State v. Pollard

• Decision Date: 26 April 2002
• Docket Number: No. 86,821.,86,821.
• Citation: 44 P.3d 1261,273 Kan. 706
• Parties: STATE OF KANSAS, Appellant, v. DAVID ANTHONY POLLARD, Appellee.
• Court: Kansas Supreme Court

273 Kan. 706

44 P.3d 1261

STATE OF KANSAS, Appellant, v. DAVID ANTHONY POLLARD, Appellee.

No. 86,821.

Supreme Court of Kansas.

Opinion filed April 26, 2002.

Steven J. Obermeier, assistant district attorney, argued the cause, and Paul J. Morrison, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellant.

Peter T. Maharry, assistant appellate defender, argued the cause, and Steven R. Zinn, deputy appellate defender, was with him on the brief for appellee.

The opinion of the court was delivered by

MCFARLAND, C.J.:

This is an appeal by the State pursuant to K.S.A. 22-3602(b)(1) from the district court's dismissal of a criminal complaint charging criminal possession of a firearm (K.S.A. 2001 Supp. 21-4204(a)(3). The district court ruled that, since a suspended imposition of sentence was not a conviction under Missouri law, such disposition could not be considered as the requisite prior conviction under the Kansas statute.

FACTS

In July 1999, David A. Pollard pled guilty in Missouri to the charge of first-degree attempted burglary, a felony. The Missouri court ordered suspended imposition of sentence and placed Pollard on 2 years' probation. This disposition is authorized by Mo. Rev. Stat. § 557.011 (2000). Under conditions of his probation, Pollard cannot "own, possess, purchase, receive, sell or transport any firearms ... as defined by federal, state, or municipal laws or ordinances." Pollard signed a statement agreeing to comply with all the conditions of his probation.

On December 6, 2000, the State of Kansas charged Pollard with two offenses: criminal possession of a firearm and unlawfully altering the identification marks of a firearm. Only the first offense is at issue in this appeal. The State's complaint alleged that Pollard violated K.S.A. 21-4204(a)(3) by virtue of possessing a firearm after having been convicted of a felony within the preceding 5 years.

Pollard filed a motion to dismiss claiming that his 1999 Missouri attempted burglary offense could not serve as the predicate felony under K.S.A. 21-4204(a)(3) because under Missouri law a suspended imposition of sentence does not constitute a conviction. The district court granted Pollard's motion. The court ruled that for purposes of establishing the prior conviction element of K.S.A. 21-4204(a)(3), the law of the state where a defendant received the disposition for his or her crime controls whether or not a defendant has been convicted of a felony. As applied to Pollard, the court reasoned that if no conviction exists under Missouri law, then the State of Kansas cannot establish the requisite element of Pollard having been convicted of a felony within the previous 5 years.

When the district court dismissed the criminal possession of a firearm charge, the State moved to dismiss the charge of unlawfully altering the identification marks of a firearm. The State's motion was granted and the State filed the appeal herein.

The sole issue is as follows:

IF A SUSPENDED IMPOSITION OF SENTENCE IS NOT CONSIDERED A CONVICTION IN THE JURISDICTION WHERE SUCH DISPOSITION WAS RENDERED, CAN IT BE CONSIDERED A CONVICTION UNDER KANSAS LAW FOR PURPOSES OF ESTABLISHING THE PRIOR CONVITION ELEMENT UNDER K.S.A. 2001 SUPP. 21-4204(a)(3)?

K.S.A. 2001 Supp. 21-4204(a)(3) criminalizes the possession of a firearm by a person who

"has been convicted of a felony, other than those specified in subsection (a)(4)(A), under the laws of Kansas or a crime under a law of another jurisdiction which is substantially the same as such felony, has been released from imprisonment for a felony, or was adjudicated as a juvenile offender because of the commission of an act which if done by an adult would constitute the commission of a felony."

The State contends the district court erred in ruling that under K.S.A. 2001 Supp. 21-4204(a)(3), Missouri law controls whether or not Pollard had been convicted of a felony at the time he possessed the firearm in Kansas. Pollard contends the district court ruled correctly since under Missouri law his suspended imposition of sentence was not a conviction. Additionally he focuses on the term "convicted" and claims the statute requires either a conviction of a felony under Kansas law or a conviction of a crime under a law of another jurisdiction.

Interpretation of a statute presents a question of law and the Supreme Court's scope of review is unlimited. State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998).

