Amended September 4, 2014 State of Iowa v. Nathan Daniel Olsen

IN THE SUPREME COURT OF IOWA
No. 13–0832
Filed June 20, 2014
Amended September 4, 2014
STATE OF IOWA,
Appellee,
vs.
NATHAN DANIEL OLSEN,
Appellant.
Appeal from the Iowa District Court for Cedar County, Paul L.
Macek, Judge.
A criminal defendant seeks interlocutory review of a district court
order denying the defendant’s motion to dismiss the trial information
accusing the defendant of possession, dominion and control of firearms
and ammunition as a convicted felon pursuant to Iowa Code section
724.26. AFFIRMED.
Alfred E. Willett and Keith J. Larson of Elderkin & Pirnie, P.L.C.,
Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Heather R. Quick, Assistant
Attorney General, Jeffrey L. Renander, County Attorney, and Tamra J.
Roberts, Assistant County Attorney, for appellee.
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APPEL, Justice.
Nathan Olsen pleaded no contest to a felony charge in Wisconsin,
and the Wisconsin trial court deferred judgment. We must now consider
whether Olsen was “convicted” of the felony charge in Wisconsin such
that he could be charged with a violation of Iowa Code section 724.26,
which prohibits convicted felons from possessing firearms in Iowa.
I. Factual Background and Proceedings.
The State of Wisconsin charged Olsen with three crimes: second-
degree sexual assault of a child, battery, and contributing to the
delinquency of a child. In Wisconsin, second-degree sexual assault of a
child, which involves sexual contact with a person under the age of
sixteen, is a felony. See Wis. Stat. Ann. § 948.02(2) (2007–2008),
http://docs.legis.wisconsin.gov/2007/statutes/preface/toc. The other
two offenses are misdemeanors. See id. § 940.19(1) (battery); id.
§ 948.40(1), (4) (contributing to the delinquency of a child).
Olsen pleaded no contest to the offenses. At the subsequent plea
hearing, the Wisconsin trial court explained to Olsen the elements of
second-degree sexual assault of a child and asked Olsen if he understood
the elements of the crime. Based on this inquiry, the Wisconsin court
determined Olsen voluntarily entered his plea. When asked if Olsen
could hunt, the Wisconsin court replied, “Yes he can. He’s not convicted
of a felony. It’s not of record.” The prosecuting attorney then described
the effect of the proceeding as involving “[n]o disability that way at all,”
and the Wisconsin court replied, “No, if I accept his plea, then set it for
sentencing, then.” The Wisconsin court further stated, “We’ll find him
guilty, but it’s not of record, though. No conviction will show up on
that.”
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At the conclusion of the proceeding, the Wisconsin court declared:
I will find his plea to be freely, knowingly, and voluntarily
done. I’ll enter a judgment of conviction for Counts Two and
Three [(the misdemeanors)], find him guilty on both. On
Count One [(the felony)], I’ll find him guilty, but I will not
enter the judgment of conviction at this time. I’ll withhold
entering that. I will approve the deferred judgment. I’ll sign
it.
(Emphasis added.) The Wisconsin court then indicated that Olsen
understood what was required of him and instructed Olsen to contact his
attorney or talk to his parents if he had any questions.
After the hearing, the Wisconsin trial court entered an order
pertaining only to the felony offense. The order stated:
The Court finds that there is an adequate factual basis to
support this plea. . . .
IT IS HEREBY ORDERED THAT acceptance of the
plea and adjudication for the offense be and is stayed for four
(4) years from 08/25/09, for full compliance with each and
every term and condition of the probation instituted that
date in connection with defendant’s conviction of two (2)
misdemeanor offenses and full compliance with each and
every term of the [Deferred Judgment of Conviction].
(Emphasis added.)
The “Deferred Judgment of Conviction” (DJOC) referenced by the
Wisconsin trial court is a document that was jointly filed by the State
and Olsen the same day the order was filed. According to the DJOC, the
Wisconsin court would refrain from entering an adjudication of guilt and
a judgment of conviction for four years provided Olsen agreed to certain
terms. The terms of the DJOC included that Olsen would be placed on
probation for two years upon his conviction for the two misdemeanor
offenses, his bail would remain in effect during the pendency of the
agreement, he would not have contact with any unrelated female persons
under the age of sixteen, he would obtain a sex-offender evaluation and
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complete any recommended follow-up, he would pay restitution,
revocation from probation would result in an adjudication of guilt and
entry of judgment of conviction for the felony, the Wisconsin court would
enter judgment of conviction if he was charged in any jurisdiction with
any new criminal offense (except minor traffic violations and unless he
prevailed in a contest of probable cause for the charge), and he would
keep the clerk of court appraised of any and all changes in his home
address. Olsen also acknowledged that by accepting the agreement, he
was giving up the opportunity to raise any defenses at any time in the
future. Thus, the probationary period for Olsen’s two misdemeanor
convictions ran for a two-year period beginning August 25, 2009, and the
conditions of the DJOC extended for an additional two years. At the end
of the four-year period, if Olsen met the conditions of the DJOC to the
satisfaction of the prosecutor, then either Olsen or the prosecutor could
move the court to vacate Olsen’s felony plea and dismiss the pending
charge.
On January 25, 2013, after expiration of the probationary period
for the two misdemeanors, but before termination of the DJOC, the State
of Iowa charged Olsen with a violation of Iowa’s felon-in-possession
statute, Iowa Code section 724.26 (2013). This provision provides:
A person who is convicted of a felony in a state or federal
court . . . and who knowingly has under the person’s
dominion and control or possession, receives, or transports
or causes to be transported a firearm . . . is guilty of a class
“D” felony.
Iowa Code § 724.26(1). A “felony” for purposes of the felon-in-possession
statute is
any offense punishable in the jurisdiction where it occurred
by imprisonment for a term exceeding one year, but does not
include any offense, other than an offense involving a firearm
or explosive, classified as a misdemeanor under the laws of
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the state and punishable by a term of imprisonment of two
years or less.
Id. § 724.25(1).
According to the minutes of evidence in the Iowa case, Olsen
attempted to purchase a shotgun in Coralville but did not pass the
background check. He then had another individual purchase a shotgun
for him. He and this individual had planned to use the shotguns to hunt
deer. Although Olsen first claimed he had completed the paperwork and
lawfully possessed the gun, he later admitted that another individual had
purchased the gun for him.
