State v. Ballard

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

HAROLD WAYNE BALLARD, JR., Appellant.

No. 1 CA-CR 24-0287
FILED 03-20-2025

Appeal from the Superior Court in Maricopa County
No. CR2007-167771-001
The Honorable Jeffrey A. Rueter, Judge

AFFIRMED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Quinton S. Gregory
Counsel for Appellee

Jennings Haug Keleher McLeon Waterfall, LLP, Phoenix
By Blake E. Whiteman, James Luis Csontos
Counsel for Appellant

STATE v. BALLARD
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Samuel A. Thumma joined. Judge Angela K. Paton specially
concurred.

C A T T A N I, Judge:

¶1 Harold Wayne Ballard, Jr., appeals from the superior court’s
denial of his application to restore his civil rights and his right to possess or
own a firearm. He also challenges the superior court’s denial of his
application to set aside his 2008 felony conviction and issue a certificate of
second chance. We affirm the superior court’s denial of Ballard’s
application to restore his civil rights and firearm rights because he
abandoned the issue on appeal. And because Ballard’s notice of appeal did
not include the superior court’s denial of his application to set aside his
conviction and for issuance of a certificate of second chance, we decline to
address that issue.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2007, Ballard was arrested after a random traffic record
check revealed he was driving on a suspended license and had an
outstanding warrant. Police found $1,000 in counterfeit bills in Ballard’s
wallet, and while conducting an impound search of the car, discovered a
loaded .357 revolver, a .38 caliber revolver, two 14-gram bundles of
methamphetamine wrapped in plastic, eight 3.5- to 3.9-gram baggies of
methamphetamine, a digital scale, and $500 in counterfeit bills.

¶3 The State charged Ballard with possession of dangerous
drugs for sale, misconduct involving weapons, and forgery. In 2008,
Ballard pleaded guilty to an amended charge of solicitation to commit
possession or use of dangerous drugs for sale, a class 4 felony. The
remaining charges were dismissed pursuant to the plea agreement. Ballard
was placed on probation for three years. Ballard completed all conditions
and was discharged from probation in 2011.

¶4 In 2013, Ballard applied to have his firearm rights restored
and his conviction set aside. The superior court denied his application,

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STATE v. BALLARD
Decision of the Court

citing the recency of Ballard’s discharge from probation and the nature of
the offense.

¶5 In 2023, Ballard applied to have the superior court restore his
civil and firearm rights, set aside his conviction, and seal his criminal
record. The State did not file an objection.

¶6 In December 2023, the superior court noted that Ballard met
all statutory requirements to restore his civil and firearm rights, but
nevertheless denied the application, citing as reasons for the denial the
nature of the offense: that the offense involved the sale of
methamphetamine and that Ballard utilized firearms during the
commission of the offense.

¶7 In February 2024, Ballard filed a motion for reconsideration of
that decision, again seeking restoration of his civil and firearm rights and
to set aside his conviction. In April 2024, the superior court corrected
factual errors from its 2023 ruling but again denied relief, citing the nature
and circumstances of the offense: that Ballard was involved in the sale of
methamphetamine and that there were weapons involved.

¶8 Ballard appealed.

DISCUSSION

I. Jurisdiction.

¶9 The State challenges the timeliness of Ballard’s appeal,
arguing this Court lacks jurisdiction to address any aspect of his appeal
because he filed his notice of appeal five months after the superior court
denied his application in December 2023. Ballard argues in response that
the superior court treated his February 2024 motion for reconsideration as
a new application, rendering the April 2024 ruling an order from which he
may properly appeal.

¶10 Under A.R.S. § 13-907, restoration of civil and firearm rights
is automatic for first-time offenders. And A.R.S. § 13-905, which defines
who is eligible to have a conviction set aside, is silent regarding the
frequency with which eligible defendants may apply. See State v. Mathis, 2
CA-CR 2022-0029, 2023 WL 118679, at *2, ¶ 10 (Ariz. App. Jan. 6, 2023)
(mem. decision). Arizona Rule of Criminal Procedure (“Rule”) 29.6(c)
permits reapplication (and an appeal): “If an application is denied, the
applicant may file a new application after satisfying all requirements or
after resolving any other reason for denial.” See also Mathis, 2023 WL

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STATE v. BALLARD
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118679, at *1, *3, ¶ 6 n.1, ¶ 11 (citing Rule 29.6(c) and finding that the
superior court’s treatment of the defendant’s motion to reconsider as a
successive application to set aside his conviction was an appealable order);
cf. State v. Perry, 245 Ariz. 310, 312, ¶ 7 n.3 (App. 2018) (finding that a
defendant’s letter explaining why he believed his right to possess firearms
should have been restored did not extend the time for appeal because it was
a motion for reconsideration rather than a standalone application for relief).

