                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-1724

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                    Joseph Bolding,
                                       Appellant.

                               Filed September 8, 2015
                                      Affirmed
                                    Hooten, Judge

                            Hennepin County District Court
                              File No. 27-CR-13-21204

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Worke, Presiding Judge; Halbrooks, Judge; and

Hooten, Judge.

                       UNPUBLISHED OPINION

HOOTEN, Judge

      Appellant challenges his conviction of being an ineligible person in possession of

a firearm, arguing that he is permitted to possess a firearm because, as a result of his
successful completion of probation, his 2005 felony conviction for possession of a

controlled substance is now deemed a misdemeanor. We affirm.

                                        FACTS

       The state convicted appellant Joseph Bolding of third-degree possession of a

controlled substance in January 2005.        Bolding received a stayed sentence, and his

conviction became a misdemeanor three years later after he successfully completed

probation. See Minn. Stat. § 609.13, subd. 1(2) (2004) (providing that felony conviction

is deemed misdemeanor if imposition of sentence is stayed and defendant is discharged

from probation without a prison sentence).

       The state filed a criminal complaint in July 2013 charging Bolding with possession

of a firearm by an ineligible person. Bolding moved the district court to dismiss the

charge, because at the time of his alleged possession he no longer had a felony

conviction.   The district court denied his motion and found Bolding guilty after a

stipulated-facts trial. Bolding appeals his conviction and challenges the district court’s

refusal to dismiss.

                                    DECISION

       A person who “has been convicted of . . . a crime of violence” may not possess a

firearm. Minn. Stat. § 624.713, subd. 1(2) (2012). Crimes of violence include all felony

convictions of controlled-substance crimes defined under chapter 152.         Minn. Stat.

§ 624.712, subd. 5 (2012). A crime of violence is defined by the elements constituting

the offense, not the “subsequent disposition” of the conviction. State v. Anderson, 733

N.W.2d 128, 136 (Minn. 2007). A person “convicted of” a felony drug crime “that by


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operation of law becomes a misdemeanor pursuant to Minn. Stat. § 609.13, subd. 1(2)

can be prosecuted for the crime of felon in possession of a firearm . . . because the prior

felony drug conviction constitutes a crime of violence.” State v. Foster, 630 N.W.2d 1, 5

(Minn. App. 2001) (quotation omitted), review denied (Minn. Aug. 15, 2001).

       Despite having the identical operative facts as Foster, Bolding, who was convicted

of felony drug possession in 2005, argues that the controlling case is State v. Franklin,

847 N.W.2d 63 (Minn. App. 2014), aff’d, 861 N.W.2d 67 (Minn. 2015). In Franklin, this

court determined that a felony conviction later deemed to be a misdemeanor under

section 609.13 is no longer treated as a prior felony conviction when applying the career-

offender statute.   Id. at 67–68.   But in affirming this court and distinguishing the

application of the career-offender statute from the firearm-possession statutes, our

supreme court explained:

              The language of the firearm-possession statute differs in an
              important way from that of . . . the career-offender statute.
              [The career-offender statute] uses the phrase “has five or
              more prior felony convictions.” By contrast, [the firearm-
              possession statute] uses the phrase “has been convicted of a
              crime of violence.” If the career-offender statute used the
              language “has been convicted of,” Franklin would qualify as
              a career offender. It is undisputed that Franklin “has been
              convicted of” five prior felony convictions. But at the time of
              sentencing, he no longer “ha[d]” five prior felony convictions
              according to the plain language of [the career-offender
              statute].

Franklin, 861 N.W.2d at 70 n.1.

       This issue is well-settled: one who “has been convicted of” a “crime of violence”

has still “been convicted of” that crime even if section 609.13 subsequently labels that



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crime a misdemeanor. See Anderson, 733 N.W.2d at 136; Foster, 630 N.W.2d at 5.

      Affirmed.




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