Olsen filed a motion to dismiss the Iowa charge. In his motion he
alleged the predicate Wisconsin felony was based upon a plea of no
contest that resulted in a stay of plea proceedings. Therefore, according
to Olsen, there was no conviction for purposes of Iowa Code section
724.26. In support of his argument, Olsen cited State v. Deng Kon Tong,
805 N.W.2d 599 (Iowa 2011). In Deng Kon Tong, we held that there is a
predicate conviction for purposes of the felon-in-possession statute when
a defendant pleads guilty to a felony, receives a deferred judgment, is
placed on probation, and is still subject to the terms and conditions of
probation. 805 N.W.2d at 603.
The district court denied Olsen’s motion to dismiss. The district
court noted the only difference between this case and the scenario in
Deng Kon Tong was that Olsen entered a no contest plea that the
Wisconsin court did not accept. Nonetheless, the Iowa district court
noted the defendant in Deng Kon Tong was on probation pursuant to a
deferred judgment, see id., and so too was Olsen. The district court
concluded that being placed on probation was a critical criterion for a
conviction under the felon-in-possession statute.
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The district court recognized the Wisconsin court had advised
Olsen he could hunt while on probation. The district court further
recognized this apparent misunderstanding about the law could lead to
extreme consequences for Olsen, potentially including revocation of
Olsen’s Wisconsin deferred sentence and the imposition of the very
serious penalties deferred by the Wisconsin court. Nonetheless, the
district court believed it was bound by the law and could not rule based
upon the equities of the case.
Olsen sought interlocutory appeal of the district court’s denial of
his motion to dismiss. We granted the interlocutory appeal.
II. Standard of Review.
We review the denial of a motion to dismiss for errors at law. See,
e.g., U.S. Bank v. Barbour, 770 N.W.2d 350, 353 (Iowa 2009). Review of
issues of statutory interpretation is likewise for errors at law. E.g., State
v. Stephenson, 608 N.W.2d 778, 783 (Iowa 2000).
III. Discussion.
A. Positions of the Parties.
1. Olsen. On appeal, Olsen recognizes that under Deng Kon Tong,
an Iowa deferred judgment may be a “conviction” under Iowa Code
section 724.26. See 805 N.W.2d at 603. He asserts that acceptance of
the guilty plea under the Iowa law related to deferred judgments is the
lynchpin of the Deng Kon Tong decision. Olsen cites Iowa Code section
907.3(1), which provides: “[T]he trial court may, upon a plea of guilty, a
verdict of guilty, or a special verdict upon which a judgment of conviction
may be rendered, . . . [defer judgment] . . . .” (Emphasis added.) Thus,
according to Olsen, a plea of guilty is a prerequisite under Iowa law for a
deferred judgment. Olsen argues an Iowa deferred judgment is a
predicate conviction for purposes of Iowa’s felon-in-possession statute
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“because the trial court must first find a factual basis to accept a plea of
guilty or guilty verdict.”
Olsen then contrasts the Wisconsin deferred judgment proceeding
in his case with that in Deng Kon Tong. Olsen argues that unlike the
defendant in Deng Kon Tong, Olsen did not enter a guilty plea in the
Wisconsin proceeding. Olsen notes that he instead entered a plea of no
contest. He further asserts that judicial acceptance of his no contest
plea was stayed by the district court. Thus, according to Olsen, the
result of the Wisconsin proceeding does not meet the criteria in Deng Kon
Tong for a conviction because guilt was not “established either through a
plea or a trial verdict.” Deng Kon Tong, 805 N.W.2d at 601; accord State
v. Kluesner, 389 N.W.2d 370, 372 (Iowa 1986).
Elaborating on his argument, Olsen argues the determinative
disparity between Deng Kon Tong and this case is that in Deng Kon Tong,
the defendant entered a plea of guilty, 805 N.W.2d at 600, while here,
Olsen entered a no contest plea. Olsen points out that the Deng Kon
Tong court cited State v. Birth, 604 N.W.2d 664 (Iowa 2000). See Deng
Kon Tong, 805 N.W.2d at 603. In Birth, the court held a guilty plea for a
deferred judgment may be used for impeachment purposes until
probation is completed. 604 N.W.2d at 665. Olsen argues, however, that
the Iowa Rules of Evidence treat guilty pleas and no contest pleas
differently. See, e.g., Iowa R. Evid. 5.609(a) (stating general rule
regarding impeachment by evidence of conviction of crime); id.
r. 5.803(22) (stating a “plea of nolo contendere” may not be admitted
whereas a guilty plea may be admitted as a hearsay exception).
Therefore, Olsen contends, the path a defendant takes to the status of
being on probation matters under Iowa law.
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Olsen further sees factual differences between Deng Kon Tong and
this case. In Deng Kon Tong, the defendant was in possession of a
sawed-off shotgun that posed an immediate threat to society. See 805
N.W.2d at 600. By contrast, Olsen claims he simply possessed a legal
shotgun the Wisconsin court stated he could possess. Olsen argues
application of Iowa’s felon-in-possession statute to him would lead to the
kind of unintended consequences pointed out by Justice Wiggins’s
special concurrence in Deng Kon Tong. See id. at 604–05 (Wiggins, J.,
concurring specially).
2. The State. The State emphasizes that in the Wisconsin
proceedings, the court determined at the hearing that Olsen knowingly,
voluntarily, and intelligently entered a plea of no contest to the felony
charge and that the Wisconsin court’s written order states “there is an
adequate factual basis to support this plea.” As a result, the State
argues the case is not distinguishable from Deng Kon Tong—both cases
involve entering a plea and a subsequent deferred judgment. See id. at
600. The fact that the plea was a no contest plea, according to the State,
is irrelevant. The State cites State v. Black, in which the Wisconsin
Supreme Court noted that “a no contest plea is ‘an implied confession of
guilt for the purposes of the case to support a judgment of conviction and
in that respect is equivalent to a plea of guilty.’ ” 624 N.W.2d 363, 370
(Wis. 2001) (quoting Lee v. Wis. State Bd. of Dental Exam’rs, 139 N.W.2d
61, 63 (Wis. 1966)).
The State further claims it is unnecessary for the district court to
accept a plea in a deferred-judgment context. According to the State,
under the broad reading of Deng Kon Tong, a deferred judgment is a
conviction when guilt is established through a plea. See 805 N.W.2d at
603. The State argues Olsen entered his plea, admitted the factual basis
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for the felony, and the Wisconsin court found that a factual basis for the
felony existed. That, according to the State, is enough.
