State v. Santillanes

                                 IN THE
             ARIZONA COURT OF APPEALS
                              DIVISION ONE


                     STATE OF ARIZONA, Appellant,

                                     v.

                DANIEL LOUIS SANTILLANES, Appellee.

                      No. 1 CA-CR 21-0389
                       FILED 12-15-2022
                AMENDED PER ORDER FILED 12-15-2022

           Appeal from the Superior Court in Maricopa County
                        No. CR2011-108577-001
             The Honorable Jennifer C. Ryan-Touhill, Judge

           JURISDICTION ACCEPTED; RELIEF GRANTED


                                COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Faith Cheree Klepper, Jason Kalish
Counsel for Appellant

Stone Rose Law, PLLC, Scottsdale
By Derek Douglas Debus
Co-Counsel for Appellee

Rosenstein Law Group, PLLC, Scottsdale
By Craig J. Rosenstein
Co-Counsel for Appellee

Pima County Public Defender’s Office, Tucson
By Sarah L. Mayhew
Counsel for Amicus Curiaes Pima County Public Defender’s Office and Arizona
Attorneys for Criminal Justice
Arizona Justice Project, Phoenix
By Lindsay Herf, Randal Boyd McDonald
Counsel for Amicus Curiae Arizona Justice Project


                                 OPINION

Judge Angela K. Paton delivered the opinion of the Court, in which
Presiding Judge Paul J. McMurdie and Vice Chief Judge David B. Gass
joined.


P A T O N, Judge:

¶1            The superior court granted Santillanes’s petition to expunge
all records relating to his conviction for facilitation to commit sale or
transportation of marijuana. The State appealed, arguing that Santillanes
was convicted of a marijuana offense involving more than the two and one-
half ounce limit prescribed by the expungement statute, Arizona Revised
Statutes (“A.R.S.”) § 36-2862(A). We conclude that the State does not have
statutory authority to appeal an order granting expungement but may seek
review via a special action.

¶2             Because the State raises purely legal questions of statutory
interpretation of first impression likely to arise again, we exercise our
authority to treat this appeal as a special action. We hold that: (1) courts
may consider any admissible evidence the parties present regarding a
petitioner’s eligibility for expungement; (2) the superior court may abuse
its discretion if it fails to hold an evidentiary hearing on a contested
expungement petition; and (3) orders granting or denying expungement
petitions must include the facts the court relied on in reaching its decision.
We vacate the superior court’s order and remand for further proceedings
consistent with this opinion.

                 FACTS AND PROCEDURAL HISTORY

¶3            In 2011, the State charged Santillanes with possession of “four
pounds or more” of marijuana for sale (count 1), possession or use of “less
than two pounds” of marijuana (count 2), possession of drug paraphernalia
(count 3), and possession or use of narcotic drugs (cannabis) (count 4).

¶4            Santillanes pled guilty to count 1 as amended: facilitation to
commit sale or transportation of marijuana, and the State dismissed counts
2, 3, and 4. Santillanes’s attorney provided the following factual basis for
the plea: “On or about February 17, 2011, Santillanes did provide the means
or opportunity to another to sell or transport marijuana.” After the State

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                            Opinion of the Court

declined to “add [to] or correct” the factual basis, the court accepted
Santillanes’s guilty plea and sentenced him to probation, which he
successfully completed in 2013.

¶5           In 2020, Arizona voters adopted Proposition 207, known as
the Smart and Safe Arizona Act. The Act, in relevant part, authorizes
expungement of certain marijuana-related offenses, including:
“[p]ossessing, consuming or transporting two and one-half ounces or less
of marijuana.” A.R.S. § 36-2862(A). In 2021, Santillanes petitioned the
superior court to expunge the record of his conviction for facilitation to
commit sale or transportation of marijuana.

                               DISCUSSION

¶6           This case presents several issues of first impression and
statewide concern that are likely to arise in marijuana expungement cases
under the Act. In this Opinion, we first address jurisdiction. We then
address the expungement procedure. Finally, we analyze the merits of the
State’s arguments in the context of Santillanes’s expungement.

