FILED BY CLERK JAN 12 2007 IN THE COURT OF APPEALS COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, ) ) 2 CA-CR 2005-0384 Appellee, ) DEPARTMENT A ) v. ) OPINION ) WALTER JAMES MANGUM, ) ) Appellant. ) )
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20032388
Honorable Paul Tang, Judge Honorable Charles S. Sabalos, Judge
AFFIRMED
Terry Goddard, Arizona Attorney General By Randall M. Howe and Eric J. Olsson Tucson Attorneys for Appellee
Creighton Cornell, P.C. By Creighton Cornell Tucson Attorney for Appellant
P E L A N D E R, Chief Judge. ¶1 Following a jury trial, appellant Walter Mangum was convicted of possession
of a deadly weapon by a prohibited possessor. The trial court suspended the imposition of
sentence and placed Mangum on probation for three years. On appeal, he argues on various
grounds the trial court erred in not dismissing the sole charge against him after the Pima
County Justice Court vacated the underlying conviction that had created his prohibited
possessor status. He also contends the evidence was insufficient to support his conviction
and the trial court erroneously precluded any evidence at trial that his underlying conviction
was invalid.
¶2 Although the first issue Mangum raises is a close one, we conclude he was not
entitled to dismissal of the prohibited possessor charge after the underlying, predicate
conviction on which that charge was based was found constitutionally invalid and vacated.
Accordingly, the trial court did not err in failing to dismiss this case on that basis. We also
find no merit in Mangum’s other arguments and, therefore, affirm.
BACKGROUND
¶3 We view the evidence in the light most favorable to upholding the jury’s
verdict. See State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999). The
pertinent procedural facts, however, are undisputed. In October 2002, Mangum pled guilty
in justice court to a misdemeanor domestic violence/disorderly conduct offense in violation
of A.R.S. §§ 13-2904 and 13-3601(A) and was placed on supervised probation. In July
2003, a probation officer inspected Mangum’s residence and discovered firearms in his
2 bedroom. About a week later, Mangum was indicted on a charge of possession of a deadly
weapon by a prohibited possessor “while serving a term of probation” in violation of A.R.S.
§ 13-3102(A)(4) and former (J) (now (K)).
¶4 Shortly thereafter, Mangum petitioned the justice court for post-conviction
relief from the misdemeanor domestic violence conviction pursuant to Rule 32, Ariz. R.
Crim. P., 17 A.R.S. In October 2004, the justice court granted relief, finding multiple,
prejudicial violations of Mangum’s right to counsel and on that basis vacating the
misdemeanor conviction for which Mangum had been placed on probation in 2002. The
state apparently did not further pursue any charges against Mangum in connection with that
prior incident.
¶5 Mangum then moved to dismiss the prohibited possessor charge in this case
based on the justice court’s having vacated the underlying misdemeanor conviction. Because
that conviction had been “recently deemed invalid,” Mangum argued, his “alleged
probationary status of July, 2003 [was] a nullity.” After hearing argument, the trial court
(Judge Tang) denied the motion without comment. This court later declined to accept
jurisdiction of Mangum’s petition for special action challenging that ruling, Mangum v.
State, No. 2 CA-SA 2005-0024 (order filed May 3, 2005), and thereafter, our supreme court
denied his petition for review, Mangum v. State, No. CV-05-0215-PR (Ariz. Sup. Ct. order
filed Dec. 8, 2005). During the ensuing trial in this case, the trial court (Judge Sabalos)
denied Mangum’s motion for reconsideration of Judge Tang’s previous denial of the motion
3 to dismiss and also denied Mangum’s motion for judgment of acquittal made pursuant to
Rule 20, Ariz. R. Crim. P., 17 A.R.S. The trial court later denied Mangum’s post-trial
motion for a new trial, in which he reurged the same arguments previously made below and
now presented on appeal.
DISCUSSION
I.
¶6 Mangum first argues the trial court erred in refusing to dismiss the prohibited
possessor charge after the justice court vacated his misdemeanor domestic violence
conviction and ultimately dismissed that charge. We review for abuse of discretion a trial
court’s ruling on a motion to dismiss criminal charges, but questions of statutory
interpretation and constitutional law are reviewed de novo. State v. Ramsey, 211 Ariz. 529,
¶ 5, 124 P.3d 756, 759 (App. 2005). “A trial court abuses its discretion when it misapplies
the law or predicates its decision on incorrect legal principles.” State v. Jackson, 208 Ariz.
56, ¶ 12, 90 P.3d 793, 796 (App. 2004).
¶7 As noted earlier, Mangum was charged with having committed weapons
misconduct “while serving a term of probation” in violation of § 13-3102(A)(4). That
statute prohibits one from “knowingly . . . [p]ossessing a deadly weapon or prohibited
weapon if such person is a prohibited possessor.” The phrase “‘[p]rohibited possessor’”
includes “any person . . . [w]ho is at the time of possession serving a term of probation
pursuant to a conviction for a domestic violence offense as defined in [A.R.S.] § 13-3601.”
