               IN THE SUPREME COURT OF IOWA
                              No. 10–0689

                         Filed October 21, 2011


STATE OF IOWA,

      Appellee,

vs.

DENG KON TONG,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Story County, Steven P.

Van Marel, Judge.



      A criminal defendant seeks further review of a court of appeals

decision affirming the denial of his motion to dismiss.       COURT OF

APPEALS DECISION AFFIRMED; JUDGMENT OF THE DISTRICT

COURT AFFIRMED.



      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.
                                       2

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and a term of probation that had not been revoked.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
                                     3

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
                                      4

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
                                          5

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

       1See also Stille v. Iowa Dep’t of Transp., 646 N.W.2d 114, 116–17 (Iowa Ct. App.
2001) (holding that a deferred judgment would be deemed a conviction for purposes of
section 321J.21(2), which provided that a person convicted of driving while barred
would have the term of his or her bar extended, noting that the statute was not
intended as punishment of the driver but for the protection of the public in the use of
the highways).
                                     6

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).
                                         7

       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 F. App’x 68, 69 (8th Cir.

2007) (holding that a deferred judgment from an Iowa court amounts to a

felony conviction under Iowa law for purposes of the federal felon-in-

possession statute, 18 U.S.C. § 922(g)(1)). 2

       In so holding, we decline Tong’s two counterarguments, neither of

which we find persuasive.         First, Tong relies on State v. Walton, 311

N.W.2d 110, 112 (Iowa 1981), where we said:

       A deferred judgment order cannot serve as proof of a felony
       conviction in the prosecution of a section 724.26 charge.
       The record necessarily has to disclose the revocation of
       probation and the ultimate conviction.

Walton, however, involved the separate question whether it was unduly

prejudicial to put into evidence the entire court file of the prior criminal

proceeding in a section 724.26 prosecution. We held that it was. Id. We

then offered guidance as to how the State should prove up the

defendant’s     previous    conviction       in   a   future   felon-in-possession

prosecution. Id. at 112–13. Whether a deferred judgment amounted to a


       2We  do not decide today whether a person who has received a deferred judgment
and has successfully completed probation has been “convicted of a felony” within the
meaning of section 724.26. See Iowa Code § 724.27 (stating that the provisions of
section 724.26 shall not apply where “[t]he person’s conviction for a disqualifying
offense has been expunged”).
                                           8

conviction for section 724.26 purposes was not an issue in the case, and

our comments on that point should be regarded as dicta.

       Tong also contends that when the legislature wants to include

deferred judgment in the definition of conviction, it will specifically say

so.   Tong cites examples such as Iowa Code sections 156.9(2)(e) (“For

purposes of this paragraph, ‘conviction’ includes a guilty plea, deferred

judgment, or other finding of guilt.”), 321J.2(4)(b) (“Deferred judgments

entered pursuant to section 907.3 for violations of this section shall be

counted as previous offenses.”), and 542.5(2) (“For purposes of this

subsection, ‘conviction’ means a conviction for an indictable offense and

includes a guilty plea, deferred judgment from the time of entry of the

deferred judgment until the time the defendant is discharged by the

court without entry of judgment, or other finding of guilt by a court of

competent jurisdiction.”).        The problem with this argument is that it

disregards our precedents.          As noted above, we have held a deferred

judgment can be treated as a conviction even when the legislature did

not expressly direct that result. See generally Schilling, 646 N.W.2d at

69, Kluesner, 389 N.W.2d at 370. 3

       IV. Disposition.
       In sum, we believe the wording of section 724.26 indicates the

legislature intended the term “convicted of a felony,” as used in that



       3The  treatment of deferred judgments in other states varies. See United States v.
Neeley, 527 F. Supp. 2d 1326, 1330 (D. Kan. 2007) (noting that under the general rule
in Oklahoma, a defendant who has received a deferred judgment has not been
“convicted” of a felony for purposes of the felon-in-possession law); Colorado v. Perry,
252 P.3d 45, 49 (Colo. App. 2010) (holding that for sex offender registry purposes, a
person “ ‘having received a deferred judgment’ . . . only stands ‘convicted’ until ‘the
successful completion of the deferred judgment and sentence . . . and dismissal of the
case’ ”); McHenry v. Nebraska Liquor Control Comm’n, 555 N.W.2d 350, 352–53 (Neb. Ct.
App. 1996) (recognizing that a deferred judgment, if accepted and entered by the court,
“is the equivalent of a conviction”).
                                    9

statute, to include a deferred judgment where the defendant had not

successfully completed the term of his or her probation.

      COURT OF APPEALS DECISION AFFIRMED; JUDGMENT OF

THE DISTRICT COURT AFFIRMED.

      All justices concur except Wiggins and Zager, JJ., who concur

specially.
                                          10
                                                           #10–0689, State v. Tong
WIGGINS, Justice (concurring specially).

       I concur in the result only.            Since our decisions in State v.

Kluesner, 389 N.W.2d 370 (Iowa 1986), and Schilling v. Iowa Department

of Transportation, 646 N.W.2d 69 (Iowa 2002), this court has held a

defendant’s guilty plea in anticipation of the court granting the defendant

a deferred judgment is a conviction for the purpose of enhancing a

defendant’s punishment. Therefore, I am bound by stare decisis.

       A substantial question remains. Even though the defendant has
completed his or her probation and has been discharged by the court,

can the State use the defendant’s conviction to enhance the defendant’s

punishment even though the defendant pled guilty in anticipation of the

court granting him or her a deferred judgment?

       I truly believe the legislature permitted a court to enter a deferred

judgment so that the consequences of a defendant’s criminal actions

would not cause him or her to lead anything other than a normal life.

Today’s opinion emphasizes the fact that no person who enters a guilty

plea on a felony in anticipation of the court granting that person a

deferred judgment can ever possess a gun. 4 I am sure the legislature did
not intend to restrict a person who entered a guilty plea on a felony

charge in anticipation of the court granting that person a deferred

judgment from owning a gun or hunting in Iowa.

       In light of the unintended consequences of our opinions in this

area, the legislature might want to revisit this issue and clearly identify

when the State can enhance a punishment or a crime after a defendant

enters a guilty plea in anticipation of the court granting the defendant a

       4The  fact that Tong committed a crime while on probation does not change the
fact that the rule reconfirmed in this case could be interpreted to apply to persons who
actually completed his or her probation.
                                    11

deferred judgment. The legislature has clearly identified when the State

can do so for the offense of operating a motor vehicle while intoxicated.

See, e.g., Iowa Code § 321J.2(8)(b) (2011). Criminal defendants should

not be forced to guess which collateral consequences might attach to

their innocent actions after the court enters a guilty plea, grants a

deferred judgment, and they successfully complete probation.

      Zager, J., joins this special concurrence.
