State of Iowa v. Nathan Daniel Olsen

IN THE SUPREME COURT OF IOWA
No. 13–0832

Filed June 20, 2014

STATE OF IOWA,

Appellee,

vs.

NATHAN DANIEL OLSEN,

Appellant.

Appeal from the Iowa District Court for Cedar County, Paul L.

Macek, Judge.

A criminal defendant seeks interlocutory review of a district court

order denying the defendant’s motion to dismiss the trial information

accusing the defendant of possession, dominion and control of firearms

and ammunition as a convicted felon pursuant to Iowa Code section

724.26. AFFIRMED.

Alfred E. Willett and Keith J. Larson of Elderkin & Pirnie, P.L.C.,

Cedar Rapids, for appellant.

Thomas J. Miller, Attorney General, Heather R. Quick, Assistant

Attorney General, Jeffrey L. Renander, County Attorney, and Tamra J.

Roberts, Assistant County Attorney, for appellee.
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APPEL, Justice.

Nathan Olsen pleaded no contest to a felony charge in Wisconsin,

and the Wisconsin trial court deferred judgment. We must now consider

whether Olsen was “convicted” of the felony charge in Wisconsin such

that he could be charged with a violation of Iowa Code section 724.26,

which prohibits convicted felons from possessing firearms in Iowa.

I. Factual Background and Proceedings.

The State of Wisconsin charged Olsen with three crimes: second-

degree sexual assault of a child, battery, and contributing to the

delinquency of a child. In Wisconsin, second-degree sexual assault of a

child, which involves sexual contact with a person under the age of

sixteen, is a felony. See Wis. Stat. Ann. § 948.02(2) (2007–2008),

http://docs.legis.wisconsin.gov/2007/statutes/preface/toc. The other

two offenses are misdemeanors. See id. § 940.19(1) (battery); id.

§ 948.40(1), (4) (contributing to the delinquency of a child).

Olsen pleaded no contest to the offenses. At the subsequent plea

hearing, the Wisconsin trial court explained to Olsen the elements of

second-degree sexual assault of a child and asked Olsen if he understood

the elements of the crime. Based on this inquiry, the Wisconsin court

determined Olsen voluntarily entered his plea. When asked if Olsen

could hunt, the Wisconsin court replied, “Yes he can. He’s not convicted

of a felony. It’s not of record.” The prosecuting attorney then described

the effect of the proceeding as involving “[n]o disability that way at all,”

and the Wisconsin court replied, “No, if I accept his plea, then set it for

sentencing, then.” The Wisconsin court further stated, “We’ll find him

guilty, but it’s not of record, though. No conviction will show up on

that.”
 3

At the conclusion of the proceeding, the Wisconsin court declared:

I will find his plea to be freely, knowingly, and voluntarily
done. I’ll enter a judgment of conviction for Counts Two and
Three [(the misdemeanors)], find him guilty on both. On
Count One [(the felony)], I’ll find him guilty, but I will not
enter the judgment of conviction at this time. I’ll withhold
entering that. I will approve the deferred judgment. I’ll sign
it.

(Emphasis added.). The Wisconsin court then indicated that Olsen

understood what was required of him and instructed Olsen to contact his

attorney or talk to his parents if he had any questions.

After the hearing, the Wisconsin trial court entered an order

pertaining only to the felony offense. The order stated:

The Court finds that there is an adequate factual basis to
support this plea. . . .

IT IS HEREBY ORDERED THAT acceptance of the
plea and adjudication for the offense be and is stayed for four
(4) years from 08/25/09, for full compliance with each and
every term and condition of the probation instituted that
date in connection with defendant’s conviction of two (2)
misdemeanor offenses and full compliance with each and
every term of the [Deferred Judgment of Conviction].

(Emphasis added.).

The “Deferred Judgment of Conviction” (DJOC) referenced by the

Wisconsin trial court is a document that was jointly filed by the State

and Olsen the same day the order was filed. According to the DJOC, the

Wisconsin court would refrain from entering an adjudication of guilt and

a judgment of conviction for four years provided Olsen agreed to certain

terms. The terms of the DJOC included that Olsen would be placed on

probation for two years upon his conviction for the two misdemeanor

offenses, his bail would remain in effect during the pendency of the

agreement, he would not have contact with any unrelated female persons

under the age of sixteen, he would obtain a sex-offender evaluation and
 4

complete any recommended follow-up, he would pay restitution,

revocation from probation would result in an adjudication of guilt and

entry of judgment of conviction for the felony, the Wisconsin court would

enter judgment of conviction if he was charged in any jurisdiction with

any new criminal offense (except minor traffic violations and unless he

prevailed in a contest of probable cause for the charge), and he would

keep the clerk of court appraised of any and all changes in his home

address. Olsen also acknowledged that by accepting the agreement, he

was giving up the opportunity to raise any defenses at any time in the

future. Thus, the probationary period for Olsen’s two misdemeanor

convictions ran for a two-year period beginning August 25, 2009, and the

conditions of the DJOC extended for an additional two years. At the end

of the four-year period, if Olsen met the conditions of the DJOC to the

satisfaction of the prosecutor, then either Olsen or the prosecutor could

move the court to vacate Olsen’s felony plea and dismiss the pending

charge.

On January 25, 2013, after expiration of the probationary period

for the two misdemeanors, but before termination of the DJOC, the State

of Iowa charged Olsen with a violation of Iowa’s felon-in-possession

statute, Iowa Code section 724.26 (2013). This provision provides:

A person who is convicted of a felony in a state or federal
court . . . 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.

Iowa Code § 724.26(1). A “felony” for purposes of the felon-in-possession

statute is

any offense punishable in the jurisdiction where it occurred
by imprisonment for a term exceeding one year, but does not
include any offense, other than an offense involving a firearm
or explosive, classified as a misdemeanor under the laws of
 5
the state and punishable by a term of imprisonment of two
years or less.

Id. § 724.25(1).
According to the minutes of evidence in the Iowa case, Olsen

attempted to purchase a shotgun in Coralville but did not pass the

background check. He then had another individual purchase a shotgun

for him. He and this individual had planned to use the shotguns to hunt

deer. Although Olsen first claimed he had completed the paperwork and

lawfully possessed the gun, he later admitted that another individual had

purchased the gun for him.

