State v. Zar ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Appellant,
v.
HAM ZAR, Appellee.
No. 1 CA-CR 21-0025
FILED 2-1-2022
Appeal from the Superior Court in Maricopa County
No. CR2015-127227-001
The Honorable Justin Beresky, Judge
AFFIRMED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Amanda M. Parker
Counsel for Appellant
Maricopa County Public Defender’s Office, Phoenix
By Rena P. Glitsos
Counsel for Appellee
STATE v. ZAR
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the court, in which
Judge David D. Weinzweig and Judge Paul J. McMurdie joined.
S W A N N, Judge:
¶1 The state appeals the superior court’s order granting Ham
Zar’s motion to set aside the judgment of guilt and expunge his record
under A.R.S. § –-921(B)(1). The state argues the expungement provision in
§ 13-921(B)(1) applies solely to defendants who were placed on probation
under subsection (A) at the time of sentencing. The state acknowledges that
we rejected this narrow interpretation of § 13-921 in State v. Sanchez, 209
Ariz. 66 (App. 2004), but contends the case was wrongly decided and
should be reconsidered. For the following reasons, we decline to do so and
affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In December 2016, Zar pled guilty to attempted kidnapping
with the intent to commit a sexual offense, a class 3 felony. Zar was
seventeen years old when he committed the offense and had no prior felony
convictions. At sentencing, the superior court ordered that Zar serve four
years of adult probation, register as a sex offender, and participate in the
youthful sex offender program. The court did not cite to § 13-921(A) in
placing Zar on probation.
¶3 Zar participated in sex offender treatment and complied with
the terms of his probation. In August 2018, Zar moved for early termination
of probation. The superior court granted Zar’s request and rescinded the
order requiring him to register as a sex offender. In September 2020, Zar
moved to set aside the judgment of guilt and expunge his record under
§ 13-921(B)(1). Over the state’s objection, the court granted Zar’s motion.
The state appealed.
DISCUSSION
¶4 We review the superior court’s decision to set aside a
judgment of guilt for an abuse of discretion, but we review questions of
statutory interpretation de novo. See State v. Bernini, 233 Ariz. 170, 172–73,
¶ 8 (App. 2013). The doctrine of stare decisis demands that we adhere to
2
STATE v. ZAR
Decision of the Court
settled precedent unless the prior decision was “clearly erroneous or
manifestly wrong.” White v. Bateman, 89 Ariz. 110, 113 (1961). We will not
depart from precedent absent special justification to do so, which requires
“more than that a prior case was wrongly decided.” State v. Hickman, 205
Ariz. 192, 200, ¶ 37 (2003). A prior decision involving statutory
interpretation is afforded greater deference because, if we construe “the
statute other than as the legislature intended, the legislature retains the
power to correct us.” Galloway v. Vanderpool, 205 Ariz. 252, 256, ¶ 17 (2003).
¶5 In Sanchez, we interpreted § 13-921(A) and (B)(1), which
provide:
A. The court may enter a judgment of guilt and place the
defendant on probation pursuant to this section if all of the
following apply:
1. The defendant is under eighteen years of age at the time the
offense is committed.
2. The defendant is convicted of a felony offense.
3. The defendant is not sentenced to a term of imprisonment.
4. The defendant does not have a historical prior felony
conviction.
B. If the court places a defendant on probation pursuant to
this section, all of the following apply:
1. Except [in situations not relevant here], if the defendant
successfully completes the terms and conditions of probation,
the court may set aside the judgment of guilt, dismiss the
information or indictment, expunge the defendant’s record
and order the person to be released from all penalties and
disabilities resulting from the conviction.
Although a qualifying defendant may be ordered to participate in services
through the juvenile court, he is on adult probation. See A.R.S. § 13-921(C)–
(D).
¶6 The defendant in Sanchez appealed the superior court’s denial
of his motion to set aside the judgment of guilt and expunge his record
pursuant to § 13-921(B)(1). 209 Ariz. at 67, ¶ 1. The sole issue before us in
Sanchez was whether the court must expressly invoke § 13-921(A) at the
3
STATE v. ZAR
Decision of the Court
time of sentencing to lawfully grant relief under subsection (B)(1). Id. at 68,
¶ 5. As here, the state argued that § 13-921(A) unambiguously creates a
unique type of probation that the court must expressly invoke at sentencing
for the expungement provision in subsection (B)(1) to apply. Id. at 69, ¶¶
9–10. The defendant disagreed, arguing the plain language of § 13-921(A)
and (B)(1) applied to any qualifying juvenile placed on adult probation. Id.
at ¶ 8.