The parties agree that under Missouri law, as set forth in Yale v. City of Independence, 846 S.W.2d 193, 196 (Mo. 1993), the disposition of "suspended imposition of sentence" does not constitute a conviction as it is not a final judgment. From the discussion in Yale, it appears this disposition is a lenient alternative whereby, upon successful completion of the probationary period, the official records of the offense are closed pursuant to Mo. Rev. Stat. § 610.105 (2000). Interestingly, Missouri has a criminal possession of a firearm statute similar to that of Kansas except that it applies to possession within 5 years of a plea of guilty or conviction of a felony. Mo. Rev. Stat. § 571.070 (2000). Had Pollard's possession occurred in Missouri rather than Kansas, he clearly would have been subject to Missouri's criminal possession statute.

The Kansas statute, K.S.A. 2001 Supp. 21-4204(a)(3), provides in pertinent part:

"(a) Criminal possession of a firearm is:

....

(3) possession of any firearm by a person who, within the preceding five years has been convicted of a felony ... under the laws of Kansas or a crime under a law of another jurisdiction which is substantially the same as such felony, has been released from imprisonment for a felony ... and was found not to have been in possession of a firearm at the time of the commission of the offense."

The issue turns on whether the term "conviction" is determined by Kansas or Missouri law.

Pollard cites United States v. Solomon, 826 F. Supp. 1221 (E. D. Mo. 1993), in support of his position. In Solomon, the defendant was charged under a federal criminal possession of a firearm statute wherein a prior conviction is an element of the offense. The government tried to rely on a Missouri offense as the predicate felony. Like Pollard, defendant Solomon had pled guilty to the predicate offense, and the Missouri court suspended imposition of sentence. 826 F. Supp. at 1222.

The Solomon court held that what constitutes a conviction of the underlying crime must be determined according to the law of the jurisdiction in which the proceedings were held. After examining the law in Missouri, including the Yale decision, the Solomon court concluded that under Missouri law, regardless of the determination of guilt, a suspended imposition of sentence does not result in a "conviction" for purposes of the equivalent federal criminal in possession statute. Since the government could not prove the first element of the offense, i.e., that the defendant had previously been convicted of a felony, the Solomon court dismissed the case. 826 F. Supp. at 1222-24. Under the rule in Solomon, Missouri law would apply and, thus, Pollard did not have a prior conviction at the time he possessed the weapon in Kansas.

However, there is a critical distinction between Solomon and the case before us. The statute at issue in the federal case contains a choice of law clause, whereas our statute does not. 826 F. Supp. at 1223-24 (quoting 18 U.S.C. § 921[a][20][2000]); and K.S.A. 2001 Supp. 21-4204(a)(3). The choice of law clause was added to the federal gun control statutes in 1986. United States v. Pennon, 816 F.2d 527, 528 (10th Cir. 1987). The relevant portion of the clause states: "What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held." 18 U.S.C. § 921(a)(20)(2000).

Before Congress amended the statute requiring federal courts to apply the law of the jurisdiction where the proceedings took place, "a `conviction' is deemed to have occurred upon a guilty plea or finding of guilt by the court, regardless of whether the person is considered to have been convicted under State law." 816 F.2d at 529 (citing 132 Cong. Rec. §5354 [daily ed. May 6, 1986]); accord United States v. Benson, 605 F.2d 1093 (9th Cir. 1979). Prior to the choice of law amendment, allowing federal law to control the term conviction "[made] for desirable national uniformity unaffected by varying state laws, procedures, and definitions of `conviction.' " Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 112, 74 L. Ed.2d 845, 103 S.Ct. 986(1983) (superceded by statute as stated in Pennon, 816 F.2d at 529). Federal courts assumed that when a federal statute did not specify whether state or federal law should be applied to define the term conviction, federal law controlled the definition absent clear language to the contrary since Congress did not intend to make the application of federal law dependant on state law. See United States. v. Ortega, 150 F.3d 937, 948 (8th Cir. 1998)cert. denied 525 U.S. 1087 (1999) (concluding that probation and a suspended imposition of sentence rendered under Missouri law is a conviction under federal law for purposes of a federal punishment enhancement statute since Congress did not clearly express a contrary intent within that statute that state law should control).

Pollard's reliance on Solomon is therefore misplaced. Solomon supports the proposition that, in the absence of a choice of law clause mandating application of the law of the state where the predicate offense occurred, then the law where the possession occurred is controlling.

Pollard further contends the language of K.S.A. 2001 Supp. 21-4204(a)(3) is clear and that it "requires either a conviction of a felony under Kansas law or conviction of a crime under the law of another jurisdiction." When construing criminal statutes...