Olsen filed a motion to dismiss the Iowa charge. In his motion he

alleged the predicate Wisconsin felony was based upon a plea of no

contest that resulted in a stay of plea proceedings. Therefore, according

to Olsen, there was no conviction for purposes of Iowa Code section

724.26. In support of his argument, Olsen cited State v. Deng Kon Tong,

805 N.W.2d 599 (Iowa 2011). In Deng Kon Tong, we held that there is a

predicate conviction for purposes of the felon-in-possession statute when

a defendant pleads guilty to a felony, receives a deferred judgment, is

placed on probation, and is still subject to the terms and conditions of

probation. 805 N.W.2d at 603.

The district court denied Olsen’s motion to dismiss. The district

court noted the only difference between this case and the scenario in

Deng Kon Tong was that Olsen entered a no contest plea that the

Wisconsin court did not accept. Nonetheless, the Iowa district court

noted the defendant in Deng Kon Tong was on probation pursuant to a

deferred judgment, see id., and so too was Olsen. The district court

concluded that being placed on probation was a critical criterion for a

conviction under the felon-in-possession statute.
 6

The district court recognized the Wisconsin court had advised

Olsen he could hunt while on probation. The district court further

recognized this apparent misunderstanding about the law could lead to

extreme consequences for Olsen, potentially including revocation of

Olsen’s Wisconsin deferred sentence and the imposition of the very

serious penalties deferred by the Wisconsin court. Nonetheless, the

district court believed it was bound by the law and could not rule based

upon the equities of the case.

Olsen sought interlocutory appeal of the district court’s denial of

his motion to dismiss. We granted the interlocutory appeal.

II. Standard of Review.

We review the denial of a motion to dismiss for errors at law. See,

e.g., U.S. Bank v. Barbour, 770 N.W.2d 350, 353 (Iowa 2009). Review of

issues of statutory interpretation is likewise for errors at law. E.g., State

v. Stephenson, 608 N.W.2d 778, 783 (Iowa 2000).

III. Discussion.

A. Positions of the Parties.

1. Olsen. On appeal, Olsen recognizes that under Deng Kon Tong,

an Iowa deferred judgment may be a “conviction” under Iowa Code

section 724.26. See 805 N.W.2d at 603. He asserts that acceptance of

the guilty plea under the Iowa law related to deferred judgments is the

lynchpin of the Deng Kon Tong decision. Olsen cites Iowa Code section

907.3(1), which provides: “[T]he trial court may, upon a plea of guilty, a

verdict of guilty, or a special verdict upon which a judgment of conviction

may be rendered, . . . [defer judgment] . . . .” (Emphasis added.). Thus,

according to Olsen, a plea of guilty is a prerequisite under Iowa law for a

deferred judgment. Olsen argues an Iowa deferred judgment is a

predicate conviction for purposes of Iowa’s felon-in-possession statute
 7

“because the trial court must first find a factual basis to accept a plea of

guilty or guilty verdict.”

Olsen then contrasts the Wisconsin deferred judgment proceeding

in his case with that in Deng Kon Tong. Olsen argues that unlike the

defendant in Deng Kon Tong, Olsen did not enter a guilty plea in the

Wisconsin proceeding. Olsen notes that he instead entered a plea of no

contest. He further asserts that judicial acceptance of his no contest

plea was stayed by the district court. Thus, according to Olsen, the

result of the Wisconsin proceeding does not meet the criteria in Deng Kon

Tong for a conviction because guilt was not “established either through a

plea or a trial verdict.” Deng Kon Tong, 805 N.W.2d at 601; accord State

v. Kluesner, 389 N.W.2d 370, 372 (Iowa 1986).

Elaborating on his argument, Olsen argues the determinative

disparity between Deng Kon Tong and this case is that in Deng Kon Tong,

the defendant entered a plea of guilty, 805 N.W.2d at 600, while here,

Olsen entered a no contest plea. Olsen points out that the Deng Kon

Tong court cited State v. Birth, 604 N.W.2d 664 (Iowa 2000). See Deng

Kon Tong, 805 N.W.2d at 603. In Birth, the court held a guilty plea for a

deferred judgment may be used for impeachment purposes until

probation is completed. 604 N.W.2d at 665. Olsen argues, however, that

the Iowa Rules of Evidence treat guilty pleas and no contest pleas

differently. See, e.g., Iowa R. Evid. 5.609(a) (stating general rule

regarding impeachment by evidence of conviction of crime); id.

r. 5.803(22) (stating a “plea of nolo contendere” may not be admitted

whereas a guilty plea may be admitted as a hearsay exception).

Therefore, Olsen contends, the path a defendant takes to the status of

being on probation matters under Iowa law.
 8

Olsen further sees factual differences between Deng Kon Tong and

this case. In Deng Kon Tong, the defendant was in possession of a

sawed-off shotgun that posed an immediate threat to society. See 805

N.W.2d at 600. By contrast, Olsen claims he simply possessed a legal

shotgun the Wisconsin court stated he could possess. Olsen argues

application of Iowa’s felon-in-possession statute to him would lead to the

kind of unintended consequences pointed out by Justice Wiggins’s

special concurrence in Deng Kon Tong. See id. at 604–05 (Wiggins, J.,

concurring specially).

2. The State. The State emphasizes that in the Wisconsin

proceedings, the court determined at the hearing that Olsen knowingly,

voluntarily, and intelligently entered a plea of no contest to the felony

charge and that the Wisconsin court’s written order states “there is an

adequate factual basis to support this plea.” As a result, the State

argues the case is not distinguishable from Deng Kon Tong—both cases

involve entering a plea and a subsequent deferred judgment. See id. at

600. The fact that the plea was a no contest plea, according to the State,

is irrelevant. The State cites State v. Black, in which the Wisconsin

Supreme Court noted that “a no contest plea is ‘an implied confession of

guilt for the purposes of the case to support a judgment of conviction and

in that respect is equivalent to a plea of guilty.’ ” 624 N.W.2d 363, 370

(Wis. 2001) (quoting Lee v. Wis. State Bd. of Dental Exam’rs, 139 N.W.2d

61, 63 (Wis. 1966)).

The State further claims it is unnecessary for the district court to

accept a plea in a deferred-judgment context. According to the State,

under the broad reading of Deng Kon Tong, a deferred judgment is a

conviction when guilt is established through a plea. See 805 N.W.2d at

603. The State argues Olsen entered his plea, admitted the factual basis
 9

for the felony, and the Wisconsin court found that a factual basis for the

felony existed. That, according to the State, is enough.

