State of Arizona v. Alan Ivan Ibarra

                                IN THE
              ARIZONA COURT OF APPEALS
                             DIVISION TWO


                        THE STATE OF ARIZONA,
                               Appellee,

                                   v.

                          ALAN IVAN IBARRA,
                             Appellant.

                        No. 2 CA-CR 2021-0087
                        Filed December 21, 2022


            Appeal from the Superior Court in Pima County
                         No. CR20182861001
               The Honorable James E. Marner, Judge

                    REVERSED AND REMANDED


                              COUNSEL

Laura Conover, Pima County Attorney
By Gabriel J. Chin, Rachelle Barr, and Bradley Roach, Deputy County
Attorneys, Tucson
Counsel for Appellee

Megan Page, Pima County Public Defender
By David J. Euchner and Sarah L. Mayhew, Assistant Public Defenders,
Tucson
Counsel for Appellant



                              OPINION

Vice Chief Judge Staring authored the opinion of the Court, in which
Presiding Judge Eppich and Judge Brearcliffe concurred.
                             STATE v. IBARRA
                            Opinion of the Court



S T A R I N G, Vice Chief Judge:

¶1            Alan Ibarra appeals from the trial court’s denial of his petition
for expungement. For the reasons that follow, we reverse and remand with
instructions to grant Ibarra’s petition.

                    Factual and Procedural Background

¶2            In 2018, Ibarra was indicted for possession of a narcotic drug,
described in the indictment as “cannabis oil,” and possession of drug
paraphernalia, described in the indictment as a “cartridge.” In 2019, Ibarra
pled guilty to solicitation to possess cannabis oil and possession of drug
paraphernalia, and, pursuant to the plea agreement, the trial court
dismissed the other charges and allegations. The court imposed concurrent
terms of eighteen months’ probation.

¶3             In November 2020, Arizona voters passed Proposition 207,
also known as the Smart and Safe Arizona Act. See A.R.S. §§ 36-2850 to
36-2865. As a result, Ibarra filed a petition in April 2021 to expunge the
records of his “arrest, charge, conviction and sentence” for the two offenses.
He attached to the petition the plea agreement, minute entry from the
change-of-plea hearing, and minute entry from the sentencing hearing. The
state did not oppose or otherwise respond to Ibarra’s petition despite the
trial court’s express invitation to do so. The court denied the petition
without prejudice to refiling, concluding it was premature based on the
language of § 36-2862(A), which provides that individuals may petition for
expungement “[b]eginning July 12, 2021.”

¶4            On July 19, Ibarra renewed his petition for expungement,
again attaching the plea agreement, minute entry from the change-of-plea
hearing, and minute entry from the sentencing hearing. Again, the state
did not oppose or otherwise respond to Ibarra’s petition. In denying the
petition, without an evidentiary hearing, the trial court explained:

              Per [A.R.S.] § 36-2862(B)(4), to expunge records
              related to marijuana offenses, the Court must
              make findings of fact and conclusions of law
              that the offense is eligible for expungement.
              [Ibarra]’s motion does not provide the Court
              with sufficient evidence to make such a finding.
              The plea agreement identifies the illegally
              possessed     substance     as    cannabis   oil,


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                              STATE v. IBARRA
                             Opinion of the Court


              a marijuana concentrate.       [A.R.S.] § 36-2862
              allows for expungement of records in cases
              involving convictions of possession of 12.5 g or
              less of marijuana concentrate. Nowhere in the
              plea agreement or minute entries is the amount
              of cannabis oil quantified. [Ibarra] did not
              provide an affidavit indicating, under oath, that
              he possessed 12.5 g of cannabis oil or less. No
              police reports were provided to allow the Court
              to make any finding regarding quantity. The
              only reference in the file to any amount is the
              interim complaint which indicates that the
              defendant acknowledged ownership of a
              backpack that contained “multiple THC
              medical cannabis oil commercially packaged”
              and that he left his “vape” device he ostensibly
              would use to consume the cannabis oil at home.

Without distinguishing between the two offenses Ibarra sought to expunge,
the court stated, “Given the absence of any evidence that [Ibarra] possessed
12.5 g or less cannabis oil, as well as the statement in the interim complaint
that suggests possession of a more significant amount,” Ibarra’s “requested
relief [was] not warranted.” This appeal followed. We have jurisdiction
pursuant to article VI, § 9 of the Arizona Constitution and A.R.S.
§§ 12-120.21(A)(1), 13-4031, 13-4033(A)(3), and 36-2862(F).

