State v. Ramirez ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
LUIS RAMIREZ, Appellant.
No. 1 CA-CR 23-0003
FILED 8-31-2023
Appeal from the Superior Court in Coconino County
No. S0300CR201901001
The Honorable Ted Stuart Reed, Judge
VACATED AND REMANDED
COUNSEL
Coconino County Attorney’s Office, Flagstaff
By Jefferson Pyper
Counsel for Appellee
DNA People’s Legal Services Inc, Flagstaff
By Adam Cirzan
Counsel for Appellant
STATE v. RAMIREZ
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which Vice
Chief Judge Randall M. Howe and Judge Daniel J. Kiley joined.
P E R K I N S, Judge:
¶1 Luis Ramirez appeals the superior court’s denial of his
petition to expunge marijuana-related offense records. For the following
reasons, we vacate the superior court’s order and remand.
FACTS AND PROCEDURAL BACKGROUND
¶2 In 2018, a Flagstaff police officer responded to a noise
complaint at an apartment. Upon the officer’s arrival, an adult male, later
identified as Ramirez, approached him. Ramirez said he owned the
apartment and other residents were present. The officer noticed the smell
of marijuana coming from the apartment. Ramirez admitted he was
smoking marijuana and allowed the officer to look around the apartment.
¶3 The officer found marijuana, LSD, and dried mushrooms.
Ramirez said the substances belonged to him and the mushrooms were
used as a hallucinogenic drug. The officer found marijuana in multiple
containers with different names written on all of them. Ramirez admitted
he was selling the drugs. Two residents at the apartment said Ramirez had
sold drugs to them. The officer arrested Ramirez.
¶4 In September 2019, Ramirez waived a preliminary hearing
and entered a plea agreement. In the agreement, Ramirez pled guilty to one
count of solicitation to possess marijuana for sale, a Class 6 un-designated
felony, in violation of A.R.S. Sections 13-3405(A)(2), 13-3401, 13-1002, 13-
603, 13-604, 13-701, 13-702, 13-707, 13-801, 13-802, 13-804, 13-804.01, 13-901,
13-902.
¶5 In October 2022, Ramirez petitioned to expunge his offense
under Section 36-2862. The superior court denied the petition stating that
the offense was not eligible for expungement. Ramirez appealed. We have
jurisdiction. Ariz. Const. art. 6, § 9; A.R.S. §§ 12-120.21(A)(1),
13-4031, -4033(A)(3), 36-2862(F).
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STATE v. RAMIREZ
Decision of the Court
DISCUSSION
¶6 We review the denial of a petition for expungement for an
abuse of discretion. State v. Hall, 234 Ariz. 374, 375, ¶ 3 (App. 2014). The
State argued in its response to Ramirez’s petition that “sales offenses are
not included in the list of offenses that are eligible for expungement” under
Section 36-2862(A).
¶7 This Court recently concluded that “for sale” offenses are
included within the expungement statute. State v. Sorensen, ___ Ariz. ___,
___, ¶ 12, 531 P.3d 378, 382 (App. 2023); A.R.S. § 36-2862(A)(1). Notably, in
Sorensen the State agreed that the expungement statute applies to “sale-
related marijuana offenses.” Sorensen, ___ Ariz at ___, ¶¶ 6, 11, 531 P.3d at
380–81. Although we are not “absolutely bound by prior Court of Appeals
decisions, the principle of Stare decisis and the need for stability in the law”
require us to consider this Court’s previous decisions “as highly persuasive
and binding, unless we are convinced that the prior decisions are based
upon clearly erroneous principles, or conditions have changed so as to
render these prior decisions inapplicable.” Castillo v. Indus. Comm’n, 21
Ariz. App. 465, 471 (1974). We see no reason that would warrant departure
from Sorensen. Therefore, the superior court erred when it determined that
marijuana sales offenses are per se ineligible for expungement.
¶8 The State argues that we must remand to the superior court
for an evidentiary hearing to determine if the offense is eligible. Ramirez
argues no hearing is necessary because, according to Sorensen, Ramirez’s
offense is eligible under the statute. The court erred by failing to make
statutorily required findings of fact when it denied Ramirez’s petition. See
A.R.S. § 36-2862(B)(4) (“The court shall issue a signed order or minute entry
granting or denying the petition in which it makes findings of fact and
conclusions of law.”); see also State v. Santillanes, ___ Ariz. ___, ___, ¶¶ 35–
36, 522 P.3d 691, 698–99 (App. 2022) (vacating the superior court’s
expungement order for failure to include findings of fact and conclusions
of law). But we leave for the superior court to determine if an evidentiary
hearing is necessary to decide whether the underlying facts of Ramirez’s
offense warrant expungement under the statute.
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STATE v. RAMIREZ
Decision of the Court
CONCLUSION
¶9 We vacate and remand for further proceedings consistent
with this decision.
AMY M. WOOD • Clerk of the Court
FILED: AA
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