Finally, the State argues the facts cited by Olsen have no bearing
on the outcome of this case. Specifically, the State asserts the fact the
Wisconsin judge advised Olsen that he could hunt does not change the
legal issue posed in this case. In addition, the State claims the fact the
defendant in Deng Kon Tong carried a sawed-off shotgun, see id. at 600,
while Olsen carried only an ordinary shotgun, makes no difference to the
outcome of this case. To the extent extrinsic facts are relevant, the State
notes that according to the minutes, Olsen did not at first get out of bed
when the officers arrived at his residence and then claimed to have
completed background papers and been approved to purchase the gun,
only later to admit that in fact another individual had purchased the gun
for him.
B. Analysis. The sole legal issue in this case is whether the
proceedings in Wisconsin constitute a felony conviction sufficient to
trigger the prohibitions of Iowa Code section 724.26.
1. Relevant Iowa caselaw. We begin our discussion with reviewing
our most recent case in the area, Deng Kon Tong. In this case, we were
called upon to determine whether Deng Kon Tong was “convicted” for
purposes of section 724.26 as a result of pleading guilty to one count of
burglary in the second degree and receiving a deferred judgment and
three years’ probation pursuant to Iowa Code sections 901.5 and 907.3.
805 N.W.2d at 600–01.
We began our analysis in Deng Kon Tong with a review of Iowa’s
felon-in-possession statute, which provides:
“A person who is convicted of a felony in a state or federal
court, or who is adjudicated delinquent on the basis of
conduct that would constitute a felony if committed by an
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adult, and who knowingly has under the person’s dominion
and control or possession, receives, or transports or causes
to be transported a firearm . . . is guilty of a class ‘D’ felony.”
Id. at 601 (emphasis added) (quoting Iowa Code § 724.26(1)).
In considering the meaning of “convicted,” we noted in Deng Kon
Tong that our cases recognized two different definitions of the term, one
general and popular and a second more technical. Id. We noted that
under the general and more popular meaning, “convicted” means
“ ‘establishment of guilt prior to and independently of judgment and
sentence by a verdict of guilty or a plea of guilty.’ ” Id. (quoting Kluesner,
389 N.W.2d at 372). On the other hand, a second definition of
“convicted” is more technical and refers to “ ‘the final consummation of
the prosecution against the accused including the judgment or sentence
rendered pursuant to an ascertainment of his guilt.’ ” Id. (quoting
Kluesner, 389 N.W.2d at 372).
We noted that as a general proposition, our cases used the general
and popular definition of “conviction” when the purpose of the statute
was to protect the community, but when the purpose was to punish, we
used the narrower definition. See id. (“Historically we have treated a
deferred judgment as a conviction when the purpose of the statute was to
protect the community, but not when the statute’s purpose was to
increase punishment.”). In the context of Iowa Code section 724.26,
however, we noted that this distinction had limited utility, as the purpose
of the statute appears to be both to protect the public and to impose
punishment. Id. at 602.
We next turned back to the language of Iowa Code section 724.26,
noting that juvenile adjudications were expressly included within the
scope of the term “convicted.” Id. The inclusion of youths with juvenile
adjudications as persons convicted of a felony suggested that the
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legislature intended the statute to cover persons who had engaged in
certain conduct. Id. Nonetheless, we noted that “[w]e have on occasion
adopted the compromise view that a deferred judgment remains a
conviction until the defendant successfully completes his or her term of
probation.” Id. at 603; see also Birth, 604 N.W.2d at 665 (holding that
“[u]ntil probation was completed, and the deferred judgment expunged,”
a guilty plea could be used for impeachment purposes).
As a result of the above analysis, we concluded in Deng Kon Tong
that a deferred judgment, where the defendant had not completed his
term of probation, was a conviction for purposes of section 724.26. 805
N.W.2d at 603. We did not expressly decide the question of whether a
defendant who had completed his probation was convicted of a felony,
but noted that under Iowa Code section 724.27, the provisions of section
724.26 do not apply where “ ‘[t]he person’s conviction for a disqualifying
offense has been expunged.’ ” Id. at 603 n.2 (quoting Iowa Code
§ 724.27(1)(c)).
The result in Deng Kon Tong was not entirely satisfying for all
members of the court. In a special concurrence, Justice Wiggins, joined
by Justice Zager, noted that our prior decisions held “a defendant’s guilty
plea in anticipation of the court granting the defendant a deferred
judgment is a conviction for the purpose of enhancing a defendant’s
punishment.” Id. at 604 (Wiggins, J., concurring specially). As a result,
Justice Wiggins concurred on the basis of stare decisis. Id.
Justice Wiggins added, however, that he was sure “the legislature
did not intend to restrict a person who entered a guilty plea on a felony
charge in anticipation of the court granting that person a deferred
judgment from owning a gun or hunting in Iowa.” Id. In light of the
unintended consequences of the caselaw, Justice Wiggins urged the
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legislature to revisit the statute, noting that criminal defendants should
not be forced to guess which collateral consequences might attach to
their innocent actions after the court enters a guilty plea, grants a
deferred judgment, and they successfully complete probation. Id. at
604–05.
We have also considered several other issues under Iowa’s felon-in-
possession statute. We have held, for instance, that whether a predicate
felony from another state qualifies under Iowa Code section 724.26
depends upon whether that state’s punishment qualifies as a felony
under Iowa’s statutory definition of “felony.” See State v. Sanborn, 564
N.W.2d 813, 816 (Iowa 1997). Thus, the fact that another state may
label a crime a “felony” is not determinative. We have also held that a
defendant’s knowledge that he was a felon is not required for purposes of
conviction under the statute. See Saadiq v. State, 387 N.W.2d 315, 323
(Iowa 1986).
2. Wisconsin authority. We begin by noting that Olsen does not
claim that the underlying sexual offense would not qualify as a felony
under Iowa law. The only question posed in the appeal is whether he
was “convicted” of the offense for purposes of Iowa Code section 724.26.
Neither party has cited, and we have not found, any express
statutory authorization of deferred judgments in Wisconsin such as
occurred in this case. The procedure, however, has been recognized in
Wisconsin courts. For example, in State v. Wollenberg, the Wisconsin
trial court entered an order deferring judgment on four counts of
burglary for six years provided the defendant successfully completed four
years’ probation and committed no additional crimes. 674 N.W.2d 916,
918 (Wis. Ct. App. 2003). The defendant attempted to withdraw his plea,
arguing among other things, that he was in fact subject to a deferred
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prosecution agreement. Id. at 918–19. The Wollenberg court
distinguished deferred prosecution from deferred judgment. Id. at 919–
20. In a deferred prosecution, the only parties to the agreement are the
defendant, the state, and the department of corrections. Id. at 920.