I.     Jurisdiction

¶7            We must examine our jurisdiction before addressing the
merits of any claim raised on appeal. See State v. Bejarano, 

 (App. 2008). This court only has jurisdiction to consider appeals
authorized by statute. See Ariz. Const. art. 6, § 9.

¶8    We first note that although the expungement statute is codified
under Arizona Revised Statutes, Title 36 (Public Health and Safety),
expungement is a criminal proceeding and thus subject to the statutes
authorizing appeals in criminal cases. See Ariz. R. Crim. P. 36 (rules of
criminal procedure governing expungement proceedings); see also A.R.S. §
36-2862(F) (petitioners may appeal denial of expungement under statute
authorizing criminal appeals by defendants).

       A.     A.R.S. § 13-4032 provides the State’s exclusive avenue to
              appeal criminal cases.

¶9            The State lacks appellate authority in criminal cases absent
express constitutional or statutory authority to the contrary. See Arizona v.
Manypenny, 

 (1981) (“The need to restrict appeals by the
prosecutor reflect[s] a prudential concern that individuals should be free
from the harassment and vexation of unbounded litigation by the
sovereign.”); State v. Lelevier, 

 (1977) (“[A]ppeals by the


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                            Opinion of the Court

government in criminal matters historically have not been favored, and in
the absence of a constitutional provision or statute clearly conferring that
right, such an appeal cannot be taken.”).

¶10           Section 13-4032 “sets forth the exclusive grounds on which the
state may appeal” in criminal cases and “we construe its terms strictly.”
State v. Hansen, 

 (App. 2015) (citing State v. Fendler, 

 (App. 1980)). The State argues it may appeal expungements
pursuant to A.R.S. §§ 13-4032(1), (4), and (7). We review questions of
statutory interpretation de novo. Bejarano, 

; Calik v.
Kongable, 

 (1999) (if statutory language is
unambiguous, we apply it without resorting to other means of statutory
construction).

         i.   Section 13-4032(4) does not give the State a right to appeal
              expungements because expungements do not affect the
              substantial rights of the State.

¶11            Section 13-4032(4) provides that the State may appeal from:
“[a]n order made after judgment affecting the substantial rights of the state
or a victim, except that the state shall only take an appeal on an order
affecting the substantial rights of a victim at the victim’s request.”

¶12            The State argues its substantial rights are affected by
expungements because an erroneous expungement may “subsequently
affect” the State’s ability “to use the conviction for sentencing enhancement
purposes” in a hypothetical future case against the same defendant. But
the State has failed to cite any authority recognizing a substantial right to
preserve records of convictions to enhance potential future sentences which
may or may not occur. Our only precedent acknowledging a similar right
is almost a century old and distinguishable. See State v. McKelvey, 

 (1926).

¶13           In McKelvey, our supreme court held that an order releasing a
defendant from prison without legal authority interfered with a substantial
right of the State because “[t]he state has the right to have that sentence
carried out, unless in some legal manner defendant is relieved from the
penalty.” McKelvey, 

. But unlike the order in McKelvey, an
expungement does not interfere with the State’s right to see that a legally
imposed sentence is carried out. Rather, expungement is a remedy that
applies to the records of a defendant’s charge, arrest, or conviction, after the
defendant has completed his sentence. See generally A.R.S. § 36-2862.




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                            Opinion of the Court

¶14            Further, we have previously held that an order affects the
State’s “substantial rights” if it prevents the State from exercising a right it
may “ordinarily” exercise. See, e.g., State v. Corno, 

 (App.
1994) (The superior court’s denial of State’s motion to withdraw from plea
affects the substantial rights of the State “because the state ordinarily may
withdraw from a plea agreement when the trial court rejects a sentencing
stipulation.”). In other words, the State’s substantial rights are affected
when it is prevented from exercising its legal rights.