4 A.R.S. § 13-3101(A)(6)(d). As the state correctly points out, at the time of his July 2003
arrest on the prohibited possessor charge, Mangum “was serving a 24-month term of
probation pursuant to his [justice court] conviction for domestic violence/disorderly
conduct” and, therefore, “was a prohibited possessor at that time.”
¶8 Mangum does not directly challenge that fact or conclusion, nor does he
expressly argue that the prohibited possessor statutes under which he was convicted are
ambiguous or unconstitutional.1 But, citing State v. McCann, 200 Ariz. 27, 21 P.3d 845
(2001), Mangum argues “a prior conviction, used as an element for a new offense, cannot
be satisfied by an underlying conviction that is constitutionally infirm.”2
1 As one state court observed, the United States Supreme Court has found no federal due process violation in “allow[ing] a felon in possession charge to be based upon a constitutionally infirm prior conviction.” Clark v. State, 739 P.2d 777, 780 (Alaska Ct. App. 1987), citing Lewis v. United States, 445 U.S. 55, 65-68, 100 S. Ct. 915, 920-22 (1980). Mangum does not expressly argue that Arizona’s prohibited possessor statutes are unconstitutional on their face or as applied. But he does suggest that “[r]elief should be granted” under article II, § 4 of the Arizona Constitution, which he claims, “affords greater due process protection than the Federal Constitution.” We reject that argument for two reasons. First, Mangum fails to adequately develop it. See Ariz. R. Crim. P. 31.13(c)(1)(vi), 17 A.R.S. Second, the one case Mangum cites, State v. Ault, 150 Ariz. 459, 724 P.2d 545 (1986), is inapposite, and pertinent Arizona case law refutes his position. See State v. Casey, 205 Ariz. 359, ¶ 11, 71 P.3d 351, 354 (2003) (“The federal and state due process clauses contain nearly identical language and protect the same interests.”); State v. Kaiser, 204 Ariz. 514, n.2, 65 P.3d 463, 465 n.2 (App. 2003). 2 This case does not involve a defendant who attempted to collaterally attack the validity of a prior conviction alleged for sentence enhancement or other purposes. See State ex rel. Collins v. Superior Court, 157 Ariz. 71, 75, 754 P.2d 1346, 1350 (1988) (holding that “where the record shows defendant was represented by counsel and the conviction is valid on its face, the defendant is precluded from attempting to undermine the validity of that conviction by collateral attack”); cf. United States v. Herrell, 588 F.2d 711, 713 (9th Cir. 1978) (rejecting defendant’s challenge to federal firearms conviction under 18 U.S.C. § 922
5 ¶9 In McCann, our supreme court held that “a rebuttable presumption of
regularity attaches to prior convictions used to enhance a sentence or as an element of a
crime.” 200 Ariz. 27, ¶ 1, 21 P.3d at 846. In so holding, the court explained the new
procedure to be followed:
When the State seeks to use a prior conviction as a sentence enhancer or as an element of a crime, the State must first prove the existence of the prior conviction. At that time, the presumption of regularity attaches to the final judgment. If the defendant presents some credible evidence to overcome the presumption, the State must fulfill its duty to establish that the prior conviction was constitutionally obtained.
Id. ¶ 15. Thus, under McCann, prior, final judgments of conviction are presumed valid. Id.
¶ 16. But the court “emphasize[d] that [its] ruling does not lessen the burden on the State,
which retains the burden of establishing that a prior conviction is constitutionally valid”
when used “as an element of a crime.” Id. In addition, the court stated: “In cases in which
a judgment of conviction results from the violation of constitutional rights, the conviction
cannot be used either to establish an element of an offense or for purposes of sentence
enhancement. Thus, prior convictions may be used by the State only if constitutionally
valid.” Id. ¶ 17.
¶10 According to Mangum, McCann “is controlling on the use of a constitutionally
infirm conviction to prove an element of an offense” and, even if not controlling, “is the
when his challenge to underlying prior conviction occurred after he possessed firearms and was based on “non-constitutional grounds”).
6 most analogous authority, and its reasoning should apply.” The trial court, Mangum further
asserts, was bound by McCann “and committed reversible error by failing to dismiss the
prohibited possessor charge in light of [his] unconstitutional underlying conviction.”
¶11 The state does not address, let alone distinguish, the rather broad language in
McCann. Nor does the state contend that Mangum’s prior domestic violence conviction was
not an essential element of the prohibited possessor charge under §§ 13-3101(A)(6)(d) and
13-3102(A)(4).3 Rather, emphasizing the clear wording of those statutes, and particularly
the phrase “at the time of possession” in § 13-3101(A)(6)(d), the state asserts its “burden
under A.R.S. §§ [13-]3102(A)(4) and -3101(6) was not to prove the present validity of the
domestic-violence conviction at the time of trial but only to prove [Mangum’s] status as a
domestic-violence probationer at the time that he possessed firearms.” And, the state
further argues, Mangum’s “domestic violence conviction, presumptively valid at the time of
the instant offense, was probative of his status as a domestic-violence probationer regardless
of the subsequent justice-court ruling overturning his guilty plea.”