Finally, the State argues the facts cited by Olsen have no bearing

on the outcome of this case. Specifically, the State asserts the fact the

Wisconsin judge advised Olsen that he could hunt does not change the

legal issue posed in this case. In addition, the State claims the fact the

defendant in Deng Kon Tong carried a sawed-off shotgun, see id. at 600,

while Olsen carried only an ordinary shotgun, makes no difference to the

outcome of this case. To the extent extrinsic facts are relevant, the State

notes that according to the minutes, Olsen did not at first get out of bed

when the officers arrived at his residence and then claimed to have

completed background papers and been approved to purchase the gun,

only later to admit that in fact another individual had purchased the gun

for him.

B. Analysis. The sole legal issue in this case is whether the

proceedings in Wisconsin constitute a felony conviction sufficient to

trigger the prohibitions of Iowa Code section 724.26.

1. Relevant Iowa caselaw. We begin our discussion with reviewing

our most recent case in the area, Deng Kon Tong. In this case, we were

called upon to determine whether Deng Kon Tong was “convicted” for

purposes of section 724.26 as a result of pleading guilty to one count of

burglary in the second degree and receiving a deferred judgment and

three years’ probation pursuant to Iowa Code sections 901.5 and 907.3.

805 N.W.2d at 600–01.

We began our analysis in Deng Kon Tong with a review of Iowa’s

felon-in-possession statute, which provides:

“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
 10
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. at 601 (emphasis added) (quoting Iowa Code § 724.26(1)).

In considering the meaning of “convicted,” we noted in Deng Kon

Tong that our cases recognized two different definitions of the term, one

general and popular and a second more technical. Id. We noted that

under the general and more popular meaning, “convicted” means

“ ‘establishment of guilt prior to and independently of judgment and

sentence by a verdict of guilty or a plea of guilty.’ ” Id. (quoting Kluesner,

389 N.W.2d at 372). On the other hand, a second definition of

“convicted” is more technical and refers to “ ‘the final consummation of

the prosecution against the accused including the judgment or sentence

rendered pursuant to an ascertainment of his guilt.’ ” Id. (quoting

Kluesner, 389 N.W.2d at 372).

We noted that as a general proposition, our cases used the general

and popular definition of “conviction” when the purpose of the statute

was to protect the community, but when the purpose was to punish, we

used the narrower definition. See id. (“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.”). In the context of Iowa Code section 724.26,

however, we noted that this distinction had limited utility, as the purpose

of the statute appears to be both to protect the public and to impose

punishment. Id. at 602.

We next turned back to the language of Iowa Code section 724.26,

noting that juvenile adjudications were expressly included within the

scope of the term “convicted.” Id. The inclusion of youths with juvenile

adjudications as persons convicted of a felony suggested that the
 11

legislature intended the statute to cover persons who had engaged in

certain conduct. Id. Nonetheless, we noted that “[w]e 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.” Id. at 603; see also Birth, 604 N.W.2d at 665 (holding that

“[u]ntil probation was completed, and the deferred judgment expunged,”

a guilty plea could be used for impeachment purposes).

As a result of the above analysis, we concluded in Deng Kon Tong

that a deferred judgment, where the defendant had not completed his

term of probation, was a conviction for purposes of section 724.26. 805

N.W.2d at 603. We did not expressly decide the question of whether a

defendant who had completed his probation was convicted of a felony,

but noted that under Iowa Code section 724.27, the provisions of section

724.26 do not apply where “ ‘[t]he person’s conviction for a disqualifying

offense has been expunged.’ ” Id. at 603 n.2 (quoting Iowa Code

§ 724.27(1)(c)).

The result in Deng Kon Tong was not entirely satisfying for all

members of the court. In a special concurrence, Justice Wiggins, joined

by Justice Zager, noted that our prior decisions 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.” Id. at 604 (Wiggins, J., concurring specially). As a result,

Justice Wiggins concurred on the basis of stare decisis. Id.

Justice Wiggins added, however, that he was 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.” Id. In light of the

unintended consequences of the caselaw, Justice Wiggins urged the
 12

legislature to revisit the statute, noting that 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. Id. at

604–05.

We have also considered several other issues under Iowa’s felon-in-

possession statute. We have held, for instance, that whether a predicate

felony from another state qualifies under Iowa Code section 724.26

depends upon whether that state’s punishment qualifies as a felony

under Iowa’s statutory definition of “felony.” See State v. Sanborn, 564

N.W.2d 813, 816 (Iowa 1997). Thus, the fact that another state may

label a crime a “felony” is not determinative. We have also held that a

defendant’s knowledge that he was a felon is not required for purposes of

conviction under the statute. See Saadiq v. State, 387 N.W.2d 315, 323

(Iowa 1986).

2. Wisconsin authority. We begin by noting that Olsen does not

claim that the underlying sexual offense would not qualify as a felony

under Iowa law. The only question posed in the appeal is whether he

was “convicted” of the offense for purposes of Iowa Code section 724.26.

Neither party has cited, and we have not found, any express

statutory authorization of deferred judgments in Wisconsin such as

occurred in this case. The procedure, however, has been recognized in

Wisconsin courts. For example, in State v. Wollenberg, the Wisconsin

trial court entered an order deferring judgment on four counts of

burglary for six years provided the defendant successfully completed four

years’ probation and committed no additional crimes. 674 N.W.2d 916,

918 (Wis. Ct. App. 2003). The defendant attempted to withdraw his plea,

arguing among other things, that he was in fact subject to a deferred
 13

prosecution agreement. Id. at 918–19. The Wollenberg court

distinguished deferred prosecution from deferred judgment. Id. at 919–

20. In a deferred prosecution, the only parties to the agreement are the

defendant, the state, and the department of corrections. Id. at 920.

There is no court involvement. See id. In Wollenberg, the court found

that the defendant was subject to a deferred judgment, not a deferred

prosecution. Id.

We also note that Wisconsin appellate courts have struggled with

the meaning of the term “conviction.” For example, for purposes of a

recidivist-repeater statute, the Wisconsin appellate courts have held

“that once the court has accepted a guilty plea or verdict, the ‘conviction’

becomes sufficiently final to trigger the operation of the repeater statute.”

