203.4 is

not “equivalent” to record expungement under Oregon law,

because it lacks some of the essential features of ORS 137.225.

That the conviction continues to exist for criminal-history

purposes in subsequent prosecutions is particularly signifi-

cant. As the Frawley court observed, that “sweeping limita-

tion on the relief” provided by section 1203.4 “alone precludes

any notion that the term ‘expungement’ accurately describes

the relief allowed by the statute.” 82 Cal App 4th at 791-92;

see also State v. Leslie, 134 Or App 366, 371, 895 P2d 342,

rev den, 321 Or 397 (1995) (“[The] defendant’s 1975 convic-

tion was not expunged under the California statute. Section

1203.4(a) allows a conviction to be alleged and proved in the

prosecution of any subsequent offense. That was done in this

sentencing proceeding. The effect of proving that the convic-

tion existed is to negate the dismissal under Section 1203.4.”).

The other limitations on relief in section 1203.4—

that the record of conviction is not sealed and therefore

remains available to the public, that the conviction must

be disclosed when applying for public office or for state or

Cite as 338 Or App 29 (2025) 41

local licensure, and that there is no relief from protective

orders or firearms disabilities—further distance section

1203.4 from equivalence to Oregon’s expungement statute.

In short, whereas a person who obtains relief under ORS

137.225 occupies a position that is very nearly the same as

someone who was never convicted, a person who obtains

relief under Cal Penal Code § 1203.4 is still treated as a

person with a conviction for many significant purposes.

We therefore conclude that Cal Penal Code § 1203.4

is not “equivalent” to Oregon’s expungement law for purposes

of ORS 166.291(2). That conclusion does not change with the

added consideration of Cal Penal Code § 1203.3. Although

petitioner was not required to obtain relief under section

1203.3 in order to obtain relief under section 1203.4, he

chose to obtain relief under both statutes, and he argues that

the resulting combination of relief is equivalent to the relief

granted under ORS 137.225. We disagree. The limitations on

relief under section 1203.4 that have led us to conclude that

it is not equivalent to Oregon’s expungement law—listed

and discussed above—apply equally to misdemeanors. The

fact that using both procedures together may have relieved

petitioner of one of the disabilities that otherwise continue

to apply after obtaining relief under section 1203.4—that

is, the disability in Cal Penal Code § 1203.4(a)(2)—does not

change our overall conclusion that the significant limitations

on relief provided under California law means that it is not

equivalent to Oregon’s expungement law.

Accordingly, the trial court erred in overturning

the sheriff’s decision based on ORS 166.291(2). Because

petitioner’s record has not been “expunged under the laws

of this state or equivalent laws of other jurisdictions,” ORS

166.291(2), petitioner remains subject to the disabilities in

ORS 166.291(1)(g) to (L), which we address next.

C. Eligibility under ORS 166.291(1)(g)

Our conclusion that ORS 166.291(2) does not apply to

petitioner in this case is not the end of the analysis, because

petitioner made an alternative argument in the trial court

that he presents again on appeal: that the reduction of his

felony conviction to a misdemeanor, in and of itself, means

42 Mohiadeen v. Washington County Sheriff’s Office

that he “has never been convicted of a felony” for purposes

of ORS 166.291(1)(g). The sheriff disagreed below and con-

tinues to disagree. As we read the record, the trial court

never reached that issue.5 It is one, however, that may prop-

erly be decided for the first time on appeal. See Sherertz v.

Brownstein Rask, 314 Or App 331, 341, 498 P3d 850 (2021),

rev den, 369 Or 338 (2022) (explaining when we will decide

an issue that was raised but not decided in the trial court).

The sheriff argues, straightforwardly, that never

means never. He notes that the legislature knows how to

impose less stringent requirements when it wants to, as

demonstrated by its limiting disqualification based on misde-

meanor convictions and juvenile adjudications to four years.

See ORS 166.291(1)(h), (k). Petitioner disagrees. He argues

that the legislature meant “never” to signal only that there is

no time limit for felony convictions, in contrast to the four-year

limit on misdemeanor convictions and juvenile adjudications.

