Petition for Writ of Certiorari — Schluter v. Minnesota

Supreme ©

Ou

rite i U.S,

wet 697 May 16 2093

OFFICE OF THe CLERK

No.

In the

Supreme Court of the Anited States

STEPHEN LARI SCHLUTER,

Petitioner,

v.

STATE OF MINNESOTA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE MINNESOTA COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

KYLE D. WHITE

Attorney for Petitioner

101 East Fifth Street

Suite 2314

Saint Paul, Minnesota 55101

(651) 227-8751

ae

Question Presented for Review

Does the State of Minnesota violate the Ex Post Facto

clause of the United States constitution when it imposes

a weapons-possession ban on an individual whose

offense, at the time of conviction, was not included in

the list of offenses which triggered that ban?

=

Service List

Minnesota Attorney General

Criminal Division

445 Minnesota Street

1400 NCL Tower

Saint Paul, Minnesota 55101

(651) 296-7575

Susan Gaertner

Ramsey County Attorney

Attorney Registration No. 123882

RCGC West-315

50 West Kellogg Boulevard

Saint Paul, Minnesota 55102

(651) 266-3222

TABLE OF CONTENTS

Question Presented for Review ..... i

Table of Contents ° ii

Table of Authorities iii

Opinions and Orders Entered in this Case............. iv

Jurisdictional Statement iv

Constitutional Provisions and Statutes... v

Statement of the Case.. , 1

ARGUMENT 5

I. APPLYING A 1987 RECLASSIFICATION OF

DRUG OFFENSES AS “CRIMES OF VIOLENCE”

TO PETITIONER'S 1986 DRUG CONVICTION

VIOLATED THE EX POST FACTO CEAUSE OF

THE FEDERAL CONSTITUTION . , 5

A. Considerations Governing Review on

Certiorari.. 6

B. Retroactive application to Petitioner’s 1986

Conviction of Minn. Stat. §624.713,

subd.1(b), based on 1987 amendments to

Minn. Stat. §624.712, subd.5, creates an ex

post facto violation 7

CONCLUSION 23

TS ee ee

TABLE OF AUTHORITIES

Collins v. Youngblood, 497 U.S. 37 (1990)................. 8

Johnson v. United States, 120 S.Ct. 1795, 529 U.S. 694,

146 L.Ed.2d 727 (2000)..............0+ sosenssnesnesnsens 7, 16, 19

Lynce v. Mathis, 117 S.Ct. 891, 519. U.S. 433, 137

TB Fb CELIO ssssscncnsnssespeoenensvrss ARTA: 7, 13

~

Miller _v. Florida, 107 S.Ct. 2446, 482 U.S. 423, 96

ERS DOK €NUNET Pisisiveiamninasbinioinssscnenamiaghinianiiaieie 7; 11

State v. Trower, 629 N.W.2d 594 (S.D. 2001)

State v. Schluter, 653 N.W.2d 787 (Minn. Ct. App.

ili

OPINIONS AND ORDERS ENTERED IN THIS CASE

State v. Schluter, Case No. K2-00-2901 (Ramsey Cty. Dist.

Ct. October 15, 2001) (sentencing order)

State v. Schluter, 653 N.W.2d 787 (Minn. Ct. App. 2002) —

(conviction affirmed)

State v. Schluter, Case No. C3-04-28 (Minn. February 18,

2003) (review denied)

JURISDICTIONAL STATEMENT

This Petition follows the Order of the Minnesota

Supreme Court, dated February 18, 2003, denying review of

the December 10, 2002, decision by the Minnesota Court of

_ Appeals that affirmed Petitioner’s conviction. The statutory

provision conferring jurisdiction on this Court to review this

judgment on writ of certiorari is found at 28 U.S.C.§1257(a).

iv

CONSTITUTIONAL PROVISION

“No Bill of Attainder or ex post facto Law shall be

passed.” U.S. Const. Art. I, § 9, cl. 3.

STATUTES

Minn. Stat. § 624.712 (2002):

Please see Appendix

Minn. Stat. § 624.713 (2002):

Please see Appendix

Minn. Stat. § 645.21 (2002):

Presumption against retroactive effect.

"No law shall be construed to be retroactive

unless clearly and manifestly so intended by the

legislature."

Statement of the Case

On May 19, 1986, Petitioner, Stephen Lari Schluter,

was charged with Possession of LSD with Intent to

Distribute in violation of Minn. Stat. §152.09, subd. 1(1), to

which he pled guilty on July 29, 1986. He was sentenced on

September 12, 1986, to five years’ probation, during which

time he was not permitted to possess firearms. At that time,

Minnesota imposed a ten-year ban on possessing weapons

only on those convicted of “crimes of violence.” However,

drug offenses were not, at that time, considered “crimes of

violence;” Minnesota characterized drug offenses in this

manner only beginning in 1987: The Petitioner was

honorably discharged from probation for the controlled

substance offense on October 1, 1991.

On September 10, 2000, a resident of St. Paul,

Minnesota, reported that an individual whom she incorrectly

identified as the Petitioner had pointed a pistol at her a

vehicle, and then shot at her truck. St. Paul Police proceeded

to the Petitioner’s residence and commenced a search.

Eventually, law enforcement found two rifles and

ammunition in the home, but never found the alleged pistol

that precipitated the search and seizure. Furthermore,

Petitioner was never charged in connection with the shooting

that had allegedly occurred. The State of Minnesota has not

alleged Petitioner had anything to do with those events.

On September 12, 2000, Petitioner was charged with

Felony Possession of Firearm by Ineligible Person in

violation of Minn. Stat. §624.713, subd. 1(b). This provision

imposes a ten-year ban on possessing weapons upon those

convicted of “crimes of violence,” commencing with their

discharge from probation. The State of Minnesota claimed

Petitioner’s 1986 conviction was for a “crime of violence,”

and that he was consequently ineligible to possess firearms

between October, 1991, and October, 2001. It is not

disputed that in 1986, Petitioner’s conviction was not

considered a “crime of violence.” Drug offenses, such as

that for which Petitioner was convicted in 1986, were not

considered “crimes of violence” until 1987.

Prior to trial, Petitioner moved to dismiss the charges

on the ground that to do so would violate state and federal

guarantees against ex post facto laws. Petitioner noted that

his 1986 drug conviction was not, at that time, considered a

“crime of violence” under Minnesota law. He argued that to

subject him to the claimed ten-year ban on possessing

weapons, which is triggered by conviction of a “crime of

violence,” would constitute an ex post facto application to

his 1986 conviction of Minnesota’s 1987 amendment to its

“ineligible possession” statute, which inserted drug offenses

into the definition of “crime of violence” in Minn. Stat.

§624.712, subd.5. The Honorable George O. Peterson of

Ramsey County District Court denied this motion on January

24, 2001.

The court trial before the Honorable Lawrence D.

Cohen, Judge of Ramsey County District Court, commenced

July 10, 2001. Judge Cohen ound Petitioner guilty on

August 20, 2001. At sentencing, Petitioner once again

pointed out that when he had been convicted in 1986, his

crime was not considered a “crime of violence;” even Judge

Cohen questioned whether or not Petitioner's initial drug

conviction "14 years ago. . . was considered to be a crime of

violence. . ." (S. 158). Nonetheless, on October 15, 2001,

Judge Cohen sentenced Petitioner to one year in the

workhouse with work release, stayed execution of sentence,

and waived the mandatory minimum prison sentence of 60

months. Judge Cohen further stayed the sentence pending

appeal and set bail at the previous amount of $15,000.

The conviction, and the denial of Petitioner’s pre-trial

motion, were appealed to the Minnesota Court of Appeals.