State v. Wimmer, 449 N.W.2d 621, 625 (Wis. Ct. App. 1989). On the

other hand, the Wisconsin Supreme Court has held that a deferral of

conviction is “neither a judgment nor [an] order in the nature of a

judgment that is [subject to direct appeal].” State v. Ryback, 219 N.W.2d

263, 266 (Wis. 1974). Wisconsin’s approach in Ryback and Wimmer

recognizes the different uses of the term “conviction” depending upon

context and is strikingly similar to our discussion of the variable

meaning of the term in Deng Kon Tong and Daughenbaugh v. State.

Compare Ryback, 219 N.W.2d at 266, and Wimmer, 449 N.W.2d at 625,

with Daughenbaugh, 805 N.W.2d 591, 597 (Iowa 2011), and Deng Kon

Tong, 805 N.W.2d at 601–02. We have, however, found no reported

decision that considered whether a plea of no contest and the entry of a

deferred judgment amounts to a “conviction” under the Wisconsin felon-

in-possession statute, Wisconsin Statutes Annotated section

941.29(1)(a).
 14

3. Federal felon-in-possession statute. The federal felon-in-

possession statute, 18 U.S.C. §§ 921–31 (2012), was originally enacted as

part of the Omnibus Crime Control and Safe Streets Act, Pub. L. No. 90-

351, § 1201, 82 Stat. 197. In 1983, the United States Supreme Court in

Dickerson v. New Banner Institute, Inc. held that an Iowa defendant who

pleaded guilty to an offense that was later expunged was nevertheless

“convicted” for purposes of the Act. 460 U.S. 103, 115, 103 S. Ct. 986,

993, 74 L. Ed. 2d 845, 855–56 (1983), superseded by statute, Firearm

Owners’ Protection Act, Pub. L. No. 99-308, 100 Stat. 449, as recognized

in Logan v. United States, 552 U.S. 23, 27–28, 128 S. Ct. 475, 479–80,

169 L. Ed. 2d 432, 438 (2007). In Dickerson, the Supreme Court noted

that whether one has been “convicted” for purposes of the gun-control

statute is a question of federal law, not state law. 460 U.S. at 111–12,

103 S. Ct. at 991, 74 L. Ed. 2d at 853–54. The Supreme Court noted

that a federal standard for convicted under the statute produced national

uniformity unaffected by varying state laws, procedures, and definitions

of “conviction.” Id.

In 1986, however, Congress amended the federal felon-in-

possession statute to provide that what constitutes a conviction for

purposes of the statute should be determined in accordance with the law

of the jurisdiction in which the proceedings were held and that “ ‘[a]ny

conviction which has been expunged, or set aside or for which a person

has been pardoned or had civil rights restored shall not be considered a

conviction.’ ” Beecham v. United States, 511 U.S. 368, 369, 374, 114

S. Ct. 1669, 1670, 1672, 128 L. Ed. 2d 383, 387, 389–90 (1994) (quoting

18 U.S.C. § 921(a)(20) (1994)) (describing amendment as appearing to be

in reaction to Dickerson); United States v. Tankersley, 269 F. Supp. 2d

1178, 1184 (D. Neb. 2003) (same). Where federal statutes do not provide
 15

that state law controls, however, the “federal rather than state law

defines ‘conviction.’ ” See United States v. Gomez, 24 F.3d 924, 930 (7th

Cir. 1994); accord United States v. Meraz, 998 F.2d 182, 183 (3d Cir.

1993); United States v. Campbell, 980 F.2d 245, 250 n.6 (4th Cir. 1992).

Iowa has adopted a provision stating that a person whose civil

rights have been restored or whose offense has been expunged is not

convicted under the felon-in-possession statute. See Iowa Code

§ 724.27. Iowa has not, however, adopted language similar to the federal

language in 18 U.S.C. § 921(a)(20) (2012), stating that the definition of

“conviction” is determined by reference to the “law of the jurisdiction in

which the proceedings were held.”

4. Analysis. Applying the principles of Deng Kon Tong to this case,

we note that the Wisconsin district court did in effect accept the no

contest plea on the record by declaring “On Count One [(felony sexual

abuse)], I’ll find him guilty, but I will not enter the judgment of conviction

at this time.” At the hearing, the district court further found that the

plea was “voluntarily done.”

Further, the DJOC, which is incorporated into the district court’s

written order, contains unequivocal language stating that the agreement

“shall have the effect of eliminating any opportunity [Olsen may have] to

raise any defenses . . . at any time in the future.” The DJOC further

states that upon the end of the four-year term of the agreement, either

the district attorney or Olsen “may move the court to vacate the felony

plea and dismiss the pending charge with prejudice.”

Upon the filing of the DJOC, the trial court entered an order,

stating that the court found an adequate factual basis to support the

plea with respect to Count One (the felony charge) and declaring that

“acceptance of the plea and adjudication for the offense . . . is stayed” for
 16

four years “for full compliance” with the terms of probation imposed by

the court as a result of Olsen’s convictions of the two misdemeanors and

compliance with the terms of the DJOC for a period of four years.

From the record of the Wisconsin proceedings, we draw several

conclusions. First, the district court in Wisconsin plainly accepted the

guilty plea on the record, found it had a factual basis and was voluntarily

entered, and then stayed the effect of the guilty plea, along with

adjudication. Thus, a conviction in the general sense, as that term is

defined in Deng Kon Tong, 805 N.W.2d at 601, occurred in this case.

Further, although the two-year term of probation arising from the

misdemeanor convictions had expired at the time of the filing of the Iowa

charge, the terms of the DJOC were still in effect. Although the DJOC

may not have involved supervision by a probation officer, it nonetheless

imposed restrictions upon Olsen’s conduct. Thus, although perhaps not

precisely on point, the conviction falls comfortably within the holding in

Deng Kon Tong that a guilty plea entered upon a deferred judgment and

prior to the successful completion of probation, or expungement of the

disqualifying offense, is a conviction for purposes of the statute. See id.

at 603.

Unlike federal law, Iowa law does not contain an explicit provision

requiring that we look to the law of the prosecuting state to determine if

a conviction has occurred. The holding in Sanborn indicates that Iowa’s

definition of “felony” (exceeding one year imprisonment) in Iowa Code

section 724.25 is controlling and not the mere fact that a crime is labeled

a “felony” under the law of another state. See 564 N.W.2d at 816.

