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State v. Nixon

Court of Appeals of Arizona, First Division

April 6, 2017

STATE OF ARIZONA, Appellee,
v.
ROBERT NIXON, Appellant.

         Appeal from the Superior Court in Maricopa County No. CR0000-164012-A The Honorable Jerry Bernstein, Judge Pro Tempore

          Maricopa County Attorney's Office, Phoenix By Jeffrey R. Duvendack, Gerald R. Grant Counsel for Appellee

          Carm R. Moehle, P.C., Phoenix By Carm R. Moehle Counsel for Appellant

          Presiding Judge Randall M. Howe delivered the opinion of the Court, in which Judge Lawrence F. Winthrop and Judge Jon W. Thompson joined.

          OPINION

          HOWE, Judge

         ¶1 Robert Nixon appeals the trial court's order denying his request to restore his gun rights. He argues that the statute suspending his gun rights, A.R.S. § 13-904(A)(5)-enacted in 1994-cannot be applied to him because the law at the time his civil rights were suspended in 1987 upon his felony conviction did not deprive him of his gun rights. He contends that A.R.S. § 13-904(A)(5) cannot retroactively apply to him. We reject this argument and affirm the trial court's ruling. Applying the statute to a person convicted of a felony before 1994 does not constitute retroactive application because the statute merely relates to circumstances at the time the statute was enacted - the person's status as a convicted felon- and does not attach new legal consequences to a pre-1994 conviction.

         FACTS AND PROCEDURAL HISTORY

         ¶2 In 1987, Nixon pled guilty to attempted child molestation for an incident that occurred with a child under 15 years old. The trial court sentenced him to 15 years' probation. At the time of Nixon's conviction, a felony conviction suspended a person's right to vote, right to hold public office, right to serve as a juror, and any other rights reasonably necessary for security during the time of imprisonment. A.R.S. § 13-904(A)(1)-(4). In 1994, the Arizona Legislature amended A.R.S. § 13-904 to include suspension of a person's right to possess a gun or firearm. See 1994 Ariz. Sess. Laws, ch. 200, § 5; see also A.R.S. § 13-904(A)(5). For a first-time felony offender, civil rights are automatically restored upon the completion of probation, except the right to possess a gun or firearm, which can be restored only by application to the court. A.R.S. § 13-912(A)-(B).

         ¶3 Nixon completed probation in 2002. Although Nixon was not required to ask a court to restore his civil rights, he nevertheless filed a motion seeking restoration of his civil rights in 2007. In that motion, he asked that his gun rights be restored as well. The trial court denied the request, noting the seriousness of the offense and the victim's age. In 2016, Nixon renewed his request, arguing that because he was a first-time felony offender his civil rights were automatically restored when he completed probation. And just as he did in his 2007 request for restoration of his civil rights, he also requested to have his gun rights restored. The trial court granted the automatic restoration of Nixon's civil rights but denied the restoration of his gun rights.

         ¶4 In denying Nixon's request to restore his gun rights, the trial court determined that its decision was discretionary. The court's ruling noted the victim's age and Nixon's conviction as reasons for denying the restoration. The trial court also referenced "Cf. 13-907(e)(4), " which is the statute that involves setting aside judgments of guilt. The specific subsection cited states that convictions like Nixon's cannot be set aside. Nixon timely appealed.

         DISCUSSION

         1. A.R.S. § 13-904(A)(5) Was Not Applied Retroactively

         ¶5 Nixon contends that the trial court erred by applying A.R.S. § 13-904(A)(5) to him because doing so is a retroactive application in violation of A.R.S. § 1-244. We review de novo issues involving interpretation, application, and retroactivity of statutes. State v. Carver, 227 Ariz. 438, 441 ¶ 7, 258 P.3d 256, 259 (App. 2011). We presume that the statute in question is constitutional and Nixon has the burden to prove otherwise. See Zuther v. State, 199 Ariz. 104, 111 ¶ 23, 14 P.3d 295, 302 (2000).

         ¶6 The parties agree that A.R.S. § 13-904's express language does not state that it applies retroactively, and "[n]o statute is retroactive unless expressly declared therein." See A.R.S. § 1-244. The parties disagree, however, on whether the trial court retroactively applied A.R.S. § 13-904. A statute applies retroactively only when it "attaches new legal consequences to events completed ...


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