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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               ARTHUR CHARLES GALLEGOS, Appellant.

                             No. 1 CA-CR 14-0631
                                FILED 5-21-2015


           Appeal from the Superior Court in Maricopa County
                         No. CR1988-005617-A
                  The Honorable Jose S. Padilla, Judge

                                  AFFIRMED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Andrea L. Kever
Counsel for Appellee

Arthur Charles Gallegos, Phoenix
By Arthur Charles Gallegos
Appellant
                           STATE v. GALLEGOS
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Samuel A. Thumma and Judge Donn Kessler joined.


W I N T H R O P, Presiding Judge:

¶1           Arthur Charles Gallegos appeals the trial court’s order filed
September 2, 2014, denying his application to restore his right to possess or
carry a gun or firearm. For the reasons set forth below, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2           In March 1988, Gallegos’ automobile collided with another
automobile, resulting in three deaths, after he attempted to pass other
vehicles by driving his automobile into the oncoming traffic lane on
Southern Avenue in Phoenix. Gallegos’ high blood alcohol content,
excessive speed, and reckless driving caused the collision. Police officers
also found cocaine in Gallegos’ vehicle.

¶3            Gallegos entered a plea agreement in which he pled no
contest to three counts of manslaughter, each a class 3 felony.1 The trial
court sentenced Gallegos to concurrent ten-year prison terms for Counts I
and II, and a consecutive five-year term of probation for Count III. The
court terminated Gallegos’ probation on January 18, 2001.

¶4             In February 2005, Gallegos petitioned the trial court to restore
his right to possess or own a gun or firearm, but the court denied the request
with the handwritten annotation: “Denied. Fees owed.” In May 2007,
Gallegos renewed his petition, but the court again denied his request,
reasoning that, because manslaughter is a “serious offense,” Gallegos was
required to wait ten years from his discharge from probation to file his
request. See Ariz. Rev. Stat. (“A.R.S.”) §§ 13-706(F)(1)(c) (2010), -905(C)
(2010). Gallegos appealed, and this court affirmed, concluding Gallegos
was not eligible to have his right to possess or carry a gun or firearm



1     As a part of the agreement, the State’s allegation of dangerousness
was dismissed.



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                            STATE v. GALLEGOS
                            Decision of the Court

restored until January 18, 2011. See State v. Gallegos, 1 CA-CR 07-0633, 2008
WL 3892039, at *3, ¶ 12 (Ariz. App. May 13, 2008) (mem. decision).2

¶5            In March 2011, Gallegos filed yet another application to have
his civil gun rights restored, but on May 18, 2011, the trial court again
denied his request, explaining in part as follows:

       Nature of offense. No reason given why [the] court should
       consider restoring defendant’s right to possess [a] firearm.
       Defendant claimed he suffered [a] head injury in the collision
       that could affect his ability to safely handle a firearm.

Gallegos did not appeal from the court’s order.

¶6             On July 7, 2014, Gallegos filed his most current application to
restore his right to possess or carry a gun or firearm. The State objected to
the application based upon the nature of the offense and the fact that
Gallegos was impaired when he killed the three victims. The trial court
denied Gallegos’ request to restore his gun rights, noting, “Although [the]
crime didn’t involve a gun, it involved alcohol and the death of others.”3

¶7              We have jurisdiction over Gallegos’ timely appeal. See Ariz.
Const. art. 6, § 9; A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), -4033(A)(3)
(2010); see also State v. Delgarito, 189 Ariz. 58, 59-60, 938 P.2d 107, 108-09
(App. 1997) (finding appealable an order entered after judgment affecting
the substantial rights of a party).




2      While Gallegos’ appeal was pending, the trial court denied another
application by Gallegos to restore his right to possess or carry a gun or
firearm, but granted his application to restore his other previously
suspended civil rights.

3       Although dated August 22, 2014, the State’s response objecting to the
application was filed on September 5, 2014, three days after the court’s
order was filed. Gallegos filed a reply to the State’s response on September
18, 2014. Based on the record, it appears unlikely the court relied on the
State’s late-filed response, but even if the court did so, Gallegos has neither
asserted nor shown any prejudice.


                                       3
                           STATE v. GALLEGOS
                           Decision of the Court

                                 ANALYSIS

¶8            Gallegos contends the trial court abused its discretion when it
denied his July 7, 2014 application to restore his right to possess or carry a
gun or firearm. We disagree.

