State v. Lewis ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JESSIE LEWIS, Appellant.
No. 1 CA-CR 20-0500
FILED 8-31-2021
Appeal from the Superior Court in Maricopa County
No. CR 2014-146307-001
The Honorable Justin Beresky, Judge
AFFIRMED
APPEARANCES
Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Appellee
Jessie Lewis, Tucson
Appellant
STATE v. LEWIS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Samuel A. Thumma and Chief Judge Kent E. Cattani joined.
C A M P B E L L, Judge:
¶1 Jessie Lewis appeals the superior court’s denial of his request
for a hearing or judgment under A.R.S. § 13-925 on his petition to restore
the right to possess a firearm. Because the statute applies when a firearm
restriction is based on a finding of danger to self or others and not when the
restriction is―as here―based on a prior felony conviction, the superior court
properly denied Lewis’ request. We affirm.
BACKGROUND
¶2 In 2015, a jury convicted Lewis of misconduct involving
weapons. After finding that Lewis had six prior felony drug offenses, the
superior court sentenced him as a category-three repetitive offender to a
term of 11 years’ imprisonment.
¶3 On direct appeal, Lewis raised three issues in a supplemental
Anders brief, challenging: (1) the sufficiency of the evidence supporting his
conviction; (2) the superior court’s denial of his motion to suppress
evidence seized from a traffic stop; and (3) the constitutionality of A.R.S.
§ 13-3102(A)(4), which criminalizes the possession of a firearm by a
“prohibited possessor.”1 State v. Lewis, 1 CA-CR 15-0301, 2016 WL 4045317,
at *1-3, ¶¶ 1, 9-13 (Ariz. App. July 28, 2016) (mem. decision). Affirming
Lewis’ conviction and sentence, this court found that: (1) eyewitness
testimony from three officers who saw Lewis remove a gun from his
waistband and throw it over a fence provided substantial evidence to
support his conviction; (2) the arresting officer had probable cause to stop
Lewis for a traffic violation and, having recognized Lewis as a convicted
felon from a previous police encounter, had probable cause to arrest Lewis
for misconduct involving weapons once he saw Lewis throw the gun; and
(3) the State did not need to present documentation reflecting that Lewis
was a danger to himself or others because he was a statutorily prohibited
1 Anders v. California, 386 U.S. 738 (1967).
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STATE v. LEWIS
Decision of the Court
possessor, having been convicted of prior felonies, and the court was not
required to document “what the statutes already make clear.” Id.¶4 After his direct appeal, Lewis filed successive petitions for
post-conviction relief, raising various claims. Each was denied. He also
moved to set aside his conviction for misconduct involving weapons and to
restore his right to possess a firearm, reasserting his appellate claims―that
his prohibited possessor status is both undocumented and violative of the
constitutional “right to bear arms.” The superior court denied Lewis’
motions, finding he failed to meet the statutory requirements either to set
aside his conviction or to restore his right to bear firearms.
¶5 At that point, Lewis asked the superior court to produce the
“original order that resulted in [him] being a prohibited possess[o]r
pursuant to A.R.S. § 13-925.” Denying his “request for a hearing or
judgment based on A.R.S. [§] 13-925,” the court noted that Lewis became a
prohibited possessor “by virtue of his prior felony convictions” under
A.R.S. § 13-3101(A)(7)(b), not because he was “found to constitute a danger
to self or others” under A.R.S. § 13-3101(A)(7)(a). Lewis timely appealed.
DISCUSSION
¶6 Lewis raises several trial-related issues―challenging the
superior court’s evidentiary rulings, asserting due process violations, and
claiming the prosecutor engaged in discovery misconduct, tampered with
evidence, and suborned perjury. These trial-related issues were not
considered by the superior court in connection with the order now being
appealed, so we do not consider them on appeal. See Van Dusen v. Registrar
of Contractors, 12 Ariz. App. 518, 520 (1970) (explaining “[t]he scope of [an]
appeal may not be enlarged beyond the matters” at issue in the underlying
ruling). Therefore, the only question properly before us is whether the
superior court erred by denying Lewis’ request for a hearing or judgment
under A.R.S. § 13-925.
¶7 We review a superior court’s ruling concerning the
restoration of civil rights, including gun rights, for an abuse of discretion.
State v. Nixon, 242 Ariz. 242, 244, ¶ 10 (App. 2017); A.R.S. § 13-908(A) (“The
restoration of civil rights is in the discretion of the judicial officer.”); A.R.S.
§ 13-910(B) (“The restoration of the right to possess a firearm is in the
discretion of the judicial officer.”). We review de novo, however, a court’s
legal conclusions, including its interpretation of statutes. State v. Estrada,
209 Ariz. 287, 288, ¶ 2 (App. 2004).
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STATE v. LEWIS
Decision of the Court
¶8 A felony conviction “suspends [various] civil rights of the
person sentenced,” including “[t]he right to possess a firearm.” A.R.S. § 13-
904(A)(5). Accordingly, when a person is convicted of a felony, that person
becomes a “prohibited possessor” who may not lawfully possess or carry a
firearm. A.R.S. §§ 13-3101(A)(7)(b), -3102(A)(4).
¶9 While most civil rights are automatically restored upon final
discharge of consequences for a first-time felony offense, the right to
possess a firearm is not automatically restored. A.R.S. § 13-907(A), (C).
Instead, to restore gun rights, a person convicted of a non-dangerous and
non-serious offense must apply for “restoration of the right to possess or
carry a firearm,” but may not do so until “two years from the date of the
person’s absolute discharge.” A.R.S. § 13-910.
¶10 A person “[w]ho has been found to constitute a danger to self
or to others” is also a “prohibited possessor,” barred from knowingly
possessing a deadly weapon. A.R.S. §§ 13-3101(A)(7)(a), -3102(A)(4).
Having been found to present such a danger, “[a] person may petition the
court that entered an order, finding or adjudication that resulted in the
person being a prohibited possessor” under A.R.S. § 13-3101(A)(7)(a) “to
restore the person’s right to possess a firearm.” A.R.S. § 13-925(A). Upon
the filing of such a petition, “the court shall set a hearing.” A.R.S. § 13-
925(C).
¶11 Applying this statutory framework, we consider the superior
court’s order in this case. Lewis petitioned the court to produce the
“original order that resulted in [him] being a prohibited possess[o]r
pursuant to A.R.S. § 13-925,” asserting that such an order “never exist[ed].”
Lewis’ assertion fails to recognize that he is a prohibited possessor under
A.R.S. § 13-3101(A)(7)(b), as a person who has been convicted of six prior
felonies and whose civil right to possess a firearm has not been restored,
not under A.R.S. § 13-3101(A)(7)(a), as a person who presented a danger to
himself or others and whose civil right to possess a firearm has not been
restored “pursuant to [A.R.S.] § 13-925.” In other words, as found by the
superior court, A.R.S. § 13-925 has no application to Lewis because he
became a prohibited possessor by operation of law upon being convicted of
a felony, not by court order. Therefore, the superior court properly denied
Lewis’ request for a hearing or judgment under A.R.S. § 13-925.
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STATE v. LEWIS
Decision of the Court
CONCLUSION
¶12 Accordingly, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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