                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                  WESLEY WILLIAM HARRIS, Appellant.

                             No. 1 CA-CR 18-0349
                               FILED 4-2-2019


           Appeal from the Superior Court in Maricopa County
                         No. CR1996-004360-A
            The Honorable Julie Ann Mata, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By E. Catherine Leisch
Counsel for Appellee

Law Offices of Kimberly A. Eckert, Tempe
By Kimberly A. Eckert
Counsel for Appellant
                             STATE v. HARRIS
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.


C R U Z, Judge:

¶1           Wesley William Harris appeals the superior court’s denial of
his motion to set aside a 1998 judgment and conviction on one count of
aggravated assault. Finding no error, we affirm.

                  FACTS AND PROCEDURAL HISTORY

¶2            In 1994 Harris retrieved a handgun and pointed it at an
employee after the two were involved in a physical altercation. As a result
of those events, Harris was convicted of one count of aggravated assault; at
sentencing, the court entered a guilty verdict on the charge of aggravated
assault, a non-dangerous offense, and imposed a three-year probationary
term. Harris appealed, and we affirmed the conviction.

¶3           The State filed a petition to revoke Harris’ probation in 1999,
alleging he violated the condition of his probation requiring he not
“possess, control or have access to firearms.” Harris was found in violation
of probation. However, the court reinstated him on probation. Harris
appealed the finding of violation of probation and again we affirmed.

¶4             In 2001, on Harris’ motion, the court reinstated his civil rights
and vacated the judgment against him. However, the State filed a motion
seeking reconsideration of the ruling in favor of Harris on the basis that the
State’s response had not been considered by the court and that Harris was
ineligible for the requested relief because he used a gun in the commission
of the offense. The court agreed and vacated its previous order in favor of
Harris “because the Defendant was convicted of an offense involving a gun,
and therefore cannot have [his] judgment set aside [in accordance with
Arizona Revised Statutes (“A.R.S.”)] Section 13-907(B)(2) [(2001)].” The
court did, however, again restore Harris’ civil rights. In February 2018,
Harris filed a new motion to set aside the judgment against him, and to
regain his right to possess firearms. Over the State’s objection, the court
restored Harris’ right to possess firearms, but declined to set aside his
conviction.



                                       2
                             STATE v. HARRIS
                            Decision of the Court

¶5            Harris timely appealed the court’s denial of his motion to set
aside his conviction. We have jurisdiction pursuant to Article 6, Section 9,
of the Arizona Constitution, and A.R.S. § 13-4033(A)(3).

                                DISCUSSION

¶6             Harris contends that the superior court erred in basing its
denial of his motion to set aside his conviction on the “nature of the
conviction.” We review a court’s order on a motion to set aside for abuse
of discretion. State v. Bernini, 233 Ariz. 170, 172, ¶ 8 (App. 2013) (citing
A.R.S. § 13-908; State v. Key, 128 Ariz. 419, 421 (App. 1981)). A court abuses
its discretion where the record fails to provide substantial support for its
decision or the court commits an error of law in reaching the decision. Grant
v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 456 (1982); see also Torres v. N. Am. Van
Lines, Inc., 135 Ariz. 35, 40 (App. 1982) (stating discretion abused if
“manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons”).

¶7            In Arizona, persons convicted of criminal offenses “may
apply to the court to have the judgment of guilt set aside” upon fulfillment
of their sentence or probation. A.R.S. § 13-907(A). When determing
whether to grant such an application, the court shall consider:

       1. The nature and circumstances of the offense that the
          conviction is based on.

       2. The applicant’s compliance with the conditions of
          probation, the sentence imposed and any state department
          of corrections’ rules or regulations, if applicable.

       3. Any prior or subsequent convictions.

       4. The victim’s input and the status of victim restitution, if
          any.

       5. The length of time that has elapsed since the completion
          of the applicant’s sentence.

       6. The applicant’s age at time of the conviction.

       7. Any other factor that is relevant to the application.

A.R.S. § 13-907(C). Subsection (K)(1) of the statute states that persons
convicted of dangerous offenses are ineligible to apply to have their



                                       3
                            STATE v. HARRIS
                           Decision of the Court

conviction set aside. A dangerous offense includes the “threatening
exhibition of a deadly weapon.” A.R.S. § 13-105(13).

¶8             In Bernini, this court addressed whether dangerous offenses
designated at sentencing as non-dangerous render a person eligible to have
their conviction set aside under § 13-907. 233 Ariz. at 171, ¶ 1. We
concluded that the superior court may rely on the designation of an offense
as non-dangerous, regardless of the underlying nature of the offense, and
therefore may consider the defendant’s § 13-907 application. Id. at 175-76,
¶ 18. Accordingly, designation of a statutorily-dangerous offense as non-
dangerous “merely permits the application”; but “[w]hether to grant the
requested relief and set aside the conviction remains in the sound discretion
of the trial court.” Id. at 175-76, ¶¶ 17-18 (emphasis added).

¶9              Here, Harris was convicted of aggravated assault after he
retrieved and pointed a firearm at the victim—an act defined under Arizona
law as dangerous, notwithstanding its non-dangerous designation for
sentencing purposes. Our holding in Bernini permits Harris to submit a
§ 13-907 application to set aside the judgment of guilt. Id. at 175, ¶ 15.
However, that holding does not entitle Harris to have the judgment of guilt
set aside, or limit in any way the court’s authority to consider the statutory
factors and deny the application. As such, the court did not abuse its
discretion when it denied Harris’ application to set aside his conviction due
to the nature of the offense.

                              CONCLUSION

¶10           Finding no abuse of discretion, we affirm.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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