# Petition for Writ of Certiorari — Schluter v. Minnesota

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 816

## Text

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

A-10

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.

A-11

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 ;

A-12

[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

A-13

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.

A-14

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)

A-16

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,
A-20

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.

A-21

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

A-24

“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

A-29

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

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1604%3A1. Public record. Not legal advice.