State v. Deng Kon Tong

• Decision Date: 21 October 2011
• Docket Number: No. 10–0689.,10–0689.
• Citation: 805 N.W.2d 599
• Parties: STATE of Iowa, Appellee, v. DENG KON TONG, Appellant.
• Court: Iowa Supreme Court

805 N.W.2d 599

STATE of Iowa, Appellee,

v.DENG KON TONG, Appellant.

No. 10–0689.

Supreme Court of Iowa.

Oct. 21, 2011.

Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, Stephen H. Holmes, County Attorney, and Travis S. Johnson, Assistant County Attorney, for appellee.

MANSFIELD, Justice.

Deng Kon Tong appeals his conviction on the offense of being a felon in possession of a firearm in violation of Iowa Code section 724.26 (2009). Tong claims the district court erred in denying his motion to dismiss the charge because he had not been convicted of any felony at the time he allegedly possessed the firearm. Although Tong had pled guilty to a felony earlier that same year, he received a deferred judgment and a term of probation that had not been revoked. We conclude, for the reasons set forth herein, that Tong had been “convicted of a felony” within the meaning of section 724.26, and therefore affirm the decision of the court of appeals and the judgment of the district court.

I. Background Facts and Proceedings.

Tong, a twenty-year-old high school student, pled guilty to a single count of burglary in the second degree on February 2, 2009. When sentenced on March 16, 2009, Tong received a deferred judgment and three years' probation pursuant to Iowa Code sections 901.5 and 907.3. In his written probation agreement, Tong agreed he would not own, possess, use, or transport firearms.

On December 15, 2009, Tong was arrested and charged with unauthorized possession of an offensive weapon (a sawed-off shotgun) under Iowa Code section 724.3. The charge was later amended to being a felon in possession of a firearm under section 724.26.

On February 8, 2010, Tong moved to dismiss the charge, claiming the trial information erroneously alleged he had been convicted of a felony even though his judgment and sentence for burglary had been deferred. Tong urged that a deferred judgment could not be considered a felony conviction for the purposes of section 724.26. The State resisted the motion to dismiss, and on February 22, 2010, the district court denied it, reasoning that the expression “convicted of a felony” as used in section 724.26 included someone with Tong's status.

A jury found Tong guilty of possession of a firearm by a felon on March 16, 2010, and on April 19, 2010, Tong was sentenced to an indeterminate prison term of up to five years. Tong appealed, and we transferred the case to the court of appeals.

In a carefully-written opinion, the court of appeals affirmed the district court. The district court held that a deferred judgment entered on a felony charge qualified as a conviction under section 724.26. Tong sought further review from this court, and we granted his application.

II. Standard of Review.

Matters of statutory interpretation and application are reviewed for errors at law. State v. Stephenson, 608 N.W.2d 778, 784 (Iowa 2000); see also Iowa R.App. P. 6.907. We are not bound by the trial court's determination of law. State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000).

III. Analysis.

The only issue in this case is whether or not Tong was “convicted” of a predicate felony making him subject to Iowa's felon-in-possession statute. Iowa Code § 724.26. This statute reads:

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 ... is guilty of a class “D” felony.”

Id. (emphasis added).

Our precedents recognize two different definitions of “convicted.” The first requires only that guilt have been established either through a plea or a trial verdict. See State v. Kluesner, 389 N.W.2d 370, 372 (Iowa 1986) (“In its general and popular sense and frequently in its ordinary legal sense, the word ‘conviction’ is used in the sense of establishment of guilt prior to and independently of judgment and sentence by a verdict of guilty or a plea of guilty.” (internal quotation marks omitted)); Schilling v. Iowa Dep't of Transp., 646 N.W.2d 69, 71 (Iowa 2002).

The second definition requires that postplea or postverdict judgment and sentencing have taken place. Kluesner, 389 N.W.2d at 372 (“[T]echnically the word means the final consummation of the prosecution against the accused including the judgment or sentence rendered pursuant to an ascertainment of his guilt.” (internal quotation marks omitted)); see also State v. Farmer, 234 N.W.2d 89, 92 (Iowa 1975) (“An adjudication of guilt is a judicial declaration of the defendant's legal guilt of the offense charged. The adjudication of guilt and imposition of sentence are the elements of judgment in a criminal case.” (citations omitted)).