3 At oral argument in this court, the state conceded that Mangum’s prior conviction technically was an element of the prohibited possessor charge under A.R.S. §§ 13- 3101(A)(6)(d) and 13-3102(A)(4). See People v. Quintana, 707 P.2d 355, 359 (Colo. 1985) (under Colorado’s prohibited possessor statute, “the defendant’s prior conviction is an element of the crime which the prosecution must prove beyond a reasonable doubt”); see also State v. Portsche, 606 N.W.2d 794, 796 (Neb. 2000) (under Nebraska’s prohibited possessor statute, prior conviction constituted “material element of being a convicted felon”). But the state further claimed that evidence of Mangum’s prior conviction was only needed to establish an historical fact as a backdrop to his probationary status at the time he possessed a weapon, not to prove guilt or to enhance the sentence.
7 ¶12 The clear wording of the pertinent statutes supports the state’s argument.4 Our
role in interpreting a statute is to discern and effect the legislature’s intent. In re Pima
County Juvenile No. 74802-2, 164 Ariz. 25, 33, 790 P.2d 723, 731 (1990). “The best and
most reliable index of a statute’s meaning is its language and, where the language is clear and
unequivocal, it is determinative of a statute’s construction.” Id.; see also State v. Gomez,
212 Ariz. 55, ¶ 11, 127 P.3d 873, 875 (2006) (when statutory language “is ‘clear and
unambiguous,’ and thus subject to only one reasonable meaning, we . . . apply[] the
language without using other means of statutory construction”), quoting Calik v. Kongable,
195 Ariz. 496, ¶ 10, 990 P.2d 1055, 1057 (1999); State v. Sepahi, 206 Ariz. 321, ¶ 16, 78
P.3d 732, 735 (2003) (“In the end, a statute’s language is the most reliable index of its
meaning.”).
¶13 Using plain, unambiguous language, the legislature chose to make “the time
of possession” the only relevant point at which the defendant must have been “serving a term
of probation pursuant to a conviction for a domestic violence offense.” § 13-3101(A)(6)(d).
The legislature did not expressly require a determination that a prior conviction be
4 Mangum does not argue, and we do not find, that the pertinent statutes are unclear or reasonably susceptible to different interpretations. Therefore, the rule of lenity does not apply here, nor does Mangum argue otherwise. See State v. Sanchez, 209 Ariz. 66, ¶ 6, 97 P.3d 891, 893 (App. 2004); State v. Fell, 203 Ariz. 186, ¶ 10, 52 P.3d 218, 221 (App. 2002); see also Lewis, 445 U.S. at 65, 100 S. Ct. at 920-21 (lenity principle’s “touchstone . . . is statutory ambiguity” and does not apply when “statute could not be more plain”). But see State v. Gore, 681 P.2d 227, 230 (Wash. 1984) (applying rule of lenity to prohibited possessor statute that could “be interpreted in two alternative ways”).
8 constitutionally valid in order for it to support a prohibited possessor charge under that
statute. Nor can we infer any such legislative intent from the statutory wording or scheme.
And, even if it were somehow relevant, no pertinent legislative history has been cited to or
found by us.
¶14 In § 13-3101(A)(6), the legislature provided several separate and independent
definitions of a “[p]rohibited possessor.” Under subsection (b), the definition includes a
person “[w]ho has been convicted within or without this state of a felony.” In contrast,
subsection (d) alternatively defines a prohibited possessor as, inter alia, a person “[w]ho is
at the time of possession serving a term of probation pursuant to a conviction for a domestic
violence offense as defined in § 13-3601 or a felony offense, parole, community supervision,
work furlough, home arrest or release on any other basis.” As noted earlier, Mangum was
charged with and convicted of prohibited possession based solely on his having “knowingly
possessed a deadly weapon, while serving a term of probation” on his misdemeanor domestic
violence conviction. In other words, Mangum’s status offense fell within subsection (d), not
(b), of § 13-3101(A)(6).
¶15 Related statutes in pari materia or subsections of a single statute must be “read
together and harmonized to avoid rendering any word, clause or sentence superfluous.”
State v. Story, 206 Ariz. 47, ¶ 13, 75 P.3d 137, 141 (App. 2003); see also State ex rel.
Dep’t of Econ. Sec. v. Hayden, 210 Ariz. 522, ¶ 7, 115 P.3d 116, 117 (2005); State v.
Rodriguez, 153 Ariz. 182, 186, 735 P.2d 792, 796 (1987). Reading § 13-3101(A)(6) as a
9 whole and harmonizing subsections (b) and (d), we conclude the legislature clearly intended
to focus in subsection (d) only on persons on release status, including probationers, not on
the broader category of prior felons already covered in subsection (b). Thus, even if the
validity of a predicate conviction were pertinent to a charge under subsection (b), an issue
we need not address or decide here, we have no reason to believe that is pertinent or
required under subsection (d).