In a published decision of December 10, 2002, that Court

affirmed the trial court’s rejection of Petitioner’s ex post

facto argument, holding that he was being punished for

possessing a weapon in 2000, not for intending to distribute

drugs in 1986. State v. Schluter, 653 N.W.2d 787 (Minn. Ct.

App. 2002). The Court failed, however, to recognize the

central issue: that Petitioner could not have been “ineligible”

to possess * weapon in 2000 absent an impermissible

retroactive application of Minnesota’s 1987 amendment to

the “ineligible persons” statute to his 1986 conviction. This

issue was presented to the Minnesota Supreme Court for

review, which was denied February 18, 2003. This Petition

followed.

ARGUMENT

I. APPLYING A 1987 RECLASSIFICATION OF

DRUG OFFENSES AS “CRIMES OF

5

VIOLENCE” TO PETITIONER'S 1986 DRUG

CONVICTION VIOLATED THE EX POST

FACTO CLAUSE OF THE FEDERAL

CONSTITUTION.

A. Considerations Governing Review on Certiorari

"This Court should grant the writ of certiorari because

the facts relating to this asuaiiel fit precisely within tie

scope of the considerations described in Supreme Court Rule

10, paragraphs (b) and (c).

First, the Minnesota Court of Appeals’ treatment of

this specific question directly conflicts with the decision, on

virtually indistinguishable facts, by the South Dakota

Supreme Court in State v. Trower, 629 N.W.2d 594 (S.D.

2001). The Trower Court held that subjecting a

previously-convicted individual to a weapons-possession ban

based on a post-conviction reclassification of his crime

violated the ex post facto clause of the federal constitution.

Second, the Minnesota Court of Appeals’ decision

squarely conflicts with various decisions of this Court, which

6

hold that subsequent changes in law that increase the penalty

for crimes for which a person was convicted before the

amendment represent ex post facto violations. See, e.g,.

Miller v. Florida, 107 S.Ct. 2446, 482 U.S. 423, 96 L.Ed.2d

351 (1987); Lynce v. Mathis, 117 S.Ct. 891, 519 U.S. 433,

137 L.Ed.2d 63 (1997); and in particular, Johnson v. United

States, 120 S.Ct. 1795, 529 U.S. 694, 146 L.Ed.2d 727

(2000).

B. Retroactive application to Petitioner’s 1986

conviction of Minn. Stat. §624.713, subd.1(b),

based on 1987 amendments to Minn. Stat.

§624.712, subd.5, creates an ex post facto violation.

The federal constitution prohibits the implementation

of ex post facto laws. See U.S. Const. art. I, §10. “A law is

ex post facto when it applies to events occurring before its

enactment and disadvantages the offender affected by it.”

Weaver v. Graham, 450 U.S. 24, 29 (1981). In particular,

“to constitute an ex post facto law, a statute must: (1) punish

as a crime an act which was innocent when committed; (2)

7

increase the burden of punishment for a crime after its

commission; or (3) deprive one charged with a crime of a

defense that was available when it was committed.” Collins

v. Youngblood, 497 U.S. 37, 52 (1990). In contrast, statutes

increasing penalties for conduct occurring after their

effective dates are not considered ex post facto laws.

The Minnesota Court of Appeals decision in this case

conflicts directly with the decision of the court of last resort

in another State. The facts of State v. Trower, 629 N.W.2d

594 (S.D. 2001) are virtually indistinguishable from this

case, and yet the Minnesota Court of Appeals failed to so

much as acknowledge its existence. In Trower, the

defendant was convicted in 1990 of felony sexual contact

with a minor. Id. at 595. As in Minnesota, South Dakota

law prohibits those convicted of “crimes of violence” from

possessing a firearm. Id At the time of Trower’s

conviction, however, “sexual contact” was not defined as

a “crime of violence” under South Dakota law. Id. “Sexual

contact” was added to the definition of “crime of violence”

in 1992. Jd. at 595-96. As does Petitioner, Trower

maintained that to subject him to the ban on firearm

possession that is triggered by conviction of a “crime of

violence,” when his offense was not considered a “crime of

violence” at the time of conviction, would violate ex post

facto principles.

The South Dakota Supreme Court, relying heavily on

United States v. Davis, 936 F.2d 352 (8th Cir. 1991), agreed.

The Trower Court stated:

Trower was convicted for sexual contact in 1990. In

1992, while he was still serving his sentence, the law

was amended to redefine a “crime of violence” to

include sexual contact with a child and to thereby

prohibit Trower from bearing arms. ... Thus, just as

in Davis, supra, if the 1992 law limiting the right to

possess firearms was applied to a_pre-1992

conviction, the effect would be to increase

retroactively, in violation of the Ex Post Facto

Clause, the punishment for the crime previously

committed. Trower, 629 N.W.2d at 597.

It could not be more clear that the facts in Trower and

in the present case are to all appearances indistinguishable.

Here, in 1987, while Petitioner was still serving his sentence,

the law was amended to redefine a “crime of violence” to

include drug offenses and to thereby prohibit Petitioner from

bearing arms. Thus, just as in Trower, if the 1987 law was

applied to a pre-1987 conviction, the effect would be to

increase ine in violation of the ex post facto clause,

the punishment for the crime previously committed, i.e., the

1986 drug offense.

Despite the identical nature of the cases, and despite

Petitioner’s evident reliance upon Zrower, the Minnesota

Court of Appeals resolved this important federal issue in a

manner directly contradicting the result reached in the court

of last resort in neighboring South Dakota, without so much

~ as mentioning the case or attempting to distinguish it in any

way. Petitioner respectfully urges this Court to grant his

petition for writ of certiorari on this ground.

Moreover, the Minnesota Court of Appeals decision

in this case also runs afoul of at least three recent ex post

facto decisions of this Court. In Miller v. Florida, defendant

Miller had committed an act of sexual battery on April 25,

1984. Miller v. Florida, 482 U.S. 423, 424 (1987). At the

time the act was committed, the presumptive sentence under

Florida law would have been 3.5-4.5 years; sentences within

the guideline were non-appealable, but departures from the

presumptive sentence required clear and convincing reasons

and were subject to appeal. Id) New sentencing

guidelines _Wwent into effect on July 1, 1984, Id. at 427,

under which the presumptive sentence was now 5.5-7 years.

Miller was convicted in August 1984, and sentenced October

2, 1984. Id. at 426-27. The sentencing court applied the

new sentencing guidelines instead of those in effect when the

11

crime was committed, and Miller “a sentenced to 7 years in

prison. Id, at 424. Because this sentence was within the new

guideline, the judge did not need to articulate clear and

convincing reasons and the sentence was not subject to

appeal, whereas a seven-year sentence under the old

standards would have required this showing and have been

appealable.

This Court reversed the conviction, holding that

sentencing Miller under the revised guidelines, and not the -

previous ones, violated the ex post facto clause of the federal

constitution. After articulating the Weaver test for ex post

facto violations, this Court held that “application of the

revised guidelines law in petitioner’s case clearly satisfies

this standard.” Id. at 430. “[T]he statute in effect at the time

petitioner acted did not warn him that Florida prescribed a 5-

1/2 to 7 year presumptive sentence for that crime.” Id. at

431.

12

In this case, nothing in Minnesota law at the time

of Petitioner’s 1986 offense, nor at the time of his

conviction, nor at the time of his sentencing, remotely

suggested he would be subject to any weapons restrictions

beyond the time of his probation. This restriction was

imposed only on those convicted of “crimes of violence,”

and Petitioner’s crime would not be so defined until the

following year. Just as retroactive application of new

sentencing guidelines to Miller, consequently disadvantaging

him, violated the ex post facto clause, ss io does

retroactively defining Petitioner’s crime as a “crime of

violence” and wrongly subjecting him to a_ ten-year

weapons ban. The Minnesota Court of Appeals decision

ignored this.

