Opinion
No. 1 CA-CV 15-0417
03-22-2016
STATE OF ARIZONA, Plaintiff/Appellee, v. ROBERT K. REHM, Defendant/Appellant.
COUNSEL Marc J. Victor, P.C., Chandler By Marc J. Victor Counsel for Defendant/Appellant United States Attorney, Phoenix By Peter M. Lanka Counsel for Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2014-010741
The Honorable Richard Nothwehr, Commissioner
AFFIRMED
COUNSEL Marc J. Victor, P.C., Chandler
By Marc J. Victor
Counsel for Defendant/Appellant United States Attorney, Phoenix
By Peter M. Lanka
Counsel for Appellee
MEMORANDUM DECISION
Presiding Judge Jon W. Thompson delivered the opinion of the Court, in which Judge Maurice Portley and Judge Patricia K. Norris joined. THOMPSON, Presiding Judge:
¶1 Appellant Robert K. Rehm (Rehm) appeals from the superior court's denial of his request to restore his Arizona firearm rights following a federal felony conviction. Finding no abuse of discretion by the superior court, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 The pertinent facts are not in dispute. Rehm, a licensed engineer in his late sixties, pled guilty in 2010 to a federal court charge of misprision of a felony in Arizona district court for events that occurred in 2000 in connection with the purchase of a home in Sedona. This was Rehm's only offense, it was non-dangerous, and not considered serious as defined by Arizona statute. He was sentenced to three years probation. Rehm paid his fees and was granted early discharge in 2011.
Miprision of a felony is defined as:
Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.18 U.S.C.A. § 4 (West 1994).
¶3 Rehm filed an application to have both his civil rights and his rights to possess a firearm restored. His civil rights were restored by the superior court.
As required by A.R.S. § 13-909(C) (Supp. 2015), Rehm waited two years from his discharge from probation to file his application to have his firearm rights restored. Section 13-909(C) reads:
If the person was convicted of an offense which would be a dangerous offense under § 13-704, the person may not file for the restoration of the right to possess or carry a gun or firearm. If the person was convicted of an offense which would be a serious offense as defined in § 13-706 the person may not file for the restoration of the right to possess or carry a gun or firearm for ten years from the date of the person's discharge from probation. If the person was convicted of any other felony offense, the person may not file for the restoration of his right to possess or carry a gun or firearm for two years from the date of his discharge from probation.
¶4 The United States Attorney's office filed a response to Rehm's application to have his Arizona firearm rights restored. The response stated "This Court does not have the power to restore Petitioner's right to possess firearms or ammunition in violation of Federal law, because the conviction from which he seeks restoration of rights was a Federal conviction in the United States District Court." The response further advised that if the superior court were inclined to grant Rehm's request, as other Arizona courts have done in the past, the order should be clear that only his Arizona rights are effected and such order "should clearly state that Petitioner remains a prohibited possessor of firearms or ammunition under Federal law, to avoid any confusion or misunderstanding."
¶5 Rehm's application for restoration of his firearms rights was denied, without findings. His motion for reconsideration was denied "for [the] reasons identified in Response to Application to restore civil rights." Rehm timely filed this appeal. The government filed a notice of intent not to file an answering brief stating that its legal position was fully set forth in the response to the application.
DISCUSSION
¶6 At issue are the restoration of rights statutes found at Arizona Revised Statutes (A.R.S.) §§ 13-904 to -925 (Supp. 2015). Statutory interpretation is a question of law that we review de novo. People's Choice TV Corp. v. City of Tucson, 202 Ariz. 401, 403, ¶ 7, 46 P.3d 412, 414 (2002). Where the statutory language is clear, we hold to the plain meaning of its terms. Rineer v. Leonardo, 194 Ariz. 45, 46, ¶ 7, 977 P.2d 767, 768 (1999).
¶7 Section 13-904(A)(5) provides that a conviction for a felony suspends a person's right to possess a gun or firearm. For first offenders, Arizona law differentiates between the restoration of general civil rights, such as the right to vote, and the right to possess a firearm. See A.R.S. § 13-912. Section § 13-912, "Restoration of civil rights for first offenders; exception," subsection (A), provides for the automatic restoration of civil rights after a first time offender has completed probation and has paid any fees and restitution. Section 13-912(B) provides "This section does not apply to a person's right to possess weapons . . . unless the person applies to a court pursuant to § 13-905 or 13-906."
Section 13-912 reads:
A. Any person who has not previously been convicted of any other felony shall automatically be restored any civil rights that were lost or suspended by the conviction if the person both:
1. Completes a term of probation or receives an absolute discharge from imprisonment.
2. Pays any fine or restitution imposed.
B. This section does not apply to a person's right to possess weapons as defined in § 13-3101 unless the person applies to a court pursuant to § 13-905 or 13-906.
It is undisputed Rehm fulfilled his probation and paid all applicable fees.
¶8 Sections 13-905 and -906 apply to persons convicted of Arizona felonies and require an application to the superior court judge who sentenced the defendant or that judge's successor. Pursuant to A.R.S. § 13-908 the decision to restore those rights is at the sentencing judge's discretion. As Rehm was not convicted of an Arizona felony, A.R.S. §§ 13-905 and -906, on their face, do not apply here.
