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     UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     GUILLERMO LEON CORTES, Appellant.

                                 No. 1 CA-CR 14-0368
                                   FILED 2-12-2015


               Appeal from the Superior Court in Coconino County
                               No. S0300CR12384
                 The Honorable Cathleen Brown Nichols, Judge

                                      AFFIRMED


                                       COUNSEL

Arizona Attorney General’s Office, Phoenix
By Craig W. Soland
Counsel for Appellee

Keith A. Hammond, P.C., Flagstaff
By Keith A. Hammond
Counsel for Appellant
                             STATE v. CORTES
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Donn Kessler joined.


C A T T A N I, Judge:

¶1            Guillermo Leon Cortes appeals the superior court’s denial of
his motion to terminate his obligation to register as a sex offender. For
reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            In 1986, Cortes was indicted on one count of sexual conduct
with a minor over the age of 15, a class 6 felony. See Arizona Revised
Statutes (“A.R.S.”) § 13-1405.1 At the time of the charged offense, Cortes
was 47 years old. Cortes entered a plea of no contest, and the court imposed
a four-year term of probation. As a result of this conviction, Cortes was
required to register as a sex offender for the remainder of his life. See A.R.S.
§ 13-3821; Fushek v. State, 218 Ariz. 285, 291, ¶ 23, 183 P.3d 536, 542 (2008).
The court terminated his probation in 1989.

¶3            In 1991, Cortes petitioned the superior court to set aside his
conviction. Although the statute on which Cortes relied—A.R.S. § 13-
907(B)(3) (1991)—expressly excluded anyone who had been convicted of
sex offenses from the category of persons eligible to apply for a set-aside,
the State did not file an objection.2 The superior court set aside Cortes’s


1     Absent material revisions after the relevant date, we cite a statute’s
current version. Citations to prior versions are denoted by including the
relevant date parenthetical for the version cited.

2      At the time, A.R.S. § 13-907 precluded persons convicted of offenses
“[i]n violation of chapter 14 of this title” from applying for a set-aside.
A.R.S. § 13-907(B)(3) (1991). The statute was later amended to prohibit
application for a set-aside by persons convicted of offenses “[f]or which the
person is required or ordered by the court to register pursuant to § 13-3821.”
See A.R.S. § 13-907(D)(2) (2014); see also 2001 Ariz. Sess. Laws, ch. 109, § 1.
Neither version of the statute provides authority for setting aside Cortes’s
conviction.


                                       2
                              STATE v. CORTES
                             Decision of the Court

conviction and ordered him to be “released from all penalties and
disabilities resulting from the conviction.”

¶4             In 2013, Cortes sought to terminate his lifetime registration
requirement, relying on A.R.S. § 13-923(A), which provides for an annual
probation hearing, but only for probationers under age 22 who were under
age 18 at the time of the offense. Cortes later abandoned his argument
under § 13-923 and argued simply that the registration requirement was a
“disability” from which he should be released pursuant to the court’s 1991
order setting aside his conviction.

¶5            Cortes presented evidence that the registration requirement
could be a basis for a discretionary denial of any application he might file
to become a naturalized citizen. Additionally, he avowed that the
registration requirement had affected his ability to secure employment as
an engineer. The court nevertheless denied Cortes’s motion, reasoning that
under Arizona law, sex-offender registration is a lifetime obligation that
was not excused when Cortes’s conviction was set aside under A.R.S. § 13-
907.

¶6           Cortes timely appealed. We have jurisdiction under A.R.S. §§
12-120.21(A)(1), 13-4031, and 13-4033(A)(3).

                                DISCUSSION

¶7             Cortes argues that the superior court erred by denying his
motion to terminate the § 13-3821 lifetime registration requirement because
the 1991 court order setting aside his conviction and removing all
“disabilities resulting from the conviction” relieved him of the registration
requirement, even if the 1991 order itself was improper. Because this appeal
involves a question of law, we review the superior court’s ruling de novo.
State v. Zaputil, 220 Ariz. 425, 427, ¶ 7, 207 P.3d 678, 680 (App. 2008).

¶8             Cortes does not dispute that the 1991 order setting aside his
sexual conduct conviction was improper. But the State did not oppose or
appeal from the 1991 order, and the order accordingly remains final and in
full effect. See, e.g., Broomfield v. Maricopa Cnty., 112 Ariz. 565, 568, 544 P.2d
1080, 1083 (1975) (“It is a settled principle of law that an order issued by a
court with jurisdiction over the subject matter must be obeyed by the parties
until that order is reversed by orderly and proper proceedings.”).

