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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     MICHAEL PETRAMALA, Appellant.

                              No. 1 CA-CR 14-0685
                                FILED 7-28-2015


            Appeal from the Superior Court in Maricopa County
                         No. CR 2004-019118-001
                  The Honorable Joseph C. Welty, Judge

                       VACATED AND REMANDED


                                    COUNSEL

Scottsdale City Prosecutor’s Office, Scottsdale
By Kenneth M. Flint
Counsel for Appellee

Michael Petramala,
Appellant



                        MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Patricia A. Orozco joined.
                          STATE v. PETRAMALA
                           Decision of the Court

G O U L D, Judge:

¶1             Michael Petramala appeals the trial court’s summary denial
of his petition for restoration of right to possess firearms, filed pursuant to
Arizona Revised Statutes (“A.R.S.”) section 13-925 (West 2015). For the
following reasons, we vacate the order denying the petition and remand for
further proceedings consistent with this decision.

                              BACKGROUND

¶2            In 2003, Petramala was charged in Scottsdale City Court with
interfering with judicial proceedings, a misdemeanor offense. The matter
was transferred to the Maricopa County Superior Court, under Cause No.
CR 2004-019118-001 (the “criminal case”), for the purpose of evaluating
Petramala’s competency. Based on examinations of Petramala’s mental
condition ordered pursuant to Arizona Rule of Criminal Procedure 11, the
superior court determined that Petramala was not mentally competent to
stand trial and that there was no substantial probability, given the nature
of the offense and the time left for restoration, that Petramala would be
restored to competency within the statutory framework. As a result, the
superior court dismissed the criminal charge without prejudice pursuant to
A.R.S. § 13-4517(3) (West 2015).1

¶3           In 2005, based on a campaign of harassment commenced by
Petramala, which included the filing of numerous and repeated lawsuits
against various individuals, their family members, and their lawyers, the
superior court found Petramala to be a “vexatious litigant” and entered an
administrative order prohibiting him from filing any actions in Maricopa
County without prior court approval. When the harassment continued, the
superior court entered an injunction against Petramala’s abusive conduct
and appointed a guardian ad litem for Petramala.

¶4            In 2006, the guardian ad litem petitioned for permanent
appointment of a guardian and conservator for Petramala under Maricopa
County Superior Court Cause No. PB 2006-002295 (the “probate court”). In
early 2007, a jury found by clear and convincing evidence that Petramala
was in need of a guardian and, based on the verdict, the probate court
appointed the Maricopa County Public Fiduciary as both his guardian and
conservator. The appointments were affirmed on appeal. In re Guardianship


1      Absent material revisions after the relevant dates, statutes and rules
cited refer to the current version unless otherwise indicated.



                                      2
                         STATE v. PETRAMALA
                          Decision of the Court

& Conservatorship of Petramala, 1 CA-CV 07-0285, 2008 WL 4149005 (Ariz.
App. Apr. 8, 2008) (mem. decision).

¶5            Several months later, Petramala petitioned the probate court
to terminate the guardianship and conservatorship. After considering the
petition, the probate court entered an order in 2008 dismissing the
conservatorship and appointing the Maricopa County Public Fiduciary as
a limited guardian. This order also prohibited Petramala from possessing
a firearm or filing any lawsuits without permission of the court. The
probate court’s order was affirmed on appeal. In re Guardianship &
Conservatorship of Petramala, 1 CA-CV 08-0330, 2009 WL 3463920 (Ariz. App.
Oct. 27, 2009) (mem. decision).

¶6            During the pendency of the proceedings in the probate court,
Petramala filed a motion in the dismissed criminal case in September 2007
to vacate the Rule 11 finding nunc pro tunc, claiming that the finding
resulted in him being included in the National Instant Criminal
Background System (“NICS”),2 which prevented him from possessing a
firearm and pursuing a career in law enforcement. He argued that the
finding was erroneous and resulted from ineffective assistance of counsel
in the Scottsdale City Court proceedings. The superior court denied the
motion, ruling that the request was more appropriately governed by Rule
32.

¶7            In December 2007, Petramala filed a notice of post-conviction
relief pursuant to Rule 32 seeking to set aside the finding of incompetency
based on a claim of ineffective assistance of counsel. After the superior
court dismissed the notice, Petramala filed a motion for rehearing, which
was also denied. In explaining the denial of the motion for rehearing, the




2 The NICS is a database mandated by the Brady Handgun Violence
Prevention Act of 1993 and maintained by the Federal Bureau of
Investigation (“FBI”). The NICS allows licensed firearms sellers to
determine whether a prospective buyer has a criminal record or is
otherwise ineligible to purchase a firearm. Petramala had asked the FBI to
remove his name from the NICS, but the FBI had refused to do so, and had
informed him he was ineligible to possess a firearm because in the criminal
case, the superior court had found he was “criminally incompetent.” In
support of its denial, the FBI cited 18 U.S.C. section 922(g)(4) (2005). This
statute prohibits possession of a firearm by a person adjudicated
“mental[ly] defective.”