This Court’s decision in Lynce v. Mathis, 519 U.S.

433 (1997) is also instructive. There, beginning in 1983,

Florida created a complex system of granting prisoners

13

early-release credits at times of overcrowding. Id. at 435. In

the 1980s, defendant Lynce had been convicted of attempted

~ murder and sentenced to 22 years’ imprisonment, but by

1992, had accumulated sufficient credits to be released, and

was released. Id. at 435-36. Shortly after his release, Florida

amended its early-release credits statute, and the Florida

Attorney General interpreted the law as retroactively

revoking certain credits of a kind Lynce had been awarded.

Id. at 436. As a consequence, Lynce was rearrested and

reimprisoned. Id.

This Court overturned this outcome, asking “the

essential inquiry demanded by the Ex Post Facto Clause:

whether the cancellation of ... credits had the effect of

lengthening petitioner’s period of incarceration.” Id. at 442-

43. This Court held that the 1992 revision to the credits

statute “unquestionably disadvantaged [Lynce] because it

resulted in his rearrest and prolonged his imprisonment” Id —

14

at 446-47. In particular, the Lynce Court stated that the 1992

revision violated ex post facto principles because “it made

ineligible for early release a class of prisoners who were

previously eligible.” Id. at 447.

Here, Minnesota claims that Petitioner was rendered

“{neligible” to possess firearms as a result of the 1987

amendment which classified drug offenses as “crimes of

violence.” Stripping Petitioner of his right to possess

firearms, and subjecting him to criminal sanctions for such

possession, clearly disadvantaged him. There is no question

that persons convicted in Minnesota for drug offenses

committed in 1987 or after have committed “crimes of

violence” and are thus subject to the ten-year ban following

completion of probation. However, Petitioner was | not

convicted “in 1987 or after;” he was convicted in 1986.

Consequently, Petitioner has experienced both a retroactive

application of law, imposing additional penalties for conduct

15

for which he had already been convicted, and a resulting

disadvantage. All elements of an ex post facto violation are

therefore present, but the Minnesota Court of Appeals ruled

to the contrary.

| Finally, in what may be the most directly on-

point of the trio of cases cited this Court’s decision in

Johnson vy. United States, 529 US. 694 (2000),

demonstrates precisely the sort of ruling the Minnesota Court

of Appeals could have and should have made, but did not

make. In Johnson, this Court observed that in 1984,

Congress had replaced most parole with supervised release.

Johnson, 529 U.S. at 696-97. Paragraphs (a) and (b) of 18

U.S.C. §3583 authorized imprisonment to be followed by

supervised release, while paragraph (d) permitted the

imposition of mandatory conditions during the release

period, and paragraph (e)(3) directed that if these conditions

were violated, the offender was to be reimprisoned. Id. at

16

697. Johnson committed a felony in October, 1993, for

which he was sentenced in March, 1994 to 25 months’

imprisonment and three years’ subsequent supervised

release. Id He was released and began the supervised

release period in August, 1995. However, he violated his

conditions of release in approximately March, 1996. The

district court revoked : supervised release, ordered

imprisonment for 18 months, and then ordered a second, 12-

month, period of supervised release. Id. Although the legal

authority for ordering a second period of supervised release

was not clear, Id. at 698, this Court assumed it was found in

18 U.S.C. §3583 (h), which permitted such additional

periods of supervised release, but whose effective date was

September 13, 1994. Id. at 702.

After a thorough examination of why penalties for

probation violations must be considered punishment for the

original conviction, and not for the act which itself

17

constituted the violation, Id. at 699-701, this Court held that

“to sentence Johnson to a further term of supervised release

under §3583(h) would be to apply this section retroactively

(and raise-the remaining ex post facto question, whether that

application makes him worse off).” Id at 701. However,

this Court avoided the constitutional issue altogether by

returning to the statute itself and determining that because

Congress had never specified any effective date for this

provision, Congress did not intend for it to have retroactive

effect and as a result, it became effective September 13,

1994. Id. at 701-02. Since Johnson had been sentenced in

March, 1994, the law was not intended to apply to him, and

thus ex post facto analysis was not applicable because no ex

post facto situation occurred.

Here, Petitioner argued in vain to the Minnesota

Court of Appeals that the Legislature had codified a canon of

statutory construction directing against retroactive

18

application of laws absent specific language revealing that

such a result was intended. See Minn. Stat. §645.21. In fact,

the Minnesota Court of Appeals wholly ignored the question

of retroactive application of law as an issue separate from the

ex post facto theory in the case. Even if one argued that

there was ambiguity in presenting this issue to the Court of

Appeals, in Johnson, this Court turned promptly to this issue

even though neither side had raised it at all. Johnson, 529

US. at 701-02. Petitioner would respectfully urge this Court

to consider granting the writ of certiorari and remanding his

case to the Minnesota Court of Appeals for reconsideration

in light of Johnson.

There is no dispute that a State may pass laws

providing prospectively for increased penalties for future

conduct. If there can be a “typical” ex post facto case, it

would involve a person convicted of a crime and

consequently assigned a particular “status,” e.g. the status of

19

“felon.” Subsequently, a legislature imposes an additional

limitation on those with that status, such as a ban on

possessing weapons beginning on the effective date of that

legislation. Thereafter, the individual is caught with a

weapon, and punished. Such ex post facto challenges often

fail because courts rule that it is later, not earlier, conduct

being punished; the individual’s status is not being changed,

but rather persons with that status are subject to new

limitations, strictly prospective in nature. This, however, is

not Petitioner’s case.

Unlike some states which impose weapons bans on

“felons,” Minnesota has instead chosen to impose these

restrictions on those convicted of a “crime of violence.”

When Petitioner was convicted in 1986 of a drug offense,

that offense was not included in the list of crimes Minnesota _

considered “crimes of violence.” See Minn. Stat. §624.712,

subd.5. At the time of this conviction, Minnesota could

20

legally restrict Petitioner’s possession of weapons only as a

condition of his probation. This is precisely what Minnesota

did, and Petitioner satisfied this condition in 1991. At that

point, his freedom to possess weapons should have been

fully restored.

However, in 1987, the year following his conviction,

Minnesota amended its “crime of violence” definition to

include drug offenses such as Petitioner’s. Minnesota did

not specify an intent that this amendment would have

retroactive effect. The result of this amendment was to

subject those convicted of drug offenses to a ten-year ban on

possessing weapons, beginning with their discharge from

probation. It is this ten-year ban to which Minnesota

subjected Petitioner, and for violating which Minnesota has

now convicted and sentenced him. However, there is

absolutely no way Petitioner could be subject to this ban

unless the 1987 reclassification of .drug offenses as

21

“crimes of violence” was made to apply retroactively io his

1986 conviction. The “status” which triggers the ten-year

weapons ban, i.e., the “status” of having been convicted ofa

“crime of violence,” did not purportedly attach to Petitioner

until the year following his conviction, and could not so

-attach without constituting an ex post facto violation.

Petitioner fully agrees that his present conviction is

for conduct occurring in 2000, namely the possession of

firearms, and not for conduct occurring in 1986. Petitioner

maintains, however, that his _ 2000 conduct was not

criminal whatsoever absent an imposition of additional

penalties in 1987 to his 1986 conviction in violation of ex

post facto protections. Minnesota cannot constitutionally

punish Petitioner for violating a weapons-possession ban to

which he was never permissibly subjected.