                                  Discussion

¶5            Ibarra challenges the denial of his petition for expungement,
arguing the trial court’s application of § 36-2862(B)(3) and Rule 36(d)(3),
Ariz. R. Crim. P., “violates the principles of statutory construction and the
separation of powers.” He also asserts the court erred in sua sponte
considering “unproven, dismissed allegations” from an interim complaint.
We review the court’s denial of the petition for an abuse of discretion,
see State v. Hall, 

 (App. 2014), but “[w]e review the
interpretation of statutes and court rules de novo,” Cranmer v. State,

 (App. 2003). “An error of law committed in reaching a
discretionary conclusion may . . . constitute an abuse of discretion.” Hall,

 (alteration in Hall) (quoting State v. Wall, 

(2006)).




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                             STATE v. IBARRA
                            Opinion of the Court


¶6            Proposition 207, a voter-passed initiative, legalized certain
conduct related to the recreational use, cultivation, and sale of marijuana
and provided for expungement of records for specific marijuana-related
offenses. See §§ 36-2850 to 36-2865. As a result, an individual may petition
the trial court to expunge a record of an “arrest, charge, adjudication,
conviction or sentence” for, as applicable here, (1) “[p]ossessing, 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,” and (2) “[p]ossessing, using or transporting paraphernalia
relating to the cultivation, manufacture, processing or consumption of
marijuana.” § 36-2862(A)(1), (3).

¶7            By statute, a trial court must grant a petition for expungement
“unless the prosecuting agency establishes by clear and convincing
evidence that the petitioner is not eligible for expungement.”
§ 36-2862(B)(3). Similarly, by rule, a court must “grant the petition unless
the prosecuting agency establishes by clear and convincing evidence that
the offense is not eligible for expungement or if the court finds that the
offense identified in the petition is not eligible for expungement.” Ariz. R.
Crim. P. 36(d)(3).

¶8             Ibarra asserts the trial court misapplied the statute and rule
by effectively adding a requirement that a petitioner “produce affirmative
evidence of eligibility.” As a result, he argues the court violated his due
process rights—by “impermissibly shifting the burden of proof from the
State to the petitioner”—and the separation of powers—by infringing on
the state’s discretion not to oppose the petition. In briefing, the state argued
Ibarra’s conviction for solicitation to possess cannabis oil was ineligible for
expungement on its face because eligibility “relies on the oil being under
the statutory amount,” and the court properly “found it lacked sufficient
information to rule on the face of the petition.” At oral argument in this
court, however, the state withdrew its opposition to Ibarra’s petition.
Nevertheless, because the issue is of great public importance and likely to
recur, and because we are not aware of any published opinions addressing
the relationship between the statute and the rule, we exercise our discretion
to decide the matter. See State v. Valenzuela, 

 (1985).

¶9             In interpreting a voter-passed initiative, our “primary
objective ‘is to give effect to the intent of the electorate.’” State v. Jones,

 (2019) (quoting Reed-Kaliher v. Hoggatt, 

(2015)). “The most reliable indicator of that intent is the language of the
statute, and if it is clear and unambiguous, we apply its plain meaning and



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                             STATE v. IBARRA
                            Opinion of the Court


the inquiry ends.” 

 If the language is ambiguous or would lead to an
absurd result, then we can look to the “context, . . . the subject matter, the
historical background, the effects and consequences, and its spirit and
purpose.” State ex rel. Romley v. Superior Court, 

 (1991).

¶10            The same principles of interpretation apply to procedural
rules. 

. Specifically, when interpreting court rules, “we strive
to effectuate our supreme court’s intent in promulgating the rule, bearing
in mind that the best indicator of that intent” is the rule’s plain language.
State v. Mendoza, 

, ¶ 9 (App. 2020). And like the interpretation
of statutes, when the intended meaning is not clear, we examine the rule’s
context, language, subject matter, background, effects, and purpose. State
v. Whitman, 

 (2014). Further, “[i]f a rule and a statute
appear to conflict, the rule is construed in harmony with the statute”
because procedural rules cannot diminish the rights afforded by a
substantive statute. Rosner v. Denim & Diamonds, Inc., 

(App. 1996); see A.R.S. § 12-109(B).

