Opinion
1 CA-CR 12-0245
04-02-2013
STATE OF ARIZONA, Appellee, v. JEFF MARKLAND, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Matthew H. Binford, Assistant Attorney General Attorneys for Appellee Jeff Markland, Defendant/Appellant In Propria Persona
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2003-012723-001
CR2003-018449-001
CR2004-023271-001
The Honorable Susan G. White, Judge Pro Tempore
AFFIRMED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Matthew H. Binford, Assistant Attorney General
Attorneys for Appellee
Phoenix Jeff Markland, Defendant/Appellant
In Propria Persona
Phoenix THUMMA, Judge ¶1 Jeff Markland appeals from the superior court's order denying his application to set aside his felony convictions. Finding no abuse of discretion, the superior court's order is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 Markland pled guilty to felony charges on three occasions in 2003 and 2004. After violating probation imposed for those convictions, Markland was sentenced to concurrent prison terms in each case. After serving his time, Markland was released from prison in 2006. In 2007, Markland was cited or arrested four times for six different misdemeanors, leading to guilty pleas and probation sentences. ¶3 By the end of 2008, Markland successfully completed probation for these misdemeanor convictions. Markland asserts he quit drinking alcohol in late 2007 and, since that time, has paid restitution and apologized to his victims and has remained law abiding. Nothing in the record contradicts these assertions. ¶4 On four different occasions, Markland filed applications to set aside his felony convictions under Arizona Revised Statutes (A.R.S.) section 13-907:
• In September 2010, using a court form and appearing pro se, Markland applied for restoration of his civil rights under A.R.S.Markland filed a timely appeal from this April 1, 2012 order.
§ 13-905 and to set aside his felony convictions. In November 2010, the court denied the applications, noting: "This court will not consider your application until fees of $1,050.00 have been paid. You may resubmit your application once all fees have been paid."
• In July 2011, after paying all fees and again using a court form and appearing pro se, Markland applied for restoration of his civil rights and to set aside his felony convictions. The court again denied the applications, noting: "number of criminal convictions, including misdemeanor convictions in last 10 years."
• In December 2011, again using a court form but with the assistance of counsel, Markland applied for restoration of his civil rights and to set aside his felony convictions. The court granted the application to restore his civil rights, but denied the application to set aside felony convictions, noting: "number of criminal convictions; more time is needed."
• In February 2012, through counsel, Markland applied to set aside his felony convictions. In an April 1, 2012 signed order, the court denied the application, noting: "premature given criminal history."
Markland later successfully applied to have his misdemeanor convictions set aside; those convictions are not at issue in this appeal.
Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.
--------
DISCUSSION
I. Jurisdiction.
¶5 The State argues this court lacks jurisdiction over this appeal because: (1) Markland did not timely appeal from the denial of his first application; (2) his subsequent applications sought reconsideration and did not extend the time for appeal and (3) an order denying a motion to reconsider is not appealable. The State is correct that Markland did not appeal from the order denying his first application and that "[t]he filing of a motion affecting an appealable order does not extend the time for filing an appeal from that order, in absence of a rule so providing." State v. Berry, 133 Ariz. 264, 267, 650 P.2d 1246, 1249 (App. 1982). The State is also correct that the record supports a reading that some of Markland's applications sought reconsideration. In substance, however, the record shows that the April 1, 2012 order is an appealable order from which Markland filed a timely appeal. ¶6 The order addressing Markland's first application stated the court "will not consider your application until fees of $1,050.00 have been paid." Given the court's refusal to consider this first application, Markland's second application could not, in substance, be a motion to reconsider. Markland's third and fourth applications inconsistently state that they both are applications and seek reconsideration. The resulting court orders, however, described each as an "Application," granted part of the relief requested in the third application and did not indicate that the court was ruling on a motion to reconsider (not checking any box on the form order applicable to a "Motion for Reconsideration" entry). The denials were without prejudice and at least impliedly encouraged subsequent applications. In the denials, the court addressed Markland's second, third and fourth applications on the merits, separate from the prior applications, and provided different statements in denying each application. ¶7 As the State notes, in a criminal case, an order made after judgment affecting the substantial rights of a party is an appealable order. On this record, the April 1, 2012 order denying Markland's fourth application to set aside his prior felony convictions is such an order. See A.R.S. § 13-4033(A)(3). Accordingly, and because Markland's notice of appeal from the April 1, 2012 order was timely, this court has jurisdiction. See A.R.S. §§ 12-120.21(A)(1), 13-4033(A)(3).
II. The Superior Court Did Not Abuse Its Discretion By Denying Markland's Application.
¶8 The denial of an application to set aside a felony conviction is reviewed for an abuse of discretion. State v. Key, 128 Ariz. 419, 421, 626 P.2d 149, 151 (App. 1981). Markland argues the superior court abused its discretion because it misapplied A.R.S. § 13-907 by failing to set aside the convictions. In determining whether the superior court abused its discretion, "[m]atters of statutory interpretation . . . involve questions of law" and are reviewed de novo. State v. Sanchez, 209 Ariz. 66, 68, ¶ 6, 97 P.3d 891, 893 (App. 2004). ¶9 To the extent Markland argues that, by granting his application under A.R.S. § 13-905 to restore his civil rights, the superior court was compelled to grant his application to set aside felony convictions under A.R.S. § 13-907, he is wrong. Key, 128 Ariz. at 422, 626 P.2d at 152 (noting superior "court [does] not err in treating the restoration of civil rights as separable from the vacation of conviction and dismissal of the charge"). Although Markland provided many letters indicating he has made significant efforts not only to turn around his life, but to help others, Markland has not directed us to any evidence in the record or argument on appeal demonstrating that the court abused its discretion in determining that insufficient time has passed to justify setting aside his felony convictions. ¶10 As Markland notes, A.R.S. § 13-907 does not require a "specific period of time [to] pass before a conviction can be set aside." In ruling on Markland's application, however, the superior court properly could consider a variety of factors, including the time between the convictions and the application. See generally Key, 128 Ariz. at 420-22, 626 P.2d at 150-52. Moreover, the court denied Markland's most recent application because it was "premature given [his] criminal history," not that Markland was precluded from obtaining such relief in the future. Accordingly, although finding no abuse of discretion in the April 1, 2012 order, Markland remains free to file another application in the future asking that his felony convictions be set aside.
CONCLUSION
¶11 The decision of the superior court is affirmed.
_____________________________________
SAMUEL A. THUMMA, Presiding Judge
CONCURRING: _______________________
MICHAEL J. BROWN, Judge
__________________________
DIANE M. JOHNSEN, Judge