¶15           The State’s ability to preserve records of prior convictions to
potentially enhance a defendant’s future sentence if he is convicted of
another crime is an unreasonable expansion of the State’s right to see lawful
sentences carried out. The applicable statutes do not direct that result, and
we will not read in such a right here. See State v. Dawson, 

,
(1990) (Statutes permitting criminal appeals by the State are in “derogation”
of the common law and “should be strictly construed.”). This is particularly
true here, where Santillanes’s conviction was over a decade old and not
allegeable for sentencing enhancement purposes even before it was
expunged. See A.R.S. §§ 13-105(22) (defining “historical prior felony
convictions”) and 13-703 (categorizing “repetitive offenders”).

        ii.   Other possible statutory bases for the State’s appeal do not
              apply.

¶16           The State argues it has a right to appeal expungement orders
under Sections 13-4032(1) and (7), which permit it to appeal from “an order
dismissing an indictment, information or complaint,” and from a
“judgment of acquittal.” See A.R.S. §§ 13-4032(1) (dismissals) and (7)
(judgment of acquittal). But an expungement is neither a dismissal of a
charging document nor a judgment of acquittal. Dismissals and judgments
of acquittal turn on the legal sufficiency of the State’s evidence or
allegations and leave the records of the underlying charges intact. See Ariz.
R. Crim. P. 13.1, 16.4, 20(b)(2). Conversely, guilt or innocence has no
bearing on expungement petitions, which the superior court “shall grant”
unless the petitioner is ineligible for expungement. See A.R.S. § 36-
2862(B)(3); Ariz. R. Crim. P. 36(d)(3).

¶17            And, unlike the dismissal of charging documents or
judgments of acquittal, an expungement “vacate[s] the judgment of
adjudication or conviction[,] . . . expunges any record of the petitioner’s
arrest, charge, conviction, adjudication and sentence,” restores the
petitioner’s civil rights, and requires the court clerk to seal all records
related to the conviction. See A.R.S. § 36-2862(C). Because expungement is


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                          STATE v. SANTILLANES
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a proceeding that occurs after a case is resolved, Section 13-4032(1) and (7)
are inapposite.

        iii.   Appeals by the State are not “incorporated” in Section 13-
               4032(4) by Section 36-2862(F).

¶18             The State further argues it has authority to appeal
expungement orders because Section 36-2862(F) provides that a petitioner
may file a direct appeal if the court denies an expungement petition.
Although the State may petition for expungement under Section 36-2862(I),
the statute only permits appeals from orders denying expungement
petitions. A.R.S. § 36-2862(F) (“If the court denies a petition for
expungement, the petitioner may file a direct appeal pursuant to § 13-4033,
subsection A, paragraph 3.”). The expungement statute provides no
avenue for a petitioner, or anyone, to appeal an order granting an
expungement. Accordingly, we are not persuaded by the State’s argument
that Section 36-2862(F)—though silent on the issue—should be read to
“incorporate” appeals from orders granting expungement. See Ponderosa
Fire Dist. v. Coconino Cnty., 

 (App. 2014) (“Where a
statute is silent on an issue, we will not read into it something which is not
within the express manifest intention of the [electorate] as gathered from
the statute itself, nor will we inflate, expand, stretch or extend the statute
into matters not falling within its expressed provisions.”) (cleaned up).

¶19          In sum, Arizona voters specifically provided for a right to
appeal from orders denying expungement but provided no similar right to
appeal from orders granting expungement. It is not this court’s role to insert
a right where one does not currently exist.

   B. Special action jurisdiction is appropriate.

¶20            This court has “[j]urisdiction to hear and determine petitions
for special actions . . . without regard to [our] appellate jurisdiction.” A.R.S.
§ 12-120.21(A)(4). And we have the authority to “ignore defects of form and
treat an appeal as a special action.” State ex rel. Dep’t of Econ. Sec. v. Powers,

 (App. 1995). Our special action jurisdiction is
discretionary and is proper when “the [petitioning] party has no plain,
adequate or speedy remedy by appeal.” State v. Martin, 

 (App. 2002) (citing Ariz. R. P. Spec. Act. 1(a)). Further, “[s]pecial action
jurisdiction is appropriate in matters of statewide importance, issues of first
impression, cases involving purely legal questions, or issues that are likely
to arise again.” Id. at 452-53, ¶ 2.