In petitioner’s view, ORS 166.291(1)(g) refers only to felony

convictions in effect at the time of application, i.e., that have

not been “reversed, vacated, or otherwise nullified.” Thus, in

his view, an applicant whose only conviction of record at the

time of application is a misdemeanor should be understood to

have “never been convicted of a felony” for purposes of ORS

166.291(1)(g), even if the misdemeanor conviction started as a

felony conviction and was reduced through a legal procedure.

We begin our analysis with the text and context,

which are the best indications of the legislature’s intent.

State v. Walker, 356 Or 4, 13, 333 P3d 316 (2014); Gaines, 346

Or at 171 (“The first step remains an examination of text

and context.”). The parties focus on the meaning of “never,”

which is a word of common usage. “[W]ords of common usage

typically should be given their plain, natural, and ordinary

meaning.” PGE v. Bureau of Labor and Industries, 317 Or

606, 611, 859 P2d 1143 (1993). The ordinary meaning of

“never” as used here is “not ever : not at any time : at no

time.” Webster’s at 1522. That ordinary meaning supports

5

The sheriff asserts in his opening brief that the trial court wrongly agreed

with petitioner’s construction of ORS 166.291(1)(g). Although the scope of the

trial court’s ruling is not entirely clear from the record, we understand it to have

decided the case under ORS 166.291(2), without reaching the arguments under

ORS 166.291(1)(g).

Cite as 338 Or App 29 (2025) 43

the sheriff’s position that being convicted of a felony at any

time is disqualifying under the statute, regardless of any

subsequent reduction by a court.

But it is not quite that simple, because of what fol-

lows “never.” The phrase “been convicted of a felony” uses

terms that are ubiquitous in the criminal context but are

also varied in meaning. We have observed that “[t]he word

‘conviction’ is often vexing, precisely because it has a num-

ber of potential meanings.” State v. Rodarte, 178 Or App 173,

178, 35 P3d 1116 (2001); see also State v. Dintelman, 112 Or

App 350, 352-53, 829 P2d 719 (1992) (explaining that the

word “ ‘[c]onvicted’ has a number of meanings, depending

on the circumstances of the inquiry and what legally fol-

lows from a conviction[,]” and concluding that, “for the pur-

poses of ORS 166.270, convicted of a felony means not only

a determination of guilt but also entry of a judgment of con-

viction”); Black’s at 333-34 (defining the word “convicted” in

relation to the word “conviction,” which can refer either to

(1) “the result of a criminal trial which ends in a judgment

or sentence that the accused is guilty as charged” or (2) the

“final judgment on a verdict of guilty,” not including “a final

judgment which has been expunged by pardon, reversed, set

aside, or otherwise rendered nugatory”).

The meaning of “felony” is similarly fluid. Both in

plain meaning and as a legal term, it typically refers to a

crime of a more serious nature, relative to those designated

as misdemeanors. See Black’s at 617 (defining “felony” as “[a]

crime of a graver or more serious nature than those desig-

nated as misdemeanors”); Webster’s at 836 (providing multiple

definitions of “felony” that generally depend on that designa-

tion of seriousness). But how a crime is designated varies. In

Oregon, whether a crime is designated as a felony or a misde-

meanor may be determined by the legislative classification of

the offense or its potential penalty,6 by the actual punishment

6

See ORS 161.525 (“Except as provided in ORS 161.585, 161.705 and 161.710,

a crime is a felony if it is so designated in any statute of this state or if a person

convicted under a statute of this state may be sentenced to a maximum term of

imprisonment of more than one year.”); ORS 161.545 (“A crime is a misdemeanor if

it is so designated in any statute of this state or if a person convicted thereof may

be sentenced to a maximum term of imprisonment of not more than one year.”).

44 Mohiadeen v. Washington County Sheriff’s Office

imposed,7 by how the district attorney elects to treat it,8 or by

how the conviction is reduced to judgment.9 And, of course,

other jurisdictions have their own ways of designating felo-

nies. See Ex Parte Biggs, 52 Or 433, 435, 97 P 713 (1908) (“It

is a matter of statutory provision, and what may be a felony

in one jurisdiction may be a misdemeanor in another, and vice

versa, and in some jurisdictions crimes may not be classified

at all.”).