¶16 Based on this statutory scheme and the clear, unambiguous wording of
subsection (d), we agree with the state that the prohibited possessor charge on which
Mangum was convicted is essentially a status offense, and at the time of his arrest, Mangum
“was bound by his [as yet] unchallenged guilty plea [in justice court] and by the probation
imposed as a result of the plea.” At the time of his arrest and indictment on the prohibited
possessor charge, Mangum had not yet contested, let alone successfully challenged on
constitutional or any other grounds, his guilty plea and conviction on the misdemeanor
domestic violence charge. Only later did that occur. Under these circumstances, as the state
correctly notes, Mangum’s “domestic violence conviction enjoyed the [McCann]
presumption of regularity throughout [his] probation term and until the [justice] court
subsequently vacated the conviction.” Because Mangum was “at the time of [his weapons]
possession serving a term of probation pursuant to a [domestic violence] conviction,” § 13-
3101(A)(6)(d), the trial court did not err in denying his motion to dismiss the prohibited
10 possessor charge, despite the justice court’s ultimately having vacated the underlying
conviction on constitutional grounds before this case went to trial.
¶17 This conclusion, however, must be further reconciled with McCann. As noted
earlier, the court there said that the state may use prior convictions as an element of a crime
“only if constitutionally valid.” 200 Ariz. 27, ¶ 17, 21 P.3d at 849. And, “[i]f the defendant
presents some credible evidence to overcome the presumption [of regularity], the State must
fulfill its duty to establish that the prior conviction was constitutionally obtained.” Id. ¶ 15.
We, of course, are not at liberty to disregard McCann. See State v. Smyers, 207 Ariz. 314,
n.4, 86 P.3d 370, 374 n.4 (2004). But we find McCann distinguishable and not controlling
here.
¶18 McCann involved a charge of aggravated driving under the influence of an
intoxicant (DUI), not a prohibited possessor charge or other status offense. The aggravated
DUI charge in McCann included as an element, and therefore required the state to prove
beyond a reasonable doubt, prior DUI convictions. See A.R.S. § 28-1383(A)(2). In
contrast, the crux of a prohibited possessor charge under § 13-3101(A)(6)(d), unlike
subsection (b), is not a prior conviction, but rather, the defendant’s probationary or other
release status at the time of the weapons possession.
¶19 A pair of Hawaii cases illustrates this distinction. In State v. Lobendahn, 784
P.2d 872, 873 (Haw. 1989), the Hawaii Supreme Court interpreted a statute similar to § 13-
3101(A)(6)(b) and concluded that, because the defendant’s “status was that of a convicted
11 felon at the time he possessed the firearm and ammunition,” “[s]uch possession was unlawful
and the subsequent reversal of the [underlying] conviction does not then render such
possession lawful.” In a subsequent case that more closely parallels McCann, the Hawaii
court concluded that the term “convicted” in that state’s “habitual DUI” statute requires a
showing of at least three “prior valid DUI conviction[s].” State v. Shimabukuro, 60 P.3d
274, 277 (Haw. 2002) (emphasis added). The defendant in that case, and at least implicitly
the court, distinguished Lobendahn on the basis that the prohibited possessor statute at issue
there “converts a lawful act (possessing a firearm and ammunition) into an unlawful act
solely by reason of a person’s status, whereas, ‘by contrast, [Hawaii’s habitual DUI statute]
applies to the offense of driving while intoxicated, which is per se a criminal act.’” Id. at
276; see also id. at 277 n.11. Differentiating a prohibited possessor “status” offense from
the habitual DUI charge at issue in Shimabukuro, the concurring justices (in what is
essentially the majority opinion) also noted that the Hawaii legislature had “created an
escalating sentencing scheme keyed to the defendant’s degree of recidivism.” Id. at 280
(Levinson, J., concurring). Under that scheme, the justices further observed, “actual
culpability for a fourth DUI offense presupposed actual culpability for three prior DUI
offenses.” Id.
¶20 Arizona’s aggravated DUI statute is similar in purpose and effect to Hawaii’s
habitual DUI law. The court’s statement in McCann that “prior convictions may be used by
the State only if constitutionally valid” was specifically made in the context of an aggravated
12 DUI prosecution, in which the number of prior DUI convictions directly affects the
classification of and sentencing for the repeated offense. 200 Ariz. 27, ¶ 17, 21 P.3d at 849;
compare A.R.S. § 28-1381(A), (C), (I), (K) (classifying DUI as class one misdemeanor and
prescribing harsher sentence for second violation), with A.R.S. § 28-1383(A), (D), (E), (L)
(classifying aggravated DUI as class four felony and prescribing increasingly harsher
sentences for repeat offenders); see State v. Cramer, 192 Ariz. 150, ¶ 17, 962 P.2d 224, 228
(App. 1998) (purpose of aggravated DUI statute “is to impose greater punishment” on person
who commits DUI in clear defiance of prior administrative orders). In addition, the court
stated in McCann that its “holding [was] limited; it changes only the presumption that
attaches to prior final judgments.” 200 Ariz. 27, ¶ 16, 21 P.3d at 849.