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                          STATE v. SANTILLANES
                            Opinion of the Court

¶21           As discussed above, the State has no right to appeal the order
it challenges here. And we have found no published cases interpreting
Section 36-2862. We therefore exercise our discretion and review the State’s
appeal as a special action.

II.    Expungement Procedure

¶22           The expungement statute provides:

       Beginning July 12, 2021, an individual who was arrested for,
       charged with, adjudicated or convicted by trial or plea of, or
       sentenced for, any of the following offenses based on or
       arising out of conduct occurring before the effective date of
       this section may petition the court to have the record of that
       arrest, charge, adjudication, conviction or sentence expunged:

       1. Possessing, consuming or transporting two and one-half
       ounces or less of marijuana, of which not more than twelve and
       one-half grams was in the form of marijuana concentrate.

       2. Possessing, transporting, cultivating or processing not
       more than six marijuana plants at the individual’s primary
       residence for personal use.

       3. Possessing, using or transporting paraphernalia relating to
       the cultivation, manufacture, processing or consumption of
       marijuana.

A.R.S. § 36-2862(A) (emphases added).

¶23            Once an expungement petition is filed, the superior court
“shall notify the prosecuting agency of the filing of the petition, and allow
the prosecuting agency to respond to the petition within thirty days.”
A.R.S. § 36-2862(B)(1). The superior court may not grant the petition if the
prosecuting agency “establishes by clear and convincing evidence that the
petitioner is not eligible for expungement.” A.R.S. § 36-2862(B)(3).

¶24            The court may set a hearing on the petition “on the request of
either the petitioner or prosecuting agency” or on its own motion if it
“concludes there are genuine disputes of fact regarding whether the
petition should be granted.” A.R.S. § 36-2862(B)(2). If, however, the State
fails to respond to the petition within thirty days “or if the petition was filed
by a prosecuting agency,” the superior court “may decide the petition
without a hearing.” Ariz. R. Crim. P. 36(d)(1).


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                          STATE v. SANTILLANES
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¶25           The superior court must “issue a signed order or minute entry
granting or denying the petition in which it makes findings of fact and
conclusions of law.” A.R.S. § 36-2862(B)(4). The court “shall grant the
petition unless the prosecuting agency establishes by clear and convincing
evidence that the petitioner is not eligible for expungement” or if the court
finds “that the offense identified in the petition is not eligible for
expungement.” A.R.S. § 36-2862(B)(3); Ariz. R. Crim. P. 36(d)(3).

   A. Santillanes’s Expungement

¶26           The State filed a timely objection to Santillanes’s petition,
arguing Santillanes was ineligible for expungement because he was initially
charged with possessing “over four pounds” of marijuana, and his offense
involved “over 10 pounds of marijuana.” In support of its objection, the
State submitted a copy of a police report stating officers searched
Santillanes’s car and bedroom and seized marijuana paraphernalia and
“10.1 pounds of individually wrapped packages” of marijuana, as well as a
copy of the original charging documents and presentence report
summarizing the police report.

¶27            In response, Santillanes argued the “relevant inquiry” as to
his eligibility for expungement was “what crime [he] plead[ed] to and
admitted on the record” rather than allegations in police reports “which
have never been tested in Court for their veracity or accuracy.” The
superior court granted Santillanes’s petition without holding a hearing.

         i.   The superior court erred by failing to hold a hearing on
              Santillanes’s petition.

¶28            The State did not request a hearing on Santillanes’s petition.
Typically, failure to request a hearing will lead to waiver of the claim on
appeal. See State v. Barr, 

 (App. 2008). Waiver,
however, is a discretionary doctrine, and in the exercise of our discretion,
we decline to find this novel issue waived. See State v. Boteo-Flores, 

 (App. 2002). We note that the failure to request a hearing in
future cases may constitute waiver of that issue.

