from the Superior Court in Maricopa County No.
CR0000-164012-A The Honorable Jerry Bernstein, Judge Pro
Maricopa County Attorney's Office, Phoenix By Jeffrey R.
Duvendack, Gerald R. Grant Counsel for Appellee
R. Moehle, P.C., Phoenix By Carm R. Moehle Counsel for
Presiding Judge Randall M. Howe delivered the opinion of the
Court, in which Judge Lawrence F. Winthrop and Judge Jon W.
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.
AND PROCEDURAL HISTORY
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).
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
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.
A.R.S. § 13-904(A)(5) Was Not Applied
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
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