CONCLUSION

The Petitioner has been subjected to an ex post facto ,

application of the definition of “crime of violence,” applying

to events before the definition’s amendment and significantly

disadvantaging him. The Minnesote Court of Appeals’

analysis of the ex post facto issues in this case directly

conflict with the decisions not only of this Court, but also of

the court of last resort in a sister State. For these reasons,

Petitioner respectfully urges this Court to grant his petition

for writ of certiorari and review this decision.

Dated: May 16, 2003 :

Respectfully submitted,

Kyle D. White, Atty ID #22599X

Attorney for Petitioner

101 East Fifth Street, Suite 2314

St. Paul, Minnesota 55101

Telephone: (651) 227-8751

23

STATE OF MINNESOTA

IN SUPREME COURT

C3-02-48

State of Minnesota, ;

Respondent,

Vs.

Stephen Lari Schluter, |

Petitioner.

ORDER

Based upon all the files, records and proceedings

herein, IT IS HEREBY ORDERED that the petition of

Stephen Lari Schluter for further review be, and the same is,

denied. |

Dated: February 18, 2003

BY THE COURT:

Kathleen A. Blatz

Chief Justice

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-02-48

State of Minnesota,

Respondent,

vs.

Stephen Lari Schluter,

Appellant.

Filed December 10, 2002

Affirmed

Toussaint, Chief Judge

Ramsey County District Court

File No. K2002901

Mike Hatch, Attomey General, Suite 500, 525 Park Street,

St. Paul, MN 55103; and

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill,

Assistant County Attorney, Ramsey County Government

Center, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN

55102 (for respondent)

Kyle D. White, Suite 2314, 101 East Fifth Street, St. Paul,

MN 55101 (for appellant)

A-2

Considered and decided by Toussaint, Chief Judge,

Kalitowski, Judge, and Halbrooks, Judge.

SYLLABUS

The statutory amendment that extended the

prohibition against possessing firearms to those convicted of

felony controlled substance offenses committed before the

effective date of the amendment did not violate the Ex Post

Facto Clauses of the Minnesota or United States

Constitutions.

OPINION

TOUSSAINT, Chief Judge

Appellant Stephen Lari Schluter appeals from his

conviction of felon in possession of 2 firearm. Because the

statute as amended does not violate the prohibition against ex

post facto laws, and because Schluter voluntarily consented

to the search of his home, we affirm.

FACTS

In 1986, appellant Stephen Lari Schluter pleaded guilty and

was sentenced for felony possession of LSD -with intent to

distribute. His 21-month sentence was stayed, and he was

discharged from probation in 1991.

A-3

On September 10, 2000, St. Paul police officers

responding to a “shots fired call” were approached by Karen

Pluff, who claimed that Schluter aimed a pistol at her and

shot at her vehicle earlier that evening. She described

Schluter’s vehicle and gave his name, description, and

address. The information was broadcast to other Squad cars.

Officer Michael Conroy was the first to respond to

the call and arrive at Schluter’s home. He approached the

front of the home while other officers went to the rear of the

house to secure the premises. Through the window, Conroy

observed Schluter and his wife sitting on a couch watching

television. The officer entered the porch and knocked on the

door. Schluter answered the coor, and Conroy, fearing that

Schluter might have a gun, instructed Schluter to turn around

and put his hands on top of his head for a pat search, The

officers handcuffed Schluter and placed him in the back seat

of the squad car.

Conroy then took a couple of steps inside the

doorway to talk to Schluter’s wife, who was still sitting on

the couch. She asked what the officers were doing there, and

~ before Conroy could reply, she volunteered that her husband

had been with her since 8:30 p.m. and had loaned his car to

A-4

Derrick Schumacher. When Conroy asked her if there were

any weapons in the home, she replied in the negative.

Meanwhile, Officer Degree asked Schluter, who was.

still in the squad car, the same question. Schluter told him

that he had an sKS assault rifle and a double-barreled

shotgun behind the couches, and that the officer could search

for them because they were not illegal. Degree went into the

home and informed Conroy about the firearms. When

Conroy shared this information with Mrs. Schluter, she

_ showed him the rifle behind the back cushion, and he later

observed the double-barreled shotgun laying on the floor

between the wall and the couch.

Degree obtained a consent-to-search form and

returned to the squad car. Degree let Schluter out of the

squad car, uncuffed him, and read the form to him. Schluter

signed it. A subsequent search of the home revealed (1)

some twelve-gauge shotgun ammunition, (2) an empty Uzi

assault rifle box, (3) an old-style flintlock rifle, and (4) a

magazine for a semi-automatic pistol. The police never

found the pistol used to shoot Pluff’s car.

Conroy testified that throughout the search Mrs.

Schluter remained in the house. However, Mrs. Schluter

testified that she was placed in a separate squad car facing

A-5

her husband. She further claims that she was not fully

dressed and that her request to finish dressing was denied.

According to Mrs. Schluter, when her husband signed the

consent-to-search form, she was allowed to go back into the

house. But by that time, the police had already laid out

various weapons and tagged them for inventory.

Schluter testified that he was upset that his wife was

not allowed to dress. According to Schluter, officers asked

him three or four times to sign the consent form, and, in the

meantime, the officers were entering the home. Schluter also

testified that he signed the consent form only after he was

told that his wife was going to jail and that his children, who

were in their rooms sleeping, would be sent to child

protection.

After doing a background check, the police learned of

Schluter’s 1986 conviction for possession of LSD with intent

to sell. As a result, he was charged with felony possession of

a firearm by an ineligible person under Minn. Stat. §624.713

(2000). Schluter was never charged with the shooting at

Pluff’s vehicle.

Following a court trial, Schluter was found guilty,

convicted, and sentenced for felon in possession of a firearm.

His 60-month sentence was stayed and he was placed on

A-6

probation for 15 years. On appeal, Schluter challenges the

constitutionality of section 624.713 as applied to him, and

the finding of the voluntariness of the consent to search his

home.

ISSUES

I. Does Minn. Stat. §624.713, subd. 1(b) (2000), as

applied to appellant, who was convicted in 1986 of a

felony controlled substance offense, violate the

federal or state constitutional prohibitions against ex

post facto laws?

Il. Did the district court err in finding that appellant’s

consent to search his residence was voluntary?

ANALYSIS

L

Ex Post Facto Violation

Schluter argues that, as applied to him, the 2000

felon-in-possession-of-a-firearm statute violates the Ex Post

Facto Clause by retroactively increasing his punishment for

his 1986 conviction for possession of controlled substances.

In evaluating constitutional challenges, the

interpretation of statutes is a question of law. In re Blilie,

494 N.W.2d 877, 881 (Minn. 1993). Minnesota statutes are

presumed constitutional and will be declared

A-7

unconstitutional “only when absolutely necessary.” In re

Haggerty, 448 N.W.2d 363, 364 (Minn. 1989)(citing City of

Richfield v. Local No. 1215, 276 N.W.2d 42, 45 (Minn.

1979)).

Both the United States and Minnesota Constitutions

prohibit the enactment of ex post facto laws. U.S. Const. art.

I, § 10; Minn. Const. art. I, § 11. Am ex post facto law

“renders an act punishable in a manner in which it was not

punishable when it was committed.” Starkweather v. Blair,

245 Minn. 371, 386, 71 N.W.2d 869, 879 (1955) (footnote

omitted). An ex post facto law is one that applies to events

occurring before its enactment, and disadvantages the

offender affected by it. Weaver v. Graham, 450 U.S. 24, 29,

101 S. Ct. 960, 964 (1981). More specifically, a law violates

the Ex Post Facto Clause if it: (1) punishes as a crime an act

which was innocent when committed, (2) increases the

burden of punishment for a crime after its commission, or (3)

deprives one charged with a crime of a defense that was

available when it was committed. Collins v. Youngblood,

497 US. 37, 42, 110 S. Ct. 2715, 2719 (1990).

The challenged statute, Minn. Stat. § 624.713, subd.