There is no court involvement. See id. In Wollenberg, the court found
that the defendant was subject to a deferred judgment, not a deferred
prosecution. Id.
We also note that Wisconsin appellate courts have struggled with
the meaning of the term “conviction.” For example, for purposes of a
recidivist-repeater statute, the Wisconsin appellate courts have held
“that once the court has accepted a guilty plea or verdict, the ‘conviction’
becomes sufficiently final to trigger the operation of the repeater statute.”
State v. Wimmer, 449 N.W.2d 621, 625 (Wis. Ct. App. 1989). On the
other hand, the Wisconsin Supreme Court has held that a deferral of
conviction is “neither a judgment nor [an] order in the nature of a
judgment that is [subject to direct appeal].” State v. Ryback, 219 N.W.2d
263, 266 (Wis. 1974). Wisconsin’s approach in Ryback and Wimmer
recognizes the different uses of the term “conviction” depending upon
context and is strikingly similar to our discussion of the variable
meaning of the term in Deng Kon Tong and Daughenbaugh v. State.
Compare Ryback, 219 N.W.2d at 266, and Wimmer, 449 N.W.2d at 625,
with Daughenbaugh, 805 N.W.2d 591, 597 (Iowa 2011), and Deng Kon
Tong, 805 N.W.2d at 601–02. We have, however, found no reported
decision that considered whether a plea of no contest and the entry of a
deferred judgment amounts to a “conviction” under the Wisconsin felon-
in-possession statute, Wisconsin Statutes Annotated section
941.29(1)(a).
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3. Federal felon-in-possession statute. The federal felon-in-
possession statute, 18 U.S.C. §§ 921–31 (2012), was originally enacted as
part of the Omnibus Crime Control and Safe Streets Act, Pub. L. No. 90-
351, § 1201, 82 Stat. 197. In 1983, the United States Supreme Court in
Dickerson v. New Banner Institute, Inc. held that an Iowa defendant who
pleaded guilty to an offense that was later expunged was nevertheless
“convicted” for purposes of the Act. 460 U.S. 103, 115, 103 S. Ct. 986,
993, 74 L. Ed. 2d 845, 855–56 (1983), superseded by statute, Firearm
Owners’ Protection Act, Pub. L. No. 99-308, 100 Stat. 449, as recognized
in Logan v. United States, 552 U.S. 23, 27–28, 128 S. Ct. 475, 479–80,
169 L. Ed. 2d 432, 438 (2007). In Dickerson, the Supreme Court noted
that whether one has been “convicted” for purposes of the gun-control
statute is a question of federal law, not state law. 460 U.S. at 111–12,
103 S. Ct. at 991, 74 L. Ed. 2d at 853–54. The Supreme Court noted
that a federal standard for convicted under the statute produced national
uniformity unaffected by varying state laws, procedures, and definitions
of “conviction.” Id.
In 1986, however, Congress amended the federal felon-in-
possession statute to provide that what constitutes a conviction for
purposes of the statute should be determined in accordance with the law
of the jurisdiction in which the proceedings were held and that “ ‘[a]ny
conviction which has been expunged, or set aside or for which a person
has been pardoned or had civil rights restored shall not be considered a
conviction.’ ” Beecham v. United States, 511 U.S. 368, 369, 374, 114
S. Ct. 1669, 1670, 1672, 128 L. Ed. 2d 383, 387, 389–90 (1994) (quoting
18 U.S.C. § 921(a)(20) (1994)) (describing amendment as appearing to be
in reaction to Dickerson); United States v. Tankersley, 269 F. Supp. 2d
1178, 1184 (D. Neb. 2003) (same). Where federal statutes do not provide
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that state law controls, however, the “federal rather than state law
defines ‘conviction.’ ” See United States v. Gomez, 24 F.3d 924, 930 (7th
Cir. 1994); accord United States v. Meraz, 998 F.2d 182, 183 (3d Cir.
1993); United States v. Campbell, 980 F.2d 245, 250 n.6 (4th Cir. 1992).
Iowa has adopted a provision stating that a person whose civil
rights have been restored or whose offense has been expunged is not
convicted under the felon-in-possession statute. See Iowa Code
§ 724.27. Iowa has not, however, adopted language similar to the federal
language in 18 U.S.C. § 921(a)(20) (2012), stating that the definition of
“conviction” is determined by reference to the “law of the jurisdiction in
which the proceedings were held.”
4. Analysis. Applying the principles of Deng Kon Tong to this case,
we note that the Wisconsin district court did in effect accept the no
contest plea on the record by declaring “On Count One [(felony sexual
abuse)], I’ll find him guilty, but I will not enter the judgment of conviction
at this time.” At the hearing, the district court further found that the
plea was “voluntarily done.”
Further, the DJOC, which is incorporated into the district court’s
written order, contains unequivocal language stating that the agreement
“shall have the effect of eliminating any opportunity [Olsen may have] to
raise any defenses . . . at any time in the future.” The DJOC further
states that upon the end of the four-year term of the agreement, either
the district attorney or Olsen “may move the court to vacate the felony
plea and dismiss the pending charge with prejudice.”
Upon the filing of the DJOC, the trial court entered an order,
stating that the court found an adequate factual basis to support the
plea with respect to Count One (the felony charge) and declaring that
“acceptance of the plea and adjudication for the offense . . . is stayed” for
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four years “for full compliance” with the terms of probation imposed by
the court as a result of Olsen’s convictions of the two misdemeanors and
compliance with the terms of the DJOC for a period of four years.
From the record of the Wisconsin proceedings, we draw several
conclusions. First, the district court in Wisconsin plainly accepted the
guilty plea on the record, found it had a factual basis and was voluntarily
entered, and then stayed the effect of the guilty plea, along with
adjudication. Thus, a conviction in the general sense, as that term is
defined in Deng Kon Tong, 805 N.W.2d at 601, occurred in this case.
Further, although the two-year term of probation arising from the
misdemeanor convictions had expired at the time of the filing of the Iowa
charge, the terms of the DJOC were still in effect. Although the DJOC
may not have involved supervision by a probation officer, it nonetheless
imposed restrictions upon Olsen’s conduct. Thus, although perhaps not
precisely on point, the conviction falls comfortably within the holding in
Deng Kon Tong that a guilty plea entered upon a deferred judgment and
prior to the successful completion of probation, or expungement of the
disqualifying offense, is a conviction for purposes of the statute. See id.
at 603.