¶11             We agree with Ibarra that “[n]either the statute nor rule
require a petitioner to produce evidence of eligibility.” Indeed, both the
statute and the rule place the burden of proof on the state. Specifically,
under the plain language of § 36-2862(B)(3) and Rule 36(d)(3), a trial court
must grant a petition for expungement unless the state establishes a
petitioner’s ineligibility by clear and convincing evidence. Rule 36(d)(3)
does provide that a court may deny the petition if it “finds that the offense
identified in the petition is not eligible for expungement.” But this language
is designed to allow the court to deny a petition relating to “an offense that,
on its face, is not eligible for expungement under the statute,” for example,
selling marijuana. Administrative Office of the Courts’ Petition to Adopt
Rule 36, Ariz. R. Crim. P., Final Amended Reply to Comments, 4, 6-7 (2021)
(Rule adopted by Ariz. Sup. Ct. Order R-21-0023 (Aug. 30, 2021)). The rule
does not impose an evidentiary burden on a petitioner. This interpretation
respects the plain language of the requirements imposed upon the state and
the court by both the rule and the statute. § 36-2862(B)(3); Ariz. R. Crim. P.
36(d)(3). And, to the extent the statute and the rule could be read to be in
conflict, it honors our obligation to construe the rule “in harmony with the
statute.” Rosner, 

. “To find otherwise would allow the rule
to affect substantive rights prescribed by statute.” 

¶12          While Rule 36(b)(1) permits a court to “dismiss a petition that
fails to provide sufficient information to identify the records to be
expunged,” the parties do not dispute that there was sufficient information



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                             STATE v. IBARRA
                            Opinion of the Court


to identify the records here. Instead, Ibarra’s petition for expungement
complied with Rule 36(a), which, among other things, requires a petition to
state “the offense for which expungement is being requested.” Specifically,
his petition stated that he sought expungement of records related to his
convictions for solicitation to possess a narcotic drug, “to wit, Cannabis
Oil,” and possession of drug paraphernalia, “to wit, Cartridge.” These
offenses are included in the list of expungeable offenses under § 36-
2862(A). 1 Although § 36-2862(A)(1) provides the additional requirement
that the marijuana concentrate be in an amount equal to or less than “twelve
and one-half grams,” neither the rule nor the statute require Ibarra to
produce evidence that the amount of cannabis oil he possessed satisfied this
requirement. See § 36-2862(B)(3); Ariz. R. Crim. P. 36(d)(3).

¶13            As discussed, the state did not respond to Ibarra’s initial or
renewed petition. And, the record before the trial court contained no
evidence establishing the weight of the cannabis oil. Indeed, the plea
agreement attached to Ibarra’s petition merely stated he “possessed drug
paraphernalia, to wit: CARTRIDGE.” Similarly, the transcript of the
change-of-plea hearing stated Ibarra was in possession of a “small amount
of cannabis oil” “contained in a cartridge.” The grand jury transcript, which
was incorporated into the plea agreement’s factual basis, stated that the
“[o]fficer locate[d] sixteen marijuana oil cartridges” and that the “cartridges
[were] full of cann[a]b[i]s oil.” Further, even assuming the court was
permitted to rely on the interim complaint in determining whether Ibarra’s
offenses were eligible for expungement, the complaint did not specify the
amount of cannabis oil at issue, simply stating that the officer had
“discovered a backpack with multiple THC medical cannabis oil
commercially packaged inside of the trunk.”2



       1The parties do not dispute on appeal that inchoate offenses,
including solicitation, are to be treated the same as completed drug offenses
for purposes of § 36-2862(A)(1).
       2This case does not require us to determine the appropriate scope of
the trial court’s review of the record in determining whether “the offense
identified in the petition is not eligible for expungement” under Rule
36(d)(3). Cf. State v. Santillanes, No. 1 CA-CR 21-0389, ¶ 33, 

 (Ariz. Ct. App. Dec. 15, 2022) (“[C]ourts may consider any
admissible evidence the State presents regarding a petitioner’s ineligibility
for expungement.”).


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                            STATE v. IBARRA
                           Opinion of the Court


¶14           The state failed to produce any evidence, let alone clear and
convincing evidence, establishing that the weight of the cannabis oil Ibarra
had possessed exceeded the amount set forth in § 36-2862(A)(1), and, as
noted, the record was otherwise devoid of such evidence. The trial court
erred by effectively shifting the burden to Ibarra to produce affirmative
evidence establishing his offenses were eligible for expungement even
where his petition contained allegations sufficient to invoke expungement.
Thus, the court abused its discretion in denying the petition to expunge
Ibarra’s convictions for solicitation to possess marijuana and possession of
marijuana paraphernalia.3 See Ariz. R. Crim. P. 36(d)(3); § 36-2862(B)(3).

                                Disposition

¶15             For these reasons, we reverse and remand with instructions
that the trial court grant Ibarra’s petition for expungement.




      3Because  we conclude the trial court erred in denying the petition for
expungement, we do not address Ibarra’s argument that the court violated
the separation of powers by denying his petition.


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