Opposition Brief — Schluter v. Minnesota

Supreme Court, U.S.

FILED

JUN 17 2003

OFFICE OF THE CLERK |

No. 02-1697

IN THE

SUPREME COURT OF THE UNI TED STATES

OCTOBER TERM, 2002

STEPHEN LARI SCHLUTER,

Petitioner,

vs.

STATE OF MINNESOTA,

Respondent.

- BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

MIKE HATCH

Minnesota Attorney General

SUSAN GAERTNER

Ramsey County Attorney

BY: DARRELL C. HILL*

Assistant Ramsey County Attorney

50 W. Kellogg Blvd., Suite 315

St. Paul, Minnesota 55102-1657

Telephone: (651) 266-3076

Atty. Reg. No. 45056

Attorneys for Respondent

*Counsel of Record

QUESTION PRESENTED

Does the passage of a law which effectively

creates a new crime based upon a prior qualifying

offense violate the Ex Post Facto law clause contained in

Art. I, § 10 of the United States Constitution when that

predicate offense was not so defined at the time that it

was committed?

TABLE OF CONTENTS

STATEMENT OF THE CASE .........cccsccssssssssssceesenes 2

REASONS WHY THE WRIT OF CERTIORARI

SHOULD BE DENIED ............scccsccsscssscesceeserscsossssenss 5

1. Misapplication of Constitutional

PUTIN CHIIOS .cccccccasseccenvsosrccosccescsconccconscoessoneosooees 6

2. Conflicting Decisions Do Not Necessitate

DUE ccicssiccsvinvenvtscnnsoververeenevemsersersvensnvmvenene 12

CONCLUSION ........ sadeicssisalinitlcanaaas : 14

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TABLE OF AUTHORITIES

U.S. SUPREME COURT CASES

Calder v. Bull, 3 Dall. 386 (1798) ...........:cccssserseeeserseees 6

Collins v. Youngblood, 497 U.S. 37 (1990)............. 1,9

DeVeau v. Braisted, 363 U.S. 144 (1960)............068 7,.9

Johnson v. United States, 529 U.S. 694 (2000)........... 10

Lynce v. Mathis, 519 U.S. 433 (1997)..ssnrsnsensn 10

Miller v. Florida, 482 U.S. 423 (1987) ......cccseseereerees 10

Weaver v. Graham, 450 U.S. 24 (1981) ............00 7,8,9

STATE CASES

State v. Schluter, 653 N.W.2d 787 (Minn. App. 2002) 1,

3, 4, 13

—

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

ii

MINNESOTA STATUTES

Minn. Stat. § 152.02, PIs Be scccssccernnnonaesinnsennniins 2

Mian. Stat. GURL IR, SE. TG Fa isessssenccnerercvsnserararvees 2

Minn. Stat. §152.15, Subd. SUR issnicancicomcecceoeciinatanmmtans 2

Minn. Stat. § 626.712, SOO, D ccccsscrsscacsonsensstsscovessese 2,9

Minn. Stat. § 624.713, Subd. 1(b).......... eee 2,39

OTHER MINNESOTA PROVISIONS

Laws of Minnesota 1987, Ch. 276, § 3.............cesseeeeeeees 2

Laws of Minnesota 1994, Ch. 636, Art. 3, § 27....5... 2,8

Laws of Minnesota 1994, Ch. 636, Art. 3, § 47......... 2,8

Dien. TE. Cotes, PG. FG anit ccsassnnsanesisraeacusavionioniebanss 4

iil

No. 02-1697

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2002

STEPHEN LARI SCHLUTER,

Petitioner,

vs.

STATE OF MINNESOTA,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

Respondent, State of Minnesota, respectfully

prays that the Petition for a Writ of Certiorari be denied

|

| by this Court. The Minnesota Court of Appeals opinion

is reported as State v. Schluter, 653 N.W.2d 787 (Minn.

App. 2002) and is attached to the Petition as Appendix ~

A, P.P. A2-A18.

STATEMENT OF THE CASE

Petitioner, Stephen Lari Schluter, was convicted

on October 2, 1986 of Possession of LSD With Intent To

Distribute in violation of Minn. Stat. §§ 152.09, Subd.

1(1), 152.02, Subd. 2, and 152.15, Subd. 1(2) (1984).

He was discharged from a probationary sentence on

October 1, 1991.

In 1987, the Minnesota legislature extended the

definition of “crime of violence” contain. in Minn.

Stat. § 624.712, Subd. 5 to include felony violations of

Chapter 152. See Laws of Minnesota 1987, Ch. 276, §

3. In 1994, the legislature made it a crime, effective

August |, 1994, for those individuals to possess any

firearm by amending Minn. Stat. § 624.713, Subd. 1(b).