Further, it is logical that Iowa’s definition of “conviction” should also be

based on a functional assessment of Iowa law; namely, whether the out-

of-state proceeding is the equivalent of an Iowa proceeding that would be
 17

considered a conviction under Iowa law. Otherwise, the Iowa felon-in-

possession statute would not be subject to uniform application.

Determination of guilt or innocence, where the proceedings in another

state are functionally identical, could turn on the definitional vagaries of

out-of-state law which, as this case demonstrates, is often difficult to

ascertain.

The above principles were well illustrated in State v. Menard, 888

A.2d 57, 61 (R.I. 2005). In Menard, the Rhode Island Supreme Court

held that its felon-in-possession statute clearly required the application

of Rhode Island law in interpreting which out-of-state convictions

qualified as predicate offenses. Id. According to the Rhode Island court,

a contrary approach “implies the rather unlikely proposition” that the

legislature “intended to subordinate Rhode Island penal law and its

accompanying policies to the various criminal laws and court systems of

the several jurisdictions.” Id.

But even if Wisconsin law is applicable in determining whether a

conviction is present, we think our approach in Deng Kon Tong is

consistent with Wisconsin law. In Wollenberg, the Wisconsin appellate

court distinguished between a deferred prosecution and a deferred

judgment. 674 N.W.2d 916, 919–20. Clearly, this case does not involve

a deferred prosecution, which does not require court involvement at all,

but a deferred judgment, in which judicial intervention is an essential

ingredient.

Further, the Wisconsin appellate courts, like in Deng Kon Tong,

have recognized that the term “conviction” may have a different meaning

depending on context. Compare Ryback, 219 N.W.2d at 266, with

Wimmer, 449 N.W.2d at 625. We have been unable to find any appellate

support in Wisconsin for the trial court’s view that the deferred judgment
 18

of conviction in this case did not amount to a “conviction” for purposes of

Wisconsin’s felon-in-possession statute.

Olsen argues, however, that the principles of Deng Kon Tong do not

apply because he entered a plea of no contest rather than a plea of

guilty. It is true, as Olsen points out, that some of our rules of evidence

distinguish between convictions based upon a plea of guilty and

convictions based upon a no contest plea. See, e.g., Iowa R. of Evid.

5.410(2) (indicating evidence of a plea of nolo contendere not admissible

in any subsequent criminal or civil proceedings); Iowa R. Evid. 5.803(22)

(noting plea of nolo contendere is not admissible as a hearsay exception).

Generally, the majority rule seems to be that while a plea of

nolo contendere is not an admission of guilt, the fact of conviction upon

a plea may be shown in a latter proceeding. See generally C.T.

Drechsler, Annotation, Plea of Nolo Contendere or Non Vuit Contendere,

89 A.L.R.2d 540, at 540–612, Supp. 459–623 (1963 and Later Case

Service (2009)) (collecting cases regarding the nature of pleas of nolo

contendere). Neither party has directed us to any Iowa authority on the

issue. As the State has pointed out, however, the Wisconsin Supreme

Court has said that “a no contest plea is ‘an implied confession of guilt

for the purposes of the case to support a judgment of conviction and in

that respect is equivalent to a plea of guilty.’ ” Black, 624 N.W.2d at 370

(quoting Lee, 139 N.W.2d at 63). While this case does not involve a

“judgment of conviction,” it does involve a conviction in the sense of the

word as applied in Deng Kon Tong.

There is limited caselaw on the specific question of whether a plea

of no contest may be used to support a conviction under a felon-in-

possession statute from other jurisdictions. In State v. Holmes, the

Kansas Supreme Court held that a plea of nolo contendere provided a
 19

sufficient basis for a conviction under the Kansas felon-in-possession

statute. 563 P.2d 480, 482 (Kan. 1977). The Colorado Supreme Court

came to a similar conclusion in People v. Drake, 785 P.2d 1257, 1272

(Colo. 1990). Holmes and Drake stand for the proposition that while a

plea of nolo contendere cannot be used as an admission for purposes of

the rules of evidence, the plea results in a conviction just as a guilty plea.

Cf. United States v. Jones, 910 F.2d 760, 761 (11th Cir. 1990) (holding

that a plea of nolo contendere with adjudication withheld is a conviction

for purposes of federal sentencing guidelines); United States v.

Bruscantini, 761 F.2d 640, 641 (11th Cir. 1985) (nolo contendere with

adjudication of guilt withheld is a conviction under 18 U.S.C. § 922(b)

(1982)), superseded by statute on other grounds, Firearm Owners’

Protection Act, Pub. L. No. 99-308, 100 Stat. 449, as recognized in United

States v. Fernandez, 234 F.3d 1345, 1347 n.2 (11th Cir. 2000).

There is, however, some contrary authority. For instance, in

Blackmon v. State, the Georgia appellate court concluded that a nolo

contendere plea cannot serve as proof of a prior conviction under

Georgia’s felon-in-possession statute. 598 S.E.2d 542, 544 (Ga. Ct. App.

2004). In Blackmon, the court applied a Georgia statute that expressly

states that “ ‘a plea of nolo contendere shall not be used against the

defendant in any other court or proceedings as an admission of guilt or

otherwise or for any purpose.’ ” Id. (quoting Ga. Code Ann. § 17-7-95(c)

(2013), http://www.lexisnexis.com/hottopics/gacode/Default.asp).

We agree with the approach in Holmes and Drake. The question

we face is not what evidentiary impact should result from the no contest

plea, but whether the acceptance of the plea and a determination of guilt

made by the trial court results in Olsen being convicted of a felony under

the felon-in-possession statute. We do not think there are hard
 20

convictions and soft nonconvictions when a plea bargain leads to a

judicial finding of guilt. See Lee, 139 N.W.2d at 63 (citing secondary

sources regarding same). All judicial findings of guilt pursuant to the

plea bargaining process are convictions under the general and popular

use of the term. 1

In short, we do not use the no contest plea as evidence of anything,

but instead focus on what the Wisconsin district court did in this case

upon receipt of the no contest plea. And we think that the Wisconsin

court made a determination of guilt sufficient to meet the requirements

of “convicted” under our felon-in-possession statute. It is the fact of

conviction, not the nature of the plea, that determines the issue.

