State v. Tovar ( 2022 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    STATE OF ARIZONA, Appellee,
    v.
    ALFONSO E. TOVAR, Appellant.
    No. 1 CA-CR 21-0410
    FILED 6-2-2022
    Appeal from the Superior Court in Maricopa County
    No. CR1994-002255
    The Honorable William R. Wingard, Judge Pro Tempore
    AFFIRMED
    COUNSEL
    Maricopa County Attorney’s Office, Phoenix
    By Jason Lewis
    Counsel for Appellee
    Attorneys For Freedom Law Firm, Chandler
    By Marc J. Victor
    Counsel for Appellant
    STATE v. TOVAR
    Decision of the Court
    MEMORANDUM DECISION
    Judge Samuel A. Thumma delivered the decision of the Court, in which
    Presiding Judge Maria Elena Cruz and Judge Michael J. Brown joined.
    T H U M M A, Judge:
    ¶1           Alfonso E. Tovar appeals from the superior court’s denial of
    his motion to restore his right to possess a firearm. Because Tovar has
    shown no error, the ruling is affirmed.
    FACTS AND PROCEDURAL HISTORY
    ¶2           In 1995, a jury found Tovar guilty of aggravated assault, a
    Class 3 dangerous felony offense, and he was sentenced to six years in
    prison. His conviction and sentence were affirmed on appeal. See State v.
    Tovar, 
    187 Ariz. 391
    , 391 (App. 1996). Tovar served his time and was
    released from prison in 2001.
    ¶3             In 2016, the superior court granted Tovar’s motion to set aside
    his conviction. In 2020, however, the court vacated that 2016 order,
    explaining convictions for dangerous offenses are not eligible to be set
    aside. On appeal, this court vacated the 2020 order, finding the court lacked
    jurisdiction to enter it. State v. Tovar, 1 CA-CR 20-0175, 
    2021 WL 1259371
    , at
    *2 ¶ 10 (Ariz. App. Apr. 6, 2021) (mem. dec.). That appeal allowed Tovar
    “to refile an application to restore his firearm rights,” but did not decide
    whether he “can ever have his right to possess a firearm restored.” 
    Id.
    ¶4             Tovar again moved to restore his firearm rights, which the
    superior court denied citing “the nature of the offense.” In denying Tovar’s
    motion to reconsider, the court noted Tovar “intentionally shot the victim
    causing injuries that could have easily resulted in more severe
    consequences or death.” The court added that, “[f]or the protection of the
    public and, on this record, defendant’s request remains denied.” This court
    has jurisdiction over Tovar’s timely appeal pursuant to Article 6, Section 9,
    2
    STATE v. TOVAR
    Decision of the Court
    of the Arizona Constitution and A.R.S. sections 12-120.21(A)(1), 13-4031,
    and 13-4033(A)(3) (2022).1
    DISCUSSION
    ¶5            Tovar argues the superior court improperly refused to restore
    his firearm rights. Discretionary rulings are reviewed for an abuse of
    discretion, while statutory interpretation is reviewed de novo. State v. Hall,
    