Given those various potential meanings, the legisla-

ture has at times expressly articulated what counts as being

“convicted of a felony” for a particular statute, and, in fact, it

did so in the bill that enacted ORS 166.291. The problem, as

we will explain, is that the legislature defined the phrase in

just one section of the bill, for purposes of that section—and

not the one that ultimately became ORS 166.291.

ORS 166.291 was enacted in 1989 as part of a com-

prehensive gun control bill, House Bill (HB) 3470, following

a mass shooting at a California school that had been carried

out by someone who purchased the gun in Oregon. See State

v. Burris, 370 Or 339, 356, 518 P3d 891 (2022) (describing the

history of the legislation). The bill was a compromise that,

on the one hand, increased restrictions on firearms sales

and possession—particularly as to people who might pose

a threat to the public—but, on the other hand, facilitated

the issuance of concealed handgun licenses and created ave-

nues for relief from disabilities that would preclude the pos-

session of firearms. Id. at 356-57. One of the key components

7

See ORS 161.585(1) (“When a crime punishable as a felony is also punish-

able by imprisonment for a maximum term of one year or by a fine, the crime

shall be classed as a misdemeanor if the court imposes a punishment other than

imprisonment under ORS 137.124(1).”); ORS 161.585(2) (setting out the timing

for treating a conviction under subsection (1) as “a felony for all purposes until

one of the following events occurs, after which occurrence the crime is a misde-

meanor for all purposes”).

8

See, e.g., ORS 161.570(4) (“If a Class C felony or a violation of ORS 475.752(7)

(b), 475.854(2)(c) or 475.874(2)(c) is treated as a Class A misdemeanor under this

section, the court shall clearly denominate the offense as a Class A misdemeanor

in any judgment entered in the matter.”).

9

See, e.g., ORS 161.705 (providing for reduction of Class C felonies to mis-

demeanors at the time of conviction or after completion of probation); ORS

166.270(3) (discussed later in this opinion); Dintelman, 112 Or App at 353 (a per-

son is “convicted of a felony” for purposes of ORS 166.270 upon a determination of

guilt and entry of the judgment of conviction).

Cite as 338 Or App 29 (2025) 45

of that compromise was the expansion of the firearms dis-

abilities that resulted from a previous felony conviction.

Before 1989, the primary restriction on persons

convicted of a felony from possessing firearms was the crime

of “exconvict in possession of a firearm,” ORS 166.270 (1987),

and it applied only to a subset of firearms. The statute made

it a Class C felony for “[a]ny person who has been convicted

of a felony under the law of this state or any other state, or

who has been convicted of a felony under the laws of the

Government of the United States” to have a concealable fire-

arm or a machine gun, meaning that felons could possess

other guns, like hunting rifles.10 The statute also included

a provision that effectively restored the lost firearms privi-

leges 15 years after the person was discharged from impris-

onment, parole, or probation resulting from the conviction,

provided that the person had only one prior felony, not

involving a firearm or switchblade. ORS 166.270(4) (1987);

see Burris, 370 Or at 355-56 (describing that provision).

The “exconvict in possession” statute included a

two-part definition of the phrase “has been convicted of a

felony.” The first sentence provided a general definition, and

the second sentence created carve-outs from that definition:

“For the purposes of this section, a person ‘has been con-

victed of a felony’ if, at the time of conviction for an offense,

that offense was a felony under the law of the jurisdiction

in which it was committed. Provided, however, that such

conviction shall not be deemed a conviction of a felony if:

“(a) At the time of conviction, and pursuant to the

law of the jurisdiction in which the offense occurred, the

offense was made a misdemeanor by the type or manner of

sentence actually imposed; or

“(b) The offense was for possession of marijuana.”

ORS 166.270(3) (1987).

House Bill 3470 expanded the “exconvict in pos-

session” statute, relabeling it “felon in possession”; it also

inserted criminal history considerations into other firearms

statutes in a more prominent and wide-ranging way. ORS

10

The statute also made it a misdemeanor for such persons to possess certain

restricted nonfirearm weapons, such as switchblades. ORS 166.270(2) (1987).