Olsen seeks to escape the holding in Deng Kon Tong on the ground

that Deng Kon Tong was arrested for possessing an illegal sawed-off

shotgun while Olsen allegedly simply possessed an ordinary shotgun

used by countless hunters in Iowa during deer hunting season. He

further notes that the Wisconsin trial court advised him that he could

possess firearms, a fact confirmed by the prosecuting attorney who

declared “[n]o disability that way at all” at the court hearing on the

matter. While Olsen’s factual distinctions are supported by the record,

they simply have no bearing on the question of whether he was convicted

of a felony under Iowa Code section 724.26. Further, in addition to being

convicted of a felony, the felon-in-possession statute requires only

knowing dominion and control, possession, or receipt or transportation

of a firearm. See Iowa Code § 724.26(1). There is no statutory

requirement that the defendant have actual knowledge that possession is

1Our result is consistent with the concurring opinion in Deng Kon Tong, which

stated that “a defendant’s guilty plea in anticipation of the court granting the defendant
a deferred judgment is a conviction for the purpose of a enhancing a defendant’s
punishment.” Deng Kon Tong, 805 N.W.2d at 604 (Wiggins, J., specially concurring).
 21

illegal. Similarly, factual assertions offered by the State suggesting Olsen

received notice that he could not purchase a firearm and acted in an

evasive fashion when confronted by a conservation officer have no

bearing on our determination.

The Iowa district court noted that under the circumstances, “it is

hardly fair that a young man who is told by a Judge that he can hunt, is,

then, charged with this [felon-in-possession] offense.” It noted the record

before it had the appearance of “a misunderstanding with extremely

consequential proportions” as Olsen, if convicted, could suffer revocation

of his deferred sentence in Wisconsin and face very serious penalties in

that state. The district court, however, found itself bound to follow the

law, regardless of the equities of the case, noting that whether to bring

criminal charges rests within prosecutorial discretion of the county

attorney. We agree with the district court.

Because the Wisconsin trial court found Olsen guilty upon his

tendering of a no contest plea and because Olsen had not completed the

terms of his deferred judgment on his felony count, we conclude the

district court properly denied Olsen’s motion to dismiss in this case.

IV. Conclusion.

For the above reasons, the district court’s denial of Olsen’s motion

to dismiss the charge of felony possession under Iowa Code chapter

724.26 is affirmed.

AFFIRMED.

All justices concur except Hecht, Wiggins, and Waterman, JJ., who

dissent.
 22

#13–0832, State v. Olsen dissent

HECHT, Justice (dissenting).

As I believe Olsen was not a felon when he possessed a firearm in

Iowa, I cannot join the majority opinion in this case. My analysis begins

with Iowa Code section 724.26(1), the statute in question here. It

provides:

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 or offensive weapon is guilty of a
class “D” felony.

Iowa Code § 724.26(1) (2013). The first element of the offense is the

defendant’s status as a felon. Accordingly, the State must prove in this

case that Olsen was “convicted of a felony” in Wisconsin in 2009 before

he possessed a firearm in Iowa and was charged in this case. See State

v. Sanborn, 564 N.W.2d 813, 817 (Iowa 1997) (“ ‘[A]bsent defendant’s

concession or admission made of record, the State, as part of its case in

chief, was required to show defendant’s status as a felon.’ ” (quoting

State v. Walton, 311 N.W.2d 110, 112 (Iowa 1981))).
Favoring a functional assessment based upon Iowa law, the

majority explores whether the result of the Wisconsin prosecution would

be considered a conviction under Iowa law. Eschewing “the definitional

vagaries of out-of-state law,” the majority utilizes Iowa’s definition of

“conviction” in deciding whether Olsen was convicted of a felony in

Wisconsin. Although I concede Iowa law does not contain an explicit

provision requiring us to look to the law of Wisconsin in determining

whether Olsen was convicted in 2009, I believe we should. The crime

committed by Olsen occurred in Wisconsin and all of the actors in the
 23

resulting court proceedings acted in that state, not in Iowa. Our analysis

of whether the Wisconsin proceeding produced a conviction should

likewise be controlled by what occurred there—not by what would have

occurred had the events transpired in Iowa or elsewhere.2 Reliance

instead on the “fact” of the Wisconsin judgment without consideration of

what actually happened there runs the risk of jeopardizing significant

procedural, substantive, and constitutional interests that might preclude

consideration of the judgment had it occurred here. See, e.g., Wayne A.

Logan, Horizontal Federalism in an Age of Criminal Justice

Interconnectedness, 154 U. Pa. L. Rev. 257, 278 (2005) (noting “greater

tolerance for different procedures used in [sister] states” may “often

translate[] into a disregard of the procedural norms that would otherwise

preclude consideration of such convictions if they had occurred in-

state”); cf. Wayne A. Logan, Creating A “Hydra in Government”: Federal

Recourse to State Law in Crime Fighting, 86 B.U. L. Rev. 65, 82 (2006)

(“To complicate matters further still, predicates are eligible for use even if

secured by constitutionally invalid means. This is because the ‘federal

gun laws . . . focus not on reliability, but on the mere fact of conviction

. . . in order to keep firearms away from potentially dangerous persons.’ ”

(footnote omitted) (quoting Lewis v. United States, 445 U.S. 55, 67, 100

S. Ct. 915, 922, 63 L. Ed. 2d 198, 210 (1980))); Restatement (Second) of

Conflict of Laws § 107, at 320 (“A judgment will not be recognized or

enforced in other states insofar as it is not a final determination under

the local law of the state of rendition.”). As I believe that approach is

2I believe Iowa Code section 724.25, defining “felony,” provides additional
support for this outward-looking approach. This provision directs us to determine, for
purposes of finding a felon in possession, whether the prior offense was “punishable in
the jurisdiction where it occurred by imprisonment for a term exceeding one year,” and
makes no mention, by contrast, of consideration of how the offense may have been
treated in Iowa. See Iowa Code § 724.25(1) (emphasis added).
 24

neither desirable nor necessary here, I turn to the legal effect of what

actually occurred in the Wisconsin court.

Everyone in the Wisconsin courtroom—including most importantly

the judge and the prosecutor—believed Olsen was not convicted of a

felony as a consequence of the 2009 deferred judgment. Olsen’s careful

Wisconsin counsel specifically inquired of the court whether Olsen would

be able to hunt with a firearm after the deferred judgment proceeding.