¶7 We concluded that a plain reading of the statute could
support both interpretations and employed secondary methods of statutory
construction. Id. at ¶¶ 10–11; see also State v. Burbey, 243 Ariz. 145, 147, ¶ 7
(2017). Considering the statute as a whole, we rejected the state’s claim that
§ 13-921 either substantively or procedurally created a unique type of
probation. Id. at ¶9. We noted that the state’s emphasis on the language,
“pursuant to this section,” in § 13-921(B) as a limiting phrase was similarly
misguided. Id. We reasoned that the phrase could refer to the qualifying
factors of § 13-921(A), providing relief to any defendant who meets the
criteria and has been placed on probation. Id. Nonetheless, we could not
conclude, as the defendant suggested, that the language “pursuant to this
section” in § 13-921(B) should be ignored as “redundant or inartful.” Id. at
69–70, ¶ 11.
¶8 Finding nothing in the relevant legislative history, we noted
that the state’s interpretation of § 13-921 would lead to an illogical result.
Id. at 70, ¶¶ 12–14. Without legislative history to suggest otherwise, we
could find no persuasive reason why the legislature would ask the superior
court to conduct two separate findings, once when probation is granted and
again when it concludes. Id. at ¶ 14. We acknowledged, however, that the
language of § 13-921 did not preclude such a result. Id.
¶9 Based on the statute’s susceptibility to multiple
interpretations, we concluded that the rule of lenity required that we
resolve the ambiguity in favor of the defendant. Id. at ¶ 15; see also State v.
Pena, 140 Ariz. 545, 549–50 (App. 1983) (“[W]here the statute itself is
susceptible to more than one interpretation, the rule of lenity dictates that
any doubt should be resolved in favor of the defendant.”). We held that
§ 13-921 “need not be expressly invoked at the time of sentencing for a
defendant who meets the criteria in subsection (A) of that statute to seek
relief under subsection (B).” Sanchez, 209 Ariz. at 70, ¶ 15.
¶10 We find no reason to depart from the holding in Sanchez. We
have already rejected the argument that § 13-921(A) and (B)(1)
unambiguously carve out a unique type of probation thereby limiting
4
STATE v. ZAR
Decision of the Court
expungement eligibility, and the state has failed to provide special
justification for abandoning that holding. See Hickman, 205 Ariz. at 200,
¶ 37. Moreover, the court’s interpretation of § 13-921 in Sanchez has
remained undisturbed by the legislature, entitling it to greater deference as
settled precedent. See Galloway, 205 Ariz. at 256, ¶ 17.
¶11 We are similarly unpersuaded by the state’s claim that the
discussion of § 13-921 in State v. Furlong, 249 Ariz. 578 (App. 2020), requires
a departure from Sanchez. In Furlong, we held that the criteria in the general
set aside statute, A.R.S. § 13-905, did not impact a juvenile defendant’s
eligibility for relief under § 13-921(B)(1). Id. at 581, ¶¶ 12–16. In analyzing
the interplay between the statutes, we described § 13-921 as applying to
defendants on “dual adult-juvenile probation.” Id. at ¶ 13. This brief
reference to the statutory title of § 13-921 does not, as the state suggests,
demonstrate our recognition of the statute as creating a unique type of
probation. More importantly, our holding in Furlong supports a broad
application of the relief provided by § 13-921(B)(1) for qualifying
defendants. Id. at ¶¶ 12–16.
¶12 The state further contends that the language in A.R.S. § 13-
501(F) conflicts with our findings in Sanchez. Under A.R.S. § 13-501(F),
juveniles convicted as adults must be sentenced “in the same manner as an
adult” for any conviction, “[e]xcept as provided in § 13-921.” The state
claims that the exception to § 13-501(F) shows the legislature’s intent for
§ 13-921 to create a unique type of probation “with unique benefits to those
defendants who successfully complete it.” We disagree. The plain
language of § 13-501(F) merely recognizes the superior court’s ability under
§ 13-921 to place a juvenile on adult probation if the qualifying factors of
subsection (A) apply. See Burbey, 243 Ariz. at 147, ¶ 7 (“When the text is
clear and unambiguous, we apply the plain meaning and our inquiry
ends.”). The exception in § 13-501(F) cannot be read to limit the scope of
the expungement provision in § 13-921(B)(1).
¶13 We find no basis to abandon settled precedent. Because the
qualifying factors listed in § 13-921(A) applied to Zar, the superior court
lawfully granted his motion to set aside the judgment of guilt and expunge
his record under subsection (B)(1).
5
STATE v. ZAR
Decision of the Court
CONCLUSION
¶14 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
6