46 Mohiadeen v. Washington County Sheriff’s Office

166.270 became a prohibition on possession of any firearms

by a person who had been convicted of a felony. Or Laws

1989, ch 839, § 4. And the legislature modified the statu-

tory definition of “has been convicted of a felony.” The first

sentence of the definition continued to provide, “For the pur-

poses of this section, a person ‘has been convicted of a fel-

ony’ if, at the time of conviction for an offense, that offense

was a felony under the law of the jurisdiction in which it

was committed.” Or Laws 1989, ch 839, § 4. However, the

remainder of the definition was amended to exclude only

convictions where “[t]he court declared the conviction to be

a misdemeanor at the time of judgment” and convictions for

marijuana possession that were prior to January 1, 1972. Or

Laws 1989, ch 839, § 4.

Meanwhile, the phrase “has been convicted of a fel-

ony,” which had previously appeared only in ORS 166.270,

was added to other statutes to create new prohibitions. It

was added to ORS 166.250, making it a misdemeanor (in

addition to being a felony under ORS 166.270) for a person

who “has been convicted of a felony” to possess a firearm. It

was added to ORS 166.470, limiting the sale of firearms to

a person who “has been convicted of a felony.” And its con-

verse, “has never been convicted of a felony,” was included

as a requirement for a concealed handgun license in ORS

166.291, which replaced ORS 166.290 and established the

basic contours of the concealed handgun licensing scheme

that we have today. See Or Laws 1989, ch 839, §§ 3, 4, 8,

and 13; see also generally State v. Vinge, 337 Or App 621, ___

P3d ___ (2025) (describing Oregon’s “shall issue” concealed

handgun licensing scheme).

Curiously, though, the only definition of the phrase

“has been convicted of a felony” that appeared in HB 3470

was in the amendments to the felon-in-possession statute,

ORS 166.270. None of the other amended or newly enacted

statutes included their own definitions or cross-referenced

the ORS 166.270 definition.

What, then, are we to make of the fact that the

legislature defined the phrase “has been convicted of a fel-

ony” for purposes of ORS 166.270 but not for purposes of

the closely related statutes, including ORS 166.291, that

Cite as 338 Or App 29 (2025) 47

use that same phrase? Was it simply an oversight in a large

bill, or was it an intentional drafting choice? Our general

assumptions about legislative intent are in some tension in

this circumstance. We generally presume that the legisla-

ture uses terms consistently throughout related statutes—

and ORS 166.291, ORS 166.250, and ORS 166.470 are all

closely related to ORS 166.270. However, we also ordinarily

assume that an omission of this type—whereby the legis-

lature includes something in one statute but not another,

particularly as part of the same bill—is an intentional

drafting choice. See, e.g., State v. Bailey, 346 Or 551, 562,

213 P3d 1240 (2009) (“[W]hen the legislature includes an

express provision in one statute and omits the provision

from another related statute, we assume that the omission

was deliberate.”).

Nothing in the text of the 1989 enactment itself

solves that mystery, nor are we aware of any legislative his-

tory that directly explains the disconnect. However, based

on the few clues that we do have, we conclude that the leg-

islature generally intended “been convicted of a felony” to

refer to the time of conviction and would have expected

that general definition from ORS 166.270(3) to carry over to

other provisions of the same bill, but that the legislature did

not intend the specific exceptions in ORS 166.270(3), for pre-

1972 marijuana convictions and post-judgment reductions

of felonies to misdemeanors, to carry over to other statutes,

or at least to ORS 166.291(1)(g).

The first clue to the legislative intent is the structure

of the definition of “has been convicted of a felony” in ORS

166.270(3) as amended in 1989. As noted earlier, that pro-

vision first sets out a broad definition of when a person “has

been convicted of a felony,” which focuses on “the time of con-

viction of the offense” and whether it “was a felony under the

law of the jurisdiction in which it was committed.” Or Laws

1989, ch 839, § 4. It then provides carve-outs—things that

would not be “deemed” felony convictions—including where

the court “declared the conviction to be a misdemeanor at

the time of judgment.” Or Laws 1989, ch 839, § 4. As the

Supreme Court observed in State v. Stark, 354 Or 1, 7, 307

P3d 418 (2013), “the legislature’s use of entirely different

48 Mohiadeen v. Washington County Sheriff’s Office

time references in those provisions may indicate that the

legislature did not equate ‘the time of conviction’ with ‘the

time of judgment.’ ” (Emphasis in original.) That two-part

structure, using two different timing provisions, suggests

that the drafters of HB 3470 were operating with the under-

standing that whether a person “has been convicted of a fel-

ony” generally would be based on the time of the conviction

unless expressly excepted from that rule.