1(b) (2000), prohibits individuals found guilty of a “crime of

violence” from possessing a firearm for ten years after their

A-8

civil rights have been restored. “Crime of violence” is

defined by Minn. Stat. §624.712, subd. 5 (2000). When

Schluter was convicted in 1986 of possession of controlled

substances, controlled substance offenses were not defined

as “crimes of violence.” See Minn. Stat. § 624.712, subd. 5

(1986). In 1987, however, the Minnesota Legislature

amended the definition of the term “crime of violence” in the

challenged statute to include violations of chapter 152. 1987

Minn. Laws ch. 276, § 3. Schluter claims that applying that

amendment to him based on his 1986 conviction under

chapter 152 violates the prohibition against ex post facto

laws because (1) the legislature failed to instruct that the

statute was to have retroactive effect, (2) it increases his

punishment for the 1986 crime, and (3) it significantly

disadvantages him.

Whether Minn. Stat. §624.713, subd.1(b), as

amended by Minn. Stat. §624.712, subd. 5 (1987), can be

applied to persons whose chapter 152 offenses were

committed prior to the amended statute’s effective date is an

issue of first impression in Minnesota. However, several

other state and federal courts have held that similar statutes

prohibiting felons from carrying weapons may

A-9

constitutionally be applied to persons who committed the

felonies prior to the statutes’ effective dates.

As a preliminary matter, we do not agree with

appellant’s reading of and reliance on United States v.

Davis, 936 F.2d 352 (8th Cir. 1991). The challenged statute

in Davis was a mandatory minimum-sentence enhancement.

The issue in Davis was whether to apply the civil rights

restoration laws in effect at the time of conviction or at the

time of discharge. Id. at 356. At the time of conviction, part |

of Davis’s punishment was that his civil rights would only be

impaired until discharge. A subsequent law delayed the

restoration of rights until ten years after discharge. Unlike

this case, the subsequent law in Davis was specifically aimed

at enhancing the defendant’s prior sentence and therefore

constituted an ex post facto law. Id. at 357.

While we have no controlling precedent from the

Eighth Circuit, the Fourth Circuit recently confronted an

analogous case. In United States v. Mitchell, 209 F.3d 319

(4th Cir. 2000), cert. denied, 531 U.S. 849 (2000), the court

held that an equivalent federal statute, which prohibited a

person convicted of a misdemeanor domestic assault from

possessing a firearm, applied to a person convicted of such a

crime prior to the statute’s effective date. Just months after

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rae

Mitchell was convicted of a misdemeanor assault and battery

against his wife, Congress made it illegal for a person

convicted of a misdemeanor crime of domestic assault to

possess a firearm. Id. at 321. Two years later, when

Mitchell was convicted of possessing a handgun. he argued

that the statute violated the Ex Post Facto Clause, as applied

to him, because his prior conviction occurred before the

statute’s amendment. Id. at 322. The court determined that

it was immaterial that the defendant bought the gun and was

convicted of domestic violence before the statute prohibiting

firearm possession was enacted. Id. The court concluded

that the illegal act was the continuing possession of the

firearm, not its purchase or the defendant’s previous

conviction, so there was no violation of ‘the Ex Post Facto

Clauses. Id. at 322-23.

Other federal circuit courts have concurred with this

analysis and have held that a law restricting felons from

carrying firearms does not constitute punishment for prior

convictions. See United States v. Brady, 26 F.3d 282, 291

(2d Cir. 1994) (holding that because crime of felon

possessing firearm occurred after effective date of statute, it

was immaterial that prior felony conviction occurred before

effective date of illegal possession statute); United States v.

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Huss, 7 F.3d 1444 (9th Cir. 1993) (holding that Oregon law

restricting felons from carrying firearms did not constitute

punishment for prior crime even though prohibition did not

exist when prior crime was committed, and therefore, was

not ex post facto law), overruled in part on other rounds by

161 F.3d 556 (9th Cir. 1998).

. Several state courts have also addressed the

constitutionality of applying later-enacted felon-in-

possession laws to persons previously convicted of crimes

and concluded that such laws punish the specific conduct of

possession by a felon, not the underlying felony. In State v.

Peters, 622 N.W.2d 918, 923 (Neb. 2001), cert. denied 533

U.S. 952 (2001), at the time of the defendant’s convictions

for various felonies, it was not illegal for hive to possess a

firearm with a barrel less than eighteen inches in length. Id.

at 923-24. After his convictions, the statute was amended to

prohibit convicted felons from possessing any deadly

weapons. Id. The Peters court concluded that “such

amendments are viewed not as further punishment for the

underlying felony or felonies, but as a future prohibition on a

. felon’s conduct.” Id. at 924. We find logical and -

compelling the Peters court’s analysis that ;

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[the amendment] punishes [the defendant] for the

specific conduct of possession of a firearm by a

person previously convicted of a felony. It does not

punish [the defendant] for the underlying felony.

[The defendant’s] status as a felon makes the law

applicable to him, but the legal consequences of his

past conduct were not changed. Thus, the crime for

which [the defendant] was punished was not for the

earlier felonies, but for the new and separate crime of

which the prior felony convictions are an element.

Id. at 925.

In the same year as Peters, the Washington Supreme

Court considered a similar challenge to that state’s unlawful-

possession-of-a-firearm statute. State v. Schmidt, 23 P.3d

462 (Wash. 2001). As in Peters, at the time of Schmidt’s

felony convictions, there was no restriction on the possession

of rifles by felons. Id. at 464, 466. Subsequently, the

unlawful-possession-of-a-firearm statute was amended to

prohibit an individual convicted of a “crime of violence”

from possessing any firearm. Id. The court held that the

amendments “did not punish petitioners for past offenses nor

increase their punishment for prior convictions.” Id. at 473.

Instead, the court held, the prohibition was intended to

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regulate ownership, possession, and control of firearms by

those who, due to their previous felonies, were unfit to be

entrusted with firearms. Id.

The Arizona Court of Appeals adopted similar

reasoning in State v. Olvera, 952 P.2d 313 (Ariz. Ct. App.

1997), review denied (Ariz. Mar. 17, 1998), concluding that

“[t]he amendments are not being applied to [the defendant]

retroactively; they are prospective only, punishing conduct

that occurred after the effective date of the amendments.” Id.

Courts in Iowa and Oregon have reached similar

conclusions. See State v. Swartz, 601 N.W.2d 348, 351

(Iowa 1999) (holding that application of statute banning

possession of firearm by felon whose underlying felony

conviction occurred prior to effective date of law did not

violate prohibition against ex post facto laws); State v.

Lamb, 822 P.2d 143, 143 (Or. App. 1991) (holding that

prohibition against defendant possessing any firearm did not

constitute punishment under Ex Post Facto Clauses of

Oregon or federal constitutions).

We are persuaded by the cases outlined above and

conclude that the same principles govern the disposition of

this case. Minn. Stat. §624.713, subd. 1(b) does not punish

as a crime an act that was innocent when committed.

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Schluter committed the crime of felon in possession in 2000.

The illegal act was possessing the firearm in 2000, not the

possession of LSD in 1986. In addition, Schluter’s

conviction of felon in possession does not increase the

burden of punishment for his 1986 offense. Schluter’s 1986

sentence, long since served, is unaffected by the change in

the law; only his status due to that prior conviction has

changed, making him subject to Minn. Stat. §624.713, subd.