Unlike federal law, Iowa law does not contain an explicit provision
requiring that we look to the law of the prosecuting state to determine if
a conviction has occurred. The holding in Sanborn indicates that Iowa’s
definition of “felony” (exceeding one year imprisonment) in Iowa Code
section 724.25 is controlling and not the mere fact that a crime is labeled
a “felony” under the law of another state. See 564 N.W.2d at 816.
Further, it is logical that Iowa’s definition of “conviction” should also be
based on a functional assessment of Iowa law; namely, whether the out-
of-state proceeding is the equivalent of an Iowa proceeding that would be
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considered a conviction under Iowa law. Otherwise, the Iowa felon-in-
possession statute would not be subject to uniform application.
Determination of guilt or innocence, where the proceedings in another
state are functionally identical, could turn on the definitional vagaries of
out-of-state law which, as this case demonstrates, is often difficult to
ascertain.
The above principles were well illustrated in State v. Menard, 888
A.2d 57, 61 (R.I. 2005). In Menard, the Rhode Island Supreme Court
held that its felon-in-possession statute clearly required the application
of Rhode Island law in interpreting which out-of-state convictions
qualified as predicate offenses. Id. According to the Rhode Island court,
a contrary approach “implies the rather unlikely proposition” that the
legislature “intended to subordinate Rhode Island penal law and its
accompanying policies to the various criminal laws and court systems of
the several jurisdictions.” Id.
But even if Wisconsin law is applicable in determining whether a
conviction is present, we think our approach in Deng Kon Tong is
consistent with Wisconsin law. In Wollenberg, the Wisconsin appellate
court distinguished between a deferred prosecution and a deferred
judgment. 674 N.W.2d 916, 919–20. Clearly, this case does not involve
a deferred prosecution, which does not require court involvement at all,
but a deferred judgment, in which judicial intervention is an essential
ingredient.
Further, the Wisconsin appellate courts, like in Deng Kon Tong,
have recognized that the term “conviction” may have a different meaning
depending on context. Compare Ryback, 219 N.W.2d at 266, with
Wimmer, 449 N.W.2d at 625. We have been unable to find any appellate
support in Wisconsin for the trial court’s view that the deferred judgment
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of conviction in this case did not amount to a “conviction” for purposes of
Wisconsin’s felon-in-possession statute.
Olsen argues, however, that the principles of Deng Kon Tong do not
apply because he entered a plea of no contest rather than a plea of
guilty. It is true, as Olsen points out, that some of our rules of evidence
distinguish between convictions based upon a plea of guilty and
convictions based upon a no contest plea. See, e.g., Iowa R. of Evid.
5.410(2) (indicating evidence of a plea of nolo contendere not admissible
in any subsequent criminal or civil proceedings); Iowa R. Evid. 5.803(22)
(noting plea of nolo contendere is not admissible as a hearsay exception).
Generally, the majority rule seems to be that while a plea of
nolo contendere is not an admission of guilt, the fact of conviction upon
a plea may be shown in a latter proceeding. See generally C.T.
Drechsler, Annotation, Plea of Nolo Contendere or Non Vuit Contendere,
89 A.L.R. 2d 540, at 540–612, Supp. 459–623 (1963 and Later Case
Service (2009)) (collecting cases regarding the nature of pleas of nolo
contendere). Neither party has directed us to any Iowa authority on the
issue. As the State has pointed out, however, the Wisconsin Supreme
Court has said that “a no contest plea is ‘an implied confession of guilt
for the purposes of the case to support a judgment of conviction and in
that respect is equivalent to a plea of guilty.’ ” Black, 624 N.W.2d at 370
(quoting Lee, 139 N.W.2d at 63). While this case does not involve a
“judgment of conviction,” it does involve a conviction in the sense of the
word as applied in Deng Kon Tong.
There is limited caselaw on the specific question of whether a plea
of no contest may be used to support a conviction under a felon-in-
possession statute from other jurisdictions. In State v. Holmes, the
Kansas Supreme Court held that a plea of nolo contendere provided a
19
sufficient basis for a conviction under the Kansas felon-in-possession
statute. 563 P.2d 480, 482 (Kan. 1977). The Colorado Supreme Court
came to a similar conclusion in People v. Drake, 785 P.2d 1257, 1272
(Colo. 1990). Holmes and Drake stand for the proposition that while a
plea of nolo contendere cannot be used as an admission for purposes of
the rules of evidence, the plea results in a conviction just as a guilty plea.
Cf. United States v. Jones, 910 F.2d 760, 761 (11th Cir. 1990) (holding
that a plea of nolo contendere with adjudication withheld is a conviction
for purposes of federal sentencing guidelines); United States v.
Bruscantini, 761 F.2d 640, 641 (11th Cir. 1985) (nolo contendere with
adjudication of guilt withheld is a conviction under 18 U.S.C. § 922(b)
(1982)), superseded by statute on other grounds, Firearm Owners’
Protection Act, Pub. L. No. 99-308, 100 Stat. 449, as recognized in United
States v. Fernandez, 234 F.3d 1345, 1347 n.2 (11th Cir. 2000).
There is, however, some contrary authority. For instance, in
Blackmon v. State, the Georgia appellate court concluded that a nolo
contendere plea cannot serve as proof of a prior conviction under
Georgia’s felon-in-possession statute. 598 S.E.2d 542, 544 (Ga. Ct. App.
2004). In Blackmon, the court applied a Georgia statute that expressly
states that “ ‘a plea of nolo contendere shall not be used against the
defendant in any other court or proceedings as an admission of guilt or
otherwise or for any purpose.’ ” Id. (quoting Ga. Code Ann. § 17-7-95(c)
(2013), http://www.lexisnexis.com/hottopics/gacode/Default.asp).
We agree with the approach in Holmes and Drake. The question
we face is not what evidentiary impact should result from the no contest
plea, but whether the acceptance of the plea and a determination of guilt
made by the trial court results in Olsen being convicted of a felony under
the felon-in-possession statute. We do not think there are hard
20
convictions and soft nonconvictions when a plea bargain leads to a
judicial finding of guilt. See Lee, 139 N.W.2d at 63 (citing secondary
sources regarding same). All judicial findings of guilt pursuant to the
plea bargaining process are convictions under the general and popular
use of the term. 1
In short, we do not use the no contest plea as evidence of anything,
but instead focus on what the Wisconsin district court did in this case
upon receipt of the no contest plea. And we think that the Wisconsin
court made a determination of guilt sufficient to meet the requirements
of “convicted” under our felon-in-possession statute. It is the fact of
conviction, not the nature of the plea, that determines the issue.