It seems most likely, in the absence of any indica-

tion to the contrary, that the drafters of HB 3470 had in

mind that same general meaning of “been convicted of a fel-

ony” described in the first sentence of ORS 166.270 when it

used that phrase in other related statutes like ORS 166.291.

That is, the legislature likely would have understood the

inquiry to focus on the time of the conviction, unless other-

wise specified. Cf. Stark, 354 Or at 10 (concluding that “if

the 1989 legislative assembly had intended to make only

the original felony judgment, and not the subsequent misde-

meanor judgment, relevant to a determination of a person’s

status as a felon for purposes of that statute, it would have

signaled that intent instead of using the more general term

‘judgment’ ”).

The second clue is that the drafters of HB 3470

understood the crime of felon-in-possession, and presumably

the specific exceptions in the definition of ORS 166.270(3)(a)

and (b), to present distinct policy choices from other related

firearms statutes that were amended or enacted as part

of the bill. As the Supreme Court observed in Burris, the

new prohibitions on possession of firearms in ORS 166.250

(1989), and the prohibitions on transferring firearms in

ORS 166.470 (1989), were intended to be “broader than the

prohibitions on possession in ORS 166.270.” 370 Or at 360.

For example, the bill’s drafters were careful to point out the

different implications of restricting firearms sales and con-

cealed handgun licenses, on the one hand, and imposing

felony criminal liability and punishment on the other. See

Tape Recording, Senate Committee on Judiciary, HB 3470,

June 30, 1989, Tape 259, Side A (statements by staff legisla-

tive counsel Morris pointing out the meaningful difference

between a person’s ability to obtain a firearm, which might

Cite as 338 Or App 29 (2025) 49

be limited by federal law, and the potential for the imposi-

tion of a criminal punishment and making someone a felon

under state law). Given those different policy considerations,

and the fact that all of the discussions about the exceptions

in ORS 166.270(3)(a) and (b) took place within the context

of that statute only, we view the lack of any express excep-

tions in ORS 166.291 as significant. Although the legisla-

ture might rely, without an express definition, on a common

understanding of what it means to be “convicted of a felony,”

we would expect the drafters to explicitly address any tech-

nical and carefully crafted exceptions that were intended to

narrow that meaning for purposes of issuance of a concealed

handgun license, given the different potential policy consid-

erations in play.

A third clue—the drafters’ overall reluctance to fur-

ther distinguish among types of felonies, or even the types

of misdemeanors, that would disqualify someone from pos-

sessing firearms, in light of the newly available judicial pro-

cess for obtaining relief from the disability—reinforces our

conclusion in that regard. When presented with suggestions

to parse disqualifying offenses, the drafters fell back on a

different part of the compromise bill: the new process that

would allow persons to obtain relief from a firearms disabil-

ity. As described earlier, the compromise in 1989 included

provisions that made it easier to obtain a concealed hand-

gun license, and it also included what is now the process for

obtaining judicial relief from a firearms disability under ORS

166.274. See Tape Recording, House Committee on Judiciary,

Natural Resources Subcommittee, HB 3470, Apr 26, 1989,

Tape 14, Side A (statement by subcommittee chair, Rep

Ernie Calhoon, referring to the “big perk” of the bill being

the new appeals process whereby a judge can allow persons

to obtain a concealed handgun permit).

Under ORS 166.274, a person otherwise barred

from possessing a firearm under provisions of ORS 166.250,

ORS 166.270, or ORS 166.470 can seek relief from that bar

in the circuit court. If the petitioner demonstrates, by clear

and convincing evidence, that the petitioner does not pose a

threat to the safety of the public or the petitioner, relief shall

be granted. ORS 166.274(7). And that relief carries through

50 Mohiadeen v. Washington County Sheriff’s Office

the various firearms statutes, allowing even a person pre-

viously convicted of a felony to obtain a concealed handgun

license and to purchase and possess firearms. See, e.g., ORS

166.291(2) (“A person who has been granted relief under * * *

ORS 166.274 * * * is not subject to the disabilities in subsec-

tion (1)(g) to (L) of this section.”).

