                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                v.

                    RAYMOND ANTHONY HALL,
                          Appellant.

                      No. 2 CA-CR 2012-0513
                       Filed March 20, 2014

         Appeal from the Superior Court in Pima County
                        No. CR20000137
            The Honorable Richard Gordon, Judge

                 REVERSED AND REMANDED


                            COUNSEL

Barbara LaWall, Pima County Attorney
By Nicolette Kneup, Deputy County Attorney, Tucson
Counsel for Appellee

Lori J. Lefferts, Pima County Public Defender
By Abigail Jensen, Assistant Public Defender, Tucson
Counsel for Appellant


                            OPINION

Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Espinosa concurred.
                          STATE v. HALL
                         Opinion of the Court

E C K E R S T R O M, Judge:

¶1           Appellant Raymond Hall appeals from the trial court’s
decision denying his application to set aside his felony conviction.
For the following reasons, we reverse and remand.

                    Factual and Procedural Background

¶2           In 2005, Hall pled guilty to conspiracy to commit armed
robbery. He was sentenced to a mitigated term of imprisonment,
from which he was absolutely discharged in 2007. In 2012, he
petitioned the court to set aside his conviction under A.R.S. § 13-907
and to restore his civil rights, including his right to bear firearms
under A.R.S. §§ 13-906 and 13-908. After a hearing on Hall’s
application, the court restored his civil rights, with the exception of
the right to possess firearms, but denied Hall’s request to set aside
the conviction. At that hearing, the court stated, “[I]f it wasn’t for
my belief that the set aside provision would necessarily mean that
your gun rights were restored, I would have granted you relief
under [§] 13-907 on the conspiracy conviction.” Hall now appeals,
claiming the court abused its discretion in concluding that setting
aside his conviction pursuant to § 13-907 would necessarily include
restoring his right to bear firearms. We have jurisdiction pursuant
to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(3).

¶3           We review a trial court’s decision in setting aside a
conviction for an abuse of discretion, but we review any issues of
statutory construction de novo. State v. Bernini, 233 Ariz. 170, ¶ 8,
310 P.3d 46, 48-49 (App. 2013). “An error of law committed in
reaching a discretionary conclusion may . . . constitute an abuse of
discretion.” State v. Wall, 212 Ariz. 1, ¶ 12, 126 P.3d 148, 150 (2006).

¶4          The sole question presented is whether, as the trial court
concluded, a person whose conviction is set aside pursuant to § 13-
907(C) automatically has all his civil rights, including his right to
gun possession, restored or whether, as Hall argues, a court may set
aside a person’s conviction without restoring the right to gun
possession.




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                         STATE v. HALL
                        Opinion of the Court

¶5          Section 13-907(C) provides:

            If the judge . . . grants the application [to set
            aside a judgment of guilt], the judge . . .
            shall set aside the judgment of guilt,
            dismiss the accusations or information and
            order that the person be released from all
            penalties and disabilities resulting from the
            conviction except those imposed by [the
            Department of Transportation or the Game
            and Fish Commission pursuant to specified
            statutes].

The trial court concluded this language means that, if a judge grants
an application to set aside a conviction, the judge also must restore
the applicant’s right to bear arms. Hall contends that, because the
statutory schemes governing restoration of rights and setting aside
convictions are separate from one another, the specific statutes
governing restoration of the right to possess firearms should control
over the more general statute governing restoration of civil rights
broadly. He further maintains that if we construe § 13-907 as
controlling the right to bear firearms, as the trial court did here, we
would render certain other statutory provisions superfluous. We
agree.

¶6           This court previously has concluded “the entire
statutory scheme” in chapter 9 of title 13 “treats the restoration of
civil rights as separate from the vacation of a conviction and the
dismissal of the accusation. . . . It is therefore clear that the
legislature intended that they be separable remedies.” State v. Key,
128 Ariz. 419, 421, 626 P.2d 149, 151 (App. 1981). Although Key
addressed whether a judge had the authority to restore civil rights
without vacating a conviction, id. at 420, 626 P.2d at 150—the reverse
of the question before us—our reasoning applies with equal force to
the instant problem.        In Key, we also observed that “the
considerations which would form the basis of a judge’s decision to
restore a person’s civil rights . . . may differ substantially from the
considerations which form the basis of a determination to vacate a
defendant’s conviction and dismiss the charge.” Id. at 421-22, 626
P.2d at 151-52. We thus concluded that both the legislative intent

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                          STATE v. HALL
                         Opinion of the Court

expressed by the separate remedies provided in the statutory
scheme and the logic of considering the matters separately provide
courts the flexibility to restore a person’s civil rights without setting
aside his or her conviction. See id.

¶7            Within the statutory scheme governing restoration of
rights after conviction of a felony, our legislature has addressed the
right to bear firearms separately from other civil rights. Section 13-
912, A.R.S., provides for the automatic restoration of all civil rights
for first time felony offenders meeting certain criteria, with the
exception of the “right to possess weapons.” Sections 13-905 and 13-
906, A.R.S., governing the restoration of rights to persons
completing probation and absolutely discharged from prison
respectively, both treat the restoration of the right to possess guns or
firearms as separate and distinct from the restoration of other civil
rights, imposing stricter limitations on a person’s ability to regain
the right to possess weapons. See §§ 13-905(C), 13-906(C).