Olsen seeks to escape the holding in Deng Kon Tong on the ground
that Deng Kon Tong was arrested for possessing an illegal sawed-off
shotgun while Olsen allegedly simply possessed an ordinary shotgun
used by countless hunters in Iowa during deer hunting season. He
further notes that the Wisconsin trial court advised him that he could
possess firearms, a fact confirmed by the prosecuting attorney who
declared “[n]o disability that way at all” at the court hearing on the
matter. While Olsen’s factual distinctions are supported by the record,
they simply have no bearing on the question of whether he was convicted
of a felony under Iowa Code section 724.26. Further, in addition to being
convicted of a felony, the felon-in-possession statute requires only
knowing dominion and control, possession, or receipt or transportation
of a firearm. See Iowa Code § 724.26(1). There is no statutory
requirement that the defendant have actual knowledge that possession is
1Our result is consistent with the concurring opinion in Deng Kon Tong, which
stated that “a defendant’s guilty plea in anticipation of the court granting the defendant
a deferred judgment is a conviction for the purpose of enhancing a defendant’s
punishment.” Deng Kon Tong, 805 N.W.2d at 604 (Wiggins, J., specially concurring).
21
illegal. Similarly, factual assertions offered by the State suggesting Olsen
received notice that he could not purchase a firearm and acted in an
evasive fashion when confronted by a conservation officer have no
bearing on our determination.
The Iowa district court noted that under the circumstances, “it is
hardly fair that a young man who is told by a Judge that he can hunt, is,
then, charged with this [felon-in-possession] offense.” It noted the record
before it had the appearance of “a misunderstanding with extremely
consequential proportions” as Olsen, if convicted, could suffer revocation
of his deferred sentence in Wisconsin and face very serious penalties in
that state. The district court, however, found itself bound to follow the
law, regardless of the equities of the case, noting that whether to bring
criminal charges rests within prosecutorial discretion of the county
attorney. We agree with the district court.
Because the Wisconsin trial court found Olsen guilty upon his
tendering of a no contest plea and because Olsen had not completed the
terms of his deferred judgment on his felony count, we conclude the
district court properly denied Olsen’s motion to dismiss in this case.
IV. Conclusion.
For the above reasons, the district court’s denial of Olsen’s motion
to dismiss the charge of felony possession under Iowa Code chapter
724.26 is affirmed.
AFFIRMED.
All justices concur except Hecht, Wiggins, and Waterman, JJ., who
dissent.
22
#13–0832, State v. Olsen dissent
HECHT, Justice (dissenting).
As I believe Olsen was not a felon when he possessed a firearm in
Iowa, I cannot join the majority opinion in this case. My analysis begins
with Iowa Code section 724.26(1), the statute in question here. It
provides:
A person who is convicted of a felony in a state or federal
court, or who is adjudicated delinquent on the basis of
conduct that would constitute a felony if committed by an
adult, and who knowingly has under the person’s dominion
and control or possession, receives, or transports or causes
to be transported a firearm or offensive weapon is guilty of a
class “D” felony.
Iowa Code § 724.26(1) (2013). The first element of the offense is the
defendant’s status as a felon. Accordingly, the State must prove in this
case that Olsen was “convicted of a felony” in Wisconsin in 2009 before
he possessed a firearm in Iowa and was charged in this case. See State
v. Sanborn, 564 N.W.2d 813, 817 (Iowa 1997) (“ ‘[A]bsent defendant’s
concession or admission made of record, the State, as part of its case in
chief, was required to show defendant’s status as a felon.’ ” (quoting
State v. Walton, 311 N.W.2d 110, 112 (Iowa 1981))).
Favoring a functional assessment based upon Iowa law, the
majority explores whether the result of the Wisconsin prosecution would
be considered a conviction under Iowa law. Eschewing “the definitional
vagaries of out-of-state law,” the majority utilizes Iowa’s definition of
“conviction” in deciding whether Olsen was convicted of a felony in
Wisconsin. Although I concede Iowa law does not contain an explicit
provision requiring us to look to the law of Wisconsin in determining
whether Olsen was convicted in 2009, I believe we should. The crime
committed by Olsen occurred in Wisconsin and all of the actors in the
23
resulting court proceedings acted in that state, not in Iowa. Our analysis
of whether the Wisconsin proceeding produced a conviction should
likewise be controlled by what occurred there—not by what would have
occurred had the events transpired in Iowa or elsewhere.2 Reliance
instead on the “fact” of the Wisconsin judgment without consideration of
what actually happened there runs the risk of jeopardizing significant
procedural, substantive, and constitutional interests that might preclude
consideration of the judgment had it occurred here. See, e.g., Wayne A.
Logan, Horizontal Federalism in an Age of Criminal Justice
Interconnectedness, 154 U. Pa. L. Rev. 257, 278 (2005) (noting “greater
tolerance for different procedures used in [sister] states” may “often
translate[] into a disregard of the procedural norms that would otherwise
preclude consideration of such convictions if they had occurred in-
state”); cf. Wayne A. Logan, Creating A “Hydra in Government”: Federal
Recourse to State Law in Crime Fighting, 86 B.U. L. Rev. 65, 82 (2006)
(“To complicate matters further still, predicates are eligible for use even if
secured by constitutionally invalid means. This is because the ‘federal
gun laws . . . focus not on reliability, but on the mere fact of conviction
. . . in order to keep firearms away from potentially dangerous persons.’ ”
(footnote omitted) (quoting Lewis v. United States, 445 U.S. 55, 67, 100
S. Ct. 915, 922, 63 L. Ed. 2d 198, 210 (1980))); Restatement (Second) of
Conflict of Laws § 107, at 320 (“A judgment will not be recognized or
enforced in other states insofar as it is not a final determination under
the local law of the state of rendition.”). As I believe that approach is
2I believe Iowa Code section 724.25, defining “felony,” provides additional
support for this outward-looking approach. This provision directs us to determine, for
purposes of finding a felon in possession, whether the prior offense was “punishable in
the jurisdiction where it occurred by imprisonment for a term exceeding one year,” and
makes no mention, by contrast, of consideration of how the offense may have been
treated in Iowa. See Iowa Code § 724.25(1) (emphasis added).