1(b). Thus, we conclude that. application of Minn. Stat.

§624.713, subd. 1(b), to Schluter, as a result of his 1986

felony conviction, does not violate the prohibition against ex

post facto laws.

Il.

Consent to Search

The Minnesota and United States Constitutions

prohibit unreasonable searches and seizures of persons and

their homes. U.S. Const. amend. IV; Minn. Const. art. I,

§10. Warrantless searches and seizures are per se

unreasonable, subject only to recognized exceptions, such as

a search conducted pursuant to consent. State v. Dickerson,

481 N.W.2d 840, 843 (Minn. 1992); State v. Hatton, 389

N.W.2d 229, 232 (Minn. App. 1986), review denied (Minn.

Aug. 13, 1986). When the state relies on a defendant’s

A-15

consent to search, the state has the burden to prove that the

consent was given freely and voluntarily. State v. George,

557 N.W.2d 575, 579 (Minn. 1997).

On appeal, the trial court’s finding of consent will not

be overturned unless it is clearly erroneous. State v.

Hummel, 483 N.W.2d 68, 73 (Minn. 1992). The findings

will not be found to be clearly erroneous so long as there is

reasonable evidence to support them. State v. Danh, 516

N.W.2d 539, 544 (Minn. 1994). This court defers to the trial

court's ability to judge the credibility of witnesses. State v.

Larson, 520 N.W.2d 456, 464 (Minn. App. 1994), review

denied (Minn. Oct. 14, 1994).

Schluter acknowledges that he signed a consent-to-

search form but claims that the circumstances surrounding

his decision to sign the consent form demonstrate that his

consent was involuntary. According to Schluter, prior to

agreeing to sign the consent-to-search form, he was

continuously asked if he would consent to the search, and

each time he refused. He claims that he was upset that his

wife was brought outside, partially dressed, and placed in

another squad car well within his range of vision. Schluter

further claims that he agreed to sign the form only after he

was told by police that (1) his wife was having an affair, (2)

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both he and his wife would be arrested, and (3) the children

would be taken by child protective services. Schluter claims -

that under these circumstances, he felt coerced into

conseniing to the search.

The record reflects that Schluter admitted signing the

consent-to-search form because he believed that he did not

have «aything illegal to hide. The district court found that

Schluter’s claim that ke consented to ‘the search out of

concem for his wife and children was not credible.

Furthermore, the court found that |

[h]e signed the consent to search because he had no

fear of police finding a handgun and money he

believed Karen Pluff had told the police about in

connection with the earlier “shots fired” call. The

defendant, -when he learned the police wanted to

search for those items, felt he had been given a

“legitimate reason” for the search and consented,

confident they would not find what they were looking

for.

On these facts, the trial court properly found that Schluter

gave his consent knowingly and voluntarily. We find no

error in this finding. Because the district court’s finding that

A-17

consent was voluntary is supported by reasonable evidence,

it is not clearly erroneous, and we affirm.

DECISION

The district court correctly concluded that the

amendment of Minnesota’s felon-in possession-of-a-firearm

statute to include controlled substance felonies could be

applied to Schluter without violating the Ex Post Facto

Clauses of the Minnesota and United States Constitutions.

The court’s finding that Schluter voluntarily consented to the

search of his home was not clearly erroneous.

Affirmed.

624.712. Definitions

Subdivision 1. Scope. As used in sections 624.711

to 624.717, the terms defined in this section shall have the

meanings given them.

Subd. 2. Pistol. “Pistol” includes a weapon |

designed to be fired by the use of a single hand and with an

overall length less than 26 inches, or having a barrel or

barrels of a length less than 18 inches in the case of a

shotgun or having a barrel of a length less than 16 inches in

the case of a rifle (a) from which may be fired or ejected one

or more solid projectiles by means of a cartridge or shell or

by the action of an explosive or the igniting of flammable or

explosive substances; or (b) for which the propelling force is

a spring, elastic band, carbon dioxide, air or other gas, or

vapor.

“Pistol” does not include a device firing or ejecting a

shot measuring .18 of an inch, or less, in diameter and

commonly known as a “BB gun,” a scuba gun, a stud gun or

nail gun used in the construction industry or children’s pop

guns or toys.

Subd. 3. Antique firearm. “Antique firearm”

means any firearm, including any pistol, with a matchlock,

flintlock, percussion cap, or similar type of ignition system,

manufactured before 1899 and any replica of any firearm

A-19

described herein if such replica is not designed or

redesigned, made or remade, or intended to fire conventional

rimfire or conventional centerfire ammunition, or uses

conventional centerfire ammunition which is not readily

available in the ordinary channels of commercial trade.

Subd. 4. Saturday night special pistol. “Saturday

night special pistol: means a pistol other than an antique

firearm or a pistol for which the propelling force is carbon

dioxide, air or other vapor, or children’s pop guns or toys,

having a frame, barrel, cylinder, slide or breechblock:

(a) of any material having a melting point (liquidus)

of less than 1,000 degrees Fahrenheit, or

(b) of any material having an ultimate tensile strength

of less than 55,000 pounds per square inch, or

(c) of any powdered metalhaving a density of less

than 7.5 grams per cubic centimeter.

Subd. 5. Crime of violence. “Crime of violence:

includes murder in the first, second, and third degrees,

manslaughter in the first and second degrees, aiding suicide,

aiding attempted suicide, felony violations of assault in the

first, second, third and fourth degrees, assaults motivated by

bias under section 609.2231, subdivision 4, drive-by

shootings, terroristic threats, use of drugs to injure or to

facilitate crime, crimes committed for the benefit of a gang,

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commission of a crime while wearing or possessing a bullet-

resistant vest, simple robbery, aggravated robbery,

kidnapping, false imprisonment, criminal sexual conduct in

the first, second, third and fourth degrees, theft of a firearm,

felony theft involving the intentional taking or driving of a

motor vehicle without the consent of the owner or the

authorized agent of the owner, felony theft involving the

taking of property from a burning, abandoned or vacant

building, or from an area of destruction caused by civil

disaster, riot, bombing, or the proximity of battle, felony

theft involving the theft of a controlled substance, an

explosive, or an incendiary device, arson, in the first and

second degrees, riot, burglary in the first, second, third and

fourth degrees, harassment and stalking, shooting at a public

transit vehicle or facility, reckless use of a gun or dangerous

weapon, intentionally pointing a gun at or towards a human

being, setting a spring gun, and unlawfully owning,

possessing, operating a machine gun or short-barreled

shotgun, and an attempt to commit any of these offenses, as

each of those offenses is defined in chapter 609. “Crime of

violence” also includes felony violation of the following:

malicious punishment of a child; neglect or endangerment of

a child; and chapter 152.