¶8            As noted above, when interpreting a statute, we look
first to the plain language of the statute as “the best and most
reliable index of a statute’s meaning.” State v. Christian, 205 Ariz. 64,
¶ 6, 66 P.3d 1241, 1243 (2003); see A.R.S. § 1-213. We acknowledge
that some language in § 13-907(C) could support the trial court’s
interpretation. That provision states that when a court sets aside a
judgment of guilt, “the judge . . . shall . . . order that the person be
released from all penalties and disabilities resulting from the
conviction.” The prohibition on possessing a firearm is one of those
disabilities. A.R.S. § 13-904(A)(5). However, “[w]hen two statutes
appear to conflict, we will attempt to harmonize their language to
give effect to each,” True v. Stewart, 199 Ariz. 396, ¶ 12, 18 P.3d 707,
710 (2001), and “[c]ourts must avoid construction of statutes which
would render them meaningless or of no effect.” State v. Clifton
Lodge No. 1174, Benevolent & Protective Order of Elks of the U.S., 20
Ariz. App. 512, 513, 514 P.2d 265, 266 (1973).

¶9            Under § 13-907(A), a person who has been convicted of
any criminal offense—including a “serious offense” under A.R.S.
§ 13-706—is eligible to apply to have that conviction set aside upon
fulfilling his probation or sentence, so long as the conviction is not
for a “dangerous offense” or another type of offense specifically

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                          STATE v. HALL
                         Opinion of the Court

excluded by § 13-907(D). However, under §§ 13-905(C) and 13-
906(C), a person who has been convicted of a serious offense is not
eligible to apply for the restoration of his right to carry firearms until
ten years after his discharge from probation or imprisonment.
Likewise, a person convicted of a felony offense that is neither
serious nor dangerous is eligible to have his conviction set aside
immediately upon discharge from probation or prison, but is
ineligible to have his right to carry firearms restored until two years
after such discharge. §§ 13-905(C), 13-906(C). Therefore, were we to
interpret § 13-907(C) as requiring a judge who sets aside a conviction
to restore a defendant’s right to bear firearms, it would allow
defendants to avoid the mandatory waiting periods imposed by
§§ 13-905 and 13-906.

¶10           In situations where a general statute conflicts with a
specific one, “the specific governs.” State v. Rice, 110 Ariz. 210, 213,
516 P.2d 1222, 1225 (1973). Sections 13-905(C) and 13-906(C) are
specific provisions governing the restoration of the right to carry
firearms, whereas § 13-907(C) concerns only the restoration of rights
in a general way, and so, to the extent they conflict, §§ 13-905 and
13-906 should control. In keeping with this principle, and in
harmonizing the two statutes to the extent possible, True, 199 Ariz.
396, ¶ 12, 18 P.3d at 710, we conclude that § 13-907(C) allows a judge
to set aside a defendant’s conviction without restoring his right to
bear firearms.

¶11          The state does not directly contradict any of Hall’s
arguments but maintains that the law needs clarification. In this
vein, the state observes that if a defendant’s conviction has been set
aside, but the ban on possession of firearms remains, “it is not clear
what the remaining basis for the prohibition is.” But, as the state
acknowledges, a conviction that has been set aside is not a nullity
under Arizona law. A set-aside pursuant to § 13-907(C) “is a special
benefit conferred by statute,” Key, 128 Ariz. at 421, 626 P.2d at 151,
meaning it is naturally subject to legislative control and limitations.
For example, the legislature has expressly determined that a set
aside conviction may be used to enhance or aggravate future
sentences. § 13-907(C)(1); State v. Barr, 217 Ariz. 445, ¶ 17, 175 P.3d
694, 698-99 (App. 2008). A person whose conviction has been set


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                          STATE v. HALL
                         Opinion of the Court

aside still must disclose the fact of the conviction if directly asked on
an insurance application. Russell v. Royal Maccabees Life Ins. Co., 193
Ariz. 464, ¶ 27, 974 P.2d 443, 449 (App. 1998). And, a conviction that
has been set aside may nonetheless be used to impeach a witness
pursuant to Rule 609, Ariz. R. Evid. State v. Tyler, 149 Ariz. 312, 315,
718 P.2d 214, 217 (App. 1986). Thus, a court’s grant of relief
pursuant to § 13-907(C) is not intended to eliminate all consequences
of a person’s criminal conviction under Arizona law, and we
conclude a conviction set aside under this statute may continue to
serve as the basis for restricting a defendant’s right to bear firearms.

                              Conclusion

¶12         The trial court committed an error of law and thus
abused its discretion by determining § 13-907 did not allow it to set
aside Hall’s conviction without also restoring his right to bear
firearms. See Wall, 212 Ariz. 1, ¶ 12, 126 P.3d at 150. Because the
court expressly based its decision upon this error of law, we reverse
the order denying Hall’s application to set aside his conviction and
remand for further proceedings consistent with this opinion.




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