State v. Phillips, 92-1253-CR

• Decision Date: 17 November 1992
• Docket Number: No. 92-1253-CR,92-1253-CR
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. William N. PHILLIPS, Defendant-Respondent. d
• Court: Wisconsin Court of Appeals

Page 238

493 N.W.2d 238

172 Wis.2d 391

STATE of Wisconsin, Plaintiff-Appellant, v. William N. PHILLIPS, Defendant-Respondent. ^d No. 92-1253-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 2, 1992.

Opinion Released Nov. 17, 1992.

Opinion Filed Nov. 17, 1992.

On behalf of the plaintiff-appellant, the cause was submitted on the brief of James E. Doyle, Atty. Gen., and Gregory M. Posner-Weber, Asst. Atty. Gen.

On behalf of the defendant-respondent, the cause was submitted on the brief of Ruth S. Downs, Asst. State Public Defender.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

The state appeals the trial court's order dismissing the Information charging William Phillips with unlawfully possessing a firearm as a felon contrary to sec. 941.29, Stats. The state argues that the trial court erroneously ruled that sec. 973.033, Stats., added an additional element to the sec. 941.29, Stats., offense of possession of a firearm by a felon. We agree and reverse the order.

On June 18, 1990, Phillips was convicted and sentenced for committing a Class D felony. The court sentencing Phillips for that offense failed to inform him of the state restrictions on his possession of a firearm, as required by sec. 973.033, Stats.

On January 15, 1992, the police found Phillips in possession of a .22 caliber rifle. Because of his previous felony conviction, the state charged Phillips with being a felon in possession of a firearm, contrary to sec. 941.29, Stats. Phillips moved to dismiss the information because the trial court in 1990 had not informed him of the firearm restriction. Phillips argued that a violation of sec. 941.29 could be established only with proof that pursuant to sec. 973.033, Stats., the sentencing court for the underlying felony conviction informed him that as a felon he could not legally possess a firearm. The trial court agreed and dismissed the information.

Section 941.29, Stats., effective March 31, 1982, provides in part:

Possession of a firearm. (1) A person is subject to the requirements and penalties of this section if he or she has been:

(a) Convicted of a felony in this state.

(b) Convicted of a crime elsewhere that would be a felony if committed in this state.

(c) Found not guilty of a felony in this state by reason of mental disease or defect.

(d) Found not guilty of or not responsible for a crime elsewhere that would be a felony in this state by reason of insanity or mental disease, defect or illness.

(2) Any person specified in sub. (1) who, subsequent to the conviction for the felony or other crime, as specified in sub. (1), or subsequent to the finding of not guilty or not responsible by reason of insanity or mental disease, defect or illness, possesses a firearm is guilty of a Class E felony.

Section 973.033, Stats., effective March 31, 1990, provides:

Sentencing; restriction on firearm possession. 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 s. 941.29.

The sec. 973.033, Stats., "notice" statute was not enacted contemporaneously with sec. 941.29, Stats., but was in effect at the time of Phillips' underlying conviction. Phillips contends the state must prove compliance with sec. 973.033 before obtaining a conviction for violation of sec. 941.29. This appeal presents an issue of statutory interpretation, a question of law that this court reviews independently of the trial court. Brandt v. LIRC, 160 Wis.2d 353, 361, 466 N.W.2d 673, 676 (Ct.App.1991), aff'd, 166 Wis.2d 623, 480 N.W.2d 494 (1992).

Unless there is an ambiguity, the plain meaning of a statute's terms must be followed. State v. Livingston, 159 Wis.2d 561, 573, 464 N.W.2d 839, 844 (1991). A statute is ambiguous if well-informed individuals could understand it in two or more different senses. State v. Folk, 117 Wis.2d 42, 45, 342 N.W.2d 761, 763 (Ct.App.1983). A court may deem a statute ambiguous because of its interaction with a separate statute. Shorewood v. Steinberg, 166 Wis.2d 794, 802 n. 8, 480 N.W.2d 780, 783 n. 8 (Ct.App.1992). Sections 973.033 and 941.29, Stats., however, are not ambiguous, whether looked at individually or in tandem.

Section 941.29, Stats., lists the elements required to prove a felon in possession of a firearm violation. In State v. Nicholson, 160 Wis.2d 803, 807, 467 N.W.2d 139, 141 (Ct.App.1991), we observed sec. 941.29 had two elements: That the accused is a convicted felon and that the accused was in possession of a firearm. Nothing in the plain language of sec. 941.29 leads one to believe a notification element to sec. 941.29 exists.

Section 973.033, Stats., is a straightforward directive to sentencing courts to notify defendants convicted of felonies that they may not possess firearms. It does not mention or even intimate that a failure on the court's part will result in the nullification of sec. 941.29, Stats. In fact, if sec. 973.033 were read as Phillips contends it should be, it would effectually legalize the possession of firearms in Wisconsin for felons convicted outside the state because Wisconsin has no way of directing equivalent notification in other states. This reading would directly contravene the plain language of sec. 941.29(1)(b) and (d) that prohibits felons convicted elsewhere from possessing firearms in Wisconsin, leading to an absurd result. We will not interpret statutes to lead to an absurd result. State v. Pham, 137 Wis.2d 31, 34, 403 N.W.2d 35, 36 (1987).

Phillips argues...