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Subd. 6. Transfer. “Transfer” means a sale, gift,

loan, assignment or other delivery to another, whether or not

for consideration, of a pistol or semiautomatic military-style

assault weapon or the frame or receiver of a pistol or

semiautomatic military-style assault weapon. ‘

Subd. 7. Semiautomatic military-style assault

weapon. “Semiautomatic military-style assault weapon”

means:

(1) any of the following firearms;

(i) Avtomat Kalashnikov (AK-47) semiautomatic

rifle type;

ei (ii) Beretta AR-70 and BM-59 semiautomatic

rifle types;

(iii) Colt AR-15 semiautomatic rifle type;

(iv) Daewoo Max-1 and Max-2 semiautomatic

rifle types;

(v) | Famas MAS semiautomatic rifle types;

(vi) Fabrique nationale FN-LAR and FN-FNC

semiautomatic rifle types;

(vii) Galil semiautomatic rifle type;

4 (viii) Heckler & Koch HK-91; HK-98, and HK-94

semiautomatic rifle types;

(ix) Ingram MAC-10 and MAC-11 semiautomatic

pistol and carbine types;

A-22

(x)

(xi)

(xii)

(xiil)

(xiv)

(xv)

(xvi)

(xvii)

(2)

Intratec TEC-9 semiautomatic pistol type;

Sigarms SIG 550SP and SIG 551SP

semiautomatic rifle types;

SKS with detachable magazine semiautomatic

rifle types;

Steyr AUG semiautomatic rifle type;

Street Sweeper and Striker-12 revolving-

cylinder shotgun types;

USAS-12 semiautomatic shotgun type;

Uzi semiautomatic pistol and carbine types;

or

Valmet M76 and M78 semiautomatic rifle

types;

any firearm that is another model made by the

same manufacturer as one of the firearms listed in clause({1), .

and has the same action design as one of the listed firearms

and is a redesigned, renamed, or renumbered version of one

of the firearms listed in clause (1), or has a slight

modification or enhancement, including but not limited to a

folding or retractable stock; adjustable sight; case deflector

for left-handed shooters; shorter barrel; wooden, plastic, or

metal stock; larger clip size; different caliber; or a bayonet

mount; and

A-23

(3) any firearm that has been manufactured or

sold by another company under a licensing agreement with a

manufacturer of one of the firearms listed in clause (1)

entered into after the effective date of Laws 1993, chapter

326, to manufacture or sell firearms that are identical or

nearly identical to those listed in clause (1), or described in

clause (2), regardless of the company of production or

country of origin.

The weapons listed in clause (1), except those listed

in items (iii), (ix), (x), (xiv), and (xv), are the weapons the

importation of which was barred by the Bureau of Alcohol,

Tobacco, and Firearms of the United States Department of

the Treasury in July 1989.

Except as otherwise specifically provided in

paragraph (d), a firearm is not a :semiautomatic military

style assault weapon” if it is generally recognized as

particularly suitable for or readily adaptable to sporting

purposes under United States Code, title 18, section 925,

paragraph (d)(3), or any regulations adopted pursuant to that

law.

Subd. 8. Included weapons. By August 1, 1993,

and annually thereafter, the superintendent of the beureau of

criminal apprehension shall publish a current authoritative

list of the firearms included within the definition of

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“semiautomatic military-style assault weapon: under this

section. Dealers, purchasers, and other persons may rely on

the list in complying with this chapter.

Subd. 9. Business day. “Business day” means a day

on which state offices are open for normal business and

excludes weekends and legal holidays.

Subd. 10. Crime punishable by imprisonment for

a term exceeding one year. “Crime punishable by

imprisonment for a term exceeding one year” does not

include:

(1) any federal! or state offense pertaining to antitrust

violations, unfair trade practices, restraints of trade, or other

similar offenses relating to the regulation of business

practices; or

(2) any state offense classified by the laws of this

state or any other state as a misdemeanor and punishable by

a term of imprisonment of two years or less.

What constitutes a conviction of a crime shall be

determined in accordance with the law of the jurisdiction in

which the proceedings were held. Any conviction which has

been expunged, or set aside, or for which a person has been

pardoned or has had civil rights restored shall not be

considered a conviction for purposes of this definition,

unless such pardon, expungement, or restoration of civil

A-25

rights expressly provides that the person may not ship,

transport, possess, or receive firearms.

Amended by Laws 1987, c. 276, § 3, eff. May 29,

1987; Laws 1991, c. 279, § 35; Laws 1993, c. 326, art. 1, §§

23 to 26; Laws 1994, c. 636, art. 3, §§ 24 to 26; Laws 1995,

c. 226, art. 2, § 32; Laws 1996, c. 408, art. 4, § 14.

Historical and Statutory Notes

1987 Legislation

The 1987 amendment rewrote subd. 5 when

previously read as set out in the main volume.

1991 Legislation

The 1991 amendment included terroristic threats

within the definition of “crime of violence” in subd. 5.

Laws 1991, c. 279, § 42, provides in part that §§ 1 to

5, 9, 22, 23, 25, and 29 to 36, are effective August 1, 1991,

and apply to offenses committed on or after that date.

1993 Legislation

The 1993 amendment in subd. 5 defining “crime of

violence” substituted “theft of a firearm” for “felonious

theft” and included unlawfully owning, possessing, operating

a short-barreled shotgun; in subd. 6 defining “transfer”

included semiautomatic military-style assault weapons;

added subd. 7 defining “semiautomatic military-style assault

weapon”; and added subd. 8 requiring annual publication of

A-26

a current authoritative list of firearms within the definition of

semiautomatic military-style assault weapons.

Laws 1993, c. 326, art. 1, § 35, provides in part that

§§ 23 to 25 (amending subds. 5 and 6 and adding subd. 7)

are effective August 1, 1993 and apply to crimes committed

on or after that date.

Laws 1993, c. 326, art. 1, § 35 also had provided that

§ 25 (adding subd. 7) ws to be effective May 21, 1993.

Laws 1993, c. 366, § 12, amended Laws 1993, c. 326, art. 1,

§ 35 to provide that § 26 (adding subd. 8) is effective May

21, 1993.

Laws 1993, c. 366, § 31, provides that if not

otherwise provided, the sections of this act that amend

provisions of law passed during the 1993 session of the

legislature take effect at the same time that the provisions

that they amend take effect.

1994 Legislation

The 1994 amendment in subd. 5 inserted “assaults

motivated by bias under section 609.2281, subdivision 4,”;

- added subd. 9 defining “business day”; and added subd. 10

defining “crime punishable by imprisonment for a term

exceeding one year”. |

Laws 1994, c. 636, art. 3 § 47, provides in part that

§§ 24, 25 and 26 (amending subd. 5 and adding subds. 9 and

A-27

10 respectively) are effective August 1, 1994, and apply to

crimes committed on or after that date.

1995 Legislation

The 1995 amendment, in subd. 5, included gang-

related crimes, crimes committed while wearing or

possessing a bullet-resistant vest, harassment and stalking,

shooting at public transit vehicles or facilities, and felony

violations of neglect, endangerment, or malicious

punishment of a child within the definition of “crime of

~ violence”.

Laws 1995, c. 226, art. 2, § 38, provides in part that §

32 (amending subd. 5) is effective July 1, 1995, and applies

to crimes committed on or after that date.

1996 Legislation

The 1996 amendment, in subd. 5; added drive-by

shootings, felony theft involving the intentional taking or

driving of a motor vehicle without the consent of the owner

or the authorized agent of the owner, felony theft involving

the taking of property from a burning, abandoned or vacant

building, or from an area of destruction caused by civil

disaster, riot, bombing, or the proximity of battle, and felony

theft involving the theft of a controlled substance, an

explosive, or an incendiary device, to the crimes constituting

- a “crime of violence”.

- A-28

Laws 1996, c. 408, art. 4, § 16, provides in part that §

14 (amending subd. 5) is effective August 1, 1996, and

applies to offenses committed on or after that date.

Notes of Decisions

Crime of violence 1

1. Crime of violence

Defendant who was previously convicted of felony

possession of cocaine that later by operation of law became a

misdemeanor could subsequently be prosecuted for being a

“felon” in possession of a firearm; firearms restriction was

based upon the nature of the offense committed by the

defendant rather than the actual sentence imposed by the

court, and defendant’s prior felony conviction constituted a

“crime of violence.” State v. Featar, App.2001, 630 N.W.2d

- 1, review denied.