The availability of that new relief process was cited

multiple times when legislators were discussing whether to

cabin the types of convictions that would disqualify someone

from possessing firearms or obtaining a concealed handgun

license. For example, during a work session in a House sub-

committee meeting, legislators and those involved in draft-

ing the legislation discussed using the word “felon” rather

than distinguishing between violent felonies and, for exam-

ple, felony driving while suspended. Tape Recording, House

Committee on Judiciary, Natural Resources Subcommittee,

HB 3470, May 10, 1989, Tape 22, Side A. Representative

Tom Brian responded that they should keep the current lan-

guage, because previously convicted felons can make their

case to possess firearms through the appeals process. Id.

(statement of Rep Tom Brian). Later, during a work session

on the bill in the Senate Committee on Judiciary, some leg-

islators similarly expressed concerns about including past

misdemeanors and nonviolent felonies as disqualifiers. A

representative of House Speaker Vera Katz’s Office, Kory

MacGregor, who had been involved in drafting the legisla-

tion, explained that, practically speaking, it was not a life-

time bar because of the relief process; MacGregor explained

that the solution that the drafters came up with was to treat

all felonies as disqualifying and provide a process for obtain-

ing relief. Tape Recording, Senate Committee on Judiciary,

HB 3470, June 30, 1989, Tape 260, Side A (statement of Kory

MacGregor, House Speaker’s Office).

Although those discussions do not bear directly on

when a person “has been convicted of a felony,” they suggest

to us that the legislature wanted the prohibition on obtain-

ing a concealed handgun license to be broadly applicable to

persons who had been previously convicted of felonies, with

relief available through the express procedures for obtaining

judicial relief from the disability (under state or federal law)

Cite as 338 Or App 29 (2025) 51

or through expungement under Oregon law or the equiva-

lent law of another jurisdiction.11

For those reasons, we conclude that the legislature

intended the phrase “been convicted of a felony” in ORS

166.291(1)(g) to refer to a conviction for an offense that was

a felony under the law of the jurisdiction at the time of the

offense, regardless of any subsequent post-judgment reduc-

tion to a misdemeanor. Combined with the plain meaning

of “never,” the eligibility criterion in ORS 166.291(1)(g) thus

yields its most straightforward reading: It requires that a

person has not ever been convicted for an offense that was

a felony under the law of the jurisdiction at the time of the

offense, even if the felony was later reduced to a misde-

meanor through a post-judgment legal process.12 We there-

fore reject petitioner’s contention that, in light of the reduc-

tion of his felony to a misdemeanor under California law, he

had never been convicted of a felony.

We recognize that, as a result of the inconsistent

use of definitions throughout the firearms statutes and the

patchwork of appellate decisions over the years interpreting

aspects of those statutes, persons who have been convicted

of felonies face a complex landscape—and sometimes incon-

sistent restrictions under different laws. See, e.g., Burris,

11

In Stark, 354 Or at 12, the Supreme Court rejected the state’s argument

that the relief provision had a bearing on the interpretation of ORS 166.270(3). It

viewed the state’s argument as the “tail wagging the dog” and stated that “[t]he

legislature could have decided that a trial court’s reduction of a felony conviction

to a misdemeanor should remove that person from the prohibition on firearm

possession at ORS 166.270 altogether, and at the same time reasonably could

have provided a path for persons who remain felons for purposes of the statute

to restore their prior right to possess firearms.” Id. (emphasis in original). As

explained in the text, we rely on the existence of the relief provision for a slightly

different reason—as an indication of the legislature’s reluctance to narrow the

disability for persons convicted of felonies where, unlike ORS 166.270(3), the text

itself does not include that type of exception.

12

Our decision should not be interpreted to mean that a person remains a

felon for purposes of ORS 166.291 even if the judgment of conviction is reversed

or vacated on direct appeal or post-conviction. Although such a person would not

be allowed to possess a firearm prior to the reversal or vacation of the judgment of

conviction, see Bailey v. Lampert, 342 Or 321, 327, 153 P3d 95 (2007) (holding that

the status of “felon” is determined as of the time of possession of the firearm, even

if that status later might change), we have no reason to believe that the legisla-

ture intended a felony conviction that has been invalidated on direct appeal or

post-conviction to affect a person’s ability to obtain a concealed handgun license

in the future.

