State v. Molina ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ERIC PINA MOLINA, Appellant.
No. 1 CA-CR 22-0154
FILED 11-3-2022
Appeal from the Superior Court in Maricopa County
No. CR2007-122004-001
The Honorable Thomas A. Kaipio, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Dawnese Hustad
Counsel for Appellant
MEMORANDUM DECISION
Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Vice Chief Judge David B. Gass
joined.
STATE v. MOLINA
Decision of the Court
B A I L E Y, Judge:
¶1 Appellant Eric Molina appeals the denial of his expungement
petition. This is an appeal under Anders v. California, 386 U.S. 738 (1967),
and State v. Leon, 104 Ariz. 297 (1969). Counsel for Molina filed a brief
advising the court that, after searching the entire record, she is unable to
discover any arguable question of law and requesting that this court
conduct an Anders review of the record. Molina was given the opportunity
to file a supplemental brief in propria persona, but he did not do so. This
court has reviewed the briefs and the record, and finding no reversible
error, we affirm the denial of Molina’s expungement petition.
FACTS AND PROCEDURAL HISTORY
¶2 In June 2007, Molina was charged with one count of
possession of narcotic drugs, a class four felony. Seven months later,
Molina pled guilty to possession of drug paraphernalia, a class six
undesignated felony. During the change of plea hearing, Molina gave this
factual basis for the plea:
THE COURT: Okay. And then in the case ending in 004, on
November 19th, 2006, were you in possession of drug
paraphernalia -- and that would have been what . . . ?
[DEFENSE COUNSEL]: A baggie.
THE COURT: A baggie which was used to contain –
[DEFENSE COUNSEL]: Cocaine.
THE COURT: -- a narcotic drug?
[MR. MOLINA]: Yes.
¶3 The superior court then suspended imposition of sentence
and placed Molina on supervised probation for 18 months.
¶4 In February 2022, Molina filed a petition for expungement, as
a self-represented party, under Arizona Revised Statutes (“A.R.S.”) section
36-2862. The superior court denied the petition. Molina timely filed a
notice of appeal, and we have jurisdiction under A.R.S. §§ 36-2862(F) and
13-4033(A)(3).
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STATE v. MOLINA
Decision of the Court
DISCUSSION
¶5 We begin by noting that the requirements of Anders follow the
right to appointed counsel, see Pennsylvania v. Finley, 481 U.S. 551, 554
(1987), and it remains an open question whether the right to counsel
attaches when petitioning for expungement or when appealing the denial
of that petition. But because Molina was represented by counsel in this
appeal and counsel followed the procedures of Anders, we conduct an
Anders review in this case.
¶6 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300; State v. Clark, 196 Ariz. 530, 537, ¶ 30
(App. 1999). Section 36-2862(A)(3) allows for expungement of convictions
for “[p]ossessing, using or transporting paraphernalia relating to the
cultivation, manufacture, processing or consumption of marijuana.”
Molina was convicted of possessing paraphernalia relating to cocaine, not
marijuana. Therefore, his conviction is not eligible for expungement.
CONCLUSION
¶7 We affirm the superior court’s denial of Molina’s
expungement petition.
¶8 Upon the filing of this decision, defense counsel is directed to
inform Molina of the status of his appeal and of his future options. Defense
counsel has no further obligations unless, upon review, counsel finds an
issue appropriate for submission to the Arizona Supreme Court by petition
for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Molina will
have thirty days from the date of this decision to proceed, if he desires, with
a pro per motion for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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