¶21 In light of the court’s limited holding and the context in which the court’s
other statements in McCann were made, we do not believe the court there intended to
dictate the outcome on the much different issue posed here or to encompass all situations
in which a prior conviction’s existence is relevant only to establish one’s probationary
status. Nor do we have any reason to believe that the court in McCann implicitly rejected
the views of the United States Supreme Court and most state courts that have specifically
addressed the precise issue we face in cases that involved prohibited possessor status
offenses. See ¶¶ 22-25, 30-32, infra.
¶22 In sum, McCann does not compel dismissal of the prohibited possessor charge
in this case. And dismissal would have been inconsistent with not only federal case law but
13 also the majority view of other state courts. In Lewis v. United States, 445 U.S. 55, 56, 100
S. Ct. 915, 916 (1980), the United States Supreme Court addressed “the question whether
a defendant’s extant prior conviction, flawed because he was without counsel, . . . may
constitute the predicate for a subsequent conviction under [the former federal firearms
statute, 18 U.S.C. app.] § 1202(a)(1)” (1976).5 Based primarily on the statute’s clear
language and “plain meaning,” the Court concluded that “the fact of a felony conviction
imposes a firearm disability until the conviction is vacated or the felon is relieved of his
disability by some affirmative action.” 445 U.S. at 60-61, 100 S. Ct. at 918. The Court
“view[ed] the language Congress chose as consistent with the common-sense notion that a
disability based upon one’s status as a convicted felon should cease only when the
conviction upon which that status depends has been vacated.” Id. at 61 n.5, 100 S. Ct. at
918 n.5.
¶23 The Court in Lewis noted that the federal firearms statute contained “[n]o
exception . . . for a person whose outstanding felony conviction ultimately might turn out
to be invalid for any reason.” Id. at 62, 100 S. Ct. at 919. Accordingly, the Court held that
the statute “prohibits a felon from possessing a firearm despite the fact that the predicate
felony may be subject to collateral attack on constitutional grounds.” Id. at 65, 100 S. Ct.
5 That statute, enacted as part of the Omnibus Crime Control and Safe Streets Act of 1968, prohibited any person who “has been convicted by a court of the United States or of a State . . . of a felony” from possessing a firearm. The statute was repealed in 1986 by Pub. L. 99-308, § 104(b), 100 Stat. 459. The current federal firearms statute is codified at 18 U.S.C. § 922(g)(1), with an exception set forth in 18 U.S.C. § 921(a)(20).
14 at 921. In so holding, the Court distinguished three prior cases in which it had disallowed
use of constitutionally invalid convictions “to impeach the general credibility of the
defendant,” to “sentenc[e] a defendant after a subsequent conviction,” and to enhance
“punishment under a State’s recidivist statute.” Id. at 59-60, 100 S. Ct. at 918, citing Loper
v. Beto, 405 U.S. 473, 92 S. Ct. 1014 (1972); United States v. Tucker, 404 U.S. 443, 92
S. Ct. 589 (1972); Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258 (1967).
¶24 Lewis is factually distinguishable from this case, involved a federal statute, and
“is not binding upon” our interpretation of Arizona’s prohibited possessor laws. State v.
Portsche, 606 N.W.2d 794, 801 (Neb. 2000); see also State v. Gore, 681 P.2d 227, 231
(Wash. 1984) (Lewis “is not controlling in our interpretation of a state statute”). But “the
Supreme Court’s interpretation of a similar federal statute is persuasive authority.” 681 P.2d
at 231; see also In re Estate of Walton, 164 Ariz. 498, 500, 794 P.2d 131, 133 (1990)
(“Federal interpretations are ‘persuasive’ when Arizona courts interpret our state
counterparts to federal statutes.”); Canady v. Prescott Canyon Estates Homeowners Ass’n,
204 Ariz. 91, n.3, 60 P.3d 231, 233 n.3 (App. 2002) (when provisions of state statute “are
virtually identical to those provisions of the federal Act, federal case authority is persuasive
in interpreting Arizona’s statute”).
¶25 We find Lewis particularly persuasive for at least two reasons. First, just as
“[t]he federal gun laws . . . focus[ed] not on reliability, but on the mere fact of conviction,
or even indictment, in order to keep firearms away from potentially dangerous persons,” 445
15 U.S. at 67, 100 S. Ct. at 922, the Arizona statute at issue here, § 13-3101(A)(6)(d), focuses
on the release status of the defendant at the time of possession, not on the reliability of the
underlying conviction that led to that status. Second, just as the Court in Lewis found “[n]o
[statutory] exception . . . for a person whose outstanding felony conviction ultimately might
turn out to be invalid for any reason,” 445 U.S. at 62, 100 S. Ct. at 919, we similarly find
no such exception in the Arizona statutes.6 Cf. Turk v. White, 116 F.3d 1264, 1268 (9th
Cir. 1997) (conviction for new offense affirmed when statutes “d[id] not require that the
[predicate] conviction and sentence be a valid one” and “did not exclude invalid
convictions”).