¶11 Here, Ballard’s February 2024 application, while titled a
“motion to reconsider,” was essentially a new application. The application
drew the superior court’s attention to inaccuracies in the December 2023
order’s reasoning for denying his prior application, demonstrating an
attempt to resolve the court’s reasons for denial.1 The superior court
likewise treated it as a new application and issued new orders addressing
Ballard’s requests using the same form and substantially similar content as
those denying Ballard’s prior applications. Ballard filed his notice of appeal
on May 14, 2024, within 20 days of the court’s April 2024 orders. See Ariz.
R. Crim. P. 31.2(a)(2)(B); see also, e.g., Perry, 245 Ariz. at 312, ¶ 7 (citing Ariz.
R. Crim. P. 1.1 and applying the deadlines for appeal provided by the
Arizona Rules of Criminal Procedure after concluding an appeal from the
denial of an application to restore civil and firearm rights and to set aside a
conviction is criminal in nature).

¶12 Because A.R.S. § 13-905 and § 13-907 do not limit the
frequency with which an eligible defendant may apply to restore rights or
set aside a judgment, and because the superior court treated Ballard’s
motion as a new application, we do the same. Ballard’s appeal from the
April 2024 order denying his application to restore civil rights and firearm
rights was thus timely, and we have jurisdiction under A.R.S. § 13-
4033(A)(3).

II. Application to Restore Civil Rights and Firearm Rights.

¶13 Ballard’s notice of appeal challenges the superior court’s
denial of his application to restore civil rights and firearm rights under
A.R.S. § 13-907. But Ballard failed to address this issue in his briefing on
appeal, and he has thus abandoned it. State v. Carver, 160 Ariz. 167, 175

1 The December 2023 order stated as a reason for denial that Ballard
used firearms during the commission of the offense. This statement is
inconsistent with the information in the presentence investigation report
upon which the court relied, as no guns were used during the commission
of the offense and were only found in the impound search of the vehicle.

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STATE v. BALLARD
Decision of the Court

(1989) (“Failure to argue a claim [in an opening brief] usually constitutes
abandonment and waiver of that claim.”). Accordingly, we decline to
address whether the superior court erred by denying Ballard’s application
to restore his civil rights and his firearm rights.2

III. Application to Set Aside Conviction and Issue a Certificate of
Second Chance.

¶14 Ballard claims the superior court erred by considering
dismissed charges and information summarized from the police report that
was contained in the presentence investigation when rejecting his
application to set aside his conviction under A.R.S. § 13-905. Ballard did
not, however, include the superior court’s order denying this part of his
application in his notice of appeal, stating only that he “appeals from the
Court’s April 24, 2024 Order Regarding Application to Restore Civil Rights
and/or Right to Possess or Own a Firearm.”

¶15 While Ballard submitted a single application to the superior
court regarding restoring his civil rights and firearm rights and to set aside
his conviction and issue a certificate of second chance, the superior court
addressed the application in two separate orders based on the statute
governing each request. Because a notice of appeal must identify the order
that is being appealed, and Ballard’s notice of appeal specifically mentioned
only the superior court’s order denying his application to restore his
rights—and not the order denying his application to set aside the conviction
and issue a certificate of second chance—our jurisdiction is limited by the
scope of Ballard’s notice of appeal. See Ariz. R. Crim. P. 31.2(c)(1).

¶16 Ballard asked us to exercise special action jurisdiction for the
first time in his reply brief. But this case does not present any of the usual
factors supporting an exercise of special action jurisdiction, and we decline
Ballard’s request. See Ariz. R. P. Spec. Act. 11(e), 12.

¶17 Nevertheless, we note that under A.R.S. § 13-905, the superior
court has discretion when evaluating the seven factors it must consider
when determining whether to set aside a defendant’s conviction. See A.R.S.

2 Ballard was a first-time felony offender, has not been convicted of
another felony since the conviction at issue, has completed probation, and
has paid all victim restitution imposed. See A.R.S. § 13-907(A) (“[T]he court
shall grant the [eligible person’s] application without receiving a response
from the state or holding a hearing.”). Our denial of relief does not preclude
Ballard from resubmitting his application.

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STATE v. BALLARD
Decision of the Court

§ 13-905(C). The facts underlying a guilty plea are often intertwined with
those underlying the arrest and any original charges dismissed pursuant to
a plea agreement, and information relating to those facts potentially falls
within the nature and circumstances of the offense on which a defendant’s
conviction is based. See A.R.S. § 13-905(C)(1). Thus, Ballard’s argument, as
asserted, is unpersuasive.

CONCLUSION

¶18 Given the limited scope of Ballard’s notice of appeal, we lack
jurisdiction to consider his claim regarding the court’s denial of his
application to set aside his conviction and issue a certificate of second
chance. We affirm the superior court’s denial of Ballard’s application to
restore civil rights and firearm rights because Ballard waived this argument
by failing to address it in his Opening Brief.

P A T O N, J., specially concurring:

¶19 I concur with the decision, except for paragraph 17. We
declined to exercise special action jurisdiction to address Ballard’s claim
that the superior court improperly considered information about his
underlying arrest and original charges when it denied his application to set
aside his conviction. Accordingly, I would not consider the merits of his
argument.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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