State v. Pliego ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ALEXIS PLIEGO, Appellant.
No. 1 CA-CR 22-0292
FILED 6-8-2023
Appeal from the Superior Court in Coconino County
No. CR2014-00516
The Honorable Jacqueline Hatch, Judge (Retired)
VACATED AND REMANDED
COUNSEL
Coconino County Attorney’s Office, Flagstaff
By Heather A. Mosher
Counsel for Appellee
DNA People’s Legal Services Inc., Flagstaff
By Adam Cirzan
Counsel for Appellant
STATE v. PLIEGO
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Angela K. Paton and Judge D. Steven Williams joined.
P E R K I N S, Judge:
¶1 Alexis Pliego 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 2013, officers from the Department of Public Safety
responded to reports of a reckless driver. Pliego was a passenger in the
reported vehicle. The officers asked the driver if he had any illegal drugs or
contraband. After first denying possession of any marijuana, the driver
ultimately admitted he had a small bottle of marijuana, but no medical
marijuana card. After searching the vehicle and locating the bottle of
marijuana and $5,175 in cash, the officers arrested Pliego and the driver. In
a jail interview, Pliego and the driver both admitted they were traveling to
California to purchase marijuana.
¶3 A grand jury indicted Pliego for: (1) Attempted Money
Laundering in the Second Degree, (2) Conspiracy to Commit
Transportation of Marijuana for Sale, and (3) Possession or Use of
Marijuana. As part of a plea deal, Pliego pled guilty to one count of
facilitation to possess marijuana for sale. Pliego successfully completed
three years of probation on July 31, 2018. The order terminating probation
designated Pliego’s conviction a misdemeanor.
¶4 On March 23, 2022, Pliego filed a petition to expunge his
offense under Section 36-2862. The State objected, arguing that the offense
of Facilitation to Possess Marijuana for Sale was a sale-related offense not
included in the list of offenses eligible for expungement under Section 36-
2862. Neither party requested a hearing on the petition and the superior
court did not sua sponte order one. The superior court denied Pliego’s
petition, finding Section 36-2862 “does not authorize expungement” for
Pliego’s pled-to offense. Pliego 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. PLIEGO
Decision of the Court
DISCUSSION
¶5 We review the denial of a petition for expungement for an
abuse of discretion. State v. Hall, 234 Ariz. 374, 375, ¶ 3 (App. 2014).
¶6 The State argued in its objection to Pliego’s petition for
expungement that “for sale” offenses are not eligible for expungement. This
Court recently concluded that “for sale” offenses are included within the
expungement statute. State v. Sorensen, 1 CA-CR 21-0518, 2023 WL 3702761,
at *3, ¶ 12 (Ariz. App. May 30, 2023); A.R.S. § 36-2862(A)(1). Notably, in
Sorensen the State agreed that the expungement statute applies to “sale-
related marijuana offenses.” Id. at ¶ 6. 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” requires 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 special 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.
¶7 The court also erred by failing to make statutorily required
findings of fact when it denied Pliego’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).
CONCLUSION
¶8 We vacate and remand for further proceedings consistent
with this decision.
AMY M. WOOD • Clerk of the Court
FILED: AA
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