Section 13-908. "Restoration of civil rights in the discretion of the superior court judge" reads:
Except as provided in § 13-912, the restoration of civil rights and the dismissal of the accusation or information under the provisions of this chapter shall be in the discretion of the superior court judge by whom the person was sentenced or his successor in office.
¶9 Sections 13-909 and -910 are the federal felony equivalents of A.R.S. §§ 13-905 and -906. Section 13-909 applies to the restoration of "any civil rights which were lost or suspended" in a federal court after the successful completion of federal probation. Section 13-910 applies to persons discharged from federal prison after being convicted of two or more felonies. Rehm was eligible to apply for the restoration of his gun rights pursuant to A.R.S. § 13-909(B).
¶10 Section 13-909(B), "Restoration of civil rights; persons completing probation for federal offense" reads:
On proper application, a person who has been discharged from probation either before or after adoption of this chapter may have any civil rights which were lost or suspended by the felony conviction restored by an application filed with the clerk of the superior court in the county in which the person now resides. The clerk of the superior court shall process the application on request of the person involved or the person's attorney.Such a restoration of rights "under provisions of §§ 13-909 or 13-910 is within the discretion of the presiding judge of the superior court in the county in which the person resides." A.R.S. § 13-911.
It is undisputed that Rehm lives in Maricopa County.
¶11 The superior court, acting through Commissioner Nothwehr, denied Rehm's request for the restoration of his Arizona firearms rights. Rehm asserts on appeal both that Commissioner Nothwehr abused his discretion and failed to provide the due process protections required under A.R.S. § 13-925.
Rehm does not raise as an issue on appeal whether a Commissioner has the discretion to restore gun rights and we do not address it.
¶12 Section 13-925 is not applicable here. That statute, and its procedural requirements, specifically apply to the restoration of rights to persons who have been determined to be prohibited possessors because they have been "found to constitute a danger to self or to others or to have persistent or acute disabilities or grave disabilities." A.R.S. §§ 13-925, -3101(A)(7)(a) (Supp. 2015). Such is not the case here.
Section 13-925 "Restoration of right to possess a firearm; mentally ill persons; petition" reads, in pertinent part:
A. A person may petition the court that entered an order, finding or adjudication that resulted in the person being a prohibited possessor as defined in § 13-3101, subsection A, paragraph 7, subdivision (a) or subject to 18 United States Code § 922(d)(4) or (g)(4) to restore the person's right to possess a firearm.
. . .
C. On the filing of the petition the court shall set a hearing. At the hearing, the person shall present psychological or psychiatric evidence in support of the petition. The state shall provide the court with the person's criminal history records, if any. The court shall receive evidence on and consider the following before granting or denying the petition:
1. The circumstances that resulted in the person being a prohibited possessor as defined in § 13-3101, subsection A, paragraph 7, subdivision (a) or subject to 18 United States Code § 922(d)(4) or (g)(4).
2. The person's record, including the person's mental health record and criminal history record, if any.
3. The person's reputation based on character witness statements, testimony or other character evidence.
4. Whether the person is a danger to self or others or has persistent, acute or grave disabilities or whether the circumstances that led to the original order, adjudication or finding remain in effect.
5. Any change in the person's condition or circumstances that is relevant to the relief sought.
6. Any other evidence deemed admissible by the court.
D. The petitioner shall prove by clear and convincing evidence both of the following:
1. The petitioner is not likely to act in a manner that is dangerous to public safety.
2. Granting the requested relief is not contrary to the public interest.
E. At the conclusion of the hearing, the court shall issue findings of fact and conclusions of law.
¶13 Nor do we find that the superior court abused its discretion in denying Rehm's request to restore his gun rights. See State v. Chapple, 135 Ariz. 281, 297 n. 18, 660 P.2d 1208, 1224 n. 18 (1983) (An abuse of discretion occurs where the court's actions are "clearly untenable, legally incorrect, or amount to a denial of justice."). The superior court's order stated the denial was for the reasons enumerated in the United States Response to Rehm's application. That response pointed out that, at most, the superior court could restore Rehm's Arizona firearms rights but he would still be a prohibited possessor under federal law and subject to prosecution. It outlined the complexity in determining what rights might be left to a federal prohibited possessor if his Arizona rights, alone, were restored. We agree that there is substantial potential confusion over the interplay of the federal and Arizona rights which could lead Rehm to be subject to future prosecution. See A.R.S. § 13-204(B) (2010) ("Ignorance or mistake as to a matter of law does not relieve a person of criminal responsibility."); see also State v. Harmon, 25 Ariz. App. 137, 139, 541 P.2d 600, 602 (1975) (holding that defendant's claim that he believed his full status as citizen had been restored was a mistake of law, and therefore, not a cognizable defense to the crime of misconduct involving weapons). The response further advised Rehm that he could apply for a pardon to the United States Pardon Attorney at the Department of Justice which, if granted, could restore his federal gun rights. Given that Rehm would remain a prohibited possessor under federal law, we cannot find the superior court abused its discretion in denying his application.
See 28 C.F.R. § 1.1 (1993) (regulation implementing pardon authority pursuant to 28 U.S.C. §§ 509, 510 (functions of the attorney general and authority to delegate) and U.S. Const., art. II, § 2 (authority of the President as Chief Executive)). --------
CONCLUSION
¶14 For the above stated reasons, the superior court is affirmed.