¶9            Under A.R.S. § 13-907, if the court grants an individual’s
application to set aside a conviction, the court “shall . . . order that the
person be released from all penalties and disabilities resulting from the


                                        3
                             STATE v. CORTES
                            Decision of the Court

conviction,” with specified exceptions not relevant here. See A.R.S. § 13-
907(A) (1991); A.R.S. § 13-907(C) (2014). Nevertheless, because a set-aside
under A.R.S. § 13-907 “is a special benefit conferred by statute, [] it is
naturally subject to legislative control and limitations.” State v. Hall, 234
Ariz. 374, 377, ¶ 11, 322 P.3d 191, 194 (App. 2014) (citation omitted) (holding
that a conviction set aside under the statue “may continue to serve as the
basis for restricting a defendant’s right to bear firearms,” and noting that it
likewise “may be used to enhance or aggravate future sentences,” may be
used for impeachment, and may be subject to disclosure on an insurance
application); see also Op. Ariz. Att’y Gen. I00-030 (noting limitations on the
reach of an order under § 13-907).

¶10           The Legislature has consistently excluded individuals subject
to lifetime sex offender registration from eligibility to set aside the
conviction that triggered registration. See A.R.S. § 13-907(B)(3) (1991);
A.R.S. § 13-3821(A) (1991); A.R.S. § 13-907(D)(2) (2014). This wholesale
exclusion of individuals subject to registration from eligibility for relief
under § 13-907 evidences legislative intent that the statute not be used as a
basis for providing relief from registration under § 13-3821.

¶11           Furthermore, the term “disability,” as used in § 13-907 and as
defined by case law, does not include affirmative obligations, such as the
obligation to register as a sex offender. Although the Legislature did not
expressly define “disability” for purposes of A.R.S. § 13-907, the term
generally means a “legal incapacity or disqualification,” see Zaputil, 220
Ariz. at 428, ¶ 12, 207 P.3d at 681 (citation omitted), and the registration
requirement itself does not result in any legal incapacity or disqualification
because it “does not affirmatively inhibit or restrain an offender’s
movements or activities.” State v. Noble, 171 Ariz. 171, 176-77, 829 P.2d 1217,
1222-23 (1992) (holding that sex-offender registration is regulatory, rather
than punitive for purposes of ex post facto analysis).

¶12          Although Cortes argues in his reply that he has suffered an
impingement of his constitutional privacy rights because of the disclosures
he must make in his registration, he does not explain or provide authority
for why the required disclosures constitute a “legal disqualification or
incapacity.” Accordingly, we conclude that the lifetime registration
requirement of § 13-3821 is not a “disabilit[y]” from which Cortes was
relieved by operation of A.R.S. § 13-907.

¶13            Finally, even assuming the lifetime registration requirement
under A.R.S. § 13-3821 can be viewed to conflict with the provisions for
relief available under A.R.S. § 13-907, the more specific statute–here § 13-


                                      4
                             STATE v. CORTES
                            Decision of the Court

3821–is controlling. See Hall, 234 Ariz. at 376, ¶ 10, 322 P.3d at 193 (“In
situations where a general statute conflicts with a specific one, ‘the specific
governs.’”) (citation omitted). While § 13-907 establishes requirements for
setting aside convictions generally, § 13-3821 is tailored to the specific
details of registration. Moreover, § 13-3821 expressly enumerates the only
circumstances under which an individual can be relieved of the registration
requirement, and the statute details the individuals for whom registration
is not a lifetime requirement. See A.R.S. § 13-3821(D), (F), (G), (H); see also
Fushek, 218 Ariz. at 291, ¶ 23, 183 P.3d at 542 (“[O]nce imposed, sex offender
registration is a lifelong obligation.”); Op. Ariz. Att’y Gen. I00-030 (noting
that, with limited, enumerated exceptions, “the statutes governing sex
offender registration do not provide a mechanism for a court to release from
the registration requirement an offender who is statutorily required to
register”). Because Cortes does not fall into any of the categories delineated
by § 13-3821, the superior court lacked authority to relieve him of the duty
to register, and the court properly denied Cortes’s request for relief.

                              CONCLUSION

¶14          For the foregoing reasons, we affirm the superior court’s
denial of Cortes’s motion to terminate his obligation to register as a sex
offender.




                                  :ama




                                         5