"See Laws of Minnesota 1994, Ch. 636, Art. 3, §§ 27 and

47. -

TL LO OO LLL LLL AL ALE ONL BLT

On September 10, 2000, St. Paul Police received

a citizen complaint that Petitioner had fired shots at her

truck. When they went to Petitioner’s house to

investigate, they found two firearms hidden under a

couch after he gave them consent to search. The facts

underlying the ies of the firearms, while not

relevant to this Petition, are set forth in detail in the State

Court opinion. See State v. Schluter, 653 N.W.2d at

788-789.

Petitioner was subsequently convicted of

‘possessing those firearms in violation of Minn. Stat. §

624.713, Subd. 1(b) with his ineligibility created by the

1986 felony drug conviction. The Minnesota Court of

Appeals affirmed his conviction, holding that there was

no ex post facto violation of either the United States or

Minnesota Constitutions when a criminal statute

prohibiting the possession of firearms was based upon a

predicate felony committed before the statute’s effective

date. See State v. Schluter, 653, N.W.2d at 790-792.

The Minnesota Supreme Court, pursuant to Minn. R.

Crim. Proc. 29.04, declined discretionary review of this

case.

REASONS WHY THE WRIT OF CERTIORARI

SHOULD BE DENIED

The case at bar does not present any compelling

reasons why certiorari should be granted. While a

United States Constitutional issue has been presented, it

is neither unsettled in nature nor does it merit further

consideration.

The Minnesota courts have not misapplied any

controlling principles of constitutional law nor was the

case decided in a manner that conflicts with relevant

decisions of this Court. Likewise, there is no conflict

with other decisions that would necessitate review by

this Court when other jurisdictions, both state and

federal, that have decided this issue are virtually

unanimous in reaching a result adverse to Petitioner.

1. Misapplication of Constitutional Principles

~ What constitutes an ex post facto law, as stated by this |

Court, has remained virtually unchanged for over 200 years. In

Calder v. Bull, 3 Dall. 386 (1798), this Court provided four

examples of what the ex post facto clause was designed to

prevent:

“Ist. Every law that makes an action done before

the passing of the law, and which was innocent

when done criminal; and punishes such action. 2d.

Every law that aggravates a crime, or makes it

greater than it was, when committed. 3d. Every

law that changes the punishment, and inflicts a

greater punishment, than the law annexed to the

crime, when committed. 4th. Every law that alters

the legal rules of evidence, and receives less, or

different testimony, than the law required at the

time of the commission of the offense, in order to

convict the offender.” (emphasis omitted) ~

Id., 3 Dall. At 390.

in

Subsequent decisions have announced similar

criteria. An ex post facto law must apply to events

occurring before its enactment and it must disadvantage

the offender affected by it. Weaver v. Graham, 450 U.S._

24, 29 (1981). More specifically, to constitute an ex post

facto law, a statute must: (1) punish as a crime an act

which was innocent when committed; (2) 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). The mark of an ex

post facto law is what can fairly be designated as

punishment for past acts. DeVeau v. Braisted, 363 U.S.

144, 160 (1960). If, however, any restriction upon an

individual occurs as a relevant incident to a regulation of

a present situation, the law is not ex post facto. Id.

Applying these principles, it is readily apparent

why the challenged law does not run afoul of the ex post

facto clause. Using the Weaver test, the law, while

based upon 7 occurring before its enactment, does

not apply to events before its enactment. Rather, the

cumulative effect of the 1987 and 1994 amendments is

to simply create a new crime, i.e. possession of any

firearm by a person convicted of a crime of violence,

that was effective August 1, 1994. See Laws of

Minnesota, Ch. 636, Art. 3, §§ 27 and 47. Petitioner’s

prior conviction merely places him into a status that

makes this new law applicable to his future conduct, i.e.

any possession of a firearm after August 1, 1994.

Likewise, the law, by itself, does not seriously

disadvantage Petitioner. A defendant becomes seriously

disadvantaged by this status change only if he/she

engages in future unlawful conduct. Without that, the

law has no effect upon his prior conviction. Thus, there

is simply no ex post facto violation under the Weaver

general test.

It becomes even clearer that the law does not run

afoul of the ex post facto law clause using the more

specific test from Collins. The statutes of which

Petitioner complains (Minn. Stat. § 624.713, Subd. I(b)

i and Minn. Stat. § 624.712, Subd. 5) neither criminalizes

nor punishes conduct committed before their enactment.

While tied to Petitioner’s status, punishment is not

imposed for the prior crime, t.e. past acts, but rather for

his current conduct of posséssing a firearm. Any

restrictions falling upon Petitioner clearly occurs as a

relevant incident to regulation of a present situation “so

that the ex post facto prohibitions are not brought into

play”. DeVeau v. Braisted, 363 U.S. at 160.

Petitioner argues that the Minnesota decision is

in conflict with three recent ex post facto decisions of

this court, citing Miller v. Florida, 482 U.S. 423 (1987),

Lynce v. Mathis, 519 U.S. 433 (1997), and Johnson v. —

United States, 529 U.S. 694 (2000). See Petition, P.P.

