State v. Dijon L. Carter, 2014AP2707-CR, District 1, 7/14/15 (not recommended for publication); case activity (including briefs)
While a court adjudicating a juvenile delinquent for a felony is required to warn the juvenile about the prohibition on possessing a firearm under § 941.29, the warning requirement doesn’t add another element to the offenses created by § 941.29. Thus, Carter can be convicted of violating § 941.29(2)(b) even though he wasn’t warned about the ban on firearm possession when he was adjudicated delinquent for possession of THC with intent to deliver.
This case is controlled by State v. Phillips, 172 Wis. 2d 391, 493 N.W.2d 238 (Ct. App. 1992), which addressed the failure of a court to warn an adult convicted of a felony about the firearm possession ban as required under § 973.176. Phillips held that nothing in the plain language of § 941.29 includes the warning requirement as an element; rather, it is a directive to sentencing courts, and “does not mention or even intimate that a failure [to warn] on the court’s part will result in the nullification of sec. 941.29….” Id. at 395.
¶12 There is no substantive difference between the statute requiring courts to inform adult felons of the penalties they face for possessing a firearm pursuant to Wis. Stat. § 941.29, and the statute requiring the courts to inform juvenile delinquents of the same. See Wis. Stat. §§ 973.176 (adults) & 938.341 (juveniles). And the language of the statute penalizing possession of firearms is also the same for both adult felons and juvenile delinquents. See § 941.29. Consequently, we must conclude, as did the circuit court in this case, that Phillips is controlling. While Carter spends a great deal of time trying to convince us that public policy demands a different result, we cannot ignore the plain language of the statutes. See State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. (“[W]e have repeatedly held that statutory interpretation ‘begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.’”) ….
Carter argued that the lack of notice during his juvenile adjudication was compounded by the fact that, after that adjudication in 2006 but before his arrest in this case in 2011, he was charged and convicted in 2010 of possession of a dangerous weapon by a minor under § 948.60(2)(a), even though he could have been charged under § 941.29 at that point. However unfair that may be, the plain language of the statutes prevails. (¶12).
