This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-03-42

 

 

State of Minnesota,

Respondent,

vs.

Russell Lloyd Amos,

Appellant.

Filed September 2, 2003

Reversed, conviction vacated

Lansing, Judge

 

Ramsey County District Court

File No. KX014549

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Ramsey County Government Center West, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102  (for respondent)

 

Bradford Colbert, Room 254, 875 Summit Avenue, St. Paul, MN  55105 (for appellant)

 

 

            Considered and decided by Wright, Presiding Judge, Lansing, Judge, and Parker, Judge.*

 

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Russell Amos pleaded guilty to possession of a firearm by an ineligible person and now directly appeals from the judgment of conviction, arguing he should be allowed to withdraw his guilty plea.  Amos asserts that his plea was invalid on two grounds: first, that he was eligible to possess a firearm because his prior crime of felony motor-vehicle theft was not defined as a crime of violence when he was convicted in 1995, and, second, that he had received notice that all of his civil rights were restored after he completed his sentence for the theft conviction.  Because the government may not mislead a person as to his legal rights and obligations, we reverse and vacate Amos’s conviction.

F A C T S

            Police stopped Russell Amos’s car in December 2001 for a routine traffic violation.  When the officer asked Amos if there were anything illegal in the car, Amos admitted that there was a bag of marijuana and a loaded gun in the trunk of his car.  Because Amos had a prior 1995 felony conviction for theft of a motor vehicle, the state charged Amos with possession of a firearm by an ineligible person in violation of Minn. Stat. § 624.713 (2000).

Amos pleaded guilty to the charge.  The district court sentenced Amos to sixty months in prison but stayed execution of the sentence for fifteen years and ordered Amos to serve 365 days in the workhouse as a condition of the stayed sentence.  Amos directly appeals from the judgment of conviction.


D E C I S I O N

There are three basic prerequisites to a valid guilty plea:  the plea must be accurate, voluntary, and intelligent.  Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989).  The accuracy requirement protects the defendant from pleading guilty to a more serious charge than he or she would have been convicted of at trial.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  The accuracy requirement also helps the court determine whether the plea is intelligently entered.  Brown, 449 N.W.2d at 182.  The voluntariness requirement ensures that a defendant does not plead guilty because of improper pressures or inducements.  Id.  A plea is intelligent if the defendant knows and understands the charges, the rights waived by pleading guilty, and the consequences of the plea.  Id.  If these three prerequisites are not met, manifest injustice occurs and the defendant has the right to withdraw his plea.  Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).

Minnesota law prohibits a person who has been convicted of a crime of violence from possessing a firearm unless ten years have elapsed since the person was restored to his civil rights.  Minn. Stat. § 624.713, subd. 1(b) (2000).  Amos argues that he is eligible to possess a firearm because the motor-vehicle theft was not considered a crime of violence at the time of his 1995 conviction.  Whether a statute has been properly construed is a question of law reviewed de novo.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996). 

Motor-vehicle theft was not considered a crime of violence in 1995.  Minn. Stat. § 624.712, subd. 5 (1994).  But in 1996 the legislature amended section § 624.713 to include theft of a motor vehicle as a crime of violence.  1996 Minn. Laws ch. 408, art. 4, § 14.  The 1996 amendment applies to offenses committed on or after August 1, 1996.  Id. at § 16.  Statutes prohibiting felons from carrying weapons may constitutionally be applied to persons who committed the felonies prior to the statutes’ effective dates.  State v. Schluter, 653 N.W.2d 787, 790-92 (Minn. App. 2002).  Fundamental to the Schluter analysis is the determination that the “offenses committed on or after” the statute’s effective date refers to the offense of possessing the firearm, not the predicate offense on which the illegal possession is based.  Id. at 792 (“The illegal act was possessing the firearm in 2000, not the possession of LSD in 1986.”).  Because Amos’s 1995 theft offense was considered a crime of violence at the time his vehicle was stopped by police in 2001, and ten years had not elapsed since he was restored to his civil rights for the theft offense, he was not eligible to possess a firearm under Minnesota law.