¶29           Generally, when the State objects to an expungement, the
superior court should hold an evidentiary hearing before deciding the
petition.   Supra ¶ 24; Cf. State v. Gutierrez, 

 (The purpose of a post-conviction evidentiary hearing is “to allow the
court to receive evidence, make factual determinations, and resolve
material issues of fact.”).



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                         STATE v. SANTILLANES
                           Opinion of the Court

¶30           Here, when the State objected to Santillanes’s petition, it
created a “genuine dispute[] of fact” as to Santillanes’s eligibility for
expungement, and without a hearing, the court had insufficient evidence to
resolve the dispute. See A.R.S. § 36-2862(B)(2)(b). The superior court
abused its discretion by granting Santillanes’s petition without holding a
hearing to address the State’s objections.

        ii.   The superior court may consider admissible evidence of
              petitioner’s ineligibility presented by the State.

¶31           Santillanes argues that his expungement eligibility should be
determined based only on the elements of the offense he was convicted of
—facilitation to transport or sell marijuana—and the factual basis he
admitted when entering his guilty plea. We disagree.

¶32           As relevant here, Santillanes’s conviction is eligible for
expungement only if it involved “[p]ossessing, consuming or transporting
two and one-half ounces or less of marijuana.” See A.R.S. § 36-2862(A)(1).
But Arizona law did not criminalize marijuana offenses in “two and one-
half ounce” increments. Instead, our criminal code provided that any
offense involving “marijuana not possessed for sale having a weight of less
than two pounds,” was a class 6 felony. A.R.S. § 13-3405(B)(1), (7). In other
words, unlike the expungement statute, our criminal laws did not
distinguish between offenses involving two ounces of marijuana and those
involving two pounds of marijuana.

¶33             Because Arizona law did not criminalize the specific
“offenses” now eligible for expungement, the superior court’s inquiry into
a petitioner’s arrest, charge, conviction, or sentence may extend beyond the
elements of the underlying offense. Especially where, as here, the
petitioner’s plea agreement and factual basis are silent as to the amount of
marijuana involved in the underlying offense. Accordingly, courts may
consider any admissible evidence the State presents regarding a petitioner’s
ineligibility for expungement. See Ariz. R. Evid. 1101(b) (Evidentiary rules
apply to all criminal proceedings “except as otherwise provided in the
Arizona Rules of Criminal Procedure.”). The parties acknowledged at oral
argument that expungement is a criminal proceeding to which the Arizona
Rules of Evidence apply.

       iii.   The superior court failed to make adequate findings of fact
              and conclusions of law.

¶34         Section 36-2862(B)(4) provides that the court “shall issue a
signed order or minute entry granting or denying the [expungement]


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                         STATE v. SANTILLANES
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petition in which it makes findings of facts and conclusions of law.” See also
Ariz. R. Crim. P. 36(d)(5) (“The court must enter a signed order stating the
court’s findings of fact and conclusions of law.”). Although lack of findings
on a particular issue will not automatically invalidate an order, “we will
vacate a judge’s [order] if we cannot determine the factual basis of his
conclusion or whether it was legally sound.” See Post v. Indus. Comm’n of
Ariz., 

 (1989).

¶35            Here, in addition to failing to provide the findings of fact and
conclusions of law required by the statute, the court’s order stated that
Santillanes was charged with two counts of “[p]ossession or use of
marijuana, which involved two and one-half ounces or less of marijuana.”
The record, however, demonstrates the actual amounts Santillanes was
charged with possessing were four pounds or less (count 1) and two
pounds or less (count 2). Further, the order failed to address the State’s
objections to Santillanes’s petition. The order therefore failed to include the
ultimate facts the court relied on in reaching its decision. The incomplete
and inaccurate findings in this case were reversible error. Cf. Post, 

 (“If we were to approve the [order] here . . . with no stated resolution
of conflicting testimony, no findings of ultimate fact, and no conclusions on
the legal issues, there would be no purpose in requiring judges to make
findings.”).

                              CONCLUSION

¶36         We vacate the superior court’s expungement order and
remand the case for further proceedings consistent with this opinion.




                           AMY M. WOOD • Clerk of the Court
                           FILED:    JT

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