    234 Ariz. 374
    , 375 ¶ 13 (App. 2014).
    ¶6             A felony conviction suspends certain civil rights of the
    convicted person, including “[t]he right to possess a firearm.” A.R.S. § 13-
    904(A)(5). Such a person has “a limited, state-created interest in a
    proceeding to restore [the] right to possess firearms.” Pinal Cty. Bd. of Sup’rs
    v. Georgini, 
    235 Ariz. 578
    , 585 ¶ 24 (App. 2014). The statute authorizing the
    ability to regain firearm rights following a felony conviction declares that
    “[a] person who is convicted of a dangerous offense under § 13-704 . . . may
    not file for the restoration of the right to possess or carry a firearm.” A.R.S.
    § 13-910(A). Similarly, the statutory provision stating that, “if a conviction
    is set aside, the person’s right to possess a firearm is restored” does not
    apply to individuals “convicted of a serious” or “dangerous offense.” A.R.S.
    §§ 13-905(M) & (N)(1). Moreover, even when eligible to seek such a right,
    the court is directed to consider various factors, including the “nature and
    circumstances of the offense that the conviction is based on.” A.R.S. § 13-
    905(C)(1).2
    ¶7             Tovar’s aggravated-assault conviction was a “dangerous
    offense,” and the superior court properly considered the nature of the
    conviction in denying his motion. Id.; see also State v. Olvera, 
    191 Ariz. 75
    , 77
    (App. 1997) (noting “the past conduct which was considered by the Arizona
    legislature, that is, a felony conviction, can reasonably be found to indicate
    unfitness to engage in the future activity of possession of a firearm”).
    Although Tovar argues the court erred by purportedly relying solely on the
    nature of his conviction, he provides no authority suggesting that courts are
    prohibited from doing so. Given that the facts show Tovar fired several
    1Absent material revisions after the relevant dates, statutes and rules cited
    refer to the current version unless otherwise indicated.
    2 Although Tovar also cites A.R.S. § 13-907, that “section does not apply to
    a person’s right to possess a firearm as defined in section 13-3101. The court
    may order restoration of the right to possess a firearm pursuant to section
    13-910.” A.R.S. § 13-907(C).
    3
    STATE v. TOVAR
    Decision of the Court
    gunshots at the victim on a residential street during a gang-affiliated
    dispute, Tovar has shown no error. See Tovar, 187 Ariz. at 392.
    ¶8            Nor is Tovar entitled to relief based on his assertion that the
    “set-aside order converts a felon to a non-felon” and he is “therefore not a
    felon as a matter of law.” Under Arizona law, convictions that are set aside
    may “continue to serve as the basis for restricting a defendant’s right to bear
    firearms.” Hall, 234 Ariz. at 377 ¶ 11 (also noting firearm-rights restoration
    is “separate and distinct from the restoration of other civil rights”).
    Moreover, setting aside a conviction neither “eliminate[s] all consequences
    of a person’s criminal conviction” nor renders the conviction a nullity. Id.
    (convictions that are set aside can still be used for specified purposes,
    including sentencing and witness impeachment). Thus, the setting aside of
    Tovar’s conviction did not obviate the decision whether to restore Tovar’s
    firearm rights.
    ¶9            Although Tovar relies on Savord v. Morton, 
    235 Ariz. 256
     (App.
    2014), and Mahar v. Acuna, 
    230 Ariz. 530
     (App. 2012), those cases do not
    support Tovar’s argument that courts should conduct an “endangerment
    analysis” when making a section 13-910 determination. Unlike here, those
    cases involved firearm restrictions imposed by Arizona’s order-of-
    protection law and the federal Gun Control Act. See Savord, 235 Ariz. at 258
    ¶¶ 1, 5, 260 ¶¶ 22-23; Mahar, 230 Ariz. at 531 ¶ 1, 533-35 ¶¶ 10, 16-19. Those
    statutes require a finding that the defendant poses a credible threat to the
    physical safety of specified individuals before restricting firearm rights.
    Mahar, 230 Ariz. at 534 ¶ 15. By contrast, A.R.S. § 13-910 contains no
    credible-threat requirement, and this court will “not judicially impose a
    requirement the legislature has intentionally chosen not to require.” Hart v.
    Hart, 
    220 Ariz. 183
    , 187 ¶ 17 (App. 2009).3
    3 Nor has Tovar shown a violation of his constitutional rights. See, e.g.,
    District of Columbia v. Heller, 
    554 U.S. 570
    , 626 (2008) (“nothing in our
    opinion should be taken to cast doubt on longstanding prohibitions on the
    possession of firearms by felons”); Mathews v. Eldridge, 
    424 U.S. 319
    , 333,
    349 (procedural due process).
    4
    STATE v. TOVAR
    Decision of the Court
    CONCLUSION
    ¶10           Because Tovar has shown no error, the denial of his motion to
    restore firearm rights is affirmed.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    5
    

Document Info

Docket Number: 1 CA-CR 21-0410

Filed Date: 6/2/2022

Precedential Status: Non-Precedential

Modified Date: 6/2/2022