State of Minnesota v. Joseph Bolding

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA IN COURT OF APPEALS A14-1724

State of Minnesota, Respondent,

vs.

Joseph Bolding, Appellant.

Filed September 8, 2015 Affirmed Hooten, Judge

Hennepin County District Court File No. 27-CR-13-21204

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Halbrooks, Judge; and Hooten, Judge.

UNPUBLISHED OPINION

HOOTEN, Judge

Appellant challenges his conviction of being an ineligible person in possession of a firearm, arguing that he is permitted to possess a firearm because, as a result of his *2 successful completion of probation, his 2005 felony conviction for possession of a controlled substance is now deemed a misdemeanor. We affirm.

FACTS

The state convicted appellant Joseph Bolding of third-degree possession of a controlled substance in January 2005. Bolding received a stayed sentence, and his conviction became a misdemeanor three years later after he successfully completed probation. See Minn. Stat. § 609.13, subd. 1(2) (2004) (providing that felony conviction is deemed misdemeanor if imposition of sentence is stayed and defendant is discharged from probation without a prison sentence).

The state filed a criminal complaint in July 2013 charging Bolding with possession of a firearm by an ineligible person. Bolding moved the district court to dismiss the charge, because at the time of his alleged possession he no longer had a felony conviction. The district court denied his motion and found Bolding guilty after a stipulated-facts trial. Bolding appeals his conviction and challenges the district court’s refusal to dismiss.

DECISION

A person who “has been convicted of . . . a crime of violence” may not possess a firearm. Minn. Stat. § 624.713, subd. 1(2) (2012). Crimes of violence include all felony convictions of controlled-substance crimes defined under chapter 152. Minn. Stat. § 624.712, subd. 5 (2012). A crime of violence is defined by the elements constituting the offense, not the “subsequent disposition” of the conviction. State v. Anderson, 733 N.W.2d 128, 136 (Minn. 2007). A person “convicted of” a felony drug crime “that by *3 operation of law becomes a misdemeanor pursuant to Minn. Stat. § 609.13, subd. 1(2) can be prosecuted for the crime of felon in possession of a firearm . . . because the prior felony drug conviction constitutes a crime of violence.” State v. Foster, 630 N.W.2d 1, 5 (Minn. App. 2001) (quotation omitted), review denied (Minn. Aug. 15, 2001).

Despite having the identical operative facts as Foster, Bolding, who was convicted of felony drug possession in 2005, argues that the controlling case is State v. Franklin, 847 N.W.2d 63 (Minn. App. 2014), aff’d, 861 N.W.2d 67 (Minn. 2015). In Franklin, this court determined that a felony conviction later deemed to be a misdemeanor under section 609.13 is no longer treated as a prior felony conviction when applying the career-offender statute. Id. at 67–68. But in affirming this court and distinguishing the application of the career-offender statute from the firearm-possession statutes, our supreme court explained:

The language of the firearm-possession statute differs in an important way from that of . . . the career-offender statute. [The career-offender statute] uses the phrase “has five or more prior felony convictions.” By contrast, [the firearm- possession statute] uses the phrase “has been convicted of a crime of violence.” If the career-offender statute used the language “has been convicted of,” Franklin would qualify as a career offender. It is undisputed that Franklin “has been convicted of” five prior felony convictions. But at the time of sentencing, he no longer “ha[d]” five prior felony convictions according to the plain language of [the career-offender statute].

Franklin, 861 N.W.2d at 70 n.1.

This issue is well-settled: one who “has been convicted of” a “crime of violence” has still “been convicted of” that crime even if section 609.13 subsequently labels that *4 crime a misdemeanor. See Anderson, 733 N.W.2d at 136; Foster, 630 N.W.2d at 5.

Affirmed.