24
neither desirable nor necessary here, I turn to the legal effect of what
actually occurred in the Wisconsin court.
Everyone in the Wisconsin courtroom—including most importantly
the judge and the prosecutor—believed Olsen was not convicted of a
felony as a consequence of the 2009 deferred judgment. Olsen’s careful
Wisconsin counsel specifically inquired of the court whether Olsen would
be able to hunt with a firearm after the deferred judgment proceeding.
The court replied, “Yes, he can.” This statement made by the judge is, in
my view, crucially important to our determination of whether the
deferred judgment proceeding resulted in a felony conviction not only
because of the words spoken by the key actor in the room, but also
because of the words he did not utter. Wisconsin law mandates the
court shall inform a defendant sentenced or placed on probation for a
felony conviction of the restriction on his right to possess firearms. See
Wis. Stat. § 973.176(1) (2007–2008), https://docs.legis.wisconsin.gov/
2007/statutes/prefaces/toc (“Whenever a court imposes a sentence or
places a defendant on probation regarding a felony conviction, the court
shall inform the defendant of the requirements and penalties under [the
statute precluding felons from possessing firearms].”). The prosecutor
confirmed the judge’s assurance that a conviction affecting Olsen’s right
to possess firearms did not result from the proceeding, stating Olsen
would suffer “[n]o disability that way at all.”
My conclusion—and the Wisconsin court’s conclusion—that a
conviction did not result from the 2009 proceeding is supported by other
evidence in the record. The Wisconsin court memorialized the
proceeding in an order stating “acceptance of the plea and adjudication
for the offense . . . is stayed for four (4) years from 08/25/09.”
(Emphasis added.) Thus, although Olsen entered a plea of nolo
25
contendere to the felony charge, the Wisconsin court did not formally or
actually accept or implement it. 3 Instead, the court stayed acceptance of
the plea pending Olsen’s compliance with the terms of the deferred
judgment arrangement. In the absence of an accepted plea or an
adjudication of guilt, Olsen surely did not attain the status of “felon”
under Wisconsin law, and the statements of the Wisconsin judge and
prosecutor quoted above were both accurate and sensible. 4 See, e.g.,
Quentin Brogdon, Admissibility of Criminal Convictions in Civil Cases, 61
Tex. B.J. 1112, 1116 (1998) (“If the judge in the criminal case determines
that the criminal defendant violated the terms of his or her probation,
3That the court did not accept Olsen’s plea, but instead stayed its acceptance,
was surely of great significance to the court’s understanding that the legal effect of the
proceeding fell short of a conviction. In State v. Wimmer, the Wisconsin Court of
Appeals concluded a guilty plea in a battery case qualified as a predicate conviction
under a “repeater statute” imposing more severe penalties for second and subsequent
domestic battery offenses. 449 N.W.2d 621, 621, 625 (Wis. Ct. App. 1989). The court
concluded that “once the court has accepted a guilty plea or verdict, the ‘conviction’
becomes sufficiently final to trigger the operation of the repeater statute.” Id. at 625
(emphasis added). In a more recent case, the Wisconsin Court of Appeals concluded a
guilty plea accepted by a trial court in connection with the implementation of a
diversion agreement “constituted ‘sentencing’ for purposes of determining the standard
to be applied in deciding [a] motion to withdraw [a] guilty plea.” State v. Barney, 570
N.W.2d 731, 735 (Wis. Ct. App. 1997).
4I acknowledge some of the Wisconsin court’s statements on the record during
the proceeding were unclear. Although at one point the court stated “I’ll find him
guilty,” I conclude this statement is best understood as an explanation of what could
happen at some future date if Olsen fails to comply with the requirements of the
deferred judgment. My forward-looking understanding of the statement is informed by
another comment made by the court and couched as a hypothetical during the same
proceeding: “No, if I accept his plea, then set it for sentencing, then.” Summarizing the
legal effect of the proceeding in another part of the colloquy, the Wisconsin court stated,
“We’ll find him guilty, but it’s not of record, though. No conviction will show up on
that.” When understood in the context of the entire proceeding and in light of the order
memorializing the effect of the proceeding, I believe the Wisconsin court neither
accepted Olsen’s plea nor adjudicated his guilt. I conclude the most accurate and
controlling articulation of the effect of the proceeding is found in the court’s written
order entered after the hearing, announcing the legal effect of what occurred there. Cf.
Wimmer, 449 N.W.2d at 625 (noting courts correctly rely on written judgments and it “is
only when th[e] written document is unavailable or has not yet been prepared that the
court will have to refer to other sources to determine whether an individual has been
‘convicted.’ ”).
26
the judge may ‘revoke’ the probation (if the probation was a straight
probation) or ‘adjudicate’ the probation (if the probation was a deferred
adjudication probation), and convert it into a final conviction. The
distinction between the two types of probation may be significant
because a deferred adjudication probation cannot be a ‘conviction’ under
Texas law . . . .”). This should be the end of it. No prior felony
conviction, period.
The majority looks beyond the Wisconsin court’s unmistakable
declaration that no conviction resulted from the 2009 proceeding.
Turning its attention away from the expressed understanding of the
Wisconsin judge and prosecutor about the legal effect of the Wisconsin
proceeding, the majority recharacterizes the legal effect of what occurred
there as if it had been an Iowa court proceeding based on Iowa law. I
find this recharacterization unattractive because of the extreme
unfairness it visits upon Olsen—who had been assured by a judge and
prosecutor that his right to possess firearms would be unimpaired
because he had not been convicted of a felony. Although this court is
understandably more confident in articulating Iowa legal principles than
those prevailing elsewhere, we should give appropriate respect and
deference to the Wisconsin court in our determination of whether that
court convicted Olsen. After all, Olsen was prosecuted there—not here—
for the purported predicate offense. I suspect the Wisconsin judge would
prefer any reversal of his determination of the legal effect of his decision
come from the supreme court of that state, not from this court.
Unlike the majority, I do not believe our decision in State v. Deng
Kon Tong, 805 N.W.2d 599 (Iowa 2011), is helpful in answering the
question whether Olsen was convicted of a felony in the Wisconsin
proceeding. In Deng Kon Tong, we held a defendant’s plea of guilty
27
entered in an Iowa prosecution resulting in an Iowa deferred judgment
and probation constituted a predicate conviction for purposes of Iowa
Code section 724.26. Deng Kon Tong, 805 N.W.2d at 603. We properly
determined in that case the legal effect of a predicate guilty plea entered
by a defendant in an Iowa court and the resulting deferred judgment
issued by an Iowa court. We noted two alternative conceptions of the
term “conviction” under Iowa law in Deng Kon Tong. Id. at 601. First, we
explained, courts have looked to the procedural history of a prior Iowa
prosecution and found a conviction if the defendant entered a guilty plea
or was convicted of a felony offense by a fact finder. Id. (citing State v.