52 Mohiadeen v. Washington County Sheriff’s Office

370 Or at 361 (“We therefore conclude that the exception for

certain older felony convictions in ORS 166.270(4)(a) does not

apply to the prohibition on a felon possessing a firearm under

ORS 166.250(1)(c)(C).”). This is our best effort at understand-

ing the legislature’s policy choice regarding who has “been

convicted of a felony” for purposes of obtaining a concealed

handgun license, but we acknowledge that the answer is not

free from doubt. If the legislature intended a narrower (or

more expansive) understanding of what it means to have

“never been convicted of a felony” for purposes of obtaining

a concealed handgun license, or it intended greater consis-

tency within the scheme as a whole than currently exists, it

is of course free to amend the statutes.

D. Petitioner’s Constitutional Arguments

In urging us to affirm the trial court’s ruling, peti-

tioner contends that denying him a concealed handgun

license in these circumstances would give rise to two federal

constitutional problems. First, he argues that it violates the

Equal Protection Clause of the Fourteenth Amendment, in

that treating him differently “because of the happenstance

that his conviction was in California rather than Oregon”

imposes a discriminatory burden on California residents

who seek to move to Oregon. The trial court made a similar

comment sua sponte below, to the effect that it was not pre-

pared to find that petitioner would “have effectively a life-

time ban * * * because he had the misfortune of being con-

victed under the criminal laws of * * * another state.”

We are not persuaded that Oregon’s licensing

scheme denies equal protection under the law—or, for that

matter, that it creates a lifetime ban in this circumstance.

Oregon has made a policy choice that its own expungement

process or an equivalent expungement process will relieve

a person of a firearms disability. It also has provided a fall-

back procedure that is available if another jurisdiction lacks

a comparable expungement process, which is seeking relief

from the firearms disability under ORS 166.274—an avenue

of relief that is available to petitioner.

Second, petitioner argues that he has a constitu-

tional right to a concealed-carry permit under the Second

Cite as 338 Or App 29 (2025) 53

Amendment, because the sheriff has not demonstrated that

ORS 166.291 is consistent with historical American firearm

regulation under New York State Rifle & Pistol Assn., Inc.

v. Bruen, 597 US 1, 142 S Ct 2111, 213 L Ed 2d 387 (2022).

Petitioner did not raise or develop a Second Amendment

argument below. However, even assuming that we could

nonetheless consider it on this record as an alternative basis

to affirm, we would reject it. Petitioner was convicted of a

felony and, as we explained in State v. Parras, 326 Or App

246, 257-58, 531 P3d 711, rev den, 371 Or 511 (2023), rev den,

372 Or 763 (2024), “[t]he weight of historical evidence shows

that it was understood that individuals could be divested

of Second Amendment protections if they broke the social

contract of being a virtuous citizen by committing a seri-

ous crime,” and “[t]here is little historical evidence that any

differentiation was made between those who committed

serious violent versus non-violent offenses with respect to

Second Amendment protections.” Moreover, as we explained

in Vinge, 337 Or App at 627, Oregon’s concealed handgun

licensing scheme is consistent with historical limitations on

individuals carrying firearms.13

IV. CONCLUSION

We reverse the decision of the trial court and remand

for entry of a judgment affirming the sheriff’s denial of a

concealed handgun license. The court was incorrect to rely

on the expungement provision, ORS 166.291(2), to find peti-

tioner eligible for a concealed handgun license, because the

California laws under which petitioner obtained relief relat-

ing to his felony conviction are not “equivalent” to Oregon’s

expungement law, and we are unpersuaded by petitioner’s

proposed alternative bases to affirm for the reasons stated.

Reversed and remanded for entry of a judgment

affirming the sheriff’s denial of petitioner’s application.

13

Petitioner raises the constitutional issues both as standalone constitu-

tional contentions and to argue for adoption of his construction of ORS 166.291

to avoid constitutional infirmity. See Pete’s Mountain Homeowners v. Ore. Water

Resources, 236 Or App 507, 522, 238 P3d 395 (2010) (“When confronted with com-

peting, reasonable constructions of a statute, and there is even a tenable argu-

ment that one of them would render the statute unconstitutional, we generally

favor the other construction.”). We are unpersuaded in both respects.