            Amos argues in the alternative that he should be allowed to withdraw his guilty plea because he was never notified that he could not possess a firearm after he completed his theft sentence.  In Minnesota, a violent offender’s order of discharge must provide that the offender “is not entitled to ship, transport, possess, or receive a firearm until ten years have elapsed since the person was restored to civil rights . . . .”  Minn. Stat. § 609.165, subd. 1a (2000).  This order of discharge notifies an offender that he is not restored to his complete civil rights upon discharge from their sentence.  See United States v. Davis, 936 F.2d 352, 357 (8th Cir. 1991) (indicating that Minnesotans have a civil right to keep and bear firearms); see also Minn. Stat. § 609.165, subd. 1 (2000) (stating that offenders are restored to their complete civil rights upon discharge from a sentence).

Amos cites Hood v. United States, 2002 WL 31095377 (D. Minn. Sept. 10, 2002), for the proposition that when a person receives notice that all of his civil rights have been restored after completing a felony sentence he cannot be subsequently charged with being a felon in possession of a firearm.  Hood, however, relies on a federal statutory provision in reaching this conclusion.  Under 18 U.S.C. § 922(g) any person who has been convicted of a crime punishable by imprisonment for over one year is prohibited from possessing a firearm, subject to the exceptions in 18 U.S.C. § 921(a)(20), for

[a]ny 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 chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

 

18 U.S.C. § 921(a)(20).  The Hood court determined that under 18 U.S.C. § 921(a)(20), a person cannot be charged with being a felon in possession of a firearm if the person was informed that all of his civil rights were restored and there was no notice of the specific firearms prohibition.  Hood, 2002 WL31095277 at *8. 

Hood does not apply to Amos’s circumstances because Minnesota law does not exclude offenses after which there has been a restoration of civil rights nor explicitly establish that a felon must be notified that he is ineligible to possess a firearm before he can be charged with being a felon in possession.  Sections 609.165 and 624.713 expressly provide that felons are not protected from a felon-in-possession charge or conviction if they are not notified of a firearm-possession prohibition.  Minn. Stat. § 609.165, subd. 1b(b); Minn. Stat. § 624.713, subd. 3a (2000).  Thus, Amos’s reliance on Hood and other federal cases applying federal standards is misplaced.  This conclusion, however, is not the end of our inquiry.

Although the failure to notify a violent felon of a firearm restriction offers no protection from a felon-in-possession charge, the due process considerations on which the federal law is based do not permit a state to inform a felon that all civil rights have been restored and then allow prosecution.  United States v. Erwin, 902 F.2d 510, 512-13 (7th Cir. 1990).  Due process does not permit those who are perceived to speak for the state to mislead individuals as to their legal rights or obligations.  McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 854 (Minn. 1991); see also Raley v. Ohio, 360 U.S. 423, 437 (1959) (due process does not permit prosecution for refusal to testify when defendants were actively misled on consequences of refusal).

In this case, the Minnesota Department of Corrections sent Amos a letter on October 14, 1997, after he completed his theft sentence, that stated he was “restored to all civil rights and full citizenship, with full right to vote and hold public office.”  (Emphasis added.)  The letter does not state that Amos would be prohibited from possessing a firearm for ten years, and instead informs him that he is restored to all civil rights.

The record shows that the Department of Corrections admitted sending Amos the wrong notice of discharge.  Because a state agency advised Amos that he was restored to his complete civil rights after being discharged from his theft sentence, he cannot then be charged with unlawful possession of a firearm.  To permit such action would allow Amos to be charged and convicted for exercising a privilege that the state clearly had said was available to him.  Allowing convictions to be obtained under such circumstances would be a violation of the Due Process Clause of the United States Constitution.  Under the facts of this case, we conclude that Amos’s guilty plea to the crime of unlawful possession of a firearm is invalid, and that due process bars any prosecution under Minn. Stat. § 624.713.  Accordingly, we vacate Amos’s conviction of illegal possession of a firearm.

            Reversed, conviction vacated.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.