Kluesner, 389 N.W.2d 370, 372 (Iowa 1986)). The second conception of
“conviction” articulated in our earlier cases focuses on whether a “ ‘final
consummation of the prosecution against the accused including the
judgment or sentence rendered’ ” has occurred. 5 Kluesner, 389 N.W.2d
at 372 (quoting State v. Hanna, 179 N.W.2d 503, 508 (1970)); see also
Deng Kon Tong, 805 N.W.2d at 601.
Our choice between the two conceptions of “conviction” in prior
decisions of this court has ostensibly been driven by whether the
purpose of the statute requiring a predicate prior conviction was
punishment of the defendant or protection of the public. Deng Kon Tong,
805 N.W.2d at 602. Yet, the distinction between these purposes is
sometimes of limited analytical usefulness because, as we observed in
Deng Kon Tong, criminal statutes are commonly calculated to achieve
both purposes. Id. In this case, however, I conclude it is pointless to
5The Wisconsin court has explained at least two possible definitions of
“conviction” are recognized in Wisconsin: “a popular meaning indicating a finding of
guilt and a more technical legal meaning referring to the entire procedural process
resulting in a judgment and sentence.” Wimmer, 449 N.W.2d at 622. Of these two
meanings of the term recognized in Wisconsin, the former is the more common usage.
Id.
28
consider which of the two conceptions might have application because
neither should lead us to a determination Olsen was convicted in the
Wisconsin proceeding.
Even if it were appropriate—and I do not believe it is—to apply
Iowa law in determining the legal effect of a Wisconsin criminal
proceeding, I would conclude the State of Iowa failed to prove Olsen was
convicted in the 2009 Wisconsin proceeding. As I have already noted,
the Wisconsin court’s acceptance of the nolo contendere plea was stayed
until August 2013 pending Olsen’s compliance with the behavioral
requirements of the deferred judgment. Thus at the time of the
subsequent Iowa prosecution, there was no prior accepted or judicially
recognized Wisconsin plea that could constitute a prior conviction under
the first conception of “conviction” described in Deng Kon Tong and
Kluesner. See Deng Kon Tong, 805 N.W.2d at 601; Kluesner, 389 N.W.2d
at 372.
Similarly, the adjudication of Olsen’s criminal liability as a
consequence of the stayed plea and potential sentence for the Wisconsin
conduct qualifying as a felony were also stayed in 2009 such that no
adjudication of guilt or sentence constituting a “conviction” resulted from
the Wisconsin court proceeding under the second conception of that term
described above.
Our decision in Sanborn is also distinguishable and therefore not
helpful to our analysis of whether the State proved Olsen had been
convicted of a qualifying predicate offense. See 564 N.W.2d at 816–17.
In that case, as here, the defendant, Sanborn, was prosecuted under
Iowa Code section 724.26 based on an alleged predicate offense that
occurred in another state. Id. at 814–15. Sanborn did not, however,
challenge the state’s proof that he had been convicted of the alleged
29
predicate offense. He instead challenged the state’s proof that the out-of-
state conviction was a felony offense. Id. We concluded in Sanborn that
the definition of “felony” (exceeding one year in prison) in Iowa Code
section 724.25 is controlling—not the foreign jurisdiction’s classification
of the offense—on the question of whether the predicate crime is
classified as a felony in this context. Id.
Although our general assembly defined “felony” for purposes of
identifying the class of offenses qualifying as predicate offenses under
section 724.26, it has not defined “convicted” in this context. The
legislative silence has created ambiguity here, and the majority’s
interpretation of “convicted” in light of this ambiguity is inconsistent with
our longstanding recognition of the notion “that penal statutes are to be
interpreted strictly with doubts therein resolved in favor of the accused.”
State v. Muhlenbruch, 728 N.W.2d 212, 216 (Iowa 2007); cf. State v.
Langlands, 583 S.E.2d 18, 21 (Ga. 2003) (explaining, in felon-in-
possession case, “[legislative] silence creates an ambiguity, in that a
person of ordinary intelligence could fail to appreciate that the definition
was meant to look past the treatment given a criminal offense by an out-
of-state jurisdiction”); Walthart v. Bd. of Dirs. of Edgewood-Colesburg
Cmty. Sch. Dist., 667 N.W.2d 873, 877 (Iowa 2003) (noting statutory
silence may create ambiguity and compel resort to rules of statutory
construction); State v. White, 545 N.W.2d 552, 555 (Iowa 1996)
(“Ambiguity exists when reasonable minds differ or are uncertain as to
the meaning of a statute.”).
By contrast, I view the legislative omission as consistent with the
approach taken by Congress in 18 U.S.C. § 921(a)(20) (2012), which
provides that a “conviction” for purposes of the corollary felon-in-
possession statute should be determined in accordance with the law of
30
the jurisdiction in which the proceedings were held. This approach is
consistent with principles of federalism in our federal system. If applied
here, as I think it should be, it also is an approach that advances
principles of comity and deference owed to the courts of other
jurisdictions.
In conclusion, the Wisconsin court clearly understood and
communicated that the proceeding before it did not result in a conviction
of a felony offense. My review of the Wisconsin statutes and caselaw
leads me to conclude the Wisconsin court got it right. Our court should
not second-guess the Wisconsin court’s understanding of “convicted”—
especially where the general assembly has not defined the term as used
in section 724.26, a statute restricting a valued constitutional right.
Indeed, the majority’s interpretation of “convicted” as applied to Olsen
might raise substantial doubts about the statute’s constitutionality. See,
e.g., United States v. Kitsch, No. 03–594–01, 2008 WL 2971548, at *7
(E.D. Pa. Aug. 1, 2008) (“A statute that imposes criminal penalties for the
exercise of an enumerated constitutional right despite defendant’s
reasonable belief in good faith that he has complied with the law must, at
the very least, raise constitutional doubts.”). Our doctrine of
constitutional avoidance compels us to avoid such constitutionally
problematic constructions where fairly possible. See, e.g., State v. Iowa
Dist. Ct., 843 N.W.2d 76, 85 (Iowa 2014).
Accordingly, I respectfully dissent.
Wiggins and Waterman, JJ., join this dissent.