This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Ronald Edward Zaitz,


Filed July 21, 1998


Huspeni, Judge

St. Louis County District Court

File No. K696301055

Stephen R. Zuber, 1215 Belknap St., Superior, WI 54880 (for appellant)

Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Asst. Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; Alan L. Mitchell, St. Louis County Attorney, 100 N. Fifth Ave. W., #501, Duluth, MN 55802 (for respondent)

Considered and decided by Short, Presiding Judge, Huspeni, Judge, and Willis, Judge.



Appellant challenges his conviction, arguing that the felon in possession of a firearm statute is unconstitutionally vague. Because appellant fails to establish that the statute is unconstitutional, we affirm.


On November 15, 1996, appellant Ronald Zaitz was charged with being a felon in possession of a firearm and with possession of marijuana and drug paraphernalia. His felony status underlying the charge was based on a 1993 guilty plea to marijuana possession resulting from charges for felon in possession of a firearm and criminal destruction of property, as well as the marijuana charge.

Acting pro se at his probable cause hearing, appellant argued that he was only deer hunting and thought that was allowed; he argued in the alternative that the felon in possession statute did not apply to him. Appellant subsequently obtained counsel and ultimately pleaded guilty to the charge of felon in possession of a firearm in exchange for the state's agreement to drop the drug charges. Appellant was sentenced to 60 months, with execution stayed, and five years' probation. Conditions of probation included 12 months' jail time, no possession of any firearm or weapon, no alcohol or drug use, and random drug testing.


Normally, a counseled guilty plea operates as a waiver of all nonjurisdictional defects at trial, including constitutional claims. State v. Lothenbach, 296 N.W.2d 854, 857 (Minn. 1980). Nevertheless, because he challenged the statute at his probable cause hearing, we shall address appellant's arguments in the interest of justice. See Minn. R. Civ. App. P. 103.04.

A statute is unconstitutional and void for vagueness if persons of common intelligence must guess at its meaning or differ as to its application. State v. Robinson, 539 N.W.2d 231, 236-37 (Minn. 1995). Minn. Stat. § 624.713, subd. 1 (1996), prohibits certain convicted persons from possessing a firearm. Appellant challenges the following language:

The following persons shall not be entitled to possess a * * * firearm:

* * * *

(b) * * * a person who has been convicted of * * * 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 * * *.

Appellant claims that the phrase "unless ten years have elapsed" only applies to restoration of civil rights and not to the alternative "sentence or disposition has expired." He argues that because his sentence expired before he received notice that he was restored to civil rights, he was entitled to possess a firearm and the ten-year waiting period did not apply to him. We disagree.

Minnesota courts apply the statutory canons of construction to determine if a statute is unconstitutionally vague. See, e.g., Robinson, 539 N.W.2d at 237. In construing statutes, words are given their common meaning according to the rules of grammar. Minn. Stat. § 645.08 (1996). Appellant's argument is contrary to common understanding and the rules of grammar and fails to establish that the statute is unconstitutional. See In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989) (party challenging statute must demonstrate beyond a reasonable doubt that it is unconstitutional).

"Unless" introduces the essential dependent clause "ten years have elapsed." This dependent clause is connected to the preceding language without a comma and is essential to understanding who is prevented from possessing a firearm; persons convicted of crimes of violence unless ten years have elapsed. "Since" introduces another dependent clause that is essential to understanding when the ten years is determined; since restoration of civil rights or expiration of sentence, whichever comes first. The words "whichever occurs first" indicate that the ten years apply both to the restoration of civil rights and to the expiration of the sentence. It does not matter in which order these events occur. The ten years will start running upon the occurrence of the first of the events.

Appellant also challenges the notice he received as required by Minn. Stat. § 609.165.

The order of discharge must provide that a person * * * is not entitled to * * * possess * * * a firearm until ten years have elapsed since the person was restored to civil rights and during that time the person was not convicted of any other crime of violence.

Minn. Stat. § 609.165, subd. 1a (1996). Appellant's letter notifying him of his discharge and restoration of civil rights contained the requisite notice. Nevertheless, appellant argues that the notice is unconstitutional because it did not also inform him that violating the conduct prohibited by the notice is a crime.

Respondent argues that appellant does not have standing to challenge the adequacy of the notice because he had actual notice that his conduct was criminal based on his previous felon in possession of a firearm charge that was part of his 1993 plea. Even if appellant does have standing to challenge the notice provided by the statute, however, he fails to establish a constitutional violation.

Section 609.165, subd. 1a, is simply a notice provision, added to conform to the requirements of federal law. See State v. Moon, 463 N.W.2d 517, 521-22 (Minn. 1990) (statute does not create crime or impose new punishment, merely provides notice of federal firearms restriction). Even if the state failed to include the notice, appellant could still be charged and convicted of violating the prohibition against possessing a firearm under Minn. Stat. § 624.713 (1996). See Minn. Stat. § 609.165, subd. 1b(b) (1996) ("Nothing in this section shall be construed to bar a conviction and sentencing for a violation of section 624.713, subdivision 2."). Further:

[I]gnorance of the law is no excuse. * * * All members of an ordered society are presumed either to know the law or, at least, to have acquainted themselves with those laws that are likely to affect their usual activities.

State v. King, 257 N.W.2d 693, 697-98 (Minn. 1977) (citations omitted).