Under Iowa law, a deferred judgment

means a sentencing option whereby both the adjudication of guilt and the imposition of a sentence are deferred by the court and whereby the court assesses a civil penalty as provided in section 907.14 upon the entry of the deferred judgment. The court retains the power to pronounce judgment and impose sentence subject to the defendant's compliance with conditions set by the court as a requirement of the deferred judgment.

Iowa Code § 907.1(1). Thus, a deferred judgment qualifies as a conviction under the first definition but not under the second.

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. See, e.g., Schilling, 646 N.W.2d at 71–72 (holding a deferred judgment was a “final conviction” for driver's license revocation purposes and noting that “[w]e have distinguished between a conviction used to increase a criminal penalty and one used to protect the public”); Kluesner, 389 N.W.2d at 372–73 (holding a deferred judgment was a “judgment of conviction” for the purposes of Iowa's restitution law because that law was intended to protect the public); State v. Blood, 360 N.W.2d 820, 822 (Iowa 1985) (holding a deferred judgment would be taken into account in determining whether the defendant had committed his third OWI offense for license revocation purposes as this provision was not intended to punish the driver but solely to protect the public); State v. Ridout, 346 N.W.2d 837, 839–40 (Iowa 1984) (holding a deferred judgment would not be taken into account in determining whether the defendant had committed the crime of third offense OWI, concluding this was a matter of “enhanced punishment,” and finding this view “is reinforced by application of the rule that penal statutes are to be construed strictly, with doubts being resolved in favor of the accused”), superseded by statute, Iowa Code § 321.281(2)( c) (Supp.1985).¹

That distinction may be of limited usefulness here. We have said the felon-in-possession law is meant to protect the public. See State v. Buchanan, 604 N.W.2d 667, 669 (Iowa 2000) (“No one questions the legislature's purpose in prohibiting felons from possessing firearms. It is because the legislature considers them dangerous. This is a legitimate public purpose because such persons have an elevated tendency to commit crimes of violence.” (citations omitted)). Yet, as a criminal statute, it is also a form of punishment for the person who unlawfully possesses the firearm. See State v. Kriechbaum, 219 Iowa 457, 461–62, 258 N.W. 110, 111–12 (1934) (noting that a criminal prosecution abates on the death of the accused because the purpose of the criminal law is to punish the defendant).

A more salient point, in our view, is that section 724.26 applies both to persons who had been convicted of felonies and to persons who had been “adjudicated delinquent on the basis of conduct that would constitute a felony if committed by an adult.” This tells us the legislature intended the statute to cover persons who had engaged in certain conduct, i.e., acts that constitute felonies, and supports a broad interpretation of the term “convicted.” Tong was twenty years old at the time he received his deferred judgment for the burglary (although he was still attending high school). Had he been younger at the time of the original offense and adjudicated a delinquent, there would be no question as to his status as a felon for purposes of section 724.26. When two persons commit the same offense, it would seem illogical for the legislature to have intended the juvenile but not the adult to be treated as a felon.

Also, at the time he was arrested for possessing the sawed-off shotgun, Tong was still on probation and had not completed the requirements of his deferred judgment. We 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. See State v. Birth, 604 N.W.2d 664, 665 (Iowa 2000) (holding that “[u]ntil probation was completed[ ] and the deferred judgment expunged,” a guilty plea could be used for impeachment purposes under the Iowa Rule of Evidence requiring the witness to have been “convicted” of a crime).

For these reasons, we hold a deferred judgment constitutes a conviction for purposes of section 724.26 where the defendant (as here) has not completed his term of probation. We note that Tong's probation agreement prohibited him from possessing firearms. See Saadiq v. State, 387 N.W.2d 315, 323 (Iowa 1986) (rejecting both statutory and constitutional challenges brought by a defendant who had been convicted under section 724.26 and observing that this defendant “was told by his probation officer that he was not to have guns in his possession”); see also United States v. Reth, 258 Fed.Appx. 68, 69 (8th Cir.2007) (holding that a deferred judgment from an ...