Opinion
No. C6-98-1415.
Filed November 17, 1998.
Appeal from the District Court, Carlton County, File No. KX98387.
Lawrence W. Pry, Assistant State Public Defender, (for appellant)
Hubert H. Humphrey, III, Attorney General, (for respondent)
Marvin E. Ketola, Carlton County Attorney, (for respondent)
Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Short, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Edsel Clark Niemi pleaded guilty to possession of a firearm by a felon under Minn. Stat. § 624.713, subd. 1(b) (1996). On appeal, Niemi argues the trial court erred as a matter of law by misinterpreting the statutorily-imposed minimum sentence and imposing a 60-month sentence on him. The state declined to file any argument by formal or informal brief. We vacate the sentence and remand for re-sentencing.
DECISION
Niemi argues the trial court erred in interpreting the mandatory minimum sentences provided in Minn. Stat. § 609.11, subd. 5 (1996). Statutory construction is a question of law, which we review de novo. State v. Murphy , 545 N.W.2d 909, 914 (Minn. 1996).
Minn. Stat. § 609.11, subd. 5, establishes mandatory minimum sentences for persons convicted of offenses involving the use or possession of a firearm. That statute provides in relevant part:
(a) Except as otherwise provided in paragraph (b), any defendant convicted of an offense listed in subdivision 9 in which the defendant * * *, at the time of the offense, had in possession or used, * * * a firearm, shall be committed * * * for not less than three years * * *. Any defendant convicted of a second or subsequent offense in which the defendant * * *, at the time of the offense, had in possession or used a firearm shall be committed * * * for not less than five years * * *.
(b) Any defendant convicted of violating section 609.165 or 624.713, subdivision 1, clause (b), shall be committed * * * for not less than 18 months * * *. Any defendant convicted of a second or subsequent violation of either of these sections shall be committed * * * for not less than five years * * *.
Minn. Stat. § 609.11, subd. 5 (emphasis added); see also Minn. Stat. §§ 609.11, subd. 9 (Supp. 1997) (stating crimes for which mandatory minimum sentences shall be served as provided in section 609.11, subdivision 5(a), include assault in second degree and violation of section 624.713, subdivision 1(b)), 624.713, subd. 1(b) (stating person convicted of committing "crime of violence" is ineligible to possess pistol or other firearm unless 10 years have elapsed since person's sentence or disposition expired, or since person was restored to civil rights).
Paragraph (a) creates a general rule; paragraph (b) excepts felon-in-possession cases from the general rule. The plain language of the statute mandates an 18-month minimum sentence for defendants convicted of violating a felon-in-possession statute and a 60-month minimum sentence for defendants convicted of second or subsequent felon-in-possession convictions. Although Niemi has previous convictions, this is his first conviction under the felon-in-possession statutes. Given the plain language of the statute and established principles of statutory construction, we vacate the 60-month sentence and remand to the trial court for resentencing. See Minn. Stat. § 645.08(1) (1996) (requiring construction of statutory words and phrases according to common usage); Minn. Stat. § 645.16 (1996) (forbidding courts from disregarding plain statutory language); State v. Reha , 483 N.W.2d 688, 694 (Minn. 1992) (mandating strict construction of penal statutes).