The court replied, “Yes, he can.” This statement made by the judge is, in

my view, crucially important to our determination of whether the

deferred judgment proceeding resulted in a felony conviction not only

because of the words spoken by the key actor in the room, but also

because of the words he did not utter. Wisconsin law mandates the

court shall inform a defendant sentenced or placed on probation for a

felony conviction of the restriction on his right to possess firearms. See

Wis. Stat. § 973.176(1) (2007–2008), https://docs.legis.wisconsin.gov/

2007/statutes/prefaces/toc (“Whenever a court imposes a sentence or

places a defendant on probation regarding a felony conviction, the court

shall inform the defendant of the requirements and penalties under [the

statute precluding felons from possessing firearms].”). The prosecutor

confirmed the judge’s assurance that a conviction affecting Olsen’s right

to possess firearms did not result from the proceeding, stating Olsen

would suffer “[n]o disability that way at all.”

My conclusion—and the Wisconsin court’s conclusion—that a

conviction did not result from the 2009 proceeding is supported by other

evidence in the record. The Wisconsin court memorialized the

proceeding in an order stating “acceptance of the plea and adjudication

for the offense . . . is stayed for four (4) years from 08/25/09.”

(Emphasis added.). Thus, although Olsen entered a plea of nolo
 25

contendere to the felony charge, the Wisconsin court did not formally or

actually accept or implement it. 3 Instead, the court stayed acceptance of

the plea pending Olsen’s compliance with the terms of the deferred

judgment arrangement. In the absence of an accepted plea or an

adjudication of guilt, Olsen surely did not attain the status of “felon”

under Wisconsin law, and the statements of the Wisconsin judge and

prosecutor quoted above were both accurate and sensible. 4 See, e.g.,

Quentin Brogdon, Admissibility of Criminal Convictions in Civil Cases, 61

Tex. B.J. 1112, 1116 (1998) (“If the judge in the criminal case determines

that the criminal defendant violated the terms of his or her probation,

3That the court did not accept Olsen’s plea, but instead stayed its acceptance,

was surely of great significance to the court’s understanding that the legal effect of the
proceeding fell short of a conviction. In State v. Wimmer, the Wisconsin Supreme Court
concluded a guilty plea in a battery case qualified as a predicate conviction under a
“repeater statute” imposing more severe penalties for second and subsequent domestic
battery offenses. 449 N.W.2d 621, 621, 625 (Wis. 1989). The court concluded that
“once the court has accepted a guilty plea or verdict, the ‘conviction’ becomes sufficiently
final to trigger the operation of the repeater statute.” Id. at 625 (emphasis added). In a
more recent case, the Wisconsin Supreme Court concluded a guilty plea accepted by a
trial court in connection with the implementation of a diversion agreement “constituted
‘sentencing’ for purposes of determining the standard to be applied in deciding [a]
motion to withdraw [a] guilty plea.” State v. Barney, 570 N.W.2d 731, 735 (Wis. 1997).
4I acknowledge some of the Wisconsin court’s statements on the record during
the proceeding were unclear. Although at one point the court stated “I’ll find him
guilty,” I conclude this statement is best understood as an explanation of what could
happen at some future date if Olsen fails to comply with the requirements of the
deferred judgment. My forward-looking understanding of the statement is informed by
another comment made by the court and couched as a hypothetical during the same
proceeding: “No, if I accept his plea, then set it for sentencing, then.” Summarizing the
legal effect of the proceeding in another part of the colloquy, the Wisconsin court stated,
“We’ll find him guilty, but it’s not of record, though. No conviction will show up on
that.” When understood in the context of the entire proceeding and in light of the order
memorializing the effect of the proceeding, I believe the Wisconsin court neither
accepted Olsen’s plea nor adjudicated his guilt. I conclude the most accurate and
controlling articulation of the effect of the proceeding is found in the court’s written
order entered after the hearing, announcing the legal effect of what occurred there. Cf.
Wimmer, 449 N.W.2d at 664–65 (noting courts correctly rely on written judgments and
it “is only when th[e] written document is unavailable or has not yet been prepared that
the court will have to refer to other sources to determine whether an individual has
been ‘convicted.’ ”)
 26

the judge may ‘revoke’ the probation (if the probation was a straight

probation) or ‘adjudicate’ the probation (if the probation was a deferred

adjudication probation), and convert it into a final conviction. The

distinction between the two types of probation may be significant

because a deferred adjudication probation cannot be a ‘conviction’ under

Texas law . . . .”). This should be the end of it. No prior felony

conviction, period.

The majority looks beyond the Wisconsin court’s unmistakable

declaration that no conviction resulted from the 2009 proceeding.

Turning its attention away from the expressed understanding of the

Wisconsin judge and prosecutor about the legal effect of the Wisconsin

proceeding, the majority recharacterizes the legal effect of what occurred

there as if it had been an Iowa court proceeding based on Iowa law. I

find this recharacterization unattractive because of the extreme

unfairness it visits upon Olsen—who had been assured by a judge and

prosecutor that his right to possess firearms would be unimpaired

because he had not been convicted of a felony. Although this court is

understandably more confident in articulating Iowa legal principles than

those prevailing elsewhere, we should give appropriate respect and

deference to the Wisconsin court in our determination of whether that

court convicted Olsen. After all, Olsen was prosecuted there—not here—

for the purported predicate offense. I suspect the Wisconsin judge would

prefer any reversal of his determination of the legal effect of his decision

come from the supreme court of that state, not from this court.

Unlike the majority, I do not believe our decision in State v. Deng

Kon Tong, 805 N.W.2d 599 (Iowa 2011), is helpful in answering the

question whether Olsen was convicted of a felony in the Wisconsin

proceeding. In Deng Kon Tong, we held a defendant’s plea of guilty
 27

entered in an Iowa prosecution resulting in an Iowa deferred judgment

and probation constituted a predicate conviction for purposes of Iowa

Code section 724.26. Deng Kon Tong, 805 N.W.2d at 603. We properly

determined in that case the legal effect of a predicate guilty plea entered

by a defendant in an Iowa court and the resulting deferred judgment

issued by an Iowa court. We noted two alternative conceptions of the

term “conviction” under Iowa law in Deng Kon Tong. Id. at 601. First, we

explained, courts have looked to the procedural history of a prior Iowa

prosecution and found a conviction if the defendant entered a guilty plea

or was convicted of a felony offense by a fact finder. Id. (citing State v.