¶9             Under A.R.S. § 13-904 (2010), a conviction for a felony
suspends certain civil rights, including “[t]he right to possess a gun or
firearm.” A.R.S. § 13-904(A)(5); see also State v. Olvera, 191 Ariz. 75, 77, 952
P.2d 313, 315 (App. 1997) (concluding that § 13-904(A)(5) merely changed
an appellant’s status and did not constitute an ex post facto law).
Restoration of civil rights is generally automatic for first offenders upon (1)
completion of probation or discharge from imprisonment, and (2) payment
of all fines or restitution imposed.4 A.R.S. § 13-912(A) (2010). Automatic
restoration, however, “does not apply to a person’s right to possess
weapons,” and offenders seeking restoration of this right must apply to
“the superior court judge by whom the person was sentenced or the judge’s
successors in office.” A.R.S. §§ 13-912(B), -905(B).

¶10           An applicant’s request to restore his or her right to possess a
gun or firearm is a matter entrusted to the trial court’s sound discretion. See
A.R.S. § 13-908 (2010). An abuse of discretion occurs when “the reasons
given by the court for its actions are clearly untenable, legally incorrect, or
amount to a denial of justice.” State v. Penney, 229 Ariz. 32, 34, ¶ 8, 270 P.3d
859, 861 (App. 2012) (citation omitted).

¶11           In this case, Gallegos was convicted of three counts of
manslaughter.5 Manslaughter is considered a “serious offense” pursuant
to A.R.S. § 13-706(F)(1)(c), and a person convicted of a serious offense as
defined in A.R.S. § 13-706 “may not file for the restoration of the right to
possess or carry a gun or firearm for ten years from the date of his discharge
from probation.” A.R.S. § 13-905(C). Gallegos’ probation was terminated
on January 18, 2001. Pursuant to § 13-905(C), he became eligible to apply to
have his right to possess or carry a gun or firearm restored on January 18,
2011.




4      Gallegos asserts he has paid all fines and restitution owed.

5       Gallegos’ no contest plea was the equivalent of a guilty plea and
resulted in his convictions on all three charged counts of manslaughter. See
State v. McGhee, 27 Ariz. App. 119, 120, 551 P.2d 568, 569 (1976).


                                       4
                            STATE v. GALLEGOS
                            Decision of the Court

¶12            The trial court, however, was not required to restore Gallegos’
right to possess or carry a gun or firearm merely because Gallegos had
become eligible to apply for restoration. See A.R.S. § 13-908; cf. Ariz. R. Crim.
P. 29.5 (providing that, although the trial court has full discretion with
respect to the restoration of rights, the court is required to state its reasons
if it denies an application). Instead, the court was required to consider the
nature and circumstances of Gallegos’ prior felony convictions, as well as
any other relevant facts in exercising its discretion. See generally Ariz. R.
Crim. P. 29.2(a).

¶13            In this case, the trial court denied Gallegos’ request to restore
his civil rights after finding restoration was not appropriate because “it
involved alcohol and the death of others.”                Although Gallegos’
manslaughter convictions did not involve a gun or firearm, they did involve
the use of alcohol, the use of an automobile as a deadly weapon, and the
subsequent deaths of three people. In light of the gravity of the underlying
offenses - three counts of manslaughter involving intoxication – the trial
court’s order denying Gallegos’ application to restore his gun rights was
neither “clearly untenable” nor an abuse of discretion. The trial court
properly considered the nature of Gallegos’ prior felony convictions when
it reviewed and denied his application.6




6       Moreover, as we have recognized, in denying Gallegos’ March 2011
application, the trial court noted Gallegos indicated he suffered a head
injury in the automobile collision, and recognized the injury “could affect
[his] ability to safely handle a firearm.” Gallegos did not appeal that ruling,
and in his most current application, he provided no documentation to
demonstrate otherwise. See Ariz. R. Crim. P. 29.2(a).




                                       5
                          STATE v. GALLEGOS
                          Decision of the Court

                              CONCLUSION

¶14           The trial court did not abuse its discretion in denying
Gallegos’ July 7, 2014 application to restore his right to possess or carry a
gun or firearm. Accordingly, the trial court’s September 2, 2014 order
denying Gallegos’ application is affirmed.7




                                    :ama




7     Because Gallegos is not an attorney, is not the successful party on
appeal, and has not cited proper authority for his request, we deny his
request for attorneys’ fees on appeal.


                                     6