                                     3
                          STATE v. PETRAMALA
                           Decision of the Court

superior court noted Petramala was prohibited by administrative order
from filing any action in Maricopa County without leave of the court.

¶8           In April 2009, Petramala petitioned the probate court to
remove his name from the NICS. The court denied the petition, ruling that
it did not have authority to determine whether a federal agency acted
appropriately in entering Petramala’s name into the NICS.

¶9             In May 2010, Petramala petitioned the probate court to
modify his guardianship to remove his name from the NICS, or to find that
he should have never been entered into the NICS, along with other relief.
On appeal, this court affirmed the orders denying the petitions. In re
Guardianship of Petramala, 1 CA-CV 11-0217, 2012 WL 5333547 (Ariz. App.
Oct. 30, 2012) (mem. decision). The probate court’s denial of a subsequent
petition filed in 2011 to terminate the guardianship and to set aside the pre-
filing review order was also affirmed on appeal. In re Guardianship of
Petramala, 1 CA-CV 12-0041, 2013 WL 616872 (Ariz. App. Feb. 19, 2013)
(mem. decision).

¶10           In May 2012, Petramala again petitioned to terminate the
limited guardianship and to have all orders preventing him from
possessing a weapon and filing lawsuits dismissed. In August 2012, the
probate court entered an order terminating the limited guardianship based
on findings that Petramala had left Maricopa County and had moved to
King County, Washington, and that he had no unmet needs that could be
effectively administered in Arizona or overseen by the probate court. The
probate court further stated, however, that the termination of the
guardianship did not constitute an order granting Petramala permission to
possess firearms, noting that it was the court’s understanding that
Petramala is still listed as a prohibited possessor of firearms in the NICS.
The probate court also ruled that the termination order did not terminate
or otherwise vacate the administrative order that Petramala seek leave of
the court before filing any action in Maricopa County.

¶11             In 2013, Petramala requested and was granted leave to file a
petition pursuant to A.R.S. § 13-925 under the criminal case cause number
for restoration of right to possess a firearm. On August 17, 2013, Petramala
filed his petition and requested appointment of counsel to represent him in
the proceeding. By order dated October 30, 2013, the superior court
summarily denied the motion, stating that Petramala’s previous requests
for this relief had been denied by the probate court, that the denials had
been affirmed by the Court of Appeals, and that the superior court did not
have the authority to make a ruling inconsistent with the Court of Appeals.


                                      4
                          STATE v. PETRAMALA
                           Decision of the Court

¶12            On September 15, 2014, Petramala filed the petition for
restoration of right to possess firearms pursuant to A.R.S. § 13-925 that is
the subject of the instant appeal and included a demand for appointment of
counsel. The superior court summarily denied the petition, stating that the
denial was based on “the reasons articulated in this Court’s October 30,
2013[,] minute entry denying an identical motion from the Defendant.”
Petramala timely appealed. We have jurisdiction pursuant to Article 6,
Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (West
2015), and 12-2101(A)(5)(d) (West 2015).

                               DISCUSSION

I.     Summary Dismissal of Petition

¶13            In denying Petramala’s petition for restoration of right to
possess firearms filed in October 2013, the superior court ruled that it was
bound by this court’s appellate decision affirming the probate court’s
rejection of his previous request for a hearing under A.R.S. § 13-925. When
Petramala made his original request in the probate court in 2009, this statute
read, in pertinent part:

               On proper application, a person who was found to
       constitute a danger to himself or others or to be persistently
       or acutely disabled or gravely disabled and who was subject
       to a treatment order pursuant to section 36-540 may request
       the court that entered the treatment order to restore the
       person’s right to possess a firearm on a showing by clear and
       convincing evidence that the person no longer suffers from
       the mental disorder that led to the finding that the person
       constituted a danger to himself or others or was persistently
       or acutely disabled or gravely disabled.

A.R.S. § 13-925(A) (West 2009). On appeal of the probate court’s ruling, this
court held that Petramala’s request for a hearing under A.R.S. § 13-925 was
properly denied because the statute only applied to persons who had been
ordered to undergo involuntary mental health treatment pursuant to A.R.S.
§ 36-540, which did not occur in Petramala’s case. Petramala, 1 CA-CV 11-
0217 at ¶ 14.

¶14            The legislature has since amended A.R.S. § 13-925 to greatly
expand the scope of persons who may request restoration of the right to
possess a firearm. See 2011 Ariz. Sess. Laws, ch. 304, § 3 (1st Reg. Sess.)
(effective July 20, 2011). This statute now provides:



                                      5
                          STATE v. PETRAMALA
                           Decision of the Court

       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 section 13-3101, subsection A,
       paragraph 7, subdivision (a) or subject to 18 United States
       Code section 922(d)(4) or (g)(4) to restore the person’s right to
       possess a firearm.

