State of Minnesota, Respondent, vs. Oscar Phillip Pape, Appellant.

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-97-2111

State of Minnesota,
Respondent,

vs.

Oscar Phillip Pape,
Appellant.

Filed August 4, 1998
Affirmed
Short, Judge

Hennepin County District Court
File No. 9676253

William E. McGee, Chief Public Defender, Warren R. Sagstuen, Senior Assistant Public Defender, Michelle A. Monteiro, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant )

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101, and

Michael O. Freeman, Hennepin County Attorney, Beverly J. Benson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Short, Judge, and Davies, Judge.

U N P U B L I S H E D   O P I N I O N

SHORT, Judge

In 1992, Oscar Phillip Pape was adjudicated delinquent on two counts of second-degree burglary (a crime of violence). Four years later, a trial court found Pape guilty of illegally possessing a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (1996) and carrying a weapon without a permit in violation of Minn. Stat. § 624.714, subd. 1(a) (1996). On appeal, Pape argues Minn. Stat. § 624.713, subd. 1(b) violates:  (1) federal and state prohibitions against ex post facto laws; and (2) his constitutional right to due process. We affirm.

D E C I S I O N

A statute's constitutionality is a question of law, which we review de novo. Estate of Jones by Blume v. Kvamme, 529 N.W.2d 335, 337 (Minn. 1995). One who challenges the constitutionality of a statute must overcome every presumption in favor of its constitutionality. Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn. 1979). We will uphold a statute unless the challenging party demonstrates a constitutional infirmity beyond a reasonable doubt. Kvamme, 529 N.W.2d at 337; In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989) (citations omitted).

Pape argues application of Minn. Stat. § 624.713, subd. 1(b) (1996) to his adjudication violates the ex post facto clause of the federal and state constitutions because it punishes him for conduct that was not criminal when he was adjudicated. See U.S. Const. art. I, § 10 (providing no state shall pass any ex post facto law); Minn. Const. art. I, § 11 (providing no bill of attainder, ex post facto law, or any law impairing contract obligations shall be passed); see also Collins v. Youngblood¸ 497 U.S. 37, 52, 110 S. Ct. 2715, 2724 (1990) (holding statute is ex post facto if it punishes, as a crime, an act that was innocent when committed; increases burden of punishment for crime after its commission; or deprives one charged with crime of defense that was available at time crime committed). However, Minn. Stat. § 624.713, subd. 1(b) punishes Pape for illegally carrying a firearm. See Minn. Stat. § 624.713, subd. 1(b) (1996) (providing it is unlawful for individual convicted of or adjudicated delinquent for committing crime of violence to possess firearm within ten years of their conviction). Because Pape's act of carrying a firearm was punishable at the time he committed that act, application of the statute does not offend federal or state constitutional prohibition against ex post facto laws. See, e.g., Samuels v. McCurdy, 267 U.S. 188, 193, 45 S. Ct. 264, 265 (1925) (concluding law not ex post facto law because did not provide punishment for past offense); State v. Harrington, 504 N.W.2d 500, 503 (Minn. App. 1993) (concluding statute did not offend ex post facto clause of Minnesota Constitution because defendants' convictions arose from conduct occurring after statute became effective), review denied (Minn. Sept. 30, 1993).

Pape also argues his constitutional right to due process was violated because he had no notice of the statute's effect on him. See State v. Ibarra, 355 N.W.2d 125, 128-29 (Minn. 1984) (providing criminal statute must be definite enough to give notice of conduct required to anyone who desires to avoid its penalties). However, Minn. Stat. § 624.713, subd. 1(b) clearly prohibits from carrying a firearm a person adjudicated delinquent for committing a crime of violence. In addition, the statute specifically states any failure to provide notice does not affect applicability. Pape cannot now allege his due process rights were violated due to his own ignorance of the law. See State v. King, 257 N.W.2d 693, 697-98 (Minn. 1977) (concluding ignorance of law is no excuse and defendant cannot be heard to complain that she was without notice of criminal statute when had defendant made effort to ascertain information, she would have been put on adequate notice). Under these circumstances, we conclude Pape's constitutional right to due process was not violated.

Affirmed.