                           This opinion will be unpublished and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
                                      A15-1848

                                    State of Minnesota,
                                        Respondent,

                                             vs.

                                    James Patrick Jones,
                                        Appellant.

                                 Filed September 6, 2016
                                        Affirmed
                                     Johnson, Judge

                                 Cass County District Court
                                  File No. 11-CR-14-216

Lori Swanson, Attorney General, Karen B. Andrews, Assistant Attorney General, St. Paul,
Minnesota; and

Christopher J. Strandlie, Cass County Attorney, Walker, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Johnson, Presiding Judge; Halbrooks, Judge; and Reilly,

Judge.

                          UNPUBLISHED OPINION

JOHNSON, Judge

         James Patrick Jones was convicted of being an ineligible person in possession of a

firearm. Before trial, Jones moved to dismiss the charge, arguing that being convicted of
that offense would violate his right to due process on the ground that the state had led him

to believe that he could lawfully possess a firearm after he completed probation for a prior

juvenile adjudication. The district court denied the motion, reasoning that the state did not

mislead Jones with respect to his ineligibility to possess a firearm. We affirm.

                                          FACTS

       On February 3, 2014, a conservation officer stopped a vehicle in the city of Cass

Lake. Jones was one of five persons in the vehicle. The officer detected the odor of burnt

marijuana coming from the vehicle, which led to searches of the vehicle and the persons in

the vehicle. An officer found, among other things, marijuana and a pistol. Jones admitted

to the officer that the marijuana and the pistol belonged to him.

       The state charged Jones with (1) being an ineligible person in possession of a

firearm, in violation of Minn. Stat. § 624.713, subd. 1(2) (2012), and (2) the petty

misdemeanor offense of possession of a small amount of marijuana, in violation of Minn.

Stat. § 152.027, subd. 4(a) (2012).

       The state’s allegations concerning count 1, the possession-of-a-firearm offense, are

based on the fact that Jones, when he was a juvenile, was adjudicated delinquent for

committing felony theft of a firearm, in violation of Minn. Stat. § 609.52, subds. 2(1), 3(1)

(2010). See Minn. Stat. § 624.713, subd. 1(2) (2010) (providing that persons adjudicated

delinquent for certain crimes are ineligible to possess a firearm). At the time of Jones’s

juvenile adjudication in May 2012, the district court in that case placed him on probation.

Jones signed a probation agreement that imposed 12 conditions on his probation. The fifth

condition states, “I will secure advance approval from the Probation Officer if at any time


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I wish to . . . [o]wn or carry firearms or other weapons, including knives; and, absolutely

no pistols or handguns.” In May 2013, Jones’s probation officer informed the district court

that Jones had complied with the terms of his probation, and the probation officer

recommended that the case be closed. In June 2013, the district court issued a one-sentence

order, stating, “Pursuant to the above request, the jurisdiction in this matter is terminated.”

       In April 2014, Jones moved to dismiss count 1 of the complaint. He argued that the

probation agreement and discharge order in his juvenile case led him to believe that he was

eligible to possess a firearm after he completed his period of juvenile probation. Jones

submitted those two documents with his motion papers as exhibits but did not offer any

testimony at the hearing on the motion. In July 2014, the district court denied the motion.

In its memorandum, the district court stated that “the Court does not find that [the probation

agreement] creates an affirmative representation that Mr. Jones may possess a firearm.”

       In June 2015, the district court found Jones guilty on both counts after a court trial.

In August 2015, the district court sentenced Jones to 60 months of imprisonment on count

1. Jones appeals.

                                      DECISION

       Jones argues that the district court erred by denying his pre-trial motion to dismiss

count 1 of the complaint. Specifically, he argues that his conviction on count 1 violates his

right to due process because the state led him to believe that he could possess a firearm

after he completed his juvenile probation.

       The Due Process Clause of the Fourteenth Amendment to the United States

Constitution forbids the state from depriving a person of life, liberty, or property “without


                                              3
due process of law.” U.S. Const. amend. XIV, § 1. The Minnesota Constitution includes

the same text. Minn. Const. art. I, § 7. The United States Supreme Court has held that the

principle of due process prohibits a state from “convicting a citizen for exercising a

privilege which the State clearly had told him was available to him.” Raley v. Ohio, 360

U.S. 423, 438, 79 S. Ct. 1257, 1266 (1959). Similarly, our supreme court has stated that

due process “does not permit those who are perceived to speak for the state to mislead

individuals as to either their legal obligations or the penalties they might face should they

fail to satisfy those obligations.” McDonnell v. Commissioner of Pub. Safety, 473 N.W.2d

848, 854 (Minn. 1991).