A.R.S. § 13-925(A). At the hearing on the petition,

       [t]he 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 section 13–3101[ (A)(7)(a)
       ]. . . .

       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.

A.R.S. § 13–925(C). To obtain relief, a petitioner must prove by clear and
convincing evidence that the “petitioner is not likely to act in a manner that
is dangerous to public safety” and that “[g]ranting the requested relief is
not contrary to the public interest.” A.R.S. § 13–925(D).

¶15           The current version of A.R.S. § 13-925, which was in effect
when the superior court ruled on the petition for restoration of firearms
rights at issue, provides that on the filing of a petition, the superior court
shall set an evidentiary hearing. A.R.S. § 13-925(C). The superior court
summarily denied Petramala’s petition based on an appellate decision that
construed an earlier version of the statute that has since been amended in
such a manner so as to bring Petramala within the scope of the statute and



                                      6
                          STATE v. PETRAMALA
                           Decision of the Court

thereby render that appellate decision no longer controlling. Accordingly,
the superior court erred in summarily denying the petition without holding
a hearing and considering the merits of the petition in accordance with the
provisions of A.R.S. § 13-925(C). We therefore vacate the order denying
Petramala’s petition for restoration of his right to possess firearms and
remand for further proceedings consistent with this decision.

II.    Additional Issues Raised on Appeal

¶16            Petramala contends that the superior court erred by failing to
grant a motion filed in November 2013, seeking clearance of his records in
the Scottsdale City Court criminal case. The record reflects the superior
court never ruled on the motion, possibly because Petramala never sought
leave to file the motion. In the absence of an appealable order, we lack
jurisdiction to consider the claim. See A.R.S. § 13-4033(A) (West 2015)
(governing appeals that may be taken by criminal defendant).

¶17           Petramala also argues that both this court and the superior
court erred by failing to appoint counsel to represent him regarding his
petition for restoration of right to possess firearms. A petitioner is not
entitled to appointed counsel in a proceeding for restoration of firearms
rights. Pinal Cnty. Bd. Of Supervisors v. Georgini, 235 Ariz. 578, 588, ¶ 37
(App. 2014).

¶18           Petramala further challenges the superior court’s pre-filing
review of his petition for firearms rights pursuant to A.R.S. § 13-925 under
Administrative Order 2005-184. This court upheld the general validity of
the superior court’s administrative pre-filing review order in an earlier
appeal by Petramala, and we decline to reconsider that decision. Petramala,
1 CA-CV 11-0217 at ¶¶ 18-21.

¶19           The only new arguments raised by Petramala in this appeal
with respect to the administrative order are based on A.R.S. § 12-3201 (West
2015). His reliance on this statute in arguing that the superior court erred
in applying the administrative pre-filing review order to his petition for
restoration of right to possess firearms is misplaced. First, this statute did
not become effective until January 1, 2015, two months after the trial court’s
ruling dismissing the petition. See 2014 Ariz. Sess. Laws, ch. 41, § 2. Second,
contrary to Petramala’s contention, this statute does not preempt the
superior court’s inherent power to prevent a litigant from filing frivolous
motions, actions, and lawsuits, but rather merely codifies that power. See
Madison v. Groseth, 230 Ariz. 8, 14, ¶ 17 (App. 2012) (“Arizona courts possess
inherent authority to curtail a vexatious litigant’s ability to initiate



                                      7
                          STATE v. PETRAMALA
                           Decision of the Court

additional lawsuits.”). Accordingly, this statute has no effect on the validity
of the administrative order entered in regards to Petramala in 2005. Third,
although this statute limits the designation of a pro se litigant as a vexatious
litigant to non-criminal cases, a proceeding brought pursuant to A.R.S. § 13-
925 is civil in nature. Georgini, 235 Ariz. at 588, ¶ 35. Thus, even if A.R.S. §
12-3201 had been in effect when Petramala filed his petition to restore his
firearms rights, it would not have precluded application of the pre-filing
review order to this non-criminal proceeding.

¶20            Finally, Petramala argues that both this court and the superior
court erred in failing to grant his requests to appear telephonically or for
parking in the underground garage. The request for such accommodations
in this court was mooted by the denial of the request for oral argument. A
review of the record further reveals that there was no such request made by
Petramala in the superior court with respect to the petition at issue in the
instant appeal. In the event Petramala makes such a request on remand,
the decision on the request is a matter properly left to the superior court in
the first instance.

                               CONCLUSION

¶21          For the foregoing reasons, we vacate the superior court’s
order summarily denying Petramala’s petition for restoration of his right to
possess firearms pursuant to A.R.S. § 13-925 and remand for further
proceedings consistent with this decision.




                                     :ama




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