624.713. Certain persons not to have pistols or ,

semiautomatic military-style assault weapons; penalty

Subdivision 1. Ineligible persons. The following

persons shall not be entitled to possess a pistol or

semiautomatic military-style assault weapon or, except for

clause (a), any other firearm:

(a) a person under the age of 18 years except that a

person under 18 may carry or possess a pistol or

semiautomatic military-style assault weapon (i) in the actual

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presence or under the direct supervision of the person’s

parent or guardian, (ii) for the purpose of military drill under

the auspices of a legally recognized military organization

and under competent supervision, , (iii) for the purpose of

instruction, competition, or target practice on a firing range

approved by the chief of police or county sheriff in whose

jurisdiction the range is located and under direct supervision;

or (iv) if the person has successfully completed a course

designed to teach marksmanship and safety with a pistol or

semiautomatic military-style assault weapon and approved

by the commissioner of natural resources;

(b) except as otherwise provided in clause (i), a

person who has been convicted of, or adjudicated delinquent

or convicted as an extended jurisdiction juvenile for

committing, in this state or elsewhere, a crime of violence

unless ten years have elapsed since the person has been

restored to civil rights or the sentence or disposition has

expired, whichever occurs first, and during that time the

person has not been convicted of or adjudicated for any other

crime of violence. For purposes of this section, crime of

violence includes crimes in other states or jurisdictions

which would have been crimes of violence as herein defined

if they had been committed in this state;

A-30

(c) a person who is or has even been confined in

Minnesota or elsewhere as a person who is mentally ill,

mentally retarded, or mentally ill and dangerous to the

_ public, as defined in section 253B.02, to a treatment facility,

or who has ever been found incompetent to stand trial or not

guilty hy reason of mental illness, unless the person

possesses a certificate of a medical doctor or psychiatrist

licensed in Minnesota, or other satisfactory proof that the

person is no longer suffering from this disability;

(d) a person who has been convicted in Minnesota or

elsewhere of a misdemeanor or gross misdemeanor violation

of chapter 152, or a person who is or has ever been

hospitalized or committed for treatment for the habitual use

of a controlled substance or marijuana, as defined in sections

152.01 and 152.02, unless the person possesses a certificate

of a medical doctor or psychiatrist licensed in Minnesota, or

other satisfactory proof, that the person has not abused a

controlled substance or marijuana during the previous two

years;

(e) a person who has been confined or committed to

a treatment facility in Minnesota or elsewhere as chemically

dependent as defined in section 253B.02, ualess the person

has completed treatment. Property rights may not be abated

but access may be restricted by the courts;

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(f) a peace officer who is informally admitted to a-

treatment facility pursuant to section.253B.04 for chemical

dependency, unless the officer possesses a certificate from

the head of the treatment facility discharging or provisionally

discharging the officer from the treatment facility. Property

rights may not be abated but access may be restricted by the

courts;

(g) a person, including a person under the

jurisdiction of the juvenile court who has been charged with

“committing a crime of violence and has been placed in a

pretrial diversion program by the court before disposition,

until the person has completed the diversion program and the

charge of committing the crime of violence has been

dismissed;

(h) except as otherwise provided in clause (ii), a

person who has been convicted in another state of

committing an offense similar to the offense described in

section 609.224, subdivision 3, against a family or household

member or section 609.2242, subdivision 3, unless three

years have elapsed since the date of conviction and, d“ring

that time, the person has not been convicted of any other

violation of section 609.224, subdivision 3, or 609.2242,

subdivision 3, 04 a similar law of another state;

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(i) a person who has been convicted in this state or

elsewhere of assaulting a family or household member. and

who was found by the court to have used a firearm in any

way during commission of the assault is prohibited from

possessing any type of firearm for the period determined by

the sentencing court; or

(j) a person who:

(1) has been convicted in any court of a crime

punishable by imprisonment for a term exceeding one year;

(2) is a fugitive from justice as a result of having fled

from any state to avoid prosecution for a crime or to avoid

giving testimony in any criminal proceeding;

(3) is an unlawful user of any controlled substance as

defined in chapter 152; |

(4) has been judicially committed to a treatment

facility in Minnesota or elsewhere as a person who is

mentally ill, mentally retarded, or mentally ill and dangerous

to the public, as defined in section 253B.02;

(5) is an alien who is illegally or unlawfully in the

United States;

(6) has been discharged from the armed forces of the

United States under dishonorable conditions; or

(7) has renounced the person’s citizenship having

been a citizen of the United States.

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A person who issues a certificate pursuant to this

subdivision in good faith is not liable for damages resulting

or arising from the actions or misconduct with a firearm

committed by the individual who is the subject of the

certificate.

The prohibition in this subdivision relating to the

possession of firearms other than pistols and semiautomatic

military-style assault weapons does not apply retroactively to

persons who are prohibited from possessing a pistol or

semiautomatic military-style assault weapon under this

subdivision before August 1, 1994.

Subd. 1a. Ineligible to receive, ship, transport. A

person presently charged with a crime punishable by

imprisonment for a term exceeding one year shall not be

entitled to receive, ship, or transport any pistol or

semiautomatic military-style assault weapon. A violation of

this subdivision is a gross misdemeanor.

Subd. 2. Penalties. A person named in a

subdivision 1, clause (a), who possesses a pistol or

semiautomatic military-style assault weapon is guilty ofa

felony and may be sentenced to imprisonment for not more

than five years or to payment of a fine of not more than

$10,000, or both. A person named in subdivision 1, clause

(b), who possesses any type of firearm is guilty of a felony

A-34

and may be sentenced to imprisonment for not more than 15

years or to payment of a fine of not more than $30,000, or

both. A person named in any other clause of subdivision 1

who possesses any type of firearm is guilty of a gross

misdemeanor.

Subd. 3. Notice. (a) When a person is convicted of,

or adjudicated delinquent or convicted as an extended

jurisdiction juvenile for committing, a crime of violence as

defined in section 624.713, subdivision 5, the court shall

inform the defendant that the defendant is prohibited from

possessing a pistol or semiautomatic military-style assault

weapon for a period of ten years after the person was

restored to civil rights or since the sentence or disposition

has expired, whichever occurs first, and that it is a felony

offense to violate this prohibition. The failure of the court to

provide this information to a defendant does not affect the

applicability of the pistol or seniautomatic military-style

assault weapon possession prohibition or the felony penalty

to that defendant.

(b) When a person, including a person under the

jurisdiction of the juvenile court, is charged with committing

a crime of violence, and is placed in a pretrial diversion

program by the court before disposition, the court shall

inform the defendant that: (1) the defendant is prohibited

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from possessing a pistol or semiautomatic military-style

assault weapon until the person has completed the diversion

program and the charge of committing a crime of violence

has been dismissed; (2) it is a gross misdemeanor offense to

violate this prohibition; and (3) if the defendant violates this

condition of participation in the diversion program, the

charge of committing a crime of violence may be prosecuted.

The failure of the court to provide this information to a

defendant does not affect the applicability of the pistol or

semiautomatic military-style assault weapon possession

prohibition or the gross misdemeanor penalty to that

defendant. -

Amended by Laws 1991, c. 279, § 36; Laws 1992, c.

537, § 3; Laws 1993, c. 326, art. 1, § 27; Laws 1993, c. 366,

§ 11; Laws 1994, c. 576, §§ 55, 56; Laws 1994, c. 636, art. 3,

§§ 27, 28; Laws 1995, c. 259, art. 3, § 21; Laws 1996, c. 408,

art. 4, § 15; Laws 2002, c. 221, § 48.