       In addition, the right to due process prohibits the state from informing a person that

he is eligible to possess a firearm if he is not so eligible. In Whitten v. State, 690 N.W.2d

561 (Minn. App. 2005), the defendant was convicted of unlawful possession of a firearm

due to a prior conviction, in violation of Minn. Stat. § 624.713, subds. 1(b), 2 (1998).

Whitten, 690 N.W.2d at 563. At the time of his prior conviction, the defendant had signed

a probation agreement that stated, “any person who has been convicted as a felon cannot

lawfully own, use or possess a firearm until the conviction is expunged, set aside, pardoned

or until civil rights are restored.” Id. at 562. When the defendant completed his probation,

the district court issued a discharge order that stated that he “was discharged from probation

and restored to all civil rights and to full citizenship with full right to vote and hold office

the same as if said conviction had not taken place.” Id. The discharge order included a

check-box that, if checked, would have indicated that the defendant was not entitled to

possess a firearm until ten years after the restoration of his civil rights, but the box was not


                                               4
checked. Id. at 563. In fact, the law did not permit the defendant to possess a firearm for

ten years, even though he was discharged from probation and had his civil rights restored.

See Minn. Stat. § 624.713, subds. 1(b), 2. On appeal, the defendant argued that his

conviction violated his right to due process. Whitten, 690 N.W.2d at 565. We agreed,

reasoning that “[t]he state cannot indicate that a person has the right to possess firearms

when all his civil rights are reinstated, tell him all his civil rights are reinstated, and then

tell him that he should have known he could not possess a firearm.”                Id. at 566.

Accordingly, we vacated the conviction. Id.

       In this case, Jones cites Whitten and requests the same relief. He contends, “The

State’s documents regarding Appellant’s probation were vague and confusing and did not

properly apprise Appellant of the permanent suspension of his firearm rights.” He also

contends that “there is no mention of restrictions of Appellant’s right to own or possess

firearms” in the district court’s discharge order.

       Jones’s contentions do not resemble the reasoning of Whitten. In Whitten, the

defendant prevailed on appeal because his probation agreement and the district court’s

discharge order affirmatively misled him to believe that he was permitted to possess a

firearm after he was discharged from probation. 690 N.W.2d at 562-63. But in the portions

of his brief quoted above, Jones contends that his probation agreement and discharge order

are silent as to whether he may possess a firearm. The omission of such information is not

a violation of the right to due process because there is no constitutional right to notice that

one is prohibited from possessing a firearm. See State v. Grillo, 661 N.W.2d 641, 645

(Minn. App. 2003), review denied (Minn. Aug. 5, 2003).


                                               5
       Jones also contends in other portions of his brief that the state affirmatively misled

him. Specifically, he contends that “the State misled [him] as to his firearm rights” and

that he “reasonably relied on the State’s omissions and affirmative misrepresentations to

him, which caused him to believe that he could lawfully possess a firearm.” His most

specific example of an affirmative misrepresentation is his contention that the probation

agreement implies that he would be permitted to possess a firearm after completing

probation because it says that he may do so during his probationary period if he has the

permission of his probation officer.

       The factual record before the district court on Jones’s pre-trial motion to dismiss

simply does not reveal any affirmative misrepresentations of the type that were present in

Whitten. The critical distinction between this case and Whitten is that the probation

agreement in Whitten made a statement about the defendant’s rights after the completion

of the defendant’s probation, but the probation agreement in this case does not make any

statement about what Jones may or may not do after completing probation. The district

court’s discharge order is even more innocuous. It states merely that Jones no longer is

subject to the jurisdiction of the court. The order says nothing whatsoever about firearms

or the restoration of Jones’s civil rights. And the order does not include a misleading

unchecked box, as in Whitten. See 690 N.W.2d at 563. Thus, unlike Whitten, in which

there were affirmative misstatements that the defendant could possess a firearm after

completing probation, there is no such affirmative misstatement in the record that was

before the district court at the time of Jones’s motion to dismiss.




                                              6
      In sum, the district court did not err by denying Jones’s pre-trial motion to dismiss

count 1 of the complaint.

      Affirmed.




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