Kluesner, 389 N.W.2d 370, 372 (Iowa 1986)). The second conception of

“conviction” articulated in our earlier cases focuses on whether a “ ‘final

consummation of the prosecution against the accused including the

judgment or sentence rendered’ ” has occurred. 5 Kluesner, 389 N.W.2d

at 372 (quoting State v. Hanna, 179 N.W.2d 503, 508 (1970)); see also

Deng Kon Tong, 805 N.W.2d at 601.

Our choice between the two conceptions of “conviction” in prior

decisions of this court has ostensibly been driven by whether the

purpose of the statute requiring a predicate prior conviction was
punishment of the defendant or protection of the public. Deng Kon Tong,

805 N.W.2d at 602. Yet, the distinction between these purposes is

sometimes of limited analytical usefulness because, as we observed in

Deng Kon Tong, criminal statutes are commonly calculated to achieve

both purposes. Id. In this case, however, I conclude it is pointless to

5Wisconsin’s highest court has explained at least two possible definitions of
“conviction” are recognized in Wisconsin: “a popular meaning indicating a finding of
guilt and a more technical legal meaning referring to the entire procedural process
resulting in a judgment and sentence.” Wimmer, 449 N.W.2d at 622. Of these two
meanings of the term recognized in Wisconsin, the former is the more common usage.
Id.
 28

consider which of the two conceptions might have application because

neither should lead us to a determination Olsen was convicted in the

Wisconsin proceeding.

Even if it were appropriate—and I do not believe it is—to apply

Iowa law in determining the legal effect of a Wisconsin criminal

proceeding, I would conclude the State of Iowa failed to prove Olsen was

convicted in the 2009 Wisconsin proceeding. As I have already noted,

the Wisconsin court’s acceptance of the nolo contendere plea was stayed

until August 2013 pending Olsen’s compliance with the behavioral

requirements of the deferred judgment. Thus at the time of the

subsequent Iowa prosecution, there was no prior accepted or judicially

recognized Wisconsin plea that could constitute a prior conviction under

the first conception of “conviction” described in Deng Kon Tong and

Kluesner. See Deng Kon Tong, 805 N.W.2d at 601; Kluesner, 389 N.W.2d

at 372.

Similarly, the adjudication of Olsen’s criminal liability as a

consequence of the stayed plea and potential sentence for the Wisconsin

conduct qualifying as a felony were also stayed in 2009 such that no

adjudication of guilt or sentence constituting a “conviction” resulted from

the Wisconsin court proceeding under the second conception of that term

described above.

Our decision in Sanborn is also distinguishable and therefore not

helpful to our analysis of whether the State proved Olsen had been

convicted of a qualifying predicate offense. See 564 N.W.2d at 816–17.

In that case, as here, the defendant, Sanborn, was prosecuted under

Iowa Code section 724.26 based on an alleged predicate offense that

occurred in another state. Id. at 814–15. Sanborn did not, however,

challenge the state’s proof that he had been convicted of the alleged
 29

predicate offense. He instead challenged the state’s proof that the out-of-

state conviction was a felony offense. Id. We concluded in Sanborn that

the definition of “felony” (exceeding one year in prison) in Iowa Code

section 724.25 is controlling—not the foreign jurisdiction’s classification

of the offense—on the question of whether the predicate crime is

classified as a felony in this context. Id.

Although our general assembly defined “felony” for purposes of

identifying the class of offenses qualifying as predicate offenses under

section 724.26, it has not defined “convicted” in this context. The

legislative silence has created ambiguity here, and the majority’s

interpretation of “convicted” in light of this ambiguity is inconsistent with

our longstanding recognition of the notion “that penal statutes are to be

interpreted strictly with doubts therein resolved in favor of the accused.”

State v. Muhlenbruch, 728 N.W.2d 212, 216 (Iowa 2007); cf. State v.

Langlands, 583 S.E.2d 18, 21 (Ga. 2003) (explaining, in felon-in-

possession case, “[legislative] silence creates an ambiguity, in that a

person of ordinary intelligence could fail to appreciate that the definition

was meant to look past the treatment given a criminal offense by an out-

of-state jurisdiction”); Walthart v. Bd. of Dirs. of Edgewood-Colesburg

Cmty. Sch. Dist., 667 N.W.2d 873, 877 (Iowa 2003) (noting statutory

silence may create ambiguity and compel resort to rules of statutory

construction); State v. White, 545 N.W.2d 552, 555 (Iowa 1996)

(“Ambiguity exists when reasonable minds differ or are uncertain as to

the meaning of a statute.”).

By contrast, I view the legislative omission as consistent with the

approach taken by Congress in 18 U.S.C. § 921(a)(20) (2012), which

provides that a “conviction” for purposes of the corollary felon-in-

possession statute should be determined in accordance with the law of
 30

the jurisdiction in which the proceedings were held. This approach is

consistent with principles of federalism in our federal system. If applied

here, as I think it should be, it also is an approach that advances

principles of comity and deference owed to the courts of other

jurisdictions.

In conclusion, the Wisconsin court clearly understood and

communicated that the proceeding before it did not result in a conviction

of a felony offense. My review of the Wisconsin statutes and caselaw

leads me to conclude the Wisconsin court got it right. Our court should

not second-guess the Wisconsin court’s understanding of “convicted”—

especially where the general assembly has not defined the term as used

in section 724.26, a statute restricting a valued constitutional right.

Indeed, the majority’s interpretation of “convicted” as applied to Olsen

might raise substantial doubts about the statute’s constitutionality. See,

e.g., United States v. Kitsch, No. 03–594–01, 2008 WL 2971548, at *7

(E.D. Pa. Aug. 1, 2008) (“A statute that imposes criminal penalties for the

exercise of an enumerated constitutional right despite defendant’s

reasonable belief in good faith that he has complied with the law must, at

the very least, raise constitutional doubts.”). Our doctrine of

constitutional avoidance compels us to avoid such constitutionally

problematic constructions where fairly possible. See, e.g., State v. Iowa

Dist. Ct., 843 N.W.2d 76, 85 (Iowa 2014).

Accordingly, I respectfully dissent.

Wiggins and Waterman, JJ., join this dissent.