¶26 Our supreme court in McCann did not cite or address Lewis, having had no
reason to do so. In a more recent case, however, the court found some support in Lewis for
its holding that “a dismissed indictment, like a reversed conviction, does not disqualify a
defendant from mandatory probation” under Proposition 200, codified as A.R.S. § 13-
901.01. State v. Gomez, 212 Ariz. 55, ¶ 2, 127 P.3d 873, 874 (2006); see also id. ¶¶ 29,
32. In so holding, the court in Gomez noted the long-standing rule that “when a defendant
6 The Court in Lewis rejected as “extreme” any argument (not made by the government in that case) that the federal statute proscribed firearms possession by “even a person whose predicate conviction in the interim had been finally reversed on appeal and thus no longer was outstanding.” 445 U.S. at 61 n.5, 100 S. Ct. at 918 n.5; see also Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 115, 103 S. Ct. 986, 993 (1983); State v. Gomez, 212 Ariz. 55, ¶ 16, 127 P.3d 873, 876 (2006). In other words, the prohibited possessor charge in Lewis presumably would not have stood had the underlying, predicate conviction been reversed or vacated before the defendant committed the weapons offense. That, however, is not the situation presented in this case.
16 faces an increased sentence based on the fact of a prior conviction, the reversal of a
conviction precludes its use to increase the defendant’s sentence.” 212 Ariz. 55, ¶ 15, 127
P.3d at 876. The prior cases, the court said, “indicate that a defendant ‘has been convicted’
of a prior offense for purposes of a sentencing enhancement only if, at the time of the later
sentence, there is an existing conviction—not a prior conviction that has been reversed or
vacated.” Id.
¶27 For present purposes, two things stand out in Gomez and distinguish it from
this case. First, Gomez essentially involved the effect of a prior, but dismissed, indictment
for sentencing purposes. Like McCann, Gomez did not involve a prohibited possessor status
offense and did not address the issue posed here. Second, the focus of the court’s inquiry
in Gomez was “the time of sentencing for the Proposition 200 drug offense.” 212 Ariz. 55,
¶ 29, 127 P.3d at 878. As noted earlier, however, § 13-3101(A)(6)(d) focuses on “the time
of possession” of a weapon.
¶28 Although the court in Gomez did not cite or discuss McCann, it did refer to
Lewis and expressed no disagreement with the Supreme Court’s analysis or conclusion. 212
Ariz. 55, ¶ 16, 127 P.3d at 876. As the court in Gomez noted, the Lewis Court “recognized
that a federal statute prohibiting the possession of firearms by a person who ‘has been
convicted’ of a felony does not apply if the predicate conviction has been reversed on appeal
and is no longer outstanding.” 212 Ariz. 55, ¶ 16, 127 P.3d at 876, citing Lewis, 445 U.S.
at 60-61 and n.5, 100 S. Ct. at 918 and n.5. But that qualification to the holding in Lewis
17 clearly was limited to situations in which the defendant’s prior conviction has been reversed
or set aside before the defendant possesses a weapon. See n.6, supra. That is not the
situation here. Therefore, as Lewis held and as the court in Gomez recognized, “a felony
conviction imposes a firearm disability until the conviction is vacated or the felon is relieved
of the disability by some affirmative action, such as a qualifying pardon.” 212 Ariz. 55,
¶ 16, 127 P.3d at 876, citing Lewis, 445 U.S. at 60-61, 100 S. Ct. at 918.
¶29 Federal courts, of course, are bound to follow Lewis and have done so. See,
e.g., United States v. Padilla, 387 F.3d 1087, 1092 (9th Cir. 2004) (even when predicate
felony conviction void ab initio, such conviction must be invalidated before felon takes
possession of firearm; later relief will not invalidate felon-in-possession conviction); Burrell
v. United States, 384 F.3d 22, 27-28 (2d Cir. 2004) (petitioner not entitled to relief when
predicate felony conviction not set aside until after felon-in-possession conviction); United
States v. Marks, 379 F.3d 1114, 1119 (9th Cir. 2004) (“The focus of the inquiry under [the
federal firearms statutes] is whether someone has been convicted of a felony under state law,
not whether that conviction is constitutionally valid, nor whether it may be used as a
predicate conviction for subsequent state prosecutions.”); United States v. Wallace, 280
F.3d 781, 784 n.1 (7th Cir. 2002); United States v. Snyder, 235 F.3d 42, 52-53 (1st Cir.
2000); United States v. Kahoe, 134 F.3d 1230, 1233-34 (4th Cir. 1998) (although “a
conviction that has been set aside can no longer be disabling,” a conviction is still “disabling
between the time it was obtained and the time it was set aside”).
18 ¶30 In addition, although some out-of-state cases arguably support Mangum’s
position,7 most state courts that have addressed issues similar to that presented here have
followed the reasoning of Lewis and upheld prohibited possessor convictions even when the
defendant’s felon status was based on a constitutionally infirm predicate conviction. See,
e.g., Clark v. State, 739 P.2d 777, 781 (Alaska Ct. App. 1987) (following Lewis, concluding
“later reversal of [defendant’s] former conviction was not a defense to the felon in
possession charge,” and noting legislature may “require that a person who has been
convicted of a felony wait until that conviction has been reversed on appeal before being
allowed to possess a concealable firearm”); Reynolds v. State, 712 S.W.2d 329, 331 (Ark.