11-19. However, in each of those cases, the challenged

legislative enactment,-by itself, had an affect upon the

punishment imposed for the defendant’s prior

conviction. That is simply not present in the case at bar,

for future conduct after the effective date of the

legislation is necessitated before there is any affect upon

Petitioner.

Petitioner also agrees that legislation which, in

essence, creates a new crime prospectively applied does

not violate the ex post facto law clause. See Petition,

P.P. 20-21. Contrary to his claim, this is precisely

Petitioner’s situation. He was given a status in 1987 that

10

shiitake)

prohibited him from possessing certain types of firearms.

That prohibition was extended, effective August |, 1994,

to any firearm. He possessed a firearm on September

10, 2000. An ex post facto situation is not created when

Petitioner is convicted and punished for an act that "

occurred after the statute had been amended.

1]

2. Conflicting Decisions Do Not

Necessitate Review

Petitioner also argues that review is necessitated

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

conflicting decision from the neighboring state of South

Dakota. See Petition, P.P. 8-11. However, what he

neglects to tell this Court is that the other jurisdictions

that have passed on this issue (14 states and 6 federal

circuits) have ALL decided adversely to his position.

While this was an issue of first impression in

Minnesota, numerous other jurisdictions had passed upon

it. The overwhelming majority of them (14 out of 15

states and 6 federal circuits) hold that a conviction for

possession of a firearm by a felon does not violate the ex

post facto clause when the predicate offense took place

before the statute was enacted or amended. The cases are

collected in Respondent’s Appendix, P.P. Al-A2

12

ial ial

Thus, Trower, the case upon which Petitioner relies,

literally stands alone and is not of such magnitude that

review is not necessitated.

Moreover, this Court has denied certiorari in at

least six of those cases dating back to 1943. See

Respondent’s Appendix, P.P. Al-A2. They include

United States v. Mitchell and State v. Peters, two

decisions heavily relied upon by the Minnesota Court.

See State v. Schluter, 653 N.W.2d at 791-792. Petitioner

has presented no reasons, let alone compelling ones, why

this case should not meet the same fate.

13

CONCLUSION

For the reasons stated herein, the Petition for a Writ of

Certiorari should be denied.

Dated: June 16, 2003

Respectfully submitted,

MIKE HATCH

Minnesota Attorney General

SUSAN GAERTNER

Ramsey County Attorney

Dinet tah

By: DARRELL C. HILL

Assistant Ramsey County Attorney

50 West Kellogg Blvd., Suite 315

St. Paul, Minnesota 55102

Telephone: (651) 266-3076

Atty. Reg. No. 45056

Attorneys for Respondent

14

RESPONDENT’S APPENDIX

A conviction for Possession of a Firearm by an

Ineligible Person does not violate the constitutional

protections against ex post facto laws, even though the

predicate offense/conduct occurred before the statute

was enacted or amended.

States

People v. Olvera, 191 Ariz. 75, 952 P.2d 313 (1997)

Finley v. State, 282 Ark. 146, 666 S.W.2d 701 (1984)

People v. Mills, 6 Cal App. 4'" 1278, 8 Cal Rptr. 2d 310 (1992)

Landers v. State, 250 Ga. 501, 299 S.E.2d 707 (1983)

State v. Swartz, 601 N.W.2d 348 (Ia. 1999), cert. denied 528

U.S. 1167 (2000)

State v. Williams, 358 So. 2d 943 (La. 1978)

State v. Vainio, 466 A.2d 471 (Me. 1983) cert. denied 476 U.S.

1204 (1984)

People v. Tice, 220 Mich. App. 47, 558 N.W.2d 245 (1996)

State v. Peters, 261 Neb. 416, 622 N.W.2d 918 (2001), cert.

denied 533 U.S. 952 (2001)

Hand v. State, 107 Nev. 577, 816 P.2d 468 (1991)

State v. Lamb, 110 Or. App. 146, 822 P.2d 143 (1991)

Jordan v. State, 56 S.W.3d 326 (Tex. Ct. App. 2001), pet. for

review denied (Tex. May 15, 2002)

Dodson v. Commonwealth, 23 Va. App. 286, 476 S.E.2d 512

(1996)

Al

~

State v. Schmidt and Ayers, 143 Wash. 2d 658, 23 P.3d 426

(2601)

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

Federal Circuits

Cases v. United States, 131 F.2d 916 (1" Cir. 1942), cert.

denied 319 U.S. 770 (1943)

United States v. Brady, 26 F.3d 282 (2™ Cir. 1994), cert. denied

513 U.S. 894 (1994)

United States v. Mitchell, 209 F.3d 319 (4" Cir. 2000), cert.

denied 531 U.S. 849 (2000) .

United States v. Sutton, 521 F.2d 1385 ir Cir. 1975)

United States v. Huss, 7 F.3d 1444 gt" Cir. 1993), overruled

diff issue by United States v. Sanchez-Rodriguez, 161

F.3d 556 (9" Cir. 1998)

Smith v. United States, 312 F.2d 119 (10" Cir. 1963)

A2