Ct. App. 1986) (concluding statute “prohibits a person convicted of a felony from possessing
a firearm, regardless of the fact that the prior felony conviction is subject to collateral attack,
and that this prohibition continues until the conviction is either successfully attacked and
set aside, or a specific pardon is granted”); People v. Harty, 219 Cal. Rptr. 85, 87, 88 (Ct.
App. 1985) (“the possible invalidity of an underlying prior felony conviction provides no
defense to possession of a concealable weapon by a felon”; although a previously convicted
7 See People v. Quintana, 707 P.2d 355, 360 (Colo. 1985) (holding “that a prior conviction obtained in violation of a defendant’s constitutional rights cannot be used as the underlying conviction in a prosecution under Colorado’s felon with a gun statute”); State v. Portsche, 606 N.W.2d 794, 796 (Neb. 2000) (defendant’s “prior uncounseled conviction could not be used to establish that he was a convicted felon for purposes of [Nebraska’s felon-in-possession statute]”); State v. Gore, 681 P.2d 227, 228 (Wash. 1984) (defendant’s “conviction for being a felon in possession of a firearm must be vacated when his predicate felony conviction has been reversed for insufficient evidence”).
19 felon may challenge the validity of the prior conviction in the court that entered that
judgment, “he may not resort to self help by first obtaining and possessing [a] firearm, and
thereafter try to assert the invalidity of the prior conviction as a defense to a [prohibited
possessor] prosecution”); State v. Lobendahn, 784 P.2d 872, 873 (Haw. 1989)
(“[Defendant’s] status was that of a convicted felon at the time he possessed the firearm and
ammunition. Such possession was unlawful and the subsequent reversal of the conviction
does not then render such possession lawful.”); Small v. State, 623 P.2d 1200, 1205 (Wyo.
1981) (“Whatever else may be said about the validity of a prior uncounseled felony
conviction, constitutionally infirm, it is clear under Lewis that it is at least a valid conviction
for purposes of a statute prohibiting the possession of firearms by a previously convicted and
unpardoned felon.”).8
8 See also State v. Watie, 573 P.2d 1034, 1036 (Kan. 1978) (“[P]ossession of the type of firearm proscribed in [the] statute is prohibited to the defendant-appellant during the pendency of his appeal until such time as his conviction is set aside.”); State v. Williams, 392 So. 2d 448, 450 (La. 1980) (“A person charged under [the prohibited possessor statute] cannot attack the predicate felony on collateral constitutional grounds.”); People v. Cornish, 427 N.Y.S.2d 564, 567 (N.Y. App. Div. 1980) (following Lewis and denying motion to dismiss indictment when defendant, “before obtaining a firearm,” failed to “obtain relief from a prior unconstitutionally obtained conviction”); State v. Taniguchi, 656 N.E.2d 1286, 1288 (Ohio 1995) (conviction “for having a weapon while under disability is not precluded when there is an acquittal on, or dismissal of, the indictment which had formed the basis for the charge of having a weapon while under disability”); Bailey v. Lampert, 125 P.3d 771, 775 (Or. Ct. App. 2005), rev. allowed, 136 P.3d 742 (Or. 2006) (“The prohibition against firearm possession in [Oregon’s statute] focuses on a person’s status as a convicted felon when he or she possesses a firearm, not on the subsequent validity of that status.”).
20 ¶31 Most if not all of those cases involved state statutes that broadly define one’s
prohibited possessor status based on prior felony convictions, as does § 13-3101(A)(6)(b),
rather than on the more limited basis of release status, as does § 13-3101(A)(6)(d).
Nonetheless, those cases support the trial court’s ruling and our conclusion here. Illustrative
of the majority view is Clark, in which the Alaska court stated:
It appears to us that sound policy supports what we perceive to be the intent of the legislature. . . . We see no reason why the legislature would want to encourage a person who has formerly been convicted of a felony to gamble by possessing a concealable firearm, hoping that if he or she is arrested for being a felon in possession that he or she can defend against that offense by having the former conviction set aside.
739 P.2d at 781; see also State v. Snyder, 673 So. 2d 9, 10 (Fla. 1996) (“[T]he fact that the
predicate conviction is pending on appeal is irrelevant to the legislative purpose of protecting
the public by preventing convicted felons from possessing firearms.”). By amending § 13-
3101(A)(6)(d) in 2000 to include persons serving a term of probation on a misdemeanor
domestic violence conviction, 2000 Ariz. Sess. Laws, ch. 143, § 1, the legislature apparently
recognized similar concerns and manifested an intent “to protect not only the citizens of this
state generally, but victims of domestic violence in particular,” as the state argues.
¶32 The out-of-state cases typically involved a scenario in which the defendant’s
underlying conviction was reversed only after the prohibited possessor conviction. Here, in
contrast, the justice court upheld Mangum’s challenge and vacated his underlying domestic
violence conviction before Mangum was tried on or convicted of the prohibited possessor
21 charge in this case. But we find such factual distinctions immaterial when, as here, the
defendant’s prior conviction was intact at the time of the illegal possession of a weapon, and
that prohibition remained “until the conviction [was] vacated” or the disability was relieved
in some other fashion. Lewis, 445 U.S. at 60, 100 S. Ct. at 918; cf. State v. Cramer, 192
Ariz. 150, ¶¶ 11, 16, 17, 962 P.2d 224, 227, 228 (App. 1998) (rejecting defendant’s
argument in aggravated DUI case that “the license revocation order was void because later
post-conviction relief proceedings vacated the underlying reckless driving conviction,”
recognizing “distinction between a void judgment or order and one that is voidable,” and
concluding that “until ADOT vacated the revocation order, it was valid and binding and
defendant was required to obey it”).
¶33 People v. Loomis, 42 Cal. Rptr. 124 (Ct. App. 1965), more closely resembles
our case on its facts and also supports our conclusion. In Loomis, the defendant was on
probation for a prior conviction at the time he illegally possessed a weapon. Id. at 125.
Before the defendant was charged with the weapons offense, a federal court set aside his
prior conviction. Id. On that basis, the defendant argued “the California court [was]
without jurisdiction to consider his federal conviction as anything but nonexistent.” Id. The
court in Loomis disagreed, noting that the defendant’s “status at the time he possessed the
gun is the critical issue,” “[a]t that time he was a person who had been convicted of a
felony,” and “[h]is status after the date upon which he committed the offense here in
question or at the time of trial is immaterial.” Id. at 126.
22 ¶34 As was true of the defendant in Loomis, at the time of his arrest on the
prohibited possessor charge, Mangum had not even challenged, let alone obtained reversal
of, his conviction on the misdemeanor domestic violence charge. In short, based solely on
Mangum’s probationary status at the time of his weapons offense, Mangum’s “possession
was unlawful and the subsequent reversal of the [underlying] conviction does not then
render such possession lawful.” Lobendahn, 784 P.2d at 873. For all of these reasons, the
trial court did not err in denying Mangum’s motion to dismiss the charge.
II.
¶35 Our rejection of Mangum’s primary argument also leads us to summarily
dispose of his other contentions. The trial court did not violate Mangum’s constitutional
rights by failing to find that, but for the ineffective assistance of his counsel (IAC) in the
underlying justice court proceedings, he would not have been on probation in July 2003.
Nor did the court err by failing to dismiss this case on that basis. As noted above, the
invalidity of Mangum’s domestic violence conviction, regardless of the source or cause, is
immaterial to the prohibited possessor charge here. Any IAC claims were raisable, and
indeed were successfully urged, only in the justice court, where the ineffective assistance and
domestic violence conviction occurred. See Ariz. R. Crim. P. 32.3, 32.4(a), 17 A.R.S. And
appellate review of any justice court rulings generally is in superior court, not this court. See
Ariz. Const. art. VI, § 16; A.R.S. §§ 22-371, 22-375; State v. Holland, 153 Ariz. 536, 538,
738 P.2d 1143, 1145 (App. 1987).
23 ¶36 The trial court also did not err in denying Mangum’s motion for judgment of
acquittal pursuant to Rule 20, Ariz. R. Crim. P., 17 A.R.S., nor is the evidence insufficient
to support the conviction. For reasons already explained, the state was not required to prove
at trial that Mangum’s prohibited possessor status remained unchanged after July 2003. On
the relevant triable issues, Mangum’s probation officer testified that, at the time he found
weapons in Mangum’s possession, “[h]e was on probation for a domestic violence disorderly
conduct [conviction].” The officer also testified without objection that, “[i]n domestic
violence cases, there’s a statute that says they cannot have weapons” and that “in this case
we are dealing with a domestic violence offense.” Viewed in the light most favorable to
sustaining the conviction, State v. Garza, 196 Ariz. 210, ¶ 2, 994 P.2d 1025, 1026 (App.
1999), that evidence was substantial and sufficiently supported the jury’s verdict. See id.
¶ 3.
¶37 Finally, contrary to Mangum’s arguments, the trial court did not commit
constitutional error by precluding any evidence at trial on the reversal or invalidity of his
domestic violence conviction or by failing to sua sponte instruct the jury “on his theory of
the case regarding an invalid conviction.” We agree with the state that these claims also are
“based on the faulty premise that the State was required to prove the ongoing validity of
[Mangum’s] domestic violence conviction.” Once the trial court ruled on the purely legal
issue raised in Mangum’s motion to dismiss the prohibited possessor charge based on the
24 invalidity of the underlying conviction, a ruling we now uphold on appeal, any evidence,
argument, or jury instructions on that issue at trial were properly precluded as irrelevant.
DISPOSITION
¶38 Mangum’s conviction, suspension of imposition of sentence, and placement
on probation are affirmed.
____________________________________ JOHN PELANDER, Chief Judge
CONCURRING:
____________________________________ JOSEPH W. HOWARD, Presiding Judge
____________________________